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, email@example.com and Richard R. Burns, firstname.lastname@example.org, 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.
- VACCINE MANDATE FOR LARGE EMPLOYERS STRUCK DOWN BY FIFTH CIRCUIT COURT OF APPEALS
- EEOC ISSUES GUIDANCE ON RELIGIOUS ACCOMMODATIONS TO COVID‑19 VACCINE MANDATES
- FEDERAL CONTRACTOR MINIMUM WAGE CHANGES TO $15/HOUR IN 2022
- UNION EMPLOYERS REQUIRED TO BARGAIN CERTAIN ASPECTS OF MANDATORY VACCINATION/TESTING POLICIES
- Tip Of The Month
On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) establishing vaccination or regular testing and masking requirements for employers with 100 or more employees. These requirements were set to become effective on December 6, 2021. However, the Fifth Circuit Court of Appeals, which covers Texas, Louisiana and Mississippi, issued a ruling on November 12 staying implementation and enforcement of the COVID‑19 vaccination/testing ETS. The Order was issued in response to a petition filed by various states, private employers, citizens and religious groups. The Court said the emergency regulation is not “necessary” to protect employees from “grave danger” due to exposure to “substances or agents determined to be toxic or physically harmful,” which is the legal standard for such regulations. In reaching that conclusion, the Court concluded the virus is widely present, not particular to any one workplace and “non-life threatening to a vast majority of employees.” The Court further said the number of employees does not render a meaningful basis for meeting the objective of protecting employees from a specific harm – making the regulation overinclusive and underinclusive at the same time (requirement is not connected to actual threat to employees, and workers at smaller employers may have greater or equal risk of harm). The Order will remain in effect pending further proceedings to determine whether a permanent injunction of the ETS is ordered. As a consequence, the December 6 deadline is no longer in effect until further ruling by the Sixth Circuit Court of Appeals, which has been assigned to hear challenges to the mandate from across the nation. President Biden has asked the Sixth Circuit to lift the stay while challenges are litigated, allowing the mandate to go into effect. It should be noted that the Fifth Circuit’s ruling does not affect the mandatory vaccination rule issued by the Centers for Medicare and Medicaid Services’ rule for health care workers or Executive Order 14042, which mandates vaccinations for federal contractors.
EEOC ISSUES GUIDANCE ON RELIGIOUS ACCOMMODATIONS TO COVID-19 VACCINE MANDATES
On October 25, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) provided some answers regarding religious objections to mandatory vaccination policies. Employers implementing mandatory vaccination policies must provide a religious accommodation for an employee’s “sincerely held religious objection” to the COVID-19 vaccination mandates.
Religion is defined in Title VII as “all aspects of religious observance and practice as belief.” While this includes more than mainstream religions, Title VII does not protect “social, political, or economic philosophies, as well as mere personal preferences” as religious beliefs.
Employees requesting the religious accommodation to a COVID-19 vaccination mandate must notify their employer of “a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.” While employers should generally accept its employee’s claim that their religious beliefs are sincerely held, employers can request verification if there is an objective basis for questioning the religious nature or the sincerity of a particular belief. Employers may ask employees to explain the religious nature of their belief.
If a request for a religious accommodation to a COVID-19 vaccine mandate causes an undue hardship on an employers’ operations, the request may be denied. Undue hardship has been found where the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share for potential hazardous or burdensome work. Employers should assess undue hardship on a case-by-case basis. Before denying a religious accommodation request, employers should consider whether alternative accommodations, such as telework or reassignment, would be possible.
On November 22, 2021, the United States Department of Labor announced an administrative rule that will implement President Biden’s Executive Order requiring all federal contractors to pay their employees at least $15 per hour. The new minimum wage will go into effect on January 30, 2022, at which time contract solicitations from federal agencies will incorporate the requirement. The new rate does not affect contracts entered into with the federal government prior to the effective date, but extensions of such contracts signed after that date will incorporate the $15 per hour minimum wage rate. The federal contractor minimum wage rate will increase each year following 2022, with the Secretary of Labor adjusting it to reflect inflation and other factors. New posters will be required at companies where it applies, and fact sheets with implementation instructions will be issued by the Department of Labor.
UNION EMPLOYERS REQUIRED TO BARGAIN CERTAIN ASPECTS OF MANDATORY VACCINATION/TESTING POLICIES
As noted elsewhere in this Employment E-Letter, the Fifth Circuit Court of Appeals has halted OSHA’s Vaccine/Test Policy mandate for large employees for the time being. Notwithstanding, union employers should be considering whether they will adopt a mandatory vaccination policy or a policy requiring vaccination or testing/masking. There are, of course, additional effects that would arise from adopting and implementing either policy. Under a recent Guidance Memorandum issued by the National Labor Relations Board’s General Counsel, certain components of OSHA’s Emergency Temporary Standard requiring vaccine and/or testing policies are subject to mandatory bargaining under the National Labor Relations Act. Under the Memorandum, these include (but are not limited to): (1) the option to implement a mandatory vaccine policy or to permit unvaccinated employees to work subject to weekly testing and wearing face covering; (2) which party will pay for testing unvaccinated employees; (3) retention and handling of employee records pertaining to vaccination and (4) how to accommodate side effects from vaccination. Under most collective bargaining agreements, employers have the right under a management rights clause to implement policies, such as the vaccine or test policy, union employers are likely required to bargain with the union over effects of implementation of the policy. Thus, large union employers, like all other large employers, should keep a close eye on federal government mandates for vaccination and testing policies.
TIP OF THE MONTH: In a market where there is high demand for workers and a small pool of available applicants, employers must remain vigilant with applicant screening and compliance with rules relating to hiring processes. For example, failing to conduct background checks or ignoring the results of same can place workplace safety, customers and/or employer assets at risk and potentially open the employer to negligent hiring/retention claims.
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.