As featured in #WorkforceWednesday:  This week, the Occupational Safety and Health Administration’s (OSHA’s) vaccine emergency temporary standard (ETS) is currently in the hands of the Sixth Circuit, while New York employers have several updates to look out for in 2022.

Sixth Circuit Prepares to Review OSHA Vaccine ETS

Last week, the Sixth Circuit was selected by lottery to hear the consolidated legal challenge to the Biden administration’s OSHA “vaccine or test” mandate for large employers. Prior to the lottery, OSHA was enjoined by the Fifth Circuit from enforcing the mandate. While OSHA has announced that it is suspending enforcement for the time being, the deadlines for compliance, December 5 and January 4, remain in effect.

Federal Agencies Join Forces Against Retaliation

Federal agencies—the Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission—are launching a joint initiative to investigate unlawful conduct by employers and raise awareness around workplace retaliation.

New York Increases Protections for Employees

Starting January 26, 2022, New York will expand whistleblowing protections for employers beyond health care fraud and public health and safety concerns, in order to combat retaliation. Read more about the amendment here.

Also, effective May 2022, New York employers will need to notify employees with written notice when monitoring their phone calls, emails, or internet use. As employers update their handbooks and policies, these new requirements should be implemented.

See below for the video and podcast links. For Other Highlights and more news, visit https://www.ebglaw.com/eltw235.

Video: YouTube, Vimeo.
Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

Joining Illinois and Maryland, on November 10, 2021, the New York City Council approved a measure, Int. 1894-2020A (the “Bill”),  to regulate employers’ use of  “automated employment decision tools” with the aim of curbing bias in hiring and promotions.  The Bill, which is awaiting Mayor DeBlasio’s signature, is to take effect on January 1, 2023. Should the Mayor not sign the Bill within thirty days of the Council’s approval (i.e., by December 10), absent veto, it will become law.

Automated Employment Decision Tools

The Bill defines “automated employment decision tool” as “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence,” which scores, classifies, or otherwise makes a recommendation, that is used to substantially assist or replace the decision-making process from that of an individual.  The Bill exempts automated tools that do not materially impact individuals, such as a junk email filter, firewall, calculator, spreadsheet, database, data set, or other compilation of data.  It is unclear whether passive recruitment tools, such as LinkedIn’s suggested jobs, are covered under the Bill.

The Bill applies only to decisions to screen candidates for employment or employees for promotion within New York City, and does not apply to other employment-related decisions.

Employer Requirements under the AI Bill

The Bill prohibits employers or employment agencies from using the automated decision tools to screen candidates or employees for employment decisions unless: (1) the tool has undergone an independent bias audit no more than one year prior to its use; and (2) a summary of the results from the audit as well as the distribution date of the tool to which the audit applies has been made publicly available on the employer’s or employment agencies’ website.  The Bill is unclear as to whether and when the bias audit should be updated, or whether a new bias audit must be obtained prior to each “use” by the employer.

The Bill defines an acceptable “bias audit” as an impartial evaluation by an independent auditor that includes the testing of the tool to assess its disparate impact on persons of any federal EEO-1 “component 1 category, ” i.e., whether the tool would have a disparate impact based on race, ethnicity, or sex.

Moreover, New York City employers using automated employment decision tools must notify each employee or candidate who resides in New York City of the following:

  • at least ten business days before such use, that the tool will be used in assessing or evaluating the individual and allow a candidate to request an alternative process or accommodation;
  • at least ten business days before such use, the job qualifications and characteristics that the tool will use in assessing or evaluating the individual; and
  • if not posted on the employer’s website, and within thirty days of a written request by a candidate or employee, information about the type of data collected for the tool and the source of such data.

Although the Bill allows candidates to request an “alternative process or accommodation,” it is silent as to what obligations, if any, an employer must take upon receiving a request.

Employers or employment agencies that fail to comply with any of the requirements of the Bill may be subject to a fine of up to $500 for a first violation by the New York City’s Corporation Counsel or by the Department of Consumer Affairs.  Employers may be penalized by fines from $500 to $1,500 for each subsequent violation.

In anticipation of the likely January 1, 2023 effective date of the Bill, employers using automated employment decision tools in their hiring and promotion practices in New York City should take steps to ensure they will be in compliance. This includes:

  • ensuring that an automated employment decision tool has gone through an independent “bias audit” no more than one year prior to the tool’s use, specifically to determine whether the tool would have a disparate impact based on race, ethnicity, or sex;
  • posting the audit results on the employer’s public website;
  • developing a method of providing notice to employees and candidates of the tool’s usage and of the qualifications and characteristics that the tool will assess or evaluate; and
  • carefully crafting job assessments to ensure only key knowledge, skills, and abilities are taken into account, and considering potential reasons for disparities.

Employers seeking to responsibly and ethically implement AI tools in recruitment and selection of talent should not limit their efforts to compliance with this Bill alone. Although not a requirement under New York City’s measure, employers should also consider the tools’ accessibility for persons with disabilities, and others.  They should also consider whether and how to use any passive recruitment tools, which may not comply with the Bill’s notice requirement to candidates.

Employers may also wish to consult with counsel before implementing any type of digital hiring or promotion-based platform, to ensure compliance with this and other newly enacted employment laws surrounding AI.

*Kamil Gajda, Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.

As featured in #WorkforceWednesday: The Centers for Medicare & Medicaid Services (CMS) issued an interim final rule outlining vaccine requirements for staff at Medicare- and Medicaid-certified providers and suppliers.

Attorney Frank Morris discusses the next steps for health care providers. In addition, covered employers should continue to monitor the recent litigation filed in the Eastern District of Missouri and the Western District of Louisiana seeking to permanently enjoin the CMS interim final rule.

See below for the video and podcast links. Visit https://www.ebglaw.com/insights/cms-vaccine-rule-for-health-care-workers/

Video: YouTube, Vimeo.

Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

November 17, 2021, the Department of Labor (“DOL”), National Labor Relations Board (“NLRB”), and Equal Employment Opportunity Commission (“EEOC”) conducted a webinar on Ending Retaliation and Promoting Workers Rights.  The webinar is the first component of a “Joint Initiative” devoted to “vigorous enforcement” of laws against retaliation, through closer inter-agency cooperation.  The webinar was moderated by EEOC Regional Director Robert Canino and involved over 90 minutes of detailed remarks from Solicitor of Labor Seema Nanda, NLRB General Counsel Jennifer Abruzzo, EEOC Chair Charlotte Burrows and Acting DOL Wage and Hour Division Director Jessica Looman.

During the webinar, it became crystal clear that all of the agencies intend, in the words of DOL Solicitor Seema Nanda to “use all the tools at our disposal to fight retaliation.”  The agencies ‘leaders all repeatedly stressed aggressive and immediate use of such enforcement tools as seeking temporary restraining orders, injunctive relief and the broader utilization of “enhanced compliance agreements.”  The agencies also expressed a desire to “nip retaliation in the bud” by asserting a broad interpretation of what constitutes retaliation.  In addition to termination and disciplinary action, panelists focused on other potential forms of unlawful retaliation, including providing poor references to former employees, false accusations of poor performance, and threats concerning an employee’s immigration status.

While the Joint Initiative will focus on enhanced enforcement, it may also build on efforts by the Obama Administration to combat retaliation, such as the DOL’s Whistleblower Protection Advisory Committee (“WPAC”).[1]  This initiative coupled increased enforcement efforts with concrete guidance specifically designed to facilitate employers’ compliance efforts.  It is at this point unclear if the Joint Initiative will also reconcile contradictory guidance issued by different agencies.  For example, both the WPAC’s Recommended Practices for Anti-Retaliation Programs issued under the auspices of the DOL, and the EEOC’s Select Task Force on the Study of Harassment in the Workplace stress the importance of protecting the confidentiality of employee complaints to effectively combating workplace retaliation.  On the other hand, the NLRB frequently interprets the National Labor Relations Act to prohibit employer policies promoting confidentiality during investigations.[2]

While awaiting the agencies’ next steps, employers should continue investing in compliance and training to reduce risk.  This includes educating front line managers in the key roles they play in appropriately responding to employee concerns.  For example, Epstein Becker & Green’s Halting Harassment e-learning solution offers curricula to help managers further understand key and evolving elements of retaliation claims such as “what is protected activity” and “what is an adverse action.”  In addition, our whistleblower defense team has in recent months created PowerPoint training modules for employers, both private and public, and in a wide range of highly regulated industries, such as healthcare and financial services. These modules are designed to educate managers on the pivotal role they play in fostering an effective compliance program and avoiding retaliation.

In short, employers can expect heightened enforcement of the dozens of federal laws affording protection against retaliation.  Now is the time to double-down and invest in compliance.

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[1] Greg Keating served two terms on the WPAC.

[2] Board law requires employers to furnish unions with notes and witness statements from internal investigations resulting in employee discipline.  See Am. Baptist Homes of the W., 362 NLRB 1135, 1135 (2015).  In 2019 the Board’s Apogee Retail, decision reversed prior law prohibiting certain employer policies instructing employees to maintain confidentiality regarding workplace investigations. 368 NLRB No. 144 (2019).  This past August, General Counsel Abruzzo signaled she may ask the Board to overturn Apogee Retail and once again prohibit such confidentiality policies.

As featured in #WorkforceWednesday:  This week, we look at the next steps large employers and health care providers need to take to comply with vaccine mandate rules applicable to their organizations.

OSHA ETS: Next Steps for Large Employers

Large employers, those with 100 or more employees, are beginning preparations to comply with the Occupational Safety and Health Administration’s (OSHA’s) vaccine-or-test emergency temporary standard (ETS). Attorney Fran DeLuca tells us more about the steps employers should be taking now, despite challenges currently making their way through the courts. Just yesterday, the Judicial Panel on Multidistrict Litigation selected the Sixth Circuit to consolidate and review petitions filed in 12 circuit courts of appeals. See video below.

NLRB Says OSHA ETS May Trigger Duty to Bargain

Last week, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo indicating employers may have a duty to bargain over their decision and the effects of implementing the requirements of the OSHA ETS. Attorney Erin Schaefer tells us more about how the ETS uniquely affects unionized workplaces. Read more about the memo. See video below.

Video: YouTube, Vimeo.
Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

CMS Vaccine Rule for Health Care Workers

The Centers for Medicare & Medicaid Services (CMS) issued an interim final rule outlining vaccine requirements for staff at Medicare- and Medicaid-certified providers and suppliers. Attorney Frank Morris discusses the next steps for health care providers. In addition, covered employers should continue to monitor the recent litigation filed in the Eastern District of Missouri and the Western District of Louisiana seeking to permanently enjoin the CMS interim final rule.

Video: YouTube, Vimeo.
Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

For Other Highlights and more news, visit https://www.ebglaw.com/eltw234tr1.

On Friday, November 12, 2021, a panel of the U.S. Court of Appeals for the Fifth Circuit issued a strongly worded decision granting a motion to prevent the Occupational Safety and Health Administration (OSHA) from implementing or enforcing the Emergency Temporary Standard (ETS) that went into effect on November 5, 2021. Among other things, the ETS mandates that employers with 100 or more employees require that their workers be fully vaccinated against COVID-19 or submit to precautions like regular testing and using face coverings. However, the Fifth Circuit ordered OSHA to take no action to implement or enforce the ETS until further court order.

In a 22-page decision, the panel of three Circuit Judges reaffirmed an initial stay, holding that the ETS “grossly exceeds OSHA’s statutory authority” and concluding that the petitioners’ challenges to the ETS are likely to succeed on the merits. In so holding, the Fifth Circuit questioned whether the COVID-19 pandemic constitutes the type of emergency meant to be remedied by an ETS, and determined that COVID-19 does not pose the kind of “grave danger” contemplated by the Occupational Safety and Health Act to support the need for an ETS. The court also characterized the ETS as both “staggeringly overbroad” and “underinclusive”—an effort to apply a “one-size-fits-all Mandate” to a complex problem.

Over the weekend, OSHA posted a notice on its website, stating:

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

After initial court action blocked the ETS, attorneys for the Biden administration asked the Fifth Circuit, which is based in New Orleans and covers the states of Louisiana, Mississippi, and Texas, to await the status of similar lawsuits filed around the country. Court watchers expected the Biden administration to ask the Judicial Panel on Multidistrict Litigation to consolidate this and similar cases into a single case to be heard by a single Circuit, based on a lottery drawing to be held on November 16, 2021. The Fifth Circuit’s decision to reaffirm its initial stay raises new questions as to the next procedural steps. The Biden administration, for instance, may seek immediate review of the Fifth Circuit decision by the U.S. Supreme Court.

In the meantime, as a result of the Fifth Circuit decision, OSHA is barred from taking any actions to implement or enforce the ETS. Employers wondering what to do next should recall that the question before the Fifth Circuit is whether the law authorizes a federal agency to issue such a broad rule. However, in other litigation challenging the authority of states and private employers to require health and safety measures—including mandatory vaccination against COVID-19—courts have almost uniformly upheld such policies. While enforcement of the OSHA ETS remains on hold until further notice, our OSHA compliance attorneys recommend that private employers should consider continuing their preparations to comply with the ETS deadlines, and must, regardless of the outcome of the litigation regarding the ETS, continue to effect workplace policies that comply with applicable state and local requirements.

As featured in #WorkforceWednesday: This week, the Biden administration has finally released the COVID-19 vaccine mandate rules for employers with 100 or more employees, and the challenges started right away.

Employers Face December, January Vaccine ETS Deadlines

On November 4, the Occupational Safety and Health Administration (OSHA) released its much-anticipated Emergency Temporary Standard (ETS). The ETS covers COVID-19 vaccine, testing, and related requirements for most employers with at least 100 employees. Attorneys Bob O’Hara and Nancy Popper discuss how employers are beginning preparations to meet deadlines in early December and January, despite challenges to the standard already popping up in court. Read more.

Video: YouTube, Vimeo.
Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

Circuit Court Blocks OSHA Emergency Temporary Standard

Just one day after the OSHA ETS became effective, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the regulation in a case captioned BST Holdings, LLC v. OSHA. Additional petitions for review of the ETS have been filed in at least three other circuits. Read more.

CMS Rules Require Health Workers to Be Fully Vaccinated

Also on November 4, the Centers for Medicare & Medicaid Services issued an interim final rule requiring COVID-19 vaccination for staff at Medicare- and Medicaid-certified providers and suppliers. The interim final rule requires full COVID-19 vaccination by January 4, 2022. Read more.

For Other Highlights and more news, visit http://www.ebglaw.com/eltw233.

As we previously reported, effective November 5, 2021, the Occupational Safety & Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to ensure that covered employees are fully vaccinated or provide a negative COVID-19 test at least weekly.

On November 6, 2021, just one day after the OSHA ETS became effective, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the regulation in a case captioned BST Holdings, LLC v. OSHA. Inasmuch as the OSHA rule’s first milestones are December 5, when most employers with at least 100 employees must, among other things, impose an indoor mask mandate for unvaccinated workers, and January 4, when covered employers must mandate COVID-19 vaccination or, in the alternative, vaccination or weekly testing, the Fifth Circuit panel’s temporary ban does not have immediate effect. However, the case has emboldened groups of businesses, religious groups, and at least half the states to mount a serious challenge to OSHA’s authority to issue such a rule, arguing that a mandate like this one is a legislative act that only can be enacted by Congress.

The Fifth Circuit has ordered further briefing in the BST case, to be completed by Tuesday, November 9. Additionally, petitions for review of the ETS have been filed in at least three other circuits. Depending on the procedural interplay between these cases, the matters may be consolidated and referred to a lottery to be held by the Judicial Panel on Multidistrict Litigation, which would determine the circuit to ultimately hear the consolidated cases (subject to motions to transfer the cases). Epstein Becker Green will continue to monitor these challenges and other developments to assist employers with their COVID-19 compliance.

HEAL-Covid-Mask

*UPDATE, Nov. 11, 2021: Deadline for Compliance Extended to January 18, 2022, and Federal Guidance Updated. Stay tuned!

On November 1, 2021, the Safer Federal Workforce Task Force (“Task Force”) issued new FAQs for federal contractors and subcontractors (“covered contractors”) that are subject to Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “Order”), and its “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” (“Guidance”).  The Guidance is intended to ensure that COVID-19 workplace safety protocols apply to any workplace locations in which an individual is working on or in connection with a federal contract or contract-like instrument.  The new FAQs address vaccination and safety protocols, the scope and applicability of the Guidance, and compliance.  The requirements apply to new contracts awarded on or after October 15, 2021, and to contracts entered before that date when an option is extended or an extension is made.

Compliance – Refusal to Comply with Vaccination Mandate

Most importantly, the new FAQs address the steps covered contractors should take if a covered contractor employee refuses to be vaccinated who has not been provided, or does not have a pending request for, an accommodation.  While the Task Force acknowledges that employers may use their usual processes for enforcement of workplace policies, as directed by their employee handbooks, collective bargaining agreements, or the like, it presents as an enforcement model one being followed by federal agencies that encourages compliance rather than immediate discipline or termination.  Under that model, federal agencies first initiate a limited period of counseling education, followed by additional disciplinary measures (including suspension) if necessary, but move to removal or termination only after continued noncompliance.

While the process is being played out, the covered contractor must ensure that the covered contractor employee is following all workplace safety protocols for individuals who are not fully vaccinated at a covered contractor workplace.  The employee, however, may be denied entry to a federal workplace by the federal agency.

Following news reports that the government would afford federal contractors “flexibility” in enforcement of the December 8 vaccination deadline, the FAQs further emphasizes encouragement of compliance by federal contractors themselves.  Where covered contractors are working in good faith yet encounter challenges with compliance with COVID-19 workplace safety protocols, the Task Force directs that federal agencies should work with contractors to get into compliance.  Only after a contractor fails to take steps to comply will “significant actions, such as termination of the contract,” be taken.

Vaccination and Safety Protocols – Accommodations and Timing

The new FAQs also address accommodations.  The Task Force makes clear that a covered contractor does not need to resolve all requests for accommodation by the time that covered contractor employees begin work on a covered contract or at a covered workplace.  Rather, the contractor can still take time to review and consider the requests for accommodations, provided the contractor requires the covered contractor employee with the pending accommodation request to follow workplace safety protocols for individuals who are not fully vaccinated.

For those covered contractor employees who receive an exemption from the vaccination requirement and work on-site at a federal workplace, the federal agency will determine the workplace safety protocols that such employees must follow.  While the Task Force indicates that in most circumstances individuals who are not fully vaccinated will need to follow applicable masking, physical distancing, and testing protocols, it recognizes that “there may be circumstances in which an agency determines that the nature of a covered contractor employee’s job responsibilities at a federal workplace, or the location of their work at a federal workplace, requires heightened safety protocols.”  This includes a determination that no safety protocol other than vaccination is adequate, and the unvaccinated employee will be unable to perform the requisite work at the federal workplace.  This, of course, will not excuse the terms of the contract from being met.  In order for agencies to assess appropriate safety measures, covered contractors must notify the agency when one of their employees who works onsite at a federal workplace has received an exception to the requirement to be fully vaccinated.

Where a covered contractor can access a covered contractor employee’s vaccination documentation, consistent with relevant privacy laws, the contractor does not need to require the employee to show or provide documentation.

Scope and Applicability of the Guidance – Corporate Affiliates

With respect to multi-establishment corporate entities, the FAQs provide, where a corporate affiliate of a covered contractor does not otherwise qualify as a covered contractor, employees of that affiliate are considered covered contractor employees subject to COVID-19 workplace safety protocols if performing work at a covered contractor workplace.  In addition, if the workplace where a covered contractor’s employees perform work on or in connection with a covered contract is a location owned, leased, or otherwise controlled by a corporate affiliate, that workplace is considered a covered contractor workplace subject to COVID-19 workplace safety protocols.

For purposes of the Guidance, the Task Force states that “business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly: (i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.”  Indicators of control include “interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees.”  Multi-establishment corporate entities will have to conduct this analysis to determine if there are sufficient common controls.  It is worth emphasizing that in conducting the affiliate analysis, the Task Force takes the expansive view that the “power to control” is alone sufficient for affiliate status even if the power has not been exercised.

Federal Workplace Safety Protocols – Masks and Social Distancing

With so much attention and focus on the vaccination mandate, the requirements related to masking and physical distancing while in covered contractor workplaces should not be overlooked.  Covered contractors must ensure that all individuals at a covered contractor workplace, including employees and visitors, comply with published CDC guidance for masking and physical distancing.  CDC guidance for specific workplace settings, e.g., healthcare, transportation, correctional and detention facilities, and schools, must be followed, if applicable.

With limited exceptions, fully vaccinated people must wear a mask in indoor settings in areas where community transmission is “high or substantial.”  Individuals who are not fully vaccinated, however, must wear a mask indoors and in crowded outdoor settings and during outdoor activities that involve sustained close contact with other people, regardless of the level of community transmission.  Individuals required to wear a mask must wear appropriate masks consistently and correctly.  Accommodations may be required for covered employees who cannot wear a mask due to a disability or because of a sincerely held religious belief, practice, or observance.

Fully vaccinated individuals do not have to physically distance.  By contrast, to the extent practicable, individuals who are not fully vaccinated must maintain a distance of at least six feet from others at all times, including in offices, conference rooms, and all other communal and work spaces.

We will continue to monitor the ongoing developments regarding federal government-mandated vaccinations and remain available to assist companies in determining the applicability and implementation of the Order’s requirements.

As featured in #WorkforceWednesday:  This week, government agencies at both the federal and state level are preparing for the Occupational Safety and Health Administration’s (OSHA’s) vaccine emergency temporary standard (ETS).

Employer Anticipation Builds for OSHA ETS

All eyes are on DC as the wait continues for OSHA’s COVID-19 Vaccination and Testing ETS, for employers with 100 or more employees. Last week, the Office of Information and Regulatory Affairs (OIRA) held more than 100 meetings with stakeholders to aid in its review of OSHA’s proposed ETS. OIRA completed its review on Monday, and the ETS is expected to be released imminently.

OSHA Cracks Down on States

OSHA has sent warning letters to Arizona, Utah, and South Carolina regarding the agency’s COVID-19 health care ETS, released in June of this year. These three states operate their own OSHA state plans but have yet to adopt a health care ETS that is at least as protective as the agency’s. Some see OSHA’s warning as a sign of increased enforcement with the coming vaccine ETS.

EEOC Updates Guidance for Religious Accommodations

Last week, the Equal Employment Opportunity Commission (EEOC) added a section to its COVID-19 guidance focused on religious exemptions for mandatory vaccine policies. Read more about the updated guidance.

See below for the video and podcast links. For Other Highlights and more news, visit https://www.ebglaw.com/eltw232.

Video: YouTube, Vimeo.
Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.