Texas executive order restricts mandatory vaccination policies for employers

Most Texas employers are likely already familiar with Texas Governor Greg Abbott’s Executive Order GA-39 that prohibits state and local governments from requiring (1) individuals to receive a COVID-19 vaccine, or (2) documentation proving vaccine status (that is, “vaccine passports”) as a condition to receive any service or enter any place.

Building upon Executive Order GA-39, on October 11, 2021, Governor Abbott issued Executive Order GA-40 (the Texas EO), which prohibits private employers in Texas from requiring that employees receive a COVID-19 vaccination. Specifically, the Texas EO prohibits any Texas entity from “compel[ling] receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” Texas entities that violate the Texas EO can be fined up to $1,000 (it is unclear whether the fine will be per violation). The Texas EO does not create any private cause of action, nor does it call for retroactive application.

The Texas EO creates three bases for employees to object to vaccination: (1) personal conscience; (2) religious belief; and (3) medical reasons. The Texas EO also specifically states that prior recovery from COVID-19 is a valid basis for an individual to object to a COVID-19 vaccine. The objections permitted under the Texas EO go far beyond the religious and medical exemptions to vaccine mandates under Title VII of the Civil Rights Act and the Americans with Disabilities Act, respectively. Moreover, the Texas EO does not contain an undue burden exception or mention any other grounds that would permit an employer to deny an employee’s objection to a mandatory COVID-19 vaccine that is made under the three bases in the Texas EO.

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California employment law legislative updates: What’s new in the Golden State

It’s that time of the year again! The deadline for California Governor Gavin Newsom to sign, approve without signing, or veto bills on his desk was October 10, 2021. Now that the dust has settled, we have compiled a comprehensive list of bills signed by the governor that will impact employers. We also highlight bills that the governor vetoed but that employers should keep on their radars in case they make a comeback.

Employers should consider reviewing these new laws to determine whether they need to revise their policies and practices to ensure they are compliant and to make sure they are not caught off guard. These new laws go into effect on January 1, 2022, with the exception of Assembly Bill 654 dealing with COVID-19 outbreak reporting and Assembly Bill 73 dealing with employee protections from wildfire smoke, both of which went into effect immediately upon signing.

New Jersey expands protections for older workers

On October 5, 2021, Governor Phil Murphy signed legislation (A681) amending the New Jersey Law Against Discrimination (NJLAD) to expand protections for the state’s older workers. While the NJLAD already prohibited age discrimination, it contained an exception permitting employers to decide not to hire or promote workers over 70 based on their age. The new amendments remove this exception to the law. In addition, the amendments remove a provision that permits higher education institutions to require tenured professors to retire at 70 years old, makes it more difficult for a government employer to set a mandatory retirement age, and expands remedies to an employee required to retire due to age.

New Jersey employers that previously relied on these provisions should be sure to update their policies and practices. If you require any assistance, Reed Smith’s experienced Labor and Employment attorneys are available to assist.

Federal contractors and subcontractors receive guidance on President Biden’s vaccine mandate, including December 8, 2021 compliance date

On September 24, 2021, the Safer Federal Workforce Task Force issued guidance for federal contractors and subcontractors concerning various safety protocols (the Guidance) as required by President Biden’s Path Out of the Pandemic and Executive Order 14042 (the Order). The stated purpose of the safeguards set forth in the Guidance are to decrease the spread of COVID-19, which will decrease worker absences, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal Government.

As a threshold matter, the Order does not apply to all federal contractors. Specifically, the Order applies to contracts for services, construction, or leasehold interest in property; services covered by the Service Contract Labor Standards; concessions; and work relating to federal property lands and related to offering services for federal employees, their dependents, or the general public. The Order specifically excludes grants, contracts or contract-like instruments with Indian Tribes, contracts with a value equal to or less than the FAR simplified acquisition threshold (currently $250,000), employees performing work outside the United States, and subcontracts solely for the provision of products. However, the Guidance also strongly encourages agencies to incorporate clauses requiring compliance with the Order into contractors that are not covered or directly addressed by the Order.

Further, the requirements apply only to a covered contract, which is defined as one that includes a provision that the contractor will “comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.” Stated differently, simply being a federal contractor does not mean all employees must be vaccinated by the deadline.  Instead, the requirements apply to any new solicitations issued on or after October 15, 2021, the option to extend an existing contract on or after October 15, 2021, and new federal contracts awarded on or after November 15, 2021. However, agencies are again strongly encouraged to incorporate a clause requiring compliance with the Order into existing contracts and contract-like instruments prior to the date upon which the Order requires inclusion of the clause.

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Employees in France who fail to present a health pass risk having their employment contract suspended

In France, a health pass[1] must be presented in certain places or events where there is a high risk of COVID-19 being contracted (e.g. concert halls/cinemas, sports events, bars and restaurants, long-distance transport, shopping centres over 20,000 m², etc.) as listed by the Law no. 2021-1040 dated 5 August 2021.

Since 30 August 2021, employees working within these places are also required to present a health pass in order to continue their job role, unless this takes place in a space that is not accessible to the public or takes place outside of public opening hours.

If the employee does not have a health pass or refuses to present it, they will no longer be able to work. The employee may take rest days or paid leave in agreement with the employer. However, if an agreement is not met, the employer is required to suspend the employee’s employment contract without pay until the employee is able to present a health pass. The Law states that, after the third day of the suspension of the contract, the employer must conduct an interview with the employee during which they will discuss ways to rectify the situation. For example, this could include a temporary assignment to a position not subject to the above-mentioned obligations if the needs and organisation of the company allow it or teleworking if the employee is eligible. If they fail to come to an agreement, the Law states that “ordinary law procedures” concerning employment contracts may be applied. The text no longer states that the employee may be dismissed if they fail to present a health pass for an extended period. Continue Reading

Help! We have had a major influx in religious accommodation requests from our mandatory vaccine policy

Mandatory vaccine policies became even more of a scorching hot topic after the Biden Administration announced its Path Out of the Pandemic initiative (which we previously wrote about here). Some employees may have a legitimate medical reason for refusing a COVID-19 vaccine (e.g., an allergy to vaccine components). But what about an employee claiming to have a religious objection to taking the vaccine? We have recently seen clients experiencing an influx in requests from employees seeking a religious accommodation to be exempt from the company’s mandatory vaccine policy. Below, we discuss some of the complex legal and practical issues employers should consider when navigating these unchartered waters.

Quick recap of the “religious exemption”

Title VII of the Civil Rights Act (Title VII), and similar state and local anti-discrimination laws, prohibit employment discrimination on the basis of religion. To comply with those laws, employers are generally required to accommodate an employee’s “sincerely held” religious belief, observance or practice. A religious accommodation is an adjustment to the work environment that, once implemented, allows the employee to continue working while also complying with his or her religious beliefs. In guidance issued earlier this year, the EEOC stated “[t]he law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.” Even if the religious assertion seems irrational or is not the actual teaching of a recognized religious group or denomination, the relevant standard under Title VII is the sincerity of the individual’s belief.

Determining what a “sincerely held” religious belief means

Here is where it gets tricky. The EEOC and courts have interpreted “religious belief” very broadly under Title VII. An employee does not have to show they attend a place of worship, are a member of an organized religion, or even believe in a deity. Nor does an employee seeking a religious accommodation need to provide a note from their priest or spiritual advisor verifying that employee’s belief. According to the EEOC, a “religious belief” includes any “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” In its Compliance Manual, the EEOC warns employers should not be in the business of trying to decide whether a person holds a religious belief for the “proper” reasons. The inquiry should focus on the sincerity of the belief; not the motives or reasons for holding that belief in the first place.

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COVID-19 SSP Rebate Scheme due to end on 30 September 2021

The COVID-19 SSP Rebate Scheme launched by the Government in May 2020 as part of a package of COVID-related financial support for employers is closing at the end of this month.

The scheme enables small to medium sized employers to reclaim statutory sick pay (SSP) costs caused by absences due to coronavirus. SSP costs are normally paid entirely by the employer, however the scheme allows qualifying employers with less than 250 employees, as at 28 February 2020, to reclaim up to 2 weeks’ SSP per employee if they are unable to work because they have COVID-19 or because they are self-isolating.

The scheme will close on 30 September meaning that from 1 October, all employers will again be responsible for covering the full cost of SSP. Employers have until 31 December 2021 to file or amend any claims for SSP in respect of coronavirus-related absences prior to the end of September 2021.

Vaccination requirements have arrived for all federal and many state employees and health care workers

Recently, we posted about President Biden’s COVID-19 Action Plan, “Path out of the Pandemic” (the Memo). To recap: the Memo instructs OSHA to develop and issue an Emergency Temporary Standard (ETS) to require all employers with 100+ employees to ensure their workers are vaccinated against COVID-19 or to require them to submit to weekly testing before coming to work.

The Memo also states that the Centers for Medicare & Medicaid Services are taking steps to require vaccinations for workers in healthcare settings that receive Medicare or Medicaid reimbursement. An executive order issued with the Memo requires vaccination for all federal employees (with no alternative option for testing), as well as employees of certain federal contractors that do business with the federal government.

Does this mean state-government employees, employees working at companies with less than 100 employees, and healthcare providers that do not receive Medicare or Medicaid reimbursement are not covered by any vaccine mandates or testing requirements? Not necessarily. In a prior post, we summarized the COVID-19 liability-shield laws in the 19 states that have passed them.

Here, we briefly summarize the 17 states that have issued executive orders or otherwise enacted similar vaccination/testing requirements as the Memo at the state-level. For simplicity, we have summarized these state-level requirements in a chart. Because this area of the law is rapidly changing and evolving, we recommend employers stay abreast of all state and local requirements for both public and private employers. Some go beyond those requirements included in President Biden’s Memo.

If you have any questions regarding President Biden’s “Path out of the Pandemic” plan or any local vaccine regulation, Reed Smith’s experienced Labor & Employment Group is ready to speak with you.

 

 

Ninth Circuit rules to lift preliminary injunction on California’s ban on mandatory employee arbitration agreements

A split Ninth Circuit panel vacated a 2020 preliminary injunction that blocked the enforcement of California’s A.B. 51, which prohibits mandatory arbitration clauses in employment contracts. If the majority decision stands, it will mean that California employers can no longer require their employees or new hires to sign arbitration agreements (among other types of waivers) as a condition of employment.

A.B. 51

A.B. 51 was signed into law in October 10, 2019, adding section 432.6 to the California Labor Code. The law generally prohibits an employer from requiring any applicant or employee, as a condition of employment or receipt of any employment-related benefit, to waive any right, forum, or procedure for a violation of the California Fair Employment and Housing Act (FEHA) or the California Labor Code, subject to certain exceptions. Such a waiver includes, for example, mandatory arbitration clauses in an employment contract, but the law is not limited specifically to arbitration agreements. A.B. 51 also prohibits an employer from threatening, retaliating, or discriminating against any applicant or employee because of the refusal to consent to such a waiver. A.B. 51’s restrictions stated that they would apply to all employment contracts entered into, modified, or extended on or after January 1, 2020.

Additionally, the law specifies that a violation of the above prohibitions would constitute an unlawful employment practice and, consequently, impose criminal and civil penalties. Such penalties might include a misdemeanor offense, state investigation, or private litigation.

2020 Order Granting Preliminary Injunction

On December 9, 2019, a lawsuit was filed in the U.S. District Court for the Eastern District of California to enjoin enforcement of A.B. 51 on the grounds that the law was preempted by the Federal Arbitration Act (FAA). In ruling on the motion for a preliminary injunction, the district court held A.B. 51 placed arbitration agreements on unequal footing with other contracts and that A.B. 51 was inconsistent with the purposes and objectives of the FAA. On December 30, 2019, the district court issued a temporary injunction, and, shortly thereafter, the district court preliminarily enjoined enforcement of A.B. 51 as to arbitration agreements covered by the FAA (the Order).

The Ninth Circuit Majority Decision Vacating The District Court’s Order

The Ninth Circuit reviewed the Order granting a preliminary injunction, and issued its opinion on September 15, 2021. The majority decision states that it vacates the injunction preventing the state from enforcing A.B. 51, but also invalidates the new criminal and civil penalties added by the law at least as applicable to executed arbitration agreements.

In the majority opinion, the panel held that A.B. 51’s restriction on requiring waiver of an employee’s rights, forums, or procedures for violations of the FEHA or Labor Code did not affect the validity and enforceability of arbitration agreements in a way that conflicts with the FAA or stands as an obstacle to the federal law’s purposes and objectives. Specifically, the majority held that those provisions of A.B. 51 involving the regulation of pre-agreement employer behavior were not preempted by the FAA and, thus, valid. The panel held, however, that A.B. 51’s criminal and civil penalties were preempted by the FAA and, thus, invalid at least as applicable to executed arbitration agreements. Unlike the restrictions on pre-agreement behavior, the potential penalties would punish employers for entering into arbitration agreements, which stand as an obstacle to the purposes and objectives of the FAA. Accordingly, the majority partially reversed the Order, vacated the preliminary injunction, and remanded to the district court for further proceedings.

Given the importance of this issue, it is likely that rehearing en banc and/or an appeal to the U.S. Supreme Court will be sought. Nonetheless, California employers should immediately review contracts that may be affected by this ruling and consult with their employment attorneys regarding their approach to those agreements in the wake of this decision.

Overview of several new workplace laws Texas employers should know about following the recent legislative sessions

The Texas Legislature has been quite busy over the most recent regular and two specially-called legislative sessions. It adjourned its second specially-called legislative session on September 2, 2021. Additional bills may be enacted into law if and when Governor Greg Abbott calls a third special session. So far, Governor Abbott has signed into law several bills that may have flown under the radars of many Texas employers. Here’s a brief recap of several new laws that may impact Texas businesses and their workforce.

Expansive new sexual harassment protections

As we noted in prior posts (July 6, 2021 and September 2, 2021), Texas passed several new laws that increase legal protections against sexual harassment. The laws, which went into effect on September 1, 2021, expand liability for sexual harassment to companies with just one employee and to individual supervisors and coworkers. The legislation also lengthens the deadline from 180 days to 300 days for a claimant to file a charge alleging sexual harassment with the Texas Workforce Commission.

Liability shield for Texas businesses from most COVID-19 claims

As we noted in prior posts (July 15, 2021 and August 19, 2021), Texas – along with 18 other states – passed statutory liability protections for businesses against claims arising from the ongoing COVID-19 pandemic. The Pandemic Liability Protection Act (PLPA), which went into effect on June 14, 2021, grants retroactive liability protection for both small and large businesses for claims commenced on or after March 13, 2020. The PLPA does not provide Texas businesses an absolute immunity shield, and claims can still be brought for a pandemic-related injury or death if the business:

  • Knowingly failed to warn of, or to fix, a condition it knew was likely to result in exposure, and the failure to warn or fix was the cause in fact of the exposure; or
  • Knowingly failed or refused to comply with government standards, guidance or protocols that are intended to lower the likelihood of exposure to COVID-19, and the failure or refusal to comply was the cause in fact of the exposure.

As written, the PLPA’s liability shield will continue to protect businesses until Governor Abbott terminates the current COVID-19 pandemic disaster declaration. Continue Reading

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