In the past several days, two federal vaccine mandates have been preliminarily enjoined, joining the OSHA Emergency Temporary Standard on the sidelines.
First, the Eastern District of Missouri entered a preliminary injunction against the Centers for Medicare and Medicaid Services' federal vaccine mandate for healthcare facilities. That injunction applies to covered employees in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. The Western District of Louisiana issued a similar ruling late yesterday, but expanded the scope of the preliminary injunction nationally.
Then, also late yesterday, the Eastern District of Kentucky issued its own preliminary injunction against President Biden's mandatory vaccination rules for the employees of federal contractors and subcontractors. That injunction applies to covered employees in Ohio, Kentucky, and Tennessee.
While we digested our Thanksgiving turkey, news broke about a new COVID-19 variant making its way around the world — B.1.1.529, now officially named the Omicron variant.
Here's what we know about Omicron, what we think we know, what we don't yet know, and, perhaps most importantly, what employers should be doing in response.
Thus, today, as I start my Thanksgiving break, I am sharing what I am thankful for this year.
A new manager takes away a pet project from a long-term 60-year-old employee, repeatedly asks him when he's "going to retire," calls him "Uncle," and criticizes his "old skills." Those are the basic facts that caused the 6th Circuit to reverse a grant of summary judgment to the employer in Sloat v. Hewlett-Packard Enterprise Co.
This past Sunday night, John Oliver closed his 2021 season with a long-form exposé on labor unions. More specifically, he focused on the efforts employers take to combat union organizing drives: anti-union messaging and videos, captive-audience speeches, threats of job loss and plant closures, and more pointed retaliation against union organizers and other pro-union employees.
His story, however, left out one key fact — the labor unions are actually winning. And they are winning a lot.
You can tell by the smell that your girl's not doing well when the end of the month rolls along. You can tell by the stink that your girl's not in the pink when the end of the month rolls along.
Our US Labor and Employment team has developed a model policy that complies with OSHA's recently announced Emergency Temporary Standards (ETS) requirements regarding vaccination and employee testing, which also includes sample forms for employees to request reasonable accommodations. This policy can be very helpful to employers as they navigate these challenges.
In a 22-page opinion issued last night that I can only describe as a scathing rebuke of OSHA's vaccine-or-test emergency temporary standard, the 5th Circuit Court of Appeals formally granted a stay of the ETS pending a full review of the pending motion for permanent injunction, and further ordered that "OSHA take no steps to implement or enforce the Mandate until further court order."
The post was not meant to be controversial. Aaron Rogers admittedly lied about his vaccination status. I merely suggested that he not get a free pass because of who he is, and should be treated like any other employee caught lying on the job. Then, LinkedIn featured my post in their Breaking News sidebar. And all hell broke loose.
More than a few people called me a Nazi (which, for the record, Linkedin does not consider a violation of its Professional Community Policies.)
Check out the bonkers (and frankly, scary) discussion here, if you dare.
Here are the best things I read online this past week that I think you should be reading, too.
In a filing made with the 5th Circuit Court of Appeals in support of the petition seeking to strike down OSHA's "vaccine or test" emergency temporary standard, the American Family Association and Word of God Fellowship (which does business as Daystar Television Network) told the court that imposing the mandate on religious employees would be a "sin against God." (For the record, the AFA also believes that climate change is a hoax because only God can control the climate and stands firm against legal protection for LGBT rights. But I digress.)
People should not wait. They should continue to move forward and make sure they’re getting their workplace vaccinated.– White House Deputy Press Secretary Karine Jean-Pierre, Nov. 8, 2021
On Saturday, the 5th Circuit Court of Appeal (which covers Texas, Louisiana, and Mississippi) entered an order staying OSHA's "vaccine or test" rule for employers with 100 or more employees.
Questions—
I have answers, which I offer in this short video, which I recorded yesterday.
Last Wednesday, Aaron Rodgers, future Hall of Fame quarterback for the first-place Green Bay Packers, tested positive for Covid-19. This fact, in and of itself, might be newsworthy because of who he is, but in and of itself it's not earth-shattering. That is, it's not earth-shattering news until you couple it with the fact that: (1) it appears Rogers is not fully vaccinated against Covid-19; and (2) in August, when a reporter asked if he had received the Covid-19 vaccine, Rodgers said, "Yeah, I've been immunized."
"Immunized," in this case, however, appears to mean something very different than fully vaccinated against Covid-19.
The Final Jeopardy category is “Cybersecurity.”
The answer: “The reason why it was not Jeopardy! Clue Crew member assistant director Sarah Whitcomb Foss trying to sell me a PS5 over Twitter.”
The question: “What is her account was hacked?”
For anyone who followed my PS5 saga from yesterday, here’s the resolution.
If you need to catch up, you can do so here.
I’m quite happy I wagered big on my cyber fraud Spidey sense.
Write down November 4, 2021, as the Employment Lawyer Superbowl. At 8:45 am this morning, OSHA published its Covid-19 Vaccination and Testing Emergency Temporary Standard in the Federal Register. You can download and read all 490(!) pages of it here.
Most importantly, this rule takes effect immediately upon its publication in the Federal Register — i.e., today — but employers have 30 days, or until December 5, 2021, to comply with all requirements except testing for employees who are not fully vaccinated (which has a January 4, 2022, compliance date).
This means that by no later than January 4, 2022, employers will need to ensure that their employees have received their final vaccination dose, with weekly testing required for unvaccinated employees thereafter.