The FTC’s Proposed Ban On Noncompetes – Predictions

Following his election, President Biden issued “The Biden Plan for Strengthening Worker Organizing, Collective Bargaining and Unions,” in which he promised to work with Congress to “eliminate all non-compete agreements” with very limited exceptions. While a bipartisan bill, the Workforce Mobility Act of 2021, was introduced in Congress, it died in committee.

On a parallel track, President Biden issued his Executive Order on Promoting Competition in the American Economy, one point of which was to “encourage” the Federal Trade Commission (FTC) to “exercise the FTC’s statutory rulemaking authority … to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” 

That “encouragement” has now resulted in action.  On January 5, 2023, the FTC published a proposed rule that would effectively ban the use of nearly all non-compete agreements. 

The FTC’s Proposed Rule.

The FTC’s proposed rule, if finally adopted, is far-reaching.  It bans the use or attempted use of non-compete agreements with only the limited exception for non-competes associated with the sale of a business.  Aside from banning non-competes prospectively, it also goes further, invalidating all existing non-competes.  The proposed rule accomplishes this goal by requiring employers to rescind any non-competes as of the effective date of the rule.  It must then notify its employees of this rescission within 45 days.  This rescission and notice requirement applies both to a company’s existing employees as well as any former employees who signed a non-compete.

One may recall that this issue was quite the political football in Massachusetts for over ten years before the Noncompetition Agreements Act passed in 2018.  Leading up to its passage, there was spirited legislative debate.  In its final form, the Act was a clear compromise between the two sides of this issue, preserving an employer’s right to seek a non-compete from its employees in narrow circumstances, but then attaching a number of conditions and restrictions to that use.  See Massachusetts Legislature Passes Long-Anticipated Act Limiting Noncompetition Agreements, Off-the-Clock Blog Post, August 2018.  This iterative process and subsequent enactment has resulted in a significant decline in the use of non-competes in Massachusetts without the necessity of an outright ban.  Indicative of this same policy tug-and-pull within the FTC, one member issued a strenuous written dissent to the proposed rule. 

The Rule Making Process Ahead.

Consistent with regulatory protocol, the proposed rule is currently in a short comment period.  Once the comment period closes on March 4, 2023, the FTC will assess the comments and make such modifications to the proposed rule as it deems appropriate.  Once the final rule is published, it will take effect 180 days later.  The anticipated effective date of the modified rule is therefore projected to be sometime in the fall of 2023.

Rather than elaborating on the pros and cons of this proposed rule, let me offer some predictions:

Anticipated Comments To The Rule.

Do Nothing.  No doubt, many comments are likely to join the dissent and encourage the FTC to withdraw the proposed rule as being unnecessary, unwarranted or harmful.  Assuming the FTC does not back down, I anticipate three other likely subjects for comments.

Senior Executives.  Citing overwrought fast food and camp counselor examples, proponents of a ban on noncompetes have justified it as necessary to address the unequal power dynamic between sophisticated, well-heeled corporations on one side and unsophisticated, exploited and mostly powerless non-union low wage workers on the other.  Arguing that this rationale is inapplicable to senior executives and other highly paid employees, the most prevalent comment is likely to be directed at adding an exemption for those for whom the bargaining playing field is seen as already level.

Severance Agreements.  As with senior executives, the power dynamic is very different if the employee is already departing.  The employer offers a financial parachute to the soon-to-be former employee in return for an agreement not to compete.  The analysis for the departing employee is much simpler than if it occurs at the start of or during continuing employment.  Should that employee bet on herself and her likely ability to find another job and reject the severance offer coupled with a non-compete?  Or should she make the decision to accept the golden parachute and non-compete as a hedge against her employability in the short term?  Either way, the disparate power dynamic is neutralized and comments urging adding this exception are also likely. 

State’s Rights.  The last several years have seen an explosion of efforts by legislators at the state level to address the real or perceived unfairness of non-competes.  Dozens of states have passed a potpourri of reform statutes, allowing that legislative process to distill constituent sentiment and arrive at a solution palatable to legislators and voters in a given state.  Preserving that local authority, there may be some comment presented to let unique state reforms to stand and apply the federal solution only in those states where there has been no legislative action. 

Prediction 1:  No Substantive Changes Will Be Made In The Final Rule.

I strongly doubt the FTC will back down entirely.  But will it be responsive to comments?  Of the possible modifications articulated above, I think that exempting agreements for senior executives and severance payments are the only two that have any chance of making their way into the final rule.  Even the prospects of those two changes, however, fly in the face of the FTC’s argument for why it has authority to issue the rule in the first place.  Specifically, the FTC focused on the rationale of “combatting unfair competition” and positing that banning non-competes “would increase American workers’ earnings between $250 billion and $296 billion per year.”  Given that its stated justification for the rule focused on the economic impact of non-competes rather than employer-employee power dynamics, comments designed to negate the power dynamic concern may not gain any traction.  Instead, I think it likely that the final rule will not vary much from its original iteration.    

Prediction 2:  The Rule Will Be Met With A Spirited Judicial Challenge … And Lose.

As indicated, once finalized, the rule will become effective 180 days after final publication.  If left unchallenged, the rule would then take effect in the fall of 2023.

“If left unchallenged,” however, appears highly unlikely.  The United States Chamber of Commerce has already made it known that it intends to mount a judicial challenge to the rule.  Given the uncertainty and potential upheaval that will result if the rule takes effect, such a challenge is likely to include a request for an injunction to prevent the rule from taking effect before its effective date. 

While there may be other legal arguments offered, it is likely that the primary point of emphasis will be the “major questions doctrine.”  In its 2022 decision in West Virginia v. EPA, the United States Supreme Court ruled that the EPA could not issue regulations relative to “major questions” without an express delegation of the authority to do so by Congress. In striking down the EPA’s greenhouse gas emission regulations, the Court held that Congress had not provided such authority and rejected the EPA’s argument that there was broad Congressional authority under the Clean Air Act. 

Without oversimplifying the issue, it seems likely that the same Supreme Court majority would follow its prior ruling and reject the FTC’s attempt to shoehorn this rulemaking into broad Congressional authority to combat unfair competition.  If so, the ball will bounce back to the halls of Congress to see if its two divided houses (and then the President) can agree on a solution … or even agree on whether there is a problem in need of a solution.  If that happens, stay tuned and I will look into my crystal ball again to handicap that race.

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Update Policies to Comply with the Massachusetts CROWN Act

At the end of October 2022, the Massachusetts Act Prohibiting Discrimination Based on Natural and Protective Hairstyles (the “CROWN Act”) went into effect. The CROWN Act expands the definition of “race” under Chapter 151B to include “traits historically associated with race, including, but not limited to, hair texture, hair type, hair length, and protective hairstyles.” The term “protective hairstyles” is further defined to “include, but not be limited to, braids, locks, twists, Bantu knots, hair coverings, and other formations.”

The MCAD is tasked with promulgating rules and regulations to implement the CROWN Act. In the meantime, however, the Act is presently in effect and employers should review and update their Equal Employment Opportunity and dress, grooming, and related policies to ensure compliance.

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2023 Changes in Massachusetts Employment Laws

            Beginning January 1, 2023, changes to the Massachusetts Minimum Wage Law, retail premium pay, and Massachusetts Paid Family and Medical Leave Law take effect.

Changes to Minimum Wage & Premium Pay

  • Minimum wage increased from $14.25 an hour to $15.00 an hour (applies to non-agricultural workers and workers that do not receive tips).
  • Minimum wage for tipped employees increased from $6.15 an hour to $6.75 an hour.
  • The Retail Premium Pay mandate for Sundays and holidays (Massachusetts Blue Laws) is eliminated.

Changes to Paid Family and Medical Leave (PFML)

  • The earnings requirement to be eligible for PFML increased to $6,000 during the last four completed calendar quarters.
  • The maximum weekly benefits under PFML increased from $1,084.31 to $1,129.82.
  • Employer contribution rates (i.e., the tax rate to fund paid leave benefits under PFML) are reduced as follows:
  • Employers with 25 or more covered individuals will now need to pay .63% of eligible employee wages.
  • Employers with fewer than 25 covered individuals will see their contribution rate fall to .318%.


Employer Reminders

While entering the new year, employers are encouraged to review all employee classifications to ensure that employees are classified correctly under the federal Fair Labor Standards Act and Massachusetts Wage and Hour law.

If you have any questions about your organization’s employee classifications, or questions regarding the 2023 changes, please contact a member of our Labor, Employment and Employee Benefits Group. 

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Employers Must Remember Their Obligations under the Massachusetts Pregnant Workers Fairness Act

The Massachusetts Pregnant Workers Fairness Act (the “Act”), which went into effect on April 1, 2018, amended Massachusetts General Law c. 151B to include “pregnancy or a condition related to pregnancy, including, but not limited to, lactation, or the need to express breast milk for a nursing child” as a protected classification. The Act also covers employers’ obligations to employees who are pregnant or lactating and the protections such employees are entitled to receive. Below are key elements of the Act that employers are well-advised to keep in mind to ensure compliance. Although the Act has been in effect for nearly five years, it is likely employers may have lost sight of their obligation to provide timely notice to new employees of the Act’s provisions, as well as to employees who become pregnant. 

Notification

  • Employers must provide written notice to employees of the right to be free from discrimination due to pregnancy or pregnancy-related conditions, including the right to reasonable accommodations for conditions related to pregnancy, in a handbook, pamphlet, or other means of notice. 
  • Employers must also provide written notice of employees’ rights under the Act: (1) to new employees at or prior to the start of employment; and (2) to an employee who notifies the employer of a pregnancy or a pregnancy-related condition, no more than 10 days after such notification.

Reasonable Accommodations

  • Employers must provide covered employees and prospective employees reasonable accommodations for their pregnancy or pregnancy-related condition, provided that the employee or prospective employee is otherwise capable of performing the essential functions of the job, and the accommodation does not impose an undue hardship.
  • When an employee requests an accommodation, the employer must engage in a timely interactive process with the employee to determine whether an effective, reasonable accommodation exists.
  • Reasonable accommodations may include: (1) more frequent or longer paid or unpaid breaks; (2) paid or unpaid time off to recover from childbirth; (3) acquisition or modification of equipment or additional seating; (4) temporary transfer to a less strenuous or hazardous position; (5) job restructuring; (6) light duty work; (7) providing a private, non-bathroom, space for expressing milk; (8) assistance with manual labor; and (9) modified work schedules. 
  • Employers may request medical documentation to support a request for accommodation, except that employers cannot require documentation from requesting employees to support accommodations for more frequent restroom breaks, food accommodations, additional water breaks, seating accommodations, and limits on lifting over 20 pounds.

Other Key Provisions of the Act

  • Employers with six (6) or more employees are covered by the Act.
  • The Act applies to both employees and prospective employees.
  • Employers cannot retaliate against an employee for requesting an accommodation.
  • Employers must reinstate employees to their original employment status or equivalent position with equivalent pay and accumulated seniority when the need for reasonable accommodations ceases.
  • Employers cannot require employees to accept an accommodation that the employee chooses not to accept, if that accommodation is unnecessary to enable the employee to perform the essential functions of the job.

Please contact a member of our Labor, Employment and Employee Benefits Group if you have any questions about your organization’s obligations under the Act, including the drafting and implementation of the necessary employee notice or policy.

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DOL Proposes to Revert the Independent Contractor Analysis to the Employee-Friendly Totality-Of-The-Circumstances Analysis 

On October 11, 2022, the Department of Labor (“DOL”) issued a new proposed rule, entitled “Independent Contractor Status Under the Fair Labor Standards Act,” for determining whether an individual is an independent contractor or an employee under the Fair Labor Standards Act (“FLSA”).

The current Trump administration rule became effective in March 2021 and makes it easier for employers to classify workers as independent contractors rather than employees.  The current rule applies an economic reality test that primarily considers two “core factors:” the nature and degree of control over the work and the individual’s opportunity for profit or loss based on initiative and investment, to determine if an individual is an independent contractor or an employee.  

The Biden administration’s new proposed rule seeks to revert the current standard back to a totality-of-the-circumstances analysis of the multifactor economic reality test.  The totality-of-the-circumstances analysis weighs six economic reality test factors, which include:

  • The nature and degree of control exercised by the worker over the work they are performing;
  • The individual’s opportunity for profit or loss in connection with the work;
  • The permanency of the relationship between the parties;
  • The amount of skill required to perform the work;
  • The nature of individual’s investment in equipment or other resources as compared to the hiring entity’s investment; and
  • Whether the work is an integral part of the employer’s business.

Under the proposed rule, the economic reality factors do not have any predetermined weight and are considered by weighing all the factors in view of the economic reality of the whole activity and relationship. 

The current standard’s “core factors” makes it easier to classify individuals as independent contractors since it focuses on just two core factors and a narrow set of facts. The totality-of-the-circumstances analysis, on the other hand, makes it harder to classify individuals as independent contractors under the FLSA because of the multitude of facts that must be considered and can be weighed by the DOL.  

As such, employers must be cautious in evaluating whether an individual is an independent contractor or whether they are an employee subject to FLSA and state wage protections.  Misclassifying individuals can lead to substantial penalties for each violation.

Comments on the proposed rule are due on November 28, 2022 and the final rule is not expected to go into effect until mid-2023.  We will keep track of the status of the DOL’s proposed rule.  In the meantime, please do not hesitate to reach out to any member of the Labor and Employment Practice Group with any questions or concerns about classifying workers.

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EEOC Issues Updated Guidance Regarding COVID Screening by Employers

On July 12, 2022, the Equal Employment Opportunity Commission issued updated guidance for employers regarding COVID-19 testing and accommodations.

Perhaps most impactful, the EEOC altered its position regarding employers testing employees for COVID-19 as part of a mandatory screening prior to entering the workplace. Previously, the EEOC provided that employers could administer viral tests without conducting any prior analysis of the requirement.

Under the new guidance, employers can administer COVID-19 viral tests to employees as part of a screening protocol only if doing so is “job-related and consistent with business necessity.” Employers can generally satisfy the “business necessity” prong if/when: (a) the employees tested are or will be in the workplace; and (b) testing is consistent with guidance from the CDC, FDA, and/or public health authorities that is current at the time of the testing. In analyzing the former, employers should consider several factors including, but not limited to: the level of community transmission, the vaccination status of employees, the degree to which breakthrough infections are possible for employees who are “up to date” with vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant(s), the accuracy and speed of processing for different types of COVID-19 viral tests, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work, and the potential impact on operations if an employee enters the workplace with COVID-19.

The EEOC further stated that employers cannot require an employee to submit to COVID-19 antibody testing before being permitted to enter the workplace, as antibody testing does not show whether an employee has a current infection. However, employers may require an employee who was out with COVID-19 to submit a note from a qualified medical professional prior to their return to the workplace.

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Don’t Delay: MA Employers Are Now Strictly Liable for Three Times the Amount of Wages for Late Payments With No Safe Harbor for Paying in Full Prior to Suit!

Under the Massachusetts Wage Act (the “Wage Act”), if an employee voluntarily quits their employment, the employer must pay the employee their final wages, including any earned, unused vacation pay, on the employer’s next regular pay day. However, when an employee is involuntarily terminated, the employer is required to pay the employee’s final wages, including accrued and unused vacation pay, on the day the employee is discharged. Paying final wages on the day of discharge can sometimes be challenging, especially if the termination is abrupt (for example, because of an employee’s serious misconduct on the day of termination) or when the terminated employee is working remotely and direct deposit is not available. In addition, employers sometimes make payroll errors that result in employees not receiving all of their final pay on a timely basis. 

The Wage Act also allows employees that do not receive all wages they are owed to pursue a civil action for damages incurred, including liquidated damages in the amount of three times the wages owed, plus attorneys’ fees and costs. During the last decade, courts and litigants took the position that if an employer remedied the wage violation before a complaint was filed with the Attorney General’s office or in court, then employers were only liable for three times the accrued interest on the late payment, calculated at 12% between the date the wages were due and the date of full payment. Unfortunately, that approach is no longer feasible. 

This week, the Massachusetts Supreme Judicial Court (SJC) clarified the Wage Act’s treble damages provision in Reuter v. City of Methuen, SJC-13121 (Mass. April 4, 2022), holding that employers are strictly liable for any delay in payments, regardless of the reason for the delay (including, for example, a payroll error). The Court reasoned that any delay in payment of final wages could cause the terminated employee serious economic harm, and the legislature sought to prevent that by instituting automatic treble damages for violations of the Wage Act. In that case, the Town of Methuen paid Reuter her earned, unused vacation pay ($8,952.15) three weeks after her discharge for misconduct. The Town will now have to pay her an additional $17,904.30, plus interest and thousands of dollars in attorneys’ fees as a result of the delay in payment.

In light of the SJC’s decision in Reuter, when employers delay (even for one day!) in paying a discharged employee their final wages upon termination, they are now risking claims for three times the amount owed (plus interest and attorneys’ fees). As mentioned above, because employers sometimes struggle to pay terminated employees their final wages on the last day of employment, the SJC’s decision in Reuter will likely result in more claims by former employees seeking to capitalize on their employers’ missteps. One possible silver lining – former employees and their attorneys may now be more incentivized to resolve wage disputes before “racing to the courthouse” to file a lawsuit because holding off on filing suit will not cause them to risk foregoing potential treble damages. 

So what are the takeaways for Massachusetts employers who want to avoid a precarious pitfall (and windfalls for terminated employees)? Make sure that your pay practices are accurate and legally-compliant (including proper classification of workers, payment of all working time and overtime, etc.), and do not discharge any employee unless and until you are prepared to pay them their final wages on the day of termination. If it is not possible to pay the employee’s final wages on the termination date but you need to remove them from the workplace (e.g., in the case of misconduct), then you could place the employee on administrative leave until the next day and then pay their final wages at that time. In fact, the Court in Reuter suggested that approach as a possible option.

Nonetheless, the SJC’s clarification of what is now an even more “employee-friendly” Wage Act may cause significant burden to employers and result in increased claims by former employees and their attorneys seeking treble damages and attorneys’ fees.

If you have any questions regarding the Reuter case and/or how you can ensure that your organization is compliant with state and federal wage & hour laws, please do not hesitate to reach out to any member of Mirick O’Connell’s Labor, Employment, and Employee Benefits Group.

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The Times They Keep A-Changing: The New Illinois Restrictions on the Use of Non-Compete and Non-Solicit Agreements

The state-by-state non-compete reform movement keeps rolling – this time in the state of Illinois.  Effective January 1, 2022, the Illinois Freedom to Work Act has dramatically changed the landscape for employers in that state who desire to use non-compete agreements with their employees.  In a marked departure from most other states enacting reform measures, this new law also adds restrictions on the use of non-solicit agreements.

As a quick refresher, non-compete agreements prohibit an employee from working for a competitor for some limited period of time after departing employment.  Non-solicit agreements more narrowly restrict an employee from soliciting the employer’s customers or clients post-termination. 

Non-solicit agreements have typically been less the target of legislative reform than non-compete agreements.  No doubt this has been the case due to the fact that the employer was seeking to protect existing customer relationships (typically referred to as “goodwill”) which it had invested time, effort and expense in creating.  As a result, reform efforts have more often focused on non-competes where there is far less of an identifiable investment appropriate to protect.  As a prime example of this legislative differentiation, the Massachusetts Noncompetition Agreements Act which took effect in 2018 (the “Massachusetts Act”), expressly excludes non-solicitation agreements from the reach of the enacted reforms.

Not so in Illinois.  Painting with a very broad brush, the Illinois Freedom to Work Act (IFWA) imposes the following restrictions on the use of either:

  • Continued employment will not be sufficient consideration for such agreements unless the employment continues for at least two years after signing or the employee is provided undefined “additional professional or financial benefits;” 
  • An employee terminated or furloughed due to the business impacts of COVID “or under circumstances that are similar to the COVID-19 pandemic” must be provided compensation equal to the employee’s final base salary for the entire time period that the restriction is in place (with an offset if the employee has found subsequent employment);
  • Non-compete and non-solicit agreements may not be used with employees earning less than certain annual income thresholds ($75,000 for non-competes; $45,000 for non-solicits; with automatic income threshold increases in 2027, 2032, and 2037);
  • Covenants not to compete with construction workers, shareholders of the employer; or employees subject to certain collective bargaining agreements are illegal and void;
  • Agreements that do not expressly advise the employee to consult with an attorney are illegal and void;
  • Agreements which do not provide a 14 calendar day review period are similarly illegal and void;
  • Attorney’s fees must be awarded to employees who successfully defeat an employer’s enforcement attempt; and
  • The attorney general is empowered to prosecute employers who “engage in a pattern and practice” prohibited by IFWA with fines beginning at $5,000 and escalating with each subsequent violation.

It is interesting to compare the provisions in the IFWA to what is and is not provided in the Massachusetts Act:

  • Coverage.  Non-solicit agreements are not affected and remain enforceable to the same extent as they were prior to enactment of the Massachusetts Act; 
  • Consideration.  Continued employment regardless of how long it continues will not be sufficient consideration for such agreements – “fair and reasonable consideration” (undefined in the statute) must be given to a current employee asked to sign such an agreement and the consideration being provided must be spelled out in the agreement;
  • Laid Off Employees.  A non-compete agreement becomes void if an employee is terminated without cause or “laid off” regardless of what precipitated the lay-off;
  • Garden Leave.  In perhaps the most common misperception, “garden leave” of 50% of an employee’s base salary is an option an employer may provide in consideration for a non-compete agreement, but it is not mandated – although it is anticipated that Massachusetts courts will likely be less receptive to non-competes that do not include a “garden leave” provision; 
  • Off-Limits Employees.  Non-compete agreements may not be used with non-exempt employees, student interns or young employees (under age 19) regardless of income level;
  • Mandatory Notice of Right to Counsel.  The employee must be expressly advised of his or her right to consult with an attorney before signing (one court sitting in Massachusetts held an agreement unenforceable where this language was absent);
  • Mandatory Review Period.  The employee must be provided a 10 business day review period before signing;
  • Attorney’s Fees and Fines.  There are no provisions imposing mandatory attorney’s fees or potential civil administrative penalties under the Massachusetts Act. 

As the non-compete reform movement continues to spread across the country, the widely-varying approaches taken from state-to-state defy any general description.  Where there has been activity, some states have enacted very limited restrictions (such as New Hampshire whose legislation is limited to a ban on non-competes with low wage employees) (see 2019 blog post – The Summer of Non-Compete Reform:  Three Other New England States Get In On The Act).  A few (such as the District of Columbia in particular) (see January 2022 blog post – The District of Columbia’s Aggressive Ban on Non-Compete Agreements) have joined California in banning non-compete agreements outright.  As the comparison between the Massachusetts Act and the IFWA reflects, other states have taken very different and creative approaches tailored to address specific areas of concern of each state’s legislature.  Given this spectrum, the only general takeaway is that employers, particularly those with operations in numerous states, must be knowledgeable about the crazy quilt of laws that have emerged and take the steps necessary to carefully comply.

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OSHA Withdraws COVID-19 ETS, But Signals That It Is Moving Forward with Final Rule

On January 25, 2022, OSHA announced the withdrawal COVID-19 Vaccination and Testing Emergency Temporary Standard (the “ETS”). In the announcement, OSHA stated that although it “is withdrawing the [ETS] as an enforceable emergency temporary standard, [it] is not withdrawing the ETS to the extent that it serves as a proposed rule . . .” In other words, OSHA may use the ETS as a proposed rule that will (undoubtedly) be edited and implemented as a final rule.

Accordingly, at this time, employers with 100+ employees are not required to implement COVID-19 vaccine and testing policies that comply with the ETS. However, employers (of all sizes) are generally free to implement COVID-19 vaccine and/or testing mandates. Please contact us if you have any questions about such policies or the impact of the OSHA ETS withdrawal on your existing policies and practices.

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Supreme Court Stays OSHA’s COVID ETS

The OSHA COVID ETS is once again stayed.

On January 13, 2022, the United States Supreme Court stayed OSHA’s Emergency Temporary Standard which required that employers with 100+ employees require employees to either (a) become vaccinated against COVID-19; or (b) generally, submit proof of a negative COVID test on a weekly basis and wear a mask (the “ETS”). In so doing, the Court found that opponents of the ETS are likely to succeed on their argument that OSHA lacked authority to impose the ETS because COVID – the Court reasoned – is not an occupational hazard but instead a universal, day-to-day risk.

As a result of the Order, employers are now not required to:

  • Institute a COVID-19 vaccine mandate;
  • Provide paid time off for employees to receive and/or recover from the vaccine (unless required by a different law, such as the Massachusetts COVID Emergency Sick Leave law); or
  • Determine and track the vaccination status of employees.

As employers are fully aware, there has been a lot of turbulence in this area. If you have any questions about next steps in light of the stay of the ETS, please do not hesitate to reach out to a member of our Labor, Employment and Employee Benefits Group.

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