By Kathleen Kapusta, J.D. Mass General Brigham employees failed to convince the First Circuit to issue an injunction pending appeal of a district court’s denial of their request for preliminary injunctive relief against MGB’s application of its mandatory COVID-19 vaccination policy to them individually. Noting that the employees, who sued MGB under Title VII and the ADA, did not challenge the policy itself, but only the denial of their individual exemption requests, the appeals court found adequate legal remedies foreclosed injunctive relief (Together Employees v. Mass General Brigham Inc., November 18, 2021, Lynch, S.). Vaccination policy. In June 2021, MGB, which owns and operates hospitals and other facilities throughout Massachusetts, announced a mandatory COVID-19 vaccination policy requiring all employees to receive the vaccine by October 15. Noncompliance would result in unpaid leave and ultimately termination. The policy also provided that exemptions would be available for medical or religious reasons. Exemptions. MGB created several committees to review exemption requests. In addition to plaintiff Together Employees, an unincorporated association of 229 MGB employees who were denied a religious or medical exemption, eight individual plaintiffs were also denied their exemption requests. Of those eight, each had been denied their requested religious exemptions and four had been denied their requested medical exemptions. Some of the religious exemption requests involved opposition to taking a vaccine that used fetal cells in its testing and development, while other requests centered on keeping the body pure from foreign substances. The four medical exemption requests were based on pregnancy, a prior allergic reaction to a flu shot and chronic lymphocytic leukemia, severe mental anguish and anxiety from being vaccinated, and PTSD. When they still refused to get vaccinated after their requests were denied, they were placed on unpaid leave. After the vaccination deadline passed, one resigned, one got vaccinated, and the other six were terminated. Preliminary injunctive relief. The plaintiffs sued MGB, alleging a failure-to-accommodate claim in violation of the ADA, religious discrimination in violation of Title VII, and retaliation. They also sought a preliminary injunction to stop MGB from enforcing its vaccination policy. Finding they were unlikely to succeed on the merits of their claims or demonstrate irreparable harm, the district court denied their request. Lower court reasoning. As to the employees’ ADA claims, the district court held that they were unlikely to be able to show they were disabled, that they were qualified to do their jobs because they posed a direct threat to patients, that their requested accommodations were reasonable, that they could defeat MGB’s undue hardship claim, or that the exemption process was legally inadequate. Regarding their Title VII claims, the district court, after assuming they demonstrated their sincere religious beliefs, found they could likely not show they could defeat MGB’s undue hardship assertion or that the exemption process was legally inadequate. The court also found, as to both claims, that they had not shown they exhausted their administrative remedies. Nor were they likely to demonstrate irreparable harm, that the balance of equities favored them, or the …

By Pamela Wolf, J.D. Twenty-seven lawsuits filed in 12 different federal circuit courts of appeals seeking review of OSHA’s private employer vaccinate or test mandate have been consolidated for review in the Sixth Circuit. The Multidistrict Litigation Panel announced the designation on November 16, 2021. Earlier, the Justice Department had cited the anticipated designation as a reason for the Fifth Circuit to refrain from taking further action on the temporary stay of the COVID-19 mandate that the court had issued 10 days earlier. OSHA’s COVID-19 ETS. On November 5, the Department of Labor published OSHA’s emergency temporary standard (ETS) to protect unvaccinated employees of large employers. The interim final rule requires employers of 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy, or to instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering in lieu of vaccination. The ETS also requires employers to provide paid time for workers to get vaccinated and to allow for paid leave to recover from any side effects. The interim final rule also requires employers to: Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status; Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis and to remove the employee from the workplace, regardless of vaccination status, and not permit them to return to work until they meet required criteria; Ensure that each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer); and Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes. Fifth Circuit’s temporary stay. Challenges to OSHA’s ETS quickly piled up. In one of those cases, BTS Holdings, LLC v. OSHA, the Fifth Circuit in a brief order on November 6, entered a temporary stay of the mandate. Citing “cause to believe there are grave statutory and constitutional issues” with the Biden Administration’s vaccine mandate, the appeals court stayed the ETS pending further action. That order came in response to a November 5 motion to stay the ETS that was filed by a group of businesses and the states of Louisiana, Mississippi, South Carolina, Texas, and Utah. Why not let the multidistrict court take it from here? In response to the temporary stay, the Justice Department asked the Fifth Circuit, among other things, to refrain from taking any further action given that a single court would soon be designated to handle the many cases challenging the ETS. In a November 8 letter to the Clerk of Court for the Fifth Circuit, …

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By Brandi O. Brown, J.D. Less than one week after issuing an initial stay halting OSHA’s vaccinate or test ETS, the Fifth Circuit reaffirmed that decision and ordered OSHA to take no steps to implement or enforce the mandate until further court order. The court found that the petitioners’ challenges to the mandate were likely to succeed on the merits, determining that the mandate, even if it passed constitutional muster, was the “rare government pronouncement” that was both underinclusive and overinclusive. The court also found it unclear that COVID-19 posed the kind of grave danger required for an ETS and that the mandate raised “serious constitutional concerns.” Judge Duncan wrote a separate concurrence (BST Holdings, LLC v. OSHA, November 12, 2021, Engelhardt, K.). Initial order. On November 5, OSHA promulgated a much anticipated vaccine mandate in an interim rule. On November 6, the Fifth Circuit, finding “cause to believe there are grave statutory and constitutional issues with the Mandate,” issued an initial, temporary stay, halting OSHA’s interim rule. The rule established an emergency temporary standard (ETS) requiring either COVID-19 vaccination or weekly testing and mask wearing for private employers with at least 100 employees (see Businesses, five states obtain temporary stay of Biden Administration’s private employer vaccine mandate, November 8, 2021). In a November 8 letter, the Justice Department apprised the court that a dozen petitions to review the same ETS have been filed in multiple circuits and that it expected a multi-circuit lottery to take place mid-month. Essentially, it asked the court to slow down, noting that the petitioners asserted little prospect of harm until early December. Re-issued stay. Nevertheless, on November 12, the appeals court issued this decision granting the petitioners’ motion for a stay pending review, staying enforcement of the OSHA ETS pending “adequate judicial review” of their motions for a permanent injunction, and ordering OSHA to take no steps to implement or enforce the mandate until further court order. Take shots, take tests, or “hit the road.” In so doing, the court noted that the standing of the petitioners, many of whom were private employers, was “obvious” because the mandate “imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.” Applying the four traditional stay factors, the court concluded that each favored a stay in this case. Likelihood of success. First, the court considered the intent of Congress in enacting the Occupational Safety and Health Act, which created OSHA. It was not, nor could it be, the court claimed, “intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.” Although “dubious” about whether the mandate would pass constitutional muster, something it did not reach, the …

By Ronald Miller, J.D. A manager for an automobile repair business, who referred to respiratory masks as a “KKK hood,” and asked a Black employee if he were offended by the name and whether he wanted to try it on, was lawfully terminated under the terms of an employment agreement, a Florida District Court of Appeal ruled. In so ruling, the appeals court reversed a trial court’s award of damages to the employee for improper termination. Contrary to the trial court, the appeals court determined that the employee’s intent was irrelevant since he was also discharged for his conduct. Accordingly, the employer properly exercised its right to terminate the employee under its harassment policy (Master Collision Repair, Inc. dba Gerber Collision v. Waller, November 3, 2021, Roberts, C.). “KKK hood” reference. The employer is in the automotive collision repair business. It hired the employee as a market manager responsible for the management of several locations. On March 7, 2018, he was in one of the employer’s stores to conduct fit testing for respiratory masks certain employees had to wear when performing tasks like sanding and painting. While there, the employee repeatedly referred to the respiratory mask as a “KKK hood.” He then asked a Black employee, who worked in the front office and was not part of the fit test group, if he would be offended if the mask was referred to as a “KKK hood” and if he wanted to try it on. Senior management and human resources were made aware of complaints about the employee’s behavior. HR immediately began an investigation and the store’s general manager confirmed that the employee had asked other employees to put on the “KKK hood.” The employee himself admitted referring to the mask as a “KKK hood” and admitted that he asked the Black employee to try it on, but claimed he was joking. A few days later, the Black employee tendered a resignation letter detailing the employee’s conduct and the distress it had caused him. After determining that the complaints against the employee were substantiated, the employer notified him that he was terminated for cause under his employment agreement. Breach of contract claim. The employee sued the employer for breach of contract, arguing he was improperly terminated because he had not received written notice and a 30-day cure period under the terms of the employment agreement. Following a bench trial, the trial court entered judgment in favor of the employee and awarded him severance pay and health benefits for a six-month period. This appeal followed. The appeals court concluded that the trial court erred in finding the employer improperly terminated the employee without first providing him notice and an opportunity to cure. The employment agreement plainly defined “cause” to mean willful failure and/or gross negligence in the performance of duties or the material breach of the terms and conditions of the agreement. Clearly, the employment agreement provided two separate avenues for the employer to terminate an employee for “cause” based upon a violation …

By Pamela Wolf, J.D. The Biden Administration is asking the Fifth Circuit to slow down, in opposition to the temporary stay that the appeals court issued on November 6, halting OSHA’s interim rule establishing an emergency temporary standard (ETS) requiring either COVID-19 vaccination or weekly testing and mask wearing for private employers with at least 100 employees (see Businesses, five states obtain temporary stay of Biden Administration’s private employer vaccine mandate, November 8, 2021). In a November 8 letter to the Clerk of Court for the Fifth Circuit, the Justice Department apprised the court that a dozen petitions to review the same ETS have been filed in the Fifth, Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits. “The United States expects the multi-circuit lottery to take place on or about November 16, after which all petitions for review will be consolidated in one court of appeals responsible for deciding these petitions and considering or reconsidering any stay orders,” the DOJ said. Extraordinary circumstances. As the federal government framed it in its opposition to the petitioner’s emergency stay motion, OSHA was faced with an extraordinary pandemic and a serious threat to employees at the time it issued the ETS “to address the grave dangers posed by COVID-19 in the workplace.” The ETS gives employers the option of requiring vaccination or offering their employees the option to mask and test, the Biden Administration pointed out, also noting that the ETS reflects OSHA’s “expert judgment that these measures are necessary to mitigate COVID transmission throughout America’s workplaces.” Why is emergency relief necessary? In its opposition, the government questions why the emergency relief sought by the petitioners is necessary. Most of the harms that the petitioners allege are purportedly at least one month off, and many harms relate to a testing requirement that is not effective until January 2022. The petitioners assert little prospect of harm until December 7, which is 28 days prior to the January 4, 2022 compliance date for the ETS, the government observed. Thus, there is no need to address the petitioners’ stay motions now. The appeals court thus should lift its administrative stay and allow the matter to proceed under the process that Congress set forth for judicial review of OSHA standards, according to the Administration. Multidistrict litigation process. That process contemplates that litigation over the ETS will soon be consolidated in one federal court of appeals, the government noted. The Judicial Panel on Multidistrict Litigation will “random[ly] designate” one federal circuit from among those where petitions were filed within 10 days of the ETS’s issuance. All other courts will be required to transfer proceedings to that court. That process is expected to occur around November 16, which is 21 days before the December 7 date that the petitioners allege is the earliest date that any employee could be required to receive a vaccine, and 51 days before employees would be required to start testing. Further, the federal court chosen to adjudicate the ETS-related matters will have enough time to rule on any preliminary motions, the …

By Pamela Wolf, J.D. In a brief order, the Fifth Circuit Court of Appeals has entered a temporary stay of OSHA’s November 5 interim final rule establishing an emergency temporary standard (ETS) requiring that private employers with at least 100 employees adopt a plan requiring that all employees be vaccinated for COVID-19, or instead undergo at least weekly testing and wear a face covering. Citing “cause to believe there are grave statutory and constitutional issues” with the Biden Administration’s vaccine mandate, the court stayed the ETS pending further action. The order comes in response to a November 5 motion to stay the ETS that was filed by a group of businesses and the states of Louisiana, Mississippi, South Carolina, Texas, and Utah. The court put the case on a fast tract, ordering the federal government to respond to the petitioners’ motion for a permanent injunction by 5:00 PM on November 8. The petitioners must file any reply by 5:00 PM on November 9. ETS exceeds legal authority. The petitioners contend with the ETS, the Biden Administration is trying “to leverage the COVID-19 pandemic into a justification to reconfigure massive sectors of the American economy.” The ETS, however, runs afoul of the U.S. Constitution, the limits of the Administration’s statutory authority, and the principles of administrative law, as the petitioners see it. OSHA’s limited authority. According to the petitioners, OSHA lacks the authority to issue the ETS because it is an occupational safety agency with limited jurisdiction that is charged with protecting workers from exposure to dangerous workplace substances like asbestos. OSHA is not a public health agency with wide-ranging authority to address communicable diseases through regulation, the petitioners said. If Congress were to delegate this kind of extraordinary authority to an administrative body, it would do so very explicitly. “But Congress, which lacks a general police power, has never mandated mass vaccination,” the motion for temporary stay argues. Among other things, the petitioners argue that even if OSHA had authority to regulate the spread of communicable diseases, the measures it has employed with its ETS are unlawful. An ETS under the OSH Act, 29 U.S.C. Section 655(c), doubles as a “proposed rule” for a traditional standard under Section 655(b), and thus must be consistent with the substantive limitations on standards under Section 655(b). The petitioners assert that Section 655(b)(7) limits the substantive measures that OSHA may prescribe when issuing a standard, to: 1. “prescrib[ing] the use of labels or other appropriate forms of warning;” 2. “prescrib[ing] suitable protective equipment and control or technological procedures . . . for monitoring or measuring employee exposure;” and 3. “prescrib[ing] the type and frequency of medical examinations or other tests which shall be made available . . . to employees exposed to such hazards in order to most effectively determine whether the health of such employees is adversely affected by such exposure.” However, none of these provisions confers on OSHA the power to …

By Marjorie Johnson, J.D. A former Charter Communications employee failed to convince the Fifth Circuit to overturn a district court ruling compelling him to arbitrate his employment discrimination lawsuit and dismissing his claims, since the employer demonstrated that he both received notice of and accepted the modification to his employment contract requiring him to arbitrate employment-related disputes. The email advising him of the new dispute resolution program “conspicuously warned” that employees would be deemed to have accepted the mandatory arbitration program unless they opted out within 30 days and also provided directions on how to do so, yet he failed to opt out and continued working for the company for over a year until he was terminated (Gezu v. Charter Communications, November 2, 2021, Wilson, C.). Compelled to arbitrate. The employee worked for Charter from 2007 until his termination in 2019. He claimed that during his employment, he was subjected to race and national origin discrimination, which the company knew about but failed to address. After he was fired for purportedly pretextual reasons, he filed this lawsuit asserting Title VII and Sec. 1981 claims. Charter moved to compel arbitration and to dismiss his lawsuit, contending that his claim fell under a mandatory arbitration agreement that went into effect more than a year before the employee’s termination. A federal magistrate judge subsequently issued a recommendation in favor of granting the motion, which the district subsequently adopted. The arbitration agreement. On October 6, 2017, Charter sent an email to all active, non-union employees announcing a new employment-based legal dispute resolution program it called “Solution Channel.” In particular, the email stated: “In the unlikely event of a dispute not resolved through the normal channels, Charter has launched Solution Channel, a program that allows you and the company to efficiently resolve covered employment-related legal disputes through binding arbitration.” The email continued: “By participating in Solution Channel, you and Charter both waive the right to initiate or participate in court litigation (including class, collective and representative actions) involving a covered claim and/or the right to a jury trial involving any such claim.” The email also advised employees that “[u]nless you opt out of participating in Solution Channel within the next 30 days, you will be enrolled” and hyperlinked the term “Solution Channel” to the company’s intranet, where additional information on the program and optout instructions were available. The full arbitration agreement was also available on the intranet. Notice and acceptance. On appeal, the employee argued that it was error to compel him to arbitrate his claims since he never read the October 6 email and therefore did not agree to participate in the mandatory arbitration program. Because he was an at-will employee who was not initially subject to the arbitration agreement, the question was whether there was a valid modification of the terms of his employment. To show that there was, Charter needed to demonstrate that he both received notice of the change and accepted it. The Fifth Circuit concluded that the company met this burden. Despite …

By Sheila Lynch-Afryl, J.D., M.A. The U.S. Supreme Court denied injunctive relief to health care workers who argued that Maine’s COVID-19 vaccine mandate violated their rights under the Constitution and Title VII because it did not include a religious exemption. Justices Gorsuch, Thomas, and Alito dissented (Does 1-3 v. Mills, October 29, 2021, Breyer, S.). Vaccination requirement. In August, the state announced that health care workers must be vaccinated against COVID-19 by October 1 (see 10-144 CMR Ch. 264) and later announced that it would begin enforcement on October 29, 2021. The mandate allowed for medical, but not religious, exemptions. The health care workers and a provider filed suit seeking a preliminary injunction against the rule’s enforcement, arguing that their religious beliefs prohibited them from using any product connected in any way with abortion. The district court denied their request for preliminary injunction and the First Circuit affirmed (see Preliminary injunction prohibiting Maine’s COVID-19 vaccine mandate for healthcare workers denied, October 18, 2021; Mandatory vaccination for healthcare workers was facially neutral, did not single out religious objectors, October 20, 2021). Dissent. Justices Gorsuch, Thomas, and Alito, dissenting from the Court’s refusal to grant injunctive relief, argued that the “case presents an important constitutional question, a serious error, and an irreparable injury.” They concluded that strict scrutiny applied because (1) “Maine will respect even mere trepidation over vaccination as sufficient, but only so long as it is phrased in medical and not religious terms,” and (2) the state allows those invoking medical reasons to avoid the vaccine mandate on the premise that these individuals can take alternative measures to safeguard their patients and coworkers, but it refuses to allow those invoking religious reasons to do the same thing. They argued that the First Circuit erred by finding the rule neutral and generally applicable by restating the state’s interests on its behalf, “and doing so at an artificially high level of generality.” Applying strict scrutiny, and assuming a compelling state interest, Maine did not show that its rule represents the least restrictive means available to achieve it. Accordingly, the three dissenting justices would have granted relief. …