Labor & Employment Insights

As COVID-19 infection numbers continue to surge, the CDC released updated guidelines addressing the changing understanding of the Omicron variant. In a media statement issued on December 27, 2021, the CDC noted that the majority of COVID-19 transmissions happen earlier in the illness, typically prior to symptoms and two to three days after. The CDC addressed changes for both individuals exposed to COVID-19 (quarantine guidelines) and for individuals who contracted COVID-19 (isolation guidelines.) Vaccination is relevant only for quarantine requirements.

Quarantine guidelines: These guidelines differ by vaccination status. Those vaccinated with Pfizer or Moderna within the last six months, or with Johnson & Johnson in the last two months, or those “boosted” no longer have any seclusion requirement. Instead, if no symptoms emerge, individuals should wear a mask for ten days around others and test on day five.

For those not vaccinated, or not meeting the requirements of the above paragraph, the CDC recommends quarantine for five days. After five days of seclusion, individuals should continue to wear a mask around others for ten days and obtain a test on day five. Once again, if any symptoms develop, the CDC recommends seclusion and testing.

Shortly after OSHA issued its Emergency Temporary Standard (ETS) mandating vaccination or weekly testing for employers of 100 or more, legal challenges in the federal district courts stalled the implementation of the deadlines for compliance. On December 17, 2021, the Sixth Circuit Court of Appeals – the court designated to hear the consolidated challenges filed in multiple districts – lifted the stay, clearing the way for the implementation of the ETS mandates.

The New ETS Deadlines: Initially, employers were expected to comply with the ETS’s vaccination verification and masking requirements by December 6, 2021, and implement periodic testing for unvaccinated workers by January 4, 2022. In response to the Sixth Circuit ruling lifting the stay, OSHA has announced that it will not enforce any of the ETS standards until January 10, 2022, and will not issue citations for non-compliance with the ETS testing requirements until February 9, 2022, so long as employers are exercising “reasonable, good faith efforts to come into compliance with the standard.”

What Now? An emergency appeal of the Sixth Circuit ruling has already been filed with the United States Supreme Court, which will ultimately decide if the ETS will stand. Nevertheless, employers must prepare now for compliance with the ETS mandate because if sanctioned by the Supreme Court, employers will face a very narrow timeframe to come into compliance with the ETS requirements. Many employers have opted to adopt the ETS mandates despite the ongoing legal challenges because OSHA standards only establish minimum workplace standards and employers are free to implement more stringent requirements.

Yet again, New Jersey’s appellate court has demonstrated its reluctance to enforce agreements to arbitrate signed as part of a new employee’s orientation. In a previous post we discussed a ruling from the Appellate Division demonstrating the risk of having employees execute arbitration agreements during an orientation process. The court in that case refused to enforce the agreement because the employee maintained that pressure was exerted upon her to immediately execute the document, thus depriving her of the opportunity to bring the document home and seek out legal advice.

Another opinion issued by the Appellate Division on November 10, 2021, provides the latest insight on the missteps an employer can make when seeking to enter into a binding arbitration agreement with an employees.

The Facts:  In Cordero v. Fitness International LLC, a former employee of LA Fitness filed a complaint in the New Jersey Superior Court alleging sexually harassment by her former manager. LA Fitness moved to compel arbitration pursuant to an agreement executed by the employee during onboarding her first day on the job. According to the employee, a general manager with LA Fitness placed her at a desk and told her to “sign a few things electronically” before she could start work. He then sat next to her and instructed her to sign an electronic signature pad as he clicked through various documents. The employee claimed she never actually saw the documents that she electronically signed. When the employee later filed her sexual harassment complaint, LA fitness moved to compel arbitration based on the following language contained in a document she signed during onboarding:

New York has long lagged behind New Jersey in according protection to employees who blow the whistle on unlawful or unsafe conditions in the workplace. Unlike its sister state, New York employees had a higher bar for achieving protected whistleblower status under section 740 of the New York Labor Law (NYLL), and employers had viable defenses that could undermine an employee’s claim.

On October 29, 2021 Gov. Hochul signed into law amendments to NYLL Section 740 that significantly expand the rights of employees in ways that bring it line with the expansive protections accorded New Jersey employees. These amendments go into effect January 26, 2022.

Expanded definition of “employee”:  The definition of “employee” was amended to include not only current employees, but former employees as well as independent contractors providing services to an employer.

No sooner did OSHA issue its Emergency Temporary Standard (ETS) on November 4, 2021, to implement mandatory vaccination or testing programs for large employers, it was challenged in 11 of the 12 United States Courts of Appeals as an unconstitutional overreach by the agency. Last Friday the 5th Circuit Court of Appeals (covering most of Louisiana, Mississippi and Texas) confirmed its November 6th temporary stay of the ETS, stating that the rule “grossly exceeds OSHA’s” statutory authority.” The Court also held that the COVID-19 virus was not a proper subject of emergency administrative action by OSHA. Under the court’s ruling, the stay will remain in place until a further order that will come from the appeals court assigned by the U S. Judicial Panel on Multidistrict Litigation to hear the consolidated Circuit Court petitions.

In the face of these legal challenges, OSHA suspended the implementation and enforcement of the ETS pending the ongoing litigation. However, OSHA stated that it remains confident that the ETS will ultimately be withheld.

What should large employers covered by the ETS do? In light of the 5th Circuit ruling, employers of 100 or more no longer need meet the looming December 6th and January 4th deadlines imposed by OSHA to implement vaccination verification, weekly testing, and other requirements of the ETS.

As part of President Biden’s plan for battling the COVID-19 pandemic, the Occupational Safety and Health Administration (OSHA) has issued the anxiously awaited emergency temporary standard (ETS) “to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination.” Consistent with the President’s plan, the ETS requires large employers to adopt policies mandating COVID-19 vaccination or alternatively, policies requiring employees to choose between vaccination or undergoing regular COVID-19 testing.

The ETS is expected to apply to two-thirds of private sector workers. While the ETS does not apply to state and local governments in states without OSHA-approved occupational safety and health programs (“State Plans”), jurisdictions with State Plans (such as New Jersey) must comply with the ETS. Although the ETS does not currently apply to small employers, OSHA cautions that it needs time to assess the capacity of small employers to meet the administrative burdens of the ETS and is seeking comment to help the agency make that determination.

We have distilled the 490-page ETS to provide an overview of the requirements that will be imposed upon large employers under the ETS.

On September 9, 2021, President Biden announced that large employers of 100 or more must mandate that their employees show proof of being fully vaccinated for COVID-19 or wear a mask and undergo weekly COVID-19 testing. These mandates were not slated to go into effect until the Occupational Safety and Health Administration (OSHA) developed an Emergency Temporary Standard (ETS) addressing the requirements employers must follow when implementing the vaccination and testing mandate.

On November 4, 2021, OSHA issued the highly anticipated ETS. The Lindabury team is currently wading through the 490-page ETS and will provide a more detailed analysis of the requirements in the near future. In the interim, here are only some of the ETS details employers have been anxiously waiting for:

• The ETS is effective November 5, 2021, and will be in effect for 6 months