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DOL Sues Over Firing for E-Mail Allegedly Sharing Coronavirus Concerns

DOL Sues Over Firing for E-Mail Allegedly Sharing Coronavirus Concerns

​The U.S. Department of Labor (DOL) has filed suit against an Austin, Texas, car dealer for firing an employee who warned managers and other co-workers in an all-staff e-mail about potential coronavirus hazards in the workplace. We’ve gathered articles on the news from SHRM Online and other outlets.Violation of OSH Act ClaimedIn an Oct. 13 news release about the lawsuit, the DOL maintained that the car dealer violated the Occupational Safety and Health (OSH) Act by retaliating against the worker in December 2020. After learning a co-worker had tested positive for the coronavirus, the employee asked management to notify colleagues immediately of their risk of exposure, according to the DOL. When management allegedly did not act, the employee sent an e-mail to all company employees about the potential hazards. Less than an hour later, he was fired. An attorney for the car dealer declined to comment on the case.(DOL)Employee’s E-Mail”It has come to my attention that an employee has tested positive for COVID-19,” the worker said in his e-mail to staff. “I feel it is important to inform all employees of the current situation.” In firing him, the defendant claimed the whistleblower had identified the employee with COVID-19, which the DOL said he hadn’t done, and the defendant allegedly told him “his only job was to fix cars.” “This employee acted out of real concern for their safety and that of their co-workers, and their actions are protected under federal law,” said John Rainwater, the DOL’s regional solicitor of labor in Dallas.(Business Insider) Compensatory and Punitive Damages SoughtIn the DOL’s filing in the U.S. District Court for the Western District of Texas, Austin Division, the department sought reinstatement for the worker, lost wages and benefits due to the firing, reimbursement for costs and expenses, compensatory damages and punitive damages.(Insurance Journal)COVID-19 Litigation Targets Health Care IndustryThe health care industry is the hardest hit by COVID-19 employment litigation, according to Fisher Phillips’ COVID-19 Employment Litigation Tracker. As of the beginning of June, more than one in five of every pandemic-related lawsuits filed across the country had been filed against health care employers: 540 out of more than 2,400 cases. The total number of cases has since risen to 3,690. Of those claims, whistleblower retaliation lawsuits are the most common type brought against health care employers.(Fisher Phillips) OSHA Cited Employer for COVID-19 Safety Violations After Worker’s DeathA national auto insurance company is facing $23,406 in proposed penalties after investigators found that a Colorado branch ignored pandemic-related safety rules and “needlessly exposed” employees to co-workers with COVID-19 symptoms, according to the Occupational Safety and Health Administration (OSHA). OSHA initiated an investigation on April 21 after receiving a complaint about unsafe working conditions and an employee’s COVID-19-related death. The company did not respond to a request for comment.(SHRM Online) …

Court Puts United Airlines’ Vaccination Mandate on Hold

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Court Puts United Airlines’ Vaccination Mandate on Hold

​On Oct. 12, a federal district court temporarily halted United Airlines’ vaccination mandate, keeping the employees who challenged the policy on the payroll while litigation proceeds. We’ve gathered articles on the news from SHRM Online and other media outlets.United Planned to Put Employees with Medical, Religious Exemptions on LeaveLess than 3 percent of United’s 67,000 employees requested an exemption for religious or medical reasons. United said that if the medical exemptions were granted, the employees would be placed on medical leave, which may or may not be paid, depending on union contracts. Employees whose religious exemptions were granted would be placed on indefinite unpaid leave but retain seniority rights if they later returned to the company. Six employees sued, seeking to stay on the payroll. “The court is not currently ruling on the merits of the parties’ arguments,” the judge said. “Rather, the court seeks simply to avoid the risk of irreparable harm to the parties and to maintain the status quo while the court holds an evidentiary hearing.”(CNN)Judge’s Subsequent RemarkOn Oct. 13, the judge told United Airlines and plaintiffs during a hearing that he was wary of ordering a private company to change its policy.(Law360)United Airlines’ Statement”Vaccine requirements work and nearly all of United’s U.S. employees have chosen to get a shot,” United Airlines said in a statement. “For a number of our employees who were approved for an accommodation, we’re working to put options in place that reduce the risk to their health and safety, including new testing regimens, temporary job reassignments and masking protocols.” The judge’s temporary restraining order expires Oct. 26.(NPR)Lawsuit Brought in TexasThe lawsuit was brought in Texas, where Gov. Greg Abbott has issued an executive order banning vaccine mandates in the state. “The COVID-19 vaccine is safe, effective and our best defense against the virus, but should remain voluntary and never forced,” Abbott said.(ABC 7 Chicago) and (SHRM Online)Class Action Is PossibleThe plaintiffs, who seek to represent a nationwide class of more than 2,000 United employees, said the policy effectively means they must choose between their beliefs or health and their livelihoods. “We’re reviewing this complaint in greater detail but at this point, we think it’s without merit,” an airline spokesperson said.(The Wall Street Journal)Three Unions Support Vaccine MandateUnited says its policy has one purpose: “to keep our people safe.” Three unions at United Airlines supported the company’s COVID-19 vaccine mandate. However, the International Association of Machinists and Aerospace workers criticized the policy on Sept. 17.(SHRM Online) and (SHRM Online)Company Vaccine Mandates Now Common Among AirlinesAll major U.S. airlines but Delta have a policy mandating employees to be vaccinated against COVID-19. Delta Air Lines will charge unvaccinated workers a $200 monthly premium surcharge as of Nov. 1. (The Atlanta Journal-Constitution), (SHRM Online) and (CNBC)Vaccine Mandate Is Imminent for Medium to Large EmployersOn Sept. 9, President Joe Biden announced plans for a new rule requiring employers with 100 or more employees to mandate that their workers be vaccinated or undergo weekly testing. The president also …

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When May an Employer Reject a Religious Accommodation Request?

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When May an Employer Reject a Religious Accommodation Request?

​An employer that requires vaccinations against COVID-19 must grant sincere religious accommodation requests, so long as they don’t cause an undue hardship on the company. How can a business tell whether an objection to vaccination is based on a genuinely held religious belief and accommodate without creating an undue hardship?”Because it is so hard to effectively challenge whether a particular belief is genuinely held, most employers will probably choose to skip the first step and go straight to the accommodation question,” said Anthony George, an attorney with Bryan Cave Leighton Paisner in Denver.Sincerely Held Religious BeliefThe Equal Employment Opportunity Commission’s (EEOC’s) guidance on COVID-19 and EEO laws states that employers “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice or observance.””Under this guidance, employers should request additional information only in the rare cases when the employer has an objective basis to question whether the employee is sincere or to question whether the employee’s belief is actually religious in nature,” said Erika Todd, an attorney with Sullivan & Worcester in Boston.”What is considered a religious belief under Title VII [of the Civil Rights Act of 1964] is very broad and difficult for employers to challenge,” said Jill Cohen, an attorney with Eckert Seamans in Lawrenceville, N.J. The EEOC has said in its compliance manual on religious discrimination that the definition of “religion” extends to traditional religions and religious beliefs that are “new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” “Beliefs pertaining only to economic, social, personal preferences, or political ideals typically are not considered religious for purposes of Title VII,” Cohen said.”If the objection refers to vague constitutional rights or political views or natural law, then the employer may reasonably conclude that the objection is not based in religion and may be overruled,” George said.”Concerns about vaccine safety, toxicity, efficacy, the trustworthiness of the media, government or the pharmaceutical industry are not religious beliefs,” said Richard Reice, an attorney with Kauff McGuire & Margolis in New York City. That said, an employee with a disability may need to be excused from a vaccine mandate.”Employers [that] develop an objective basis for questioning either the religious nature or the sincerity of a particular belief are permitted to seek additional supporting information, as necessary, to make a reasonable business decision,” said Joseph Vaughan, an attorney with Vaughan Baio & Partners in Philadelphia. Employers should consider four factors established by the EEOC in its questions and answers on religious discrimination in the workplace. These factors might undermine an employee’s assertion that he or she sincerely holds the religious belief at issue and include whether:The employee has behaved in a manner markedly inconsistent with the professed belief.The accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons.The timing of the request renders it suspect—for example, it follows an earlier request by the …

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Does Your COVID-19 Employee Health-Screening Policy Need an Update?

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Does Your COVID-19 Employee Health-Screening Policy Need an Update?

Employers that conduct daily temperature checks and other COVID-19 health screens may want to review and revise their policies as rules and recommendations change, particularly in locations with high COVID-19 transmission rates. New coronavirus cases recently dropped below 100,000 a day for the first time since Aug. 3, but the U.S. Centers for Disease Control and Prevention (CDC) is still reporting a rolling seven-day average of about 95,000 new cases and more than 1,400 deaths each day. Additionally, more than 95 percent of U.S. counties are experiencing substantial or high COVID-19 transmission rates. To help keep employees safe and curb the spread of the coronavirus, the CDC recommends that employers consider conducting daily in-person or virtual health checks before employees enter the worksite, and some jurisdictions require such screening. Here are some key points employers should note about conducting these health checks. Review State and Local RulesSome states and localities require or recommend that businesses conduct employee health screening in certain situations. For example, in California, employers must comply with the state’s COVID-19 Emergency Temporary Standards, which require employers to ensure employees don’t enter the worksite if they have symptoms or have been exposed to the coronavirus. “Employers should also have procedures to screen employees for COVID-19 symptoms and must have a plan to keep other employees safe in the workplace,” according to the California Department of Industrial Relations. Nevada’s Occupational Safety and Health Administration (OSHA) requires screening and recommends temperature checks. “While temperature checks are not specifically required, Nevada OSHA expects employers to monitor employee health conditions by conducting daily surveys of changes to employee health conditions,” according to the state’s website. “Temperature checks are a useful method of identifying potentially infectious people in the workplace and can serve as a method of screening for health issues.”Law firm Littler Mendelson has a list of statewide orders and noted that local laws may apply in addition to state requirements. “Even if state or local law do not require any screening mechanisms, employers are able to implement temperature checks or other types of screening prior to allowing employees or other visitors to enter the worksite,” noted Michael DeLarco, an attorney with Hogan Lovells in New York City. Medical Inquiries”Employers need to understand that temperature checks and health-screening questions are medical questions,” said Brooke Schneider, an attorney with Withers in New York City. “And so, like any other inquiries into health, employers need to consider wage and hour laws, disability laws, privacy laws and document-retention laws. All come into play when an employer is setting up policies that deal with health concerns.”The Americans with Disabilities Act (ADA) prohibits employers from requiring medical examinations unless they are job-related and consistent with business necessity. For pandemic-related screens, the U.S. Equal Employment Opportunity Commission has said that employers may measure employees’ body temperature, but they should note that some people with COVID-19 don’t have a fever (and some people with a fever don’t have COVID-19).Employers should vigilantly track changing guidance from the CDC when tailoring their COVID-19 …

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Title VII Required Temporary Duty and Time to Express Breast Milk

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Title VII Required Temporary Duty and Time to Express Breast Milk

Absences related to pregnancy apart from the Family and Medical Leave Act (FMLA) or other leave laws may be protected under Title VII of the Civil Right Act of 1964 from accrual of points or discipline under attendance policies, and pregnant employees may also have to be accommodated with temporary jobs if other employees are accommodated. Further, breastfeeding employees may have the right to breaks to express milk, according to the U.S. District Court for the District of Colorado.Four flight attendants sued Frontier Airlines Inc., alleging pregnancy discrimination under Title VII. The plaintiffs alleged discrimination based on the employer assigning points under an attendance policy for absences resulting from pregnancy or breastfeeding when the absence was not approved FMLA leave and for the employer denying temporary job reassignment for pregnant flight attendants who were unable to fly. The employer provided temporary reassignment accommodations for flight attendants with medical conditions unrelated to pregnancy or birth, including on-the-job injuries. The plaintiffs also alleged the employer failed to provide break time or a location besides the bathroom for employees who were expressing breast milk. The employer did provide break time for other physiological needs, such as restroom breaks. On the employer’s motion to dismiss the intentional discrimination claim, the court reasoned that the only point at issue was whether the employer had accommodated others who were similar in their ability or inability to work. The plaintiffs claimed the employer denied their request for ground assignments while providing the same accommodation for flight attendants who could not fly for a nonpregnancy-related medical condition or disability. Because the employer made this accommodation for flight attendants with job-related injuries or other types of disabilities besides pregnancy, the court ruled that the plaintiffs stated a claim for failure to accommodate. The plaintiffs’ Title VII disparate impact claim asserted that the employer’s policies or practices impacted pregnant or breastfeeding employees more harshly and that policies were not justified by business necessity. For an impact claim, the plaintiffs had to identify a specific policy or practice that resulted in a significant disparate impact on a protected group. The court found the plaintiffs met these requirements. The court held that the accrual of attendance points for absences that were pregnancy-related, despite the policy of not assigning points for excused absences under the FMLA and the impact on pregnant flight attendants compared to other flight attendants, based on the need for pregnancy-related medical care and breastfeeding, provided a basis for relief under Title VII. The plaintiffs alleged that all pregnant flight attendants were harmed by the failure to provide pregnancy-related accommodations, while no flight attendants who weren’t pregnant were harmed. Similarly, the plaintiffs alleged that virtually all breastfeeding flight attendants who required accommodations were harmed by the failure to provide adequate pumping accommodations, while no flight attendants who weren’t breastfeeding were impacted by this policy. The employer argued that none of the plaintiffs was still pregnant or breastfeeding at the time, so they couldn’t sue. The court held that the plaintiffs …

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First Amendment Protects Against Viewpoint Discrimination

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First Amendment Protects Against Viewpoint Discrimination

A sheriff failed to demonstrate that his interest in maintaining an efficient workplace outweighed a sergeant’s free-speech interest in voicing political support for the sheriff’s re-election opponent.In the fall of 2017, the sheriff of the El Paso County Sheriff’s Office (EPSO) launched his campaign for re-election. The plaintiff, a patrol sergeant, actively supported the sheriff’s opponent. In 2018, another sergeant complained that the plaintiff allegedly made negative statements about EPSO administration while on duty and had asked her who she and her husband were supporting in the election for sheriff. An internal investigation found the sergeant’s allegations proven by a preponderance of the evidence. Shortly after, the plaintiff gave an interview to a local newspaper about alleged misconduct at EPSO. On July 11, the newspaper published an article about misconduct at EPSO, including:Details of sexual harassment allegations against a lieutenant.The plaintiff’s internal complaint regarding sexual harassment.Retaliation complaints filed by the plaintiff.The plaintiff’s claims that he was falsely accused of on-duty political activity while others engaged in on-duty political activity without consequence.EPSO conducted another investigation into the plaintiff’s possible violation of confidentiality in disclosing details of internal EPSO management to the newspaper. The plaintiff was interviewed on July 13 about the article as part of that internal investigation. After the interview, the plaintiff was given a notice of termination.The plaintiff alleged retaliation for protected speech in support of the sheriff’s opponent. The Supreme Court has provided a five-part test to evaluate First Amendment retaliation claims brought by public employees against their employers: Whether the speech was made in line with an employee’s official duties.Whether the speech was on a matter of public concern.Whether the government’s interests, as an employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff’s free-speech interests.Whether the protected speech was a motivating factor in the adverse employment action. Whether the defendant would have reached the same employment decision in the absence of the protected conduct.The sheriff argued that the plaintiff could not satisfy the third element. The 10th Circuit concluded that the sheriff’s interests in the internal operations of EPSO did not outweigh the plaintiff’s free-speech interests. First, the court noted that the tacit permission given to employees to voice political support for the sheriff while on duty “severely undermined his purported interest in firing the plaintiff to avoid disruption at EPSO based on his political speech.” The prevalence of political speech in favor of the sheriff, the court commented, showed that firing the plaintiff for on-duty political speech “was not based on a reasonable prediction that the speech would ‘interfere with the regular operation’ of EPSO.” In addition, the court explained that as a rank-and-file patrol sergeant, the plaintiff’s employment relationship with EPSO leadership was not “the kind of close working relationship for which it can persuasively be claimed that personal loyalty and confidence are necessary to its proper functioning.” Finally, the 10th Circuit observed that there was no evidence showing that the plaintiff’s political speech threatened any of EPSO’s work …

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OSHA Sends COVID-19 Vaccination Rule to White House for Review

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OSHA Sends COVID-19 Vaccination Rule to White House for Review

​Businesses with at least 100 employees may soon receive direction on an anticipated COVID-19 workplace vaccination and testing mandate from the Occupational Safety and Health Administration (OSHA). On Oct. 12, the agency sent its emergency temporary standard (ETS) to the White House for final review.President Announces PlanOn Sept. 9, President Joe Biden announced that OSHA would issue an ETS requiring covered businesses to mandate that their workers be vaccinated against the coronavirus or undergo weekly testing. Covered employers will also have to give workers paid time off to get vaccinated or recover from any side effects of getting vaccinated. Employers that don’t comply with the vaccine mandate or paid-time-off requirement may face fines of up to $14,000 per violation. The rule will impact more than 80 million workers, according to the White House.(SHRM Online)Expedited ProcessOSHA sent the rule to the White House Office of Information and Regulatory Affairs on Oct. 12. The regulatory review process can sometimes take months, but Biden called for an expedited process for the emergency standard. So the regulatory office could quickly conclude its review any day now, which would prompt OSHA to publish the ETS. The ETS could take effect immediately upon publication, but OSHA generally provides businesses with a little time before they must comply. (Bloomberg Law)Questions RemainOSHA’s plan hasn’t been made available to the public. “The details of what the ETS will include are scarce at this point, leaving many questions unanswered,” noted law firm Fisher Phillips. How will the 100-employee threshold be counted? Will employers be required to collect proof of vaccination? What type of testing will be required? Will remote employees be covered?”You should begin preparing now for the forthcoming Emergency Temporary Standard by establishing policies for determining employees’ vaccination status and procedures for tracking weekly test results,” according to Fisher Phillips. “You should also prepare for the possibility that employees may refuse to comply with the requirements of the ETS and begin planning an appropriate response—which would include terminating their employment.”Fisher Phillips predicts that the White House will approve the ETS by Oct. 15 and OSHA will make the details available to the public between Oct. 18 and Oct. 20. Employers may have some additional time before the rule is officially published and enforcement begins. (SHRM Online) and (Fisher Phillips)Employers React to MandateSome business leaders are waiting to review the details of OSHA’s ETS before making changes to their policies. Other executives have extended their remote work policies to give themselves time to review the ETS. Some smaller employers are concerned about the cost and other compliance burdens that the new rule will impose, and at least one small-business advocacy group is planning to file a legal challenge. According to a survey of HR leaders conducted by research firm Gartner on Sept. 15, 46 percent of respondents said they plan to require employees to get vaccinated in locations that allow such policies. However, more than 33 percent of respondents said they remain unsure about their vaccine plans. (The Wall Street Journal)Federal Employees …

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New York Ordered to Provide Religious Exemptions to State Vaccine Mandate

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New York Ordered to Provide Religious Exemptions to State Vaccine Mandate

​New York State must let employers provide religious exemptions to a mandate that state health care workers get vaccinated against COVID-19, at least while litigation over the mandate proceeds, a federal district court judge decided Oct. 12. We’ve gathered articles on the news from SHRM Online and other outlets.Religious ObjectionsThe 17 plaintiffs are practicing doctors, M.D.s fulfilling their residency requirement, nurses, a nuclear medicine technologist, a cognitive rehabilitation therapist and a physician’s liaison. They are employed by hospitals, nursing homes and other New York State entities. The plaintiffs hold the sincere religious belief that they can’t consent to be inoculated with vaccines that “were tested, developed or produced with fetal cell lines derived from procured abortions,” their complaint states.The question in the case is whether the state’s elimination of a religious exemption conflicts with plaintiffs’ and other individuals’ federally protected right to seek a religious accommodation from their individual employers, according to the court. “The answer to this question is clearly yes,” the court said.(U.S. District Court for the Northern District of New York)Ruling’s ImpactThe court order temporarily blocks part of Gov. Kathy Hochul’s effort to require vaccination for all health care workers. It offers a reprieve for thousands of unvaccinated doctors, nurses and support workers who had applied for religious exemptions and who would have been barred from working had the judge ruled for the state. The vaccine mandate remains in effect for all other health care workers.(The New York Times)Governor Defends MandateHochul defended New York’s mandate in a statement about the order. “My responsibility as governor is to protect the people of this state and requiring health care workers to get vaccinated accomplishes that,” she said. “I stand behind this mandate and I will fight this decision in court to keep New Yorkers safe.”(FOX News)Religious Exemptions Expected Under OSHA’s RuleBusinesses with at least 100 employees will soon be required to mandate that employees get vaccinated against the coronavirus or submit to weekly testing. An emergency temporary standard is expected from the Occupational Safety and Health Administration (OSHA). OSHA’s rule will almost certainly affirm that employers must accommodate employees who refuse to be vaccinated based on a sincerely held belief or medical exemption, said Paula Ketcham, an attorney with Schiff Hardin in Chicago.(SHRM Online)Is an Employee’s Religious Objection Sincere?To determine whether an employee’s objection is based on religious beliefs, ask the following:During the discussion about the objection, did the employee continually veer off into the politics of COVID-19 or vaccines?Does the employee’s real concern appear to be the safety of the vaccines?Does the employee’s real concern appear to be that mandatory vaccination is an infringement on his or her personal freedom?Does the employee seem to genuinely believe it would be a sin to get the vaccine?Can the employee reasonably articulate why he or she believes that vaccination would be sinful?(SHRM Online)EEOC GuidanceThe Equal Employment Opportunity Commission (EEOC) has weighed in with guidance that answers some workplace vaccination questions. For example, the agency said that federal anti-discrimination laws don’t prohibit …

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Some States Are Pushing Back on Workplace Vaccination Mandates

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Some States Are Pushing Back on Workplace Vaccination Mandates

Leaders in some states are considering measures that would require employers to accept negative COVID-19 tests or proof of natural immunity as an alternative to vaccination requirements.On Oct. 11, Texas Gov. Greg Abbott issued a broad executive order banning vaccine mandates in the state. “The COVID-19 vaccine is safe, effective, and our best defense against the virus, but should remain voluntary and never forced,” Abbott said. Additionally, some state-level bills aim to provide exceptions from federal and employer coronavirus vaccine mandates. Lawmakers in Arkansas, for example, recently sent a bill to the governor’s desk that would give workers two options if they chose not to get vaccinated: submit to weekly COVID-19 testing or submit proof biannually of natural antibodies from prior infection. The bill’s sponsors said, “Vaccination mandates are an overreach of authority.”The U.S. Centers for Disease Control and Prevention (CDC), however, is still urging everyone who is eligible, even people who already had the coronavirus, to get vaccinated. The Occupational Safety and Health Administration (OSHA) has also said, “Vaccination is the key element in a multi-layered approach to protect workers.” According to OSHA, the coronavirus spreads mainly among unvaccinated people who are in close contact with each other, particularly when they are indoors and where ventilation is poor.We’ve rounded up resources and articles from SHRM Online and other trusted outlets on workplace COVID-19 vaccination news. Path Out of the PandemicPresident Joe Biden announced the six-part “Path Out of the Pandemic” on Sept. 9. Among other steps, the administration is requiring most federal employees and federal contractors to get the COVID-19 vaccine. Biden’s order eliminated the option for such workers to opt for regular testing instead of vaccination. Additionally, private employers with at least 100 employees will soon be required to mandate that employees get vaccinated against the coronavirus or submit to testing. Employers are still waiting for the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS), but the ETS will let private-sector employers allow “any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work,” according to the White House.(SHRM Online)Private Employers Included in Texas OrderAbbott’s executive order banning COVID-19 vaccination mandates broadly covers all entities. including private employers. “No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19,” the order states. “I hereby suspend all relevant statutes to the extent necessary to enforce this prohibition.” Legal experts predict that Abbott’s order will be challenged in court and noted that judges have generally upheld vaccine mandates. (The New York Times)State Attorneys General Issue Letter Opposing MandateThe lead attorneys from 24 Republican-led states recently signed a letter opposing Biden’s vaccination directives. Among other issues, they said the administration’s policy “inexplicably fails to recognize natural immunity.” Additionally, they said, “There are many less intrusive means to combat the spread …

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OSHA Cites Employer for COVID-19 Safety Violations After Worker’s Death

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OSHA Cites Employer for COVID-19 Safety Violations After Worker’s Death

A national auto insurance company is facing $23,406 in proposed penalties after investigators found that a Colorado branch ignored pandemic-related safety rules and “needlessly exposed” employees to co-workers with COVID-19 symptoms, according to the Occupational Safety and Health Administration (OSHA).OSHA initiated an investigation on April 21 after receiving a complaint about unsafe working conditions and an employee’s COVID-19-related death. “This company showed an indifference toward the safety and well-being of its employees, including one who fell victim to the coronavirus,” said OSHA Denver Area Director Amanda Kupper. The employer has 15 days to comply or contest the citation. The company did not immediately respond to a request for comment. OSHA has issued about 650 coronavirus-related citations since July 2020, with total initial penalties exceeding $4 million as of Oct. 1, according to the agency. We’ve rounded up resources and articles from SHRM Online and other trusted outlets on COVID-19-related litigation and workplace safety protocols. COVID-19 Litigation ContinuesAccording to law firm Littler Mendelson, there were 3,784 COVID-19-related lawsuits filed against employers between March 12, 2020 and Oct. 1, 2021. That number includes 356 class actions. The states with the most filings are California, New Jersey, New York, Florida and Ohio. Industries with the most filings include health care, manufacturing, public administration, retail and hospitality. (Littler Mendelson)Increased Litigation Foreshadows Rough End to 2021A sharp increase in pandemic-related workplace litigation this summer could spell trouble for employers, as attorneys expect to see a steady increase in COVID-19 lawsuits filed by employees across the country. “We typically see a slowdown in new lawsuit filings over the summer for a number of obvious reasons,” said Jay Glunt, a Pittsburgh-based Fisher Phillips attorney who spends considerable time defending employment litigation. “But the fact that we didn’t see much of a lull in employment-related COVID litigation—and in fact saw an uptick—sends a clear signal that we could be in for a rough couple of months ahead.”(SHRM Online)OSHA Recommends Multi-Layered Approach to Workplace Safety Employers must provide a safe and healthful workplace that is free from known hazards. According to OSHA, the coronavirus spreads mainly among unvaccinated people who are in close contact with each other, particularly when they are indoors and where ventilation is poor. “Vaccination is the key element in a multi-layered approach to protect workers,” OSHA said. “Multi-layered controls tailored to your workplace are especially important for those workers who are unvaccinated or otherwise at-risk.” COVID-19 prevention programs generally include telework options and flexible scheduling, engineering controls (such as proper ventilation), vaccination and other safety policies, requirements for wearing personal protective equipment and face coverings, physical distancing measures, and enhanced cleaning programs.(OSHA)OSHA’s Current DirectivesOSHA issued a COVID-19 Emergency Temporary Standard (ETS) in June that applies only to the health care industry. The health care ETS focuses on settings where coronavirus patients are treated, including hospitals, nursing homes and assisted living facilities. The agency also provided detailed recommendations for other employers on protecting unvaccinated and at-risk workers as the coronavirus crisis continues. The agency updated its guidance on Aug. 13 to reflect the U.S. Centers for Disease Control and Prevention’s …

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