Analysis and commentary by Reed Smith attorneys on developments in employment and labor law
On Wednesday, March 23, 2022, official revocation of Virginia’s COVID-19 permanent workplace safety standard became effective upon publication in the Richmond Times-Dispatch. That action followed a vote by the Virginia Department of Labor and Industry’s (DOLI’s) Safety and Health Codes Board (Board) earlier this week.
The Board initiated steps in February to end the standard…
On March 3, President Joe Biden signed into law one of the most significant modifications ever made to federal arbitration law. Known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (the Act), the new law essentially restricts employers from forcing workplace sexual harassment or assault claims to be resolved…
On March 1, 2022, the New York State Senate passed a suite of landmark employment legislation. Though several of the bills still need to be passed by the State Assembly – and, of course, ultimately signed into law by Governor Kathy Hochul – Empire State employers should nevertheless review the measures now so they will…
On Wednesday, February 16, 2022, the Virginia Department of Labor and Industry’s (DOLI’s) Safety and Health Codes Board (Board) convened and voted to recommend revoking the Commonwealth’s COVID-19 permanent workplace safety standard. This action comes after newly-elected Governor Glenn Youngkin issued Executive Order 6 directing the Board to convene an emergency meeting to consider…
On February 7, 2022, the United States House of Representatives passed H.R. 4445, which would modify the Federal Arbitration Act by carving out an exception for cases involving sexual harassment and assault. The bill titled, “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” – which was passed by the Senate on…
Pennsylvania House of Representatives members have proposed House Bill 2318, which proposes that employers must provide a “natural immunity” exemption to employees under any employer COVID-19 vaccine mandate policy. The bill defines “natural immunity” as possessing immunity to the COVID-19 virus as a result of previous infection caused by the virus. Thus, if the proposed…
Under the Occupational Safety and Health Act (OSH Act or the Act), employees who raise concerns regarding safety or health in the workplace are protected against retaliation from their employer. With the publication of the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS), employers should be mindful that the Act’s whistleblower protections extend to employees who raise concerns about their employer’s compliance with the ETS.
On November 5, 2021, OSHA published its much-anticipated ETS designed to minimize the risk of COVID-19 transmission in the workplace. We have previously discussed the requirements of the ETS, but generally speaking, the ETS requires employers with 100 or more U.S. employees to implement a policy that either (i) mandates COVID-19 vaccination for all employees, or (ii) encourages vaccination for all employees and requires testing of unvaccinated employees. The ETS also requires paid time off for vaccination and recovery from the side effects of vaccination, and it imposes recordkeeping obligations on employers.
Given OSHA’s limited number of workplace safety inspectors and the large number of employers subject to the ETS, employees will be key in enforcement of the ETS as suggested by recent remarks by the Biden administration. Jim Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, recently stated that OSHA will focus on job sites “where workers need assistance to have a safe and healthy workplace … [t]hat typically comes through in the form of a complaint.” And, on November 10, 2021, in the announcement of a joint initiative between the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB) to increase protections for whistleblowers, Solicitor of Labor Seema Nanda remarked: “[i]n the U.S. Department of Labor’s fight against … unsafe or unhealthy workplaces, and other unlawful employment practices, we will use all tools available to protect workers from retaliation.”
Further, while employees previously could file complaints with OSHA raising workplace safety and health concerns related to COVID-19 under the Act’s General Duty Clause, the ETS makes it easier for OSHA to establish a violation of the Act. Unlike the amorphous General Duty Clause, the ETS sets out specific standards for employers and penalties for failure to comply. Moreover, the ETS obviates the need for OSHA to establish a recognized hazard – that is, the workplace condition or practice to which employees are exposed has the potential for death or serious physical harm – for each General Duty clause violation since OSHA has already determined that COVID-19 constitutes a recognized hazard determination in issuing the ETS.
Continue Reading Employers subject to OSHA ETS must be mindful of OSH Act whistleblower protections
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…
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)…
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.
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.
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:
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 Overview of several new workplace laws Texas employers should know about following the recent legislative sessions
