The Employer E-Letter: Labor and Employment Law News
from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Co-Editors, Scott A. Witty, saw@hanftlaw.com and Richard R. Burns, rrb@hanftlaw.com, or 218.722.4766. Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
This Month’s Topics:
- OSHA IMPLEMENTS EMERGENCY TEMPORARY STANDARD (ETS) IN HEALTH CARE SETTINGS
- TEXAS FEDERAL COURT DENIES EMPLOYEE CHALLENGE TO VACCINATION REQUIREMENT
- EMPLOYERS REQUIRED TO RECORD ADVERSE REACTIONS TO MANDATED COVID‑19 VACCINATIONS BEGINNING MAY 2022
- EIGHTH CIRCUIT ALLOWS FOOTBALL PLAYERS’ GENDER DISCRIMINATION CLAIM AGAINST UNIVERSITY OF MINNESOTA TO PROCEED
- Tip Of The Month
OSHA IMPLEMENTS EMERGENCY TEMPORARY STANDARD (ETS) IN HEALTH CARE SETTINGS
In response to the ongoing COVID-19 pandemic, the Occupational Safety and Health Administration (OSHA) on June 10, 2021, issued its first Emergency Temporary Standard (ETS) in 38 years. The ETS applies in certain health care workplace settings with suspected or confirmed COVID-19 patients and will remain in effect until OSHA publishes a permanent standard or determines COVID-19 no longer poses significant danger to the workforce. Health care settings covered by the ETS include hospitals, nursing homes and assisted living facilities, ambulatory care facilities, and any other settings where employees provide health care services. The same health care settings are not covered by the ETS if: (1) the workplace has no suspected or confirmed COVID-19 patients; (2) all employees are vaccinated; and (3) all visitors are screened for COVID-19 symptoms prior to entry. Effective June 21, 2021, health care employers covered by the ETS must develop and implement a COVID-19 plan to identify, control, and reduce COVID-19 transmission in the workplace. The ETS requirements include but are not limited to the following: patient screening and management; standard and transmission-based precautions based on CDC Guidelines; personal protective equipment (PPE), including facemasks or respirators; controls for aerosol-generating procedures; physical distancing of at least six feet, when feasible; physical barriers; cleaning and disinfection; ventilation; health screening and medical management; training; anti-retaliation protections; recordkeeping; and reporting. All requirements must be implemented at no cost to employees. The ETS exempts fully vaccinated employees from wearing a mask, social distancing, and barrier requirements if the employer determines there is no reasonable expectation patients with suspected or confirmed COVID-19 are present. However, employers must follow any stricter state and local requirements related to COVID-19 in health care settings. OSHA’s standards and guidance are updated as the pandemic evolves. Complete guidance on OSHA’s ETS is available at www.osha.gov/coronavirus/ets.
TEXAS FEDERAL COURT DENIES EMPLOYEE CHALLENGE TO VACCINATION REQUIREMENT
Whether employers can, should or ought to require employees to receive the COVID-19 vaccination remain open questions as infection rates decrease, vaccination numbers increase and concerns about variants lingers. Employers did receive some guidance recently, however, when a Texas Federal District Court dismissed a lawsuit commenced by a group of hospital employees claiming they were illegally forced to get vaccinated as a condition of employment. In Bridges et al. v. Houston Methodist Hospital, the hospital’s policy set a deadline for all employees to be vaccinated, and those that refused would be subject to a two-week suspension and then termination if no vaccine was obtained. Case No. H‑21‑1774 (S.D. Tex. June 12, 2021) The hospital’s policy permitted exemptions for medical conditions or sincerely held religious beliefs. The employees claimed the policy was illegal because it violated Texas state law precluding termination for employee refusal to perform illegal acts (without specification of what unlawful act the policy required), violated the FDA statute that requires government employers to notify employees they may refuse vaccines that have emergency use approval but not standard FDA approval, was contrary to public policy and required employees to involuntarily become medical testing subjects in violation of the Nuremberg Code. The Court rejected the employee claims, stating the Nuremberg Code and FDA statute apply only to government agencies, vaccination was not the equivalent to involuntary medical experimentation and Texas law only precludes termination for refusal to commit a crime, which vaccination is not. The Court cited a 1905 US Supreme Court decision that compulsory vaccination was not a violation of due process, and thus not a violation of public policy. The Court stated that the mandatory vaccination was simply the employer’s attempt to conduct its business of savings lives without contributing to the spread of COVID-19, and employees had the choice of getting the vaccine or seeking work elsewhere.
EMPLOYERS REQUIRED TO RECORD ADVERSE REACTIONS TO MANDATED COVID-19 VACCINATIONS BEGINNING MAY 2022
COVID-19 vaccine availability has prompted some employers to mandate employees to fully vaccinate. Under such mandates, employees may report injury or illness related to the vaccine and possibly file workers’ compensation claims and/or record adverse side effects as a work-related incident. In April 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued guidance which requires employers that mandate their employees to receive the COVID-19 vaccination to record adverse reactions on its OSHA Form 300 log. OSHA law requires most employers with 10 or more full-time employees to keep a yearly log of work-related injuries and illnesses. The April 20, 2021 guidance states that if employers mandate vaccinations, then any adverse reaction to the vaccination is considered work-related and must be recorded. In response, several companies changed their vaccination policy to recommend ‑ not require ‑ a vaccine, particularly in industries such as construction where liability and risk are defined differently and OSHA recordkeeping is much more burdensome than other industries. OSHA updated its guidance on May 22, 2021, stating it will not enforce this recording requirement until May 2022 due to concerns that requiring employers to record adverse reactions will discourage employers from supporting their employees in getting the vaccine. Note: The OSHA recording requirement only applies to employers that mandate the vaccine; employers that offer and/or encourage the vaccine are not required to record adverse reactions to the vaccination. Current pandemic-related OSHA guidance is posted at www.osha.gov/coronavirus.
The Eighth Circuit Court of Appeals recently ruled that a group of football players accused of sexual assault in 2016 may proceed with their gender discrimination suit against the University of Minnesota. In 2016, after an investigation into a woman’s complaint of being sexual assaulted, the University accused 10 Gophers football players of sexual misconduct. Five of the men were expelled or suspended for violating the student code of conduct, while the rest were cleared on appeal. The football players claim the woman instigated the sexual encounter with them and an underage recruit. Nine players initiated a lawsuit in 2018 against the University seeking unspecified damages for willful and malicious discrimination. The men claim that as a result of being falsely accused of being sex offenders, they experienced severe emotional distress and suffered financial damage. In 2019, the U.S. District Court dismissed the case, citing “no factual support for their allegations of disparate treatment.” Upon appeal, the Eighth Circuit determined that the players’ Amended Complaint stated plausible claims of Title IX discrimination on the basis of sex. The Court cited to the players’ claim of “internal pressure on University officials to charge male football players with misconduct” along with the claim that the University believed “football players had covered-up sexual misconduct complaints” relating to a separate 2015 sexual assault claim, causing the University to be motivated to “punish as many players as possible in response to [the woman’s] accusations.” The Court also pointed to external pressures for the University to demonstrate it was responsive to sexual assault claims, combined with the “detailed allegations of investigator bias and dubious investigative procedures in these particular proceedings” lent sufficient credibility to the inference of discrimination “on the basis of sex.” Accordingly, the Eighth Circuit reversed the District Court’s dismissal of the players’ Title IX discrimination claims. Doe v. Regents of the Univ. of Minn., 999 F.3d 571 (8th Cir. 2021).
TIP OF THE MONTH:
This may come as a surprise to some, but remote employees do report workplace harassment, and at a surprising rate. Surveys of remote workers indicate employees reporting harassment based on gender, race and age. Employers should be aware that harassment can occur between employees even though they are not in personal contact with one another. Employers should be sure to promptly investigate complaints just as they would if employees were all under one roof and take action to discontinue harassing conduct immediately. Policies should also be reviewed and revised to note that harassment via videoconference, text or other electronic means is prohibited.
Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota. Visit our website at www.hanftlaw.com for general information on the firm and our attorneys. Our employment lawyers include Tom Torgerson, Rob Merritt and Scott Witty. Richard Burns is now of Counsel.
The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E‑letter.
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Copyright 2021 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; Fax 218.529.2401.