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OSHA’s COVID-19 Vaccine or Test Mandate Is BACK in Play… For Now

Published: December 20, 2021

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

On Friday, December 17, 2021, the federal Sixth Circuit Court of Appeals granted an emergency motion to dissolve the stay of the federal OSHA COVID-19 vaccine or test mandate for large employers.

Background.

On November 5, 2021, OSHA issued an Emergency Temporary Standard (ETS or the standard) to protect the health of employees by mitigating the spread of this historically unprecedented virus in the workplace. The ETS requires that employees who work for an employer with 100+ employees, as well as certain government employees, to either obtain a COVID-19 vaccine, or undergo regular weekly tests. The next day, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS pending judicial review, and it renewed that decision in an opinion issued on November 12. Multiple petitions challenging the ETS—filed in Circuit Courts across the nation—were consolidated into the Sixth Circuit to be decided together.

California Department of Public Health Issues a New Statewide Indoor Mask Mandate

Published: December 15, 2021

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

Due to the increase in COVID-19 infection numbers and the rising number of hospitalizations in recent weeks, the California Department of Public Health has issued a mandate requiring all individuals in California wear masks in all public indoor settings regardless of their vaccine status. The mandate is for a one month period from December 15, 2021 through January 15, 2022.

More information can be found at the CDPH website, here.

Update: No Enforcement of OSHA’s COVID-19 ETS

Published: November 18, 2021

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

As you’ve probably read in the news, a number of legal challenges have been filed against the OSHA COVID-19 vaccination/testing ETS for large employers.  The 5th Circuit issued a stay on enforcement of the ETS on November 6th and then, later on November 12th reaffirmed that stay holding that the challengers of the ETS are likely to succeed on the merits of the case.

5th Circuit Temporarily Blocks OSHA’s New COVID-19 Standards Mandating Employers With 100 or More Employees to Require Vaccination or Regular Testing

Published: November 5, 2021

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

UPDATE: Fifth Circuit blocks enforcement of the federal OSHA COVID-19 vaccine/testing mandate.

On November 6, 2021, a panel of the fifth circuit issued a stay against the enforcement of OSHA‘s new emergency temporary standards mandating large employers to require vaccination or testing of their workforce. The court found that there are grave statutory and constitutional issues related to the mandatory emergency temporary standards that need to be addressed.

EEOC Issues Guidance Regarding Religious Accommodations in Connection with Mandatory COVID-19 Vaccination Policies

Published: October 27, 2021

For what it’s worth, on October 25, 2021, the EEOC updated its guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” and added Section L entitled “Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates.”  While employers have been waiting for some guidance from the EEOC on this issue given the onslaught of requests for religious exemptions from COVID-19 vaccine mandates, the guidance doesn’t really provide any new guidance addressing the unprecedented pandemic we are all living through.  Instead, the EEOC essentially repeats much of its prior guidance on how to generally address requests for religious accommodations in the workplace.

California Court of Appeal Holds That Trial Courts Have Authority to Strike PAGA Claims For Being Unmanageable

Published: October 20, 2021


The Labor & Employment Law Blog

What is PAGA?

California’s labor law enforcement agencies, including the Labor and Workforce Development Agency (“LWDA”) also known as the “Labor Board” has the authority to investigate whether employers violate the California Labor Code, and assess and collect civil penalties for any such violations.  However, due to purported budget cuts and cited lack of state resources to prosecute such actions, in 2004, the Legislature enacted the Private Attorneys General Act of 2004 (PAGA), Lab. Code, § 2698 et seq., to authorize an employee to bring an action for civil penalties on behalf of the state against his or her employer for Labor Code violations committed against the employee and fellow employees, with 75% of the proceeds of that litigation going to the state, and 25% to the employees.  A PAGA plaintiff therefore steps into the shoes of an attorney general to prosecute alleged Labor Code violations for civil penalties, on behalf of the state.  PAGA penalties can be astronomical.  Pursuant to PAGA, default civil penalties are $100 “for each aggrieved employee per pay period for the initial violation,” and $200 per aggrieved employer, per pay period, per “each subsequent violation.”

Employers Beware – Confidentiality and Non-Disparagement Provisions Face Further Restrictions

Published: October 14, 2021

by James Kachmar
The Labor & Employment Law Blog

In 2018, in response to the #MeToo movement, California enacted Senate Bill 820 which added section 1001 to the California Code of Civil Procedure and prohibited employers from including provisions into settlement agreements that prevent the disclosure of factual information relating to claims of sexual assault, sexual harassment, failure to prevent harassment, harassment in a professional relationship, discrimination based on sex, or retaliation that had been made in connection with a civil lawsuit or administrative action.  Senate Bill 820 took effect on January 1, 2019.  Notably, it applied only to claims based on sex and not other forms of harassment or discrimination nor did it apply to settlement or severance agreements signed before an employee filed a lawsuit.

Legislative Update: Cal/OSHA’s Citation Authority Expanded

Published: October 7, 2021

by Meagan D. Bainbridge
The Labor & Employment Law Blog

On September 27, 2021, Governor Newsom signed SB 606, which creates two new categories of Cal/OSHA violations: “enterprise-wide” violations and “egregious” violations. The new law expands Cal/OSHA’s citation authority and could have the effect of greatly increasing the fines employers (especially those large employers with multiple worksites) might be subject to. The new law will go into effect on January 1, 2022.