A 6-3 majority of the Supreme Court held in Kennedy v. Bremerton School Dist. that a public school coach’s midfield post-game prayer, with students, is protected by the First Amendment.
Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech.
The dissent noted that the prayer was anything but post-game, as it occurred during the entire overall game-night event, which the coach began with a locker-room prayer, and while student-athletes weren’t ordered to participate they were, the evidence established, effectively coerced, allowing the coach to evangelize his public school government employee job. Indeed, the dissent pointed out, evidence showed that others viewed the coach’s behavior as a sign that the public school itself was endorsing his prayers, itself a violation of the First Amendment’s church-state separations.
Readers are reminded that the First Amendment does not apply as against private employers.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2022-06-27 09:16:142022-06-27 09:16:14Supreme Court holds public school coach’s midfield post-game prayer, with students, is protected by First Amendment
When it announced the release of OSHA’s ETS implementing the President’s vaccine mandate for employers of 100 or more, the White House announced the deadline for government contractors to mandate that employees would need to be vaccinated would be extended from December 8, 2021 to January 18, 2022. Note: That will the deadline for employees to be “fully vaccinated,” meaning the deadline to actually receive their full-final vaccine injection will be 14 days earlier January 4, 2022.
Because the extension of this deadline was implemented by way of an announcement from the White House, not through OSHA’s ETS itself, the Fifth Circuit’s freezing of the ETS would not seem to affect this extension.
However, it is noted that the Federal Safer Work Place Task Force has yet to update its own documentation to reflect this new extension, and it was announced only in that relatively informal announcement from the White House; therefore, it is arguably possible that the White House may, especially after the ETS was frozen, wish to pull back on this delay. Employers should stay tuned to developments at the federal level.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2021-11-06 16:38:582021-11-06 16:38:58White House announces extension of deadline for government contractors to implement vaccine mandate
Within 24 hours after OSHA issued its new ETS implementing President Biden’s vaccine mandate for employers of 100 or more, one federal court — the Fifth Circuit of the United States Court of Appeals — has already frozen its implementation. Without further explanation, the Fifth Circuit noted that the ETS raises “grave statutory and constitutional issues.” President Biden’s other vaccine mandates including the government-contractor mandate are not affected by this ruling.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2021-11-06 16:36:332021-11-06 16:36:33Fifth Circuit freezes new OSHA vaccine rule
The ETS was effective as a statement of federal law immediately on its publication 11/5/2021. General compliance is required by 12/5/2021, to include the policy requirements, mask mandate, recordkeeping and reporting. The sole exception is that mandating vaccines/tests in lieu of vaccination will be required no later than 1/4/2022. Someone who receives their full-final injection on or after 12/21/2021 will not have to be tested in the 2 weeks thereafter as they wait to become fully vaccinated.
OSHA expects the ETS will remain in effect for 6 months after 11/5/2021, though OSHA cautions it may shorten or extend the ETS’ duration.
Because the ETS’ effective date as law was immediate on its publication 11/5/2021, litigation over it commenced almost immediately that same day. At the time of this posting, more than half of the states have filed a variety of lawsuits seeking to invalidate the ETS. Unless a court rules otherwise, though, employers should continue to work towards compliance.
When considering coverage, the ETS reaches only some employers, and at those employers, only some employees.
Employers of 100 or more “at any time the (ETS) standard is in effect” are covered by this ETS. The 100 is counted company-wide, not by location. When counting the 100, all employees are covered, whether full-time or part-time. Employees are counted by the head not FTE; in other words, two part-time employees each working half-time (20 hours per week) do not count as 1 even though together they constitute 1 FTE, rather they count as 2. True independent contractors do not count towards the 100, unless the company is a joint employer. In its preface to the ETS, OSHA offers the following examples (quoting list by OSHA):
If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of this ETS because it has 100 employees.
If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees.
If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered.
If an employer has 150 employees, and 100 of them perform maintenance work in customers’ homes, primarily working from their company vehicles (i.e., mobile workplaces), and rarely or never report to the main office, that employer would also fall within the scope.
If an employer has 200 employees, all of whom are vaccinated, that employer would be covered.
If an employer has 125 employees, and 115 of them work exclusively outdoors, that employer would be covered.
If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.
If a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. (So long as the staffing agency has at least 100 employees, however, the staffing agency would be responsible for ensuring compliance with the ETS for the jointly employed workers.)
If a host employer has 110 permanent employees and 10 temporary employees from a small staffing agency (with fewer than 100 employees of its own), the host employer is covered under this ETS and the staffing agency is not.
If a host employer has 110 permanent employees and 10 employees from a large staffing agency (with more than 100 employees of its own), both the host employer and the staffing agency are covered under this standard, and traditional joint employer principles apply.
Generally, in a traditional franchisor-franchisee relationship, if the franchisor has more than 100 employees but each individual franchisee has fewer than 100 employees, the franchisor would be covered by this ETS but the individual franchises would not be covered.
All employees of a covered employer are covered by the ETS, except:
Employees working in workplaces covered by President Biden’s Government Contractor mandate. Such employees will be protected exclusively by the Government Contractor mandate.
Employees working in healthcare settings covered by OSHA’s Healthcare ETS.
Employees who do not report to a workplace where others are present.
Employees who work from home while they are working from home. However, if the employee “switches back and forth” working between home and in a workplace where others are present, then the employee becomes covered by the ETS while in the workplace. For example, that individual would have to comply with the following vaccination/testing/mask requirements while in the workplace.
Employees who work “exclusively” outdoors. However, if an individual spends more than “de minimis” time with others while not outdoors for work, then the ETS would apply. OSHA gives as examples of covered workers outdoor-workers individuals who carpool at the beginning and end of the shift, who share a vehicle while at work, who spend time in a jobsite trailer while at work. OSHA says “de minimis” time in a shared space with appropriate protects does not render the outdoor-worker covered, and gives as an example a worker who uses a properly ventillated multi-stall bathroom.
Once a company is a covered employer with a covered employee, the requirements are manifold, including the following:
The company must issue a written policy(-ies) that
mandates vaccination for all current and new employees, permitting only the following exemptions:
Individuals for whom vaccination is medically contraindicated,
Individuals for whom it is medically necessary to delay vaccination,
Individuals who qualify for religious or disability accommodations.
And for each such individual, the company must require by written policy that they submit instead to weekly testing in lieu of vaccination.
And, mandates the wearing of masks in the workplace by unvaccinated individuals, whether or not exempted from the vaccine requirement. In other words, even when exempt from the vaccine mandate by reason of a federal required accommodation or one of the other permitted exemptions above, that exempt individual is only exempt from vaccination. They must undergo weekly testing instead. Also they must wear masks in the workplace even if unvaccinated individuals need not.
Or permits vaccination as above so that the worker need not wear a mask, but allows employees who choose not to be vaccinated to undergo weekly tests and wear masks instead without having to be vaccinated. Again though an individual who is permitted not to be vaccinated must not only be tested but also wear a mask even when vaccinated individuals are not required to be masked.
Employers may choose either approach.
Mandates compliance with other CDC workplace requirements, particularly regarding social distancing.
Mandates disclosure to the company of each individual’s vaccination status. The ETS specifies what documentation is sufficient to include the standard vaccine card that we have become familiar with, but it generally does not include, except in limited circumstances, self-attestation. Proof of so-called “natural immunity,” in other words documentation of a prior infection that produced antibodies, is not sufficient.
Employers who have already obtained and retained proof of vaccination status may be exempt under certain conditions specified in the ETS, from having to re-request vaccination status.
Provides paid time off (or sick leave) to be vaccinated then to recover.
Requires individuals to promptly notify the company of a positive test.
Informs individuals of certain facts regarding COVID-19 and vaccines.
Warns violations will result in discipline up to and including discharge.
The company must generate a roster of employees reflecting vaccination status.
The company must remove individuals from the workplace when they contract/test positive for COVID-19.
The company must meet certain recordkeeping requirements.
This includes keeping all vaccination and testing records as confidential medical records.
The company must meet certain reporting requirements arising out of workplace-related COVID-19 exposures.
As noted above, the testing mandate is delayed until 1/4/2022, companies will need to comply with the other requirements by 12/5/2021, including by adopting the required policy(-ies), requiring masks, generating the required roster, removing infected individuals for the required periods, and complying with the recordkeeping and reporting requirements.
As noted, employers have a general requirement to implement a policy that mandates vaccination. However, employers may opt instead for a policy that mandates vaccination but permits instead testing/masks/etc. in lieu of vaccination. That decision is left to the company’s discretion, and a company can choose one approach or the other, or the company can choose one approach for one workplace, one group of workers in that workplace, one group of workers in one portion of the workplace, etc. In other words a company has the right to adopt the vaccine-mandate approach for all its workers as OSHA urges, or to mix-and-match as the company determines. Again though, in all situations where a person is not required to be vaccinated, they must be required to wear a mask, test weekly, etc.
OSHA recognizes there may be employers who develop and implement partial mandatory vaccination policies, i.e., that apply to only a portion of their workforce. An example might be a retail corporation employer who has a mixture of staff working at the corporate headquarters, performing intermittent telework from home, and working in stores serving customers. In this type of situation, the employer may choose to require vaccination of only some subset of its employees (e.g., those working in stores), and to treat vaccination as optional for others (e.g., those who work from headquarters or who perform intermittent telework). This approach would comply with the standard so long as the employer complies in full with paragraph (d)(1) and (d)(2) for the respective groups.
Employees who are allowed not to be vaccinated must undergo weekly testing. This is true whether they are allowed not to be vaccinated due to a religious accommodation, disability accommodation, or as part of the employer’s decision to permit testing in lieu of vaccination. Such individuals must provide the documentation of each negative test within 7 days. The type of testing is specified. No test will be sufficient if it is both self-administered and self-read.
Employees may be required to locate their own tests, have their own tests administered, on their own time and at their own cost. OSHA acknowledges this will be a significant burden but expressly states that it crafted the rule to incentivize workers not to elect testing in lieu of vaccination.
As mentioned above, requiring employers to pay for workplace protections makes it more likely that employees will take advantage of that protection, and in this ETS, OSHA intends to strongly encourage employees to choose vaccination, not regular COVID-19 testing. Because employees who choose to remain unvaccinated will generally be required to pay for their own COVID-19 testing, this standard creates a financial incentive for those employees to become fully vaccinated and avoid that cost.
Tests that show the person has so-called “natural immunity,” in other words, tests that for example confirm an unvaccinated person has antibodies from prior infection are not sufficient to meet the requirement for weekly testing, nor do they exempt the person from the need for vaccination.
Some exceptions exist. For example a worker who has tested positive for COVID-19 cannot be required to provide such weekly tests thereafter for 90 days.
OSHA reminds employers that other laws may apply, so that when an employer who chooses for example to permit the worker to undergo testing during work hours or in the workplace (or even to be vaccinated during work hours or in the workplace), then that employer may have subjected itself to a requirement under wage-hour laws, such as FLSA, to pay for such time.
The kind of mask, face covering, etc., that is permitted is specifically laid out by OSHA in its ETS. It does not include the more informal kinds of coverings we’ve become used to seeing such as neck buffs. It also does not include an otherwise acceptable mask when worn with the nose or mouth exposed. Employers must ensure that workers who are required to wear masks actually wear them such that they cover the person’s nose and mouth.
Employers need not provide masks to unvaccinated individuals. Employers need not pay for masks. Employers need not form-fit masks.
Unvaccinated individuals need not wear a face covering for the limited time it takes to eat or drink or while alone in a room with proper physical protections, such as closed door, ventilation, etc.
Employees may choose to wear more protective types of masks, such as respirators, if they choose; likewise, fully vaccinated individuals must be allowed to wear masks and face coverings if they would like, even though their vaccination status relieves them of the need to do so.
Paid Time-Off (PTO) or Sick Leave
A reasonable amount of paid time-off (PTO) or sick leave must be provided to be vaccinated and to recover.
To be vaccinated, the time off cannot be substituted with other paid time-off (PTO, vacation or sick leave that the employee might have. It must be fresh paid time off on top of whatever other time off the employee might have accrued. However, it can be capped at 4 hours, even if in a given location it will take the worker longer.
Paid time off to recover after the vaccine can be provided in the form of already-accrued PTO/vacation/sick leave, unless the individual has no such time available, in which case, even if the individual had such a policy available to them but has just used it all, additional fresh time must be provided for recovery. The ETS does not have a formal cap for recovery time, but in its preface, OSHA says it presumes no more than 2 days is reasonable.
Employers need not pay employees who have already been vaccinated for such times. The paid time off provisions are not retroactive.
Employers need not pay other costs related to vaccination, even travel costs for employees in remote locations.
Removal from the Workplace Following Positive Test
As noted, the company’s policy must require workers to promptly report a positive COVID-19 test. This is true whether the test was conducted as part of the weekly test-in-lieu-of-vaccine requirement or otherwise. For example, a non-symptomatic worker who experiences a positive test as part of their personal travel plans (who has to be tested for example prior to boarding a flight to a foreign country for vacation) would have to report the positive.
Any individual who has COVID-19, including as confirmed by a positive test, must be removed from the workplace. Under certain conditions they might be allowed to work not around anyone else, such as from home.
Employees may not be allowed to return to work until:
A negative nucleic acid amplification test (NAAT) that follows a positive antigen test.
The employee completes then-current CDC guidelines for isolation, which at this time are:
If the employee has no symptoms, 10 days following their positive test,
Or, if the employee has had symptoms, the later of 10 days following the onset of symptoms, 24 hours without a fever (unmedicated) and improving other symptoms (not necessarily including loss of taste or smell, which can last much longer),
Or, if the employee is released to return to work by a licensed healthcare provider.
Employers are not required — unless otherwise required — to pay for time away from work, though employees may of course use such time as they may have, including PTO/vacation/sick leave. OSHA notes that nothing in the ETS prohibits employees from claiming such time under workers comp laws if the employee can otherwise establish an entitlement to a work-related exposure workers comp claim.
Preemption of State and Local Laws, State OSHA Plans
This ETS is implemented as a law with what is called field preemption. Therefore, it preempts all less-strict or contrary state and local laws. It specifically preempts therefore state laws that conflict with the Biden vaccine mandates, prohibit vaccine passports in the workplace, and prohibit vaccination inquiries in the workplace. OSHA expressly notes this its ETS invalidates laws in at least Arkansa, Arizona, Florida, Montana, and Texas.
States that have their own state OSHA plans and their own state OSHA-type agencies are now required to develop and implement their own variations of the ETS, which must be no less protectful than OSHA’s. State plans must be approved by OSHA itself.
Production of Required Records
Employers must be prepared to produce its policies and roster within 4 hours of request by OSHA, and within end of next business day of a request by an employee or their representative (generally, their union). That roster should reflect employees broken down by their workplaces. Upon request by the Secretary of Labor, all other documents related to this ETS must be provided no later than end of next business day.
Cost of Compliance?
In perhaps the greatest understatement of all time, OSHA anticipates the cost of complying with its ETS, per covered employer, on average across all industries, will be $11,298, for a total nationwide cost of $2,981,347,368. In other words, even at an inconceivable unrealistic low of $11,298 per company, OSHA concedes its ETS is likely to cost $2.9-billion.
Those numbers do not include costs incurred by employees, for example, for testing in lieu of vaccination, which may cost on average $100 per test and as noted above are required weekly for such individuals. In other words, an individual who seeks an exemption from the vaccine mandate due to religious reasons may be coming out of their own pocket to pay more than $2,500 for testing over the course of the ETS’ expected 6-month lifespan, with additional expenditures to ensure they are always wearing a clean and compliant mask while at work. As noted above, though, OSHA has explicitly said its choice was entirely to disincentivize employees from availing themselves of any option other than vaccination.
Work From Home After The Pandemic?
In an interesting aside, in its preface to the ETS, OSHA reviews recent surveys trying to predict how common work-from-home is likely to be after the pandemic. OSHA looks in particular at one report predicting that, after the pandemic, 22% of full work days post-pandemic will be worked from home, up from 5% pre-pandemic.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2021-11-06 16:36:042021-11-06 16:36:04OSHA’s vaccine mandate rules
As expected, states have not only begun passing new laws as well as their own executive orders to oppose President Biden’s vaccine mandates but are now suing the federal government. The following ten states just filed one lawsuit in Missouri: Arkansas, Alaska, Missouri, Iowa, Montana, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. Seven states filed a separate lawsuit in Georgia: Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia. And Texas filed its own lawsuit in Texas, as Florida has in Florida.
The OSHA rule to implement the President’s mandate for employers of 100 or more was expected to be issued as early as this week; however, it is now being widely reported that business groups are asking the White House to consider holding off until after the holidays as implementation during the holidays is, they contend, not feasible.
Employers are reminded that President Biden’s mandates remain Executive Orders (unless frozen or otherwise impacted by one of these lawsuits).
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2021-11-01 14:50:212021-11-01 14:50:21States start suing federal government over President Biden’s vaccine mandates
In one of his recent vaccine mandates, President Biden ordered all government contractors to have their personnel vaccinated by December 8, 2021, with permission arguably given later for exemptions for religious and disability accommodations. The federal government’s Safer Federal Workforce Task Force issued guidance affirming and fleshing out the mandate for government contractors. The mandate has by now been formally implemented into many government contracts pursuant to FAR 52.223-99, DFARS 252.223-7999, etc.
On October 27, 2021, White House Coronavirus Response Coordinaor Jeff Zients is widely reported as having walked back the mandate at least to some extent by saying December 8 was not a strict deadline — or in his reported words, not a “cliff” — and that the Whie House would permit some “flexibility.”
The Safer Federal Workforce Task Force then issued FAQs on its webpage that bring the December 8 deadline into question. To be sure, the FAQs warn, December 8 remains the deadline set in the President’s Executive Order, and a company’s failure to ensure that its covered workers be vaccinated or exempt due to a religious or disability accommodation remains grounds for contract termination, debarment, etc. However, the FAQs — although not its prior guidance — now suggest that:
An employee whose request for religious accommodation or disability accommodation may be able to be kept employed by the contractor while that request is being processed,
And, an employee who has not requested a religious or disability accommodation or who has been denied one may also be able to be employed for at least some limited period of time while a stepped process is employed attempting to start with counseling and education for the employee about vaccination.
Both employees would, at all times, be have to comply with masking and social distancing requirements, even if fully vaccinated individuals are exempt from such requirements due to the protection offered by the vaccine.
Additionally the FAQs note particular government agencies may impose heighted requirements above and beyond those otherwise applicable in government buildings and under applicable state and local requirements.
How will that actually work? The White House and Task Force offer no specifics. Hopefully, they will provide some sort of detailed step-by-step process employers can follow to comply with this increasingly unclear mandate. Until then, government contractors are reminded that, despite these new softer words from the White House and Task Force, the President’s Executive Order remains the law. Employers who fail to meet the December 8 deadline risk severe penalties including contract termination and future debarment.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2021-11-01 14:30:262021-11-01 14:31:03White House walks back a few possible steps from its government-contractor mandate
By Executive Order of its Governor, Texas has joined Montana in an on-going conflict against the recent vaccine mandates announced by President Biden. But how direct are these conflicts? While certainly direct enough to ensure significant litigation in both states, there appears to be some room for some form of compliance with the Biden mandates, especially in Texas. Hopefully litigation will strike the state bans (or clearly rule, in reverse, that they somehow supersede the Biden mandates), so that employers (and employees) have clarity as to vaccine-related rights and obligations in these states; however, until and unless that occurs, these state laws are likely to create significant confusion as each law leaves significant room for partial compliance with the federal mandates.
The Texas Governor’s Executive Order is likely to be followed by a new statute from its legislature. Indeed, the Governor has already added it to the legislature’s agenda in an upcoming special session. Until then, it provides, as follows:
No entity in Texas can compel 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.
Thus, unless modified by the legislature in its upcoming special session, it appears that while Texas’ new law does apply to private employers, it does not prohibit them from complying with the Biden mandates. Rather, it expands an employee’s ability to demand exemption from a mandate. It is anticipated that all of the Biden mandates will likely permit reasonable accommodations, including exemptions, on the basis of religion and disability. This new Texas law appears to simply add/expand exemptions in Texas on the basis of “personal conscience” or “medical reasons, including prior recovery from COVID-19.” It is not clear how these compare to religion or disability. Is “personal conscience” broader than the already broad definition of “religion”? Are “medical reasons, including prior recovery from COVID-19” broader than “disability”?
The Montana ban flows from its legislature’s new law, House Bill 702. The Montana law adds “vaccination status” and a “vaccine passport” to its state’s EEO law’s definition of protected classes (along with race, etc.). It defines the phrase “vaccine passport” to include as an example a vaccine card. How does the Montana law square up to the Biden mandates? In its FAQ dated 9/29/2021, Montana dodges the question saying that, until the new OSHA rule comes out, its law is “in effect,” without explaining what that means.
The Montana law is already subject to multiple lawsuits seeking to strike it down. The Texas bill is sure to be challenged shortly in the courts.
Hopefully employers will soon obtain clarity from courts in these states. Until then, employers in both states (and any other state that joins this pool of confusion) should realize that neither Texas nor Montana’s state law flatly prohibits compliance with the Biden mandates. They may simply limit how or to what extent compliance is possible. Still both are clearly in direct enough conflict with the Biden mandates, it is likely courts will have to clarify these issues.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2021-10-12 10:03:152021-10-12 10:03:15Texas joins Montana in conflict against Biden vaccine mandates
On 9-9-2021, President Biden announced sweeping vaccine mandates that will affect private employers.
So far, what do private employers know to expect?
Employers of 100 or more workers will be required to implement vaccine-or-test mandates. Employees who opt not to be vaccinated will be required to be tested weekly. Employees will need to be provided paid time-off to be vaccinated. Fines could be $14,000 per violation.
OSHA has been tasked with implementing guidance explaining this new mandate.
Government contractors will be required to implement vaccine mandates for their workers. It appears that this government contractor obligation will not allow a test-out option. It appears that this will apply only to contracts entered into after October 15, 2021. It is noted that this “appears” to be the case, because the Biden administration and its Executive Order on this mandate so specify; however, government contractors should review their current contracts to confirm that they do not already require compliance with future FAR (Federal Acquisition Regulations) that may be adopted during the current contract’s term.
It is also noted that the Executive Order does not actually apply to “government contractors.” “Government contractors” is not a phrase defined in law. Rather the Executive Order reaches all federal “contract or contract-like instruments.” It defines that term, as follows:
For purposes of this order, the term “contract or contract-like instrument” shall have the meaning set forth in the Department of Labor’s proposed rule, “Increasing the Minimum Wage for Federal Contractors, ” 86 Fed. Reg. 38816, 38887 (July 22, 2021). If the Department of Labor issues a final rule relating to that proposed rule, that term shall have the meaning set forth in that final rule.
It is noted that the definition of “contract or contract-like instruments” at 86 Fed.Reg. 38816 is very specific and involved. It does not include all forms of government contracts, but it does include some forms of government relationships one might not consider to be government contracts. In other words, that phrase is a technical legally defined phrase, it is not coextensive with the lay term “government contracts.” Some companies that one might think are “government contractors” will not be covered, and some one might think are not “government contractors” will be covered. It will be a technical issue for review against that very specific regulatory definition.
Government contractors are encouraged to provide their current and anticipated government contracts to their attorneys for legal review against 86 Fed.Reg. 38816
The Executive Order mandates the federal government to issue further guidance on this government-contractor mandate no later than 9-24-2021, with additional deadlines thereafter through 10-8-2021 for further guidance.
Medicare and Medicaid providers as well as some other health-care settings such as some nusing homes will be required to impose some form of mandate.
What don’t we know?
We still know virtually nothing about the specifics of how these mandates will actually work. Hopefully we will be receiving guidance from the various government agencies soon. Questions we still do not know include:
How workers will need to be counted for the 100-employee mandate.
What government contractors will be subject to the government-contractor mandate (see above re “contract or contract-like instruments” and re new-versus-existing contracts).
Whether any or all of these mandates will permit opt-outs or other forms of accommodation for disability or religious reasons. The White House announced that federal workers will have accommodation opportunities, but it is not clear to what extent these new mandates will permit accommodations for private employees.
When OSHA will implement the required guidance, though it has been mandated do so within the coming weeks. Whether it will do so by way of a standard or informal guidance. Whether it will issue a proposed then final draft according to normal rulemaking processes, or if, as it appears from the way President Biden described it, OSHA will skip the proposed draft stage and simply issue a final version all at once as an emergency rulemaking.
Whether paid time-off to be vaccinated will be required only under the 100-employee mandate, or if it will also be required for government contractors and Medicare/Medicaid employers. Whether paid time-off will be required for testing for those who are allowed to opt-out of vaccination. Whether there will be a pass-through permitted to allow the costs of that paid time-off to be credited against federal taxes for example.
What the compliance burden and related costs (including the costs of testing and possibly vaccination) will be. At least some of these expenses will be borne by the federal government, as it has been announced the government will spend $2-billion to acquire new tests.
What documentation, recordkeeping, examination/inquiry restrictions and other processes will be required for these various mandates.
What end-date these mandates will have, in other words, when they will expire.
What have been reactions so far?
Reactions by the business community continue to be mixed. Many companies have already adopted vaccine mandates, with vax-or-test programs probably being among the most common. For such companies these mandates may provide some clarity as to how companies can best implement such mandates. However, many companies, especially in traditionally red-political communities, face strong pushback from their workers, customers, etc., and have been reluctant to do so.
Is litigation likely?
Litigation is expected to challenge all aspects of the new mandates. It is probable that at least some cases will produce rulings before these new mandates start taking effect. Having said that, employers can expect it to come down to the very wire. Therefore, companies should not simply take a wait-and-see approach. Companies will need to start assessing as soon as possible their obligations, if any, and how they will implement these new mandates. Unfortunately, as noted, companies are having to wait at least for now for further guidance from the various government agencies involved.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2021-09-10 10:20:192021-09-10 10:20:19Biden vaccine mandates: What private employers know so far
Missed my recent webinar on vaccines in the workplace? Email me or send me a message through this website if interested in the complimentary on-demand presentation. In the meantime, check out this article on Law 360 (no subscription required). Interesting topics include a look at some of these new lawsuits, the need to provide certain accommodations, the importance of considering state laws, and the confusion caused by current vaccines EUA status.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2021-07-18 03:40:002021-07-18 03:40:00Vaccine lawsuits rising
The EEOC issued new guidance on religious accommodation obligations imposed by Title VII. The guidance is not regulatory, it was not issued through the formal rulemaking process, and therefore does not enjoy deference in courts, although it is a statement of the EEOC’s opinion of the law for so long as it is in effect. Topics addressed include prayer breaks, contraceptive coverage, LGBTQ+ protections, expression including not only the wearing of religious garb but the expression of religious faith.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2021-07-11 10:30:132021-07-06 10:35:24EEOC issues new guidance on religious accommodation obligations
Continuing to expand on religious exemptions from EEO laws recognized by both the Supreme Court and itself, the DOL has expanded, in a final rule applicable to federal contractors, the religious exemption to now include even closely-held corporations so long as the company qualifies as a religious organization.
To qualify as religious a corporation, association, educational institution, society, school, college, university, or institution of learning may, or may not: have a mosque, church, synagogue, temple, or other house of worship; or be supported by, be affiliated with, identify with, or be composed of individuals sharing, any single religion, sect, denomination, or other religious tradition.
As an example, the DOL gives, in its rule, a small business that makes candlesticks for churches:
41 CFR 60-1.3(4)(i)(A) Example. A closely held for-profit manufacturer makes and sells metal candlesticks and other decorative items. The manufacturer’s mission statement asserts that it is committed to providing high-quality candlesticks and similar items to all of its customers, a majority of which are churches and synagogues. Some of the manufacturer’s items are also purchased by federal agencies for use during diplomatic events and presentations. The manufacturer regularly consults with ministers and rabbis regarding new designs to ensure that they conform to any religious specifications. The manufacturer also advertises heavily in predominantly religious publications and donates a portion of each sale to charities run by churches and synagogues.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2020-12-19 04:09:252020-12-08 17:15:58DOL expands religious exemption from EEO laws to federal contractors even if closely-held corporations
Wondering if employers will be able to mandate vaccines? Long story, short, we don’t yet fully know. It is likely that employers will be able to mandate vaccines — at least as a condition of entry into some workplaces if not as a condition of continued employment — so long as it is required by a business necessity and so long as appropriate opt-outs are permitted especially for religious or disability reasons. Employers with unionized workforces may need to engage in bargaining with their unions, first, unless clear and unmistakable language in the CBA already allows unilateral action. However, federal and state officials throughout the country have said they are currently analyzing the issue and hope to issue guidance soon.
In the meantime, if you’re looking for a couple good reads on the subject as an introduction to these issues, you may want to start with two thought pieces on the issues: one by Holland & Hart attorney Brad Williams available here and the other by SHRM available here. With regard to just the EEO laws, especially Title VII’s religious protections and the ADA’s disability protections, interested readers may also like to review the EEOC’s 2009 thoughts from the H1N1 pandemic, especially question 13. Again, though, hopefully the EEOC, along with the DOL and the various state and local agencies, will all be updating their guidance shortly within the context of the current coronavirus pandemic.
Stay tuned for future updates as guidance becomes available.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2020-12-11 16:51:282020-12-11 16:51:28Will employers be able to mandate vaccines?
When passed, so-called “Obamacare” contained exemptions from its contraceptive-coverage requirements for religious organizations and other non-profits that hold sincerely held religious objections. Following a series of regulatory developments and judicial decisions, eventually, by 2018, the Trump Administration expanded the exemptions to include private employers, including even publicly traded companies, and secular universities, even with regard to their student health care coverage.
In a fractured decision, the Supreme Court upheld the Trump Administration’s 2018 rule, at least for now. It is not clear from their fractured opinions whether the opinion resulted in a flat-out win or simply a remand. At least 2 of the Justices (Breyer and Kagan) whose votes are included in the 7-vote majority, wrote a concurrence outlining why they believe the Trump Administration may ultimately lose the case on remand. Commentators have already begun noting their belief that the case will not be successful on remand and is likely to return on appeal to the Supreme Court.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2020-07-09 00:18:002020-07-08 12:37:22Supreme Court expands religious exemption from Obamacare contraceptive requirements to private employers
By 7-2, the Supreme Court ruled for the baker in the Masterpiece Cakeshop case. All seven of the judges that formed the majority were struck by comments from the Colorado Civil Rights Commissioners that evidenced an anti-religious bias among the Commissioners when they decided the case. The Supreme Court called those comments “inappropriate,” “dismissive,” and “disparag(ing) of religion.”
What were these unacceptable comments? Well, in short, they included what can only be described as a gratuitous rant by one Commissioner about how, in her opinion, “religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust … we can list hundreds of situations.” It really didn’t help when the Commission, faced with three different cases involving bakers who refused to sell anti-gay marriage cakes, held for each of those bakers. The Supreme Court held that, pulling that all together, it seemed the Commission had made its decision not on the evidence and law but “the government’s own assessment of offensiveness.”
Along those lines, Justice Gorsuch, in his concurrence, noted that, if the government could make decisions on the basis of what it deems offensive, freedome of speech and expression would be lost. This is the oft-recognized principle that the only speech that really needs Constitutional protection is offensive speech.
The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.
In reversing based on the Commission’s own bias, the Supreme Court never reached the underlying question whether/when does a baker/florist/other expressive craftsman have a First Amendment right to refuse to sell their good/service to a consumer for religious reasons. Instead, the Supreme Court held that the baker had at least been entitled to a fair hearing of that issue, and that the Commission’s own bias had stripped him of that right.
(T)he delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.
Justice Kennedy — who has been the Court’s champion of both gay rights and speech rights, as well as religious liberty rights — wrote the majority opinion. He acknowledged that the Court was dodging the real question of how to balance those rights.
The outcome of cases like this in other circumstances must await further elaboration in the courts….
Still, his opinion suggested how he thought the Court should rule in future cases.
Some examples of cases where he suggested future bakers/florists/etc. might lose on the merits included the following:
A baker who “refused to sell any goods or any cakes for gay weddings”
Some examples of future cases where bakers/etc. might win included the following:
A “refusal to put certain religious words or decorations on the cake”
A “refusal to attend the wedding to ensure that the cake is cut the right way”
A “refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it”
Separate opinions in Masterpiece Cakeshop seemed to preview how the Justices might vote:
Justice Gorsuch wrote suggesting that he is likely to rule broadly for future bakers/florists/etc.
Justice Thomas wrote along such lines as well, though his opinion suggested concern over the concept of even trying to protect the rights of a gay couple in this type of circumstance.
Justices Kagan and Breyer, who joined the majority in this case, suggested they would lean split on future cases, ruling against bakers/etc., where there is no evidence of anti-religiouis bias among the state agencies.
Justice Ginsburg joined by Justice Sotomayor wrote to express their concerns that the anti-religious comments by the Commission, while unacceptable, were simply not so substantial as to warrant reversal; they would have ruled on the merits, and in doing so, for the gay couple who wished to buy the cake.
That means future cases are likely to have 4 Justices inclined to rule for and 4 Justices inclined to rule against the bakers/florists/etc., and as was expected here, Justice Kennedy is likely to be the swing vote. Expect to see him flesh out his balancing test based on those examples.
As for future cases, Justice Kennedy gave one word of warning — frankly simply restating the concern most of America seemingly has had and had hoped the Supreme Court would wrestle with in this decision — that these rights must be balanced such that religious liberty is not so broadly defined that it becomes an easy excuse for discrimination:
And any decision in favor of (a future) baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons.
Readers of course will note that this concern exists not only as to LGBTQ individuals (which is all that quote discusses) but also individuals on the basis of race, gender, age, etc., and, yes, even religion. It simply cannot be the law that a business may refuse to do business on the grounds that a consumer is of a different race, color, gender or even religion.
Readers should also note that this line of cases isn’t just about consumers, and it certainly isn’t about just cakes. This line of cases has potential to touch all aspects of American life. It cannot be, for example, that a business has a right to refuse to hire someone simply because they assert a religious belief against that person’s sexual orientation, gender preference, race, gender, religion, etc.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2018-06-04 12:28:282018-06-04 12:30:25SCOTUS rules for baker in Masterpiece Cakeshop
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2017-12-04 10:23:442017-12-04 10:23:44Turn on your radios!
President Trump campaigned, in part, on a promise to expand religious liberties. Following up on that promise, his Administration recently announced a series of new changes — changes that have already sparked litigation and are expected to be highly controversial. Many argue these changes are not only highly controversial but come at the expense of the rights of others.
On May 4, 2017, the President issued a Memorandum for all Executive Departments and Agencies in which he commanded all executive departments and agencies to “respect and protect” religious rights “to the greatest extent practicable and to the extent permitted by law.” The only specific mandate his Memorandum highlighted (Sec. 3) was for Treasury to develop “conscience-based objections to the preventive-care mandate” under Obamacare. Likewise the Memorandum (Sec. 4) specifically commanded the Attorney General to issue occasional “Religious Liberty Guidance(s).”
Accordingly, it came as no surprise then when, on October 6, 2017, Attorney General Sessions issued his own Memorandum for all Executive Departments and Agencies articulating “twenty principles” designed to “guide administrative agencies and executive departments.”
Religious liberty is a foundational principle of enduring importance in America, enshrined in our Constitution and other sources of federal law. As James Madison explained in his Memorial and Remonstrance Against Religious Assessments, the free exercise of religion “is in its nature an unalienable right” because the duty owed to one’s Creator “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” Religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place. It also encompasses religious observance and practice. Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law. Therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including employment, contracting, and programming. The following twenty principles should guide administrative agencies and executive departments in carrying out this task.
And, on the same day, Treasury issued two sets of interim final rules, that took effect immediately, authorizing employers to claim an exemption from Obamacare’s contraceptive mandate. The first (published in the 10/13/17 issue of the Federal Register at 21851) expands the current right of some entities and individuals to opt out of Obamacare’s contraceptive provisions on religious grounds. Now, religious objectors include churches and their auxiliaries, nonprofits, for-profit entities, other non-governmental employers and certain institutions of higher education. The for-profit employer provisions expand the Supreme Court’s holding in Hobby Lobby, which had authorized closely-held for-profits to opt out on religious grounds. Now for-profit employers that are not closely-held, even publicly-traded companies, may also be religious objectors.
Objectors need not be entities either. Individuals may object to participating in contraceptive coverage, though their objection cannot force a plan to drop such coverage for others.
The second set of interim rules outlines a process for moral objectors. The rules distinguish between “moral convictions” and “religious beliefs,” but, in a move sure to spark significant litigation, they do not define the term “moral.” Whatever that term might mean, it is clear from the language of the rule that a moral conviction need not be based in a religious belief.
Employers interested in utilizing either of these rules should know that lawsuits have already been filed. Further litigation is likely for years to come. And, as cautioned by the Society of Human Resources Management (SHRM), employees may well respond unfavorably. It is estimated that over 55-million women have access to contraceptive care as a result of Obamacare’s mandate. One commentator in SHRM’s article predicted, “There would be tremendous employee relations repercussions if employers took this benefit away, especially given how many women are in the workforce, and I’m sure some employers have done the math comparing maternity costs to the cost of providing contraception.”
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2017-10-24 07:09:272017-10-16 11:12:00Trump Administration moves to expand religious — and moral — liberties of employers