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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The District of Columbia’s Aggressive Ban on Non-Compete Agreements Likely to Take Effect in 2022

In December 2020, the District of Columbia Council passed and in January 2021, Mayor Muriel Bowser signed legislation entitled the Ban on Non-Compete Agreements Amendment Act of 2020 (the “DC Act”).  While the effective date of the Act was delayed due to other provisions in the legislation, it appears that it is likely to take effect on April 1, 2022.  The aggressive pro-employee scope of the DC Act is noteworthy and goes much farther than the many state- or local-level attempts to reform or ban non-competes, including the Massachusetts Noncompetition Agreements Act that took effect in 2018 (the “Massachusetts Act”). 

Is the DC Act a sign of things to come in the reform movement or is it likely to remain on the far fringe of non-compete reform?  Only time will tell.

In the meantime, among the most notable provisions of the DC Act:

Outright Ban on Non-Compete Agreements.  First and foremost, non-compete agreements are banned entirely in the DC Act with very limited exceptions (described below).  As a result, the District of Columbia joins only a small number of other legislative bodies that have an outright ban.  Presently, that exclusive club includes only California, Oklahoma and North Dakota (the latter two having enacted bans in the 19th century).

Ban on Moonlighting Restrictions.  Typically, reform efforts have solely focused on narrowing or eliminating restrictions on a departing employee’s ability to compete against his or her former employer.  The DC Act goes one very big step further and sweeps in current employees, prohibiting provisions that restrict a current employee’s right to engage in a competitive activity while still employed, so called “moonlighting.”

Supercharged Notice Requirements.  Many states, including Massachusetts, require advance notice to the employee that they will be asked to sign a non-compete agreement to avoid the “burnt bridge effect” (i.e., an employee being surprised on the first day of employment by being required to sign a non-compete or face having neither a new or old job).  Rather than using notice as a defensive requirement only, the DC Act turns notice into an offensive protection, mandating that all employers located in the District provide notice to all employees as follows:   “No employer operating in the District of Columbia may request or require any employee working in the District of Colombia to agree to a non-compete policy or agreement, in accordance with the Ban on Non-Compete Agreements Act of 2020.

Punishment for End Runs.  In most reform statutes, the negative impact on the employer who attempts to use a non-compliant or banned agreement is lack of enforceability.  The DC Act again goes further and imposes escalating financial penalties upon employers who ignore the ban, including failure to provide the required notice.  Those financial sanctions are enhanced for employers who retaliate against employees who refuse to sign a banned agreement, ask about their rights or request the information mandated by the notice requirement.  Further enhanced penalties arise for serial violators.  When a violation occurs, an employee may seek relief either through an administrative complaint to the Mayor or via a civil action.

Special Provisions for Physicians.  In contrast to Massachusetts’ ban on non-compete agreements for physicians, a unique provision of the DC Act surprisingly permits physician non-competes provided the physician earns total compensation of at least $250,000 per year.

No Retroactive Effect.  Like the Massachusetts Act, the DC Act does not have retroactive effect so agreements in place as of the effective date will arguably continue to be enforceable.  Whether DC courts will enforce them in the face of this dramatic statement of public policy is a significant question (as it still is here in the Commonwealth).

Other Restrictive Covenants – NDA’s.  The DC Act does not impact non-disclosure agreements which are expressly excluded from the definition of “non-compete provision.” 

Other Restrictive Covenants – Non-solicitation Agreements.  Unlike the Massachusetts Act, however, which expressly carves out customer non-solicitation agreements (among other related forms of restrictive agreements) from the definition of a non-compete, the DC Act is silent.  It therefore remains to be seen whether an employee accused of violating a non-solicitation agreement could successfully defend on the basis that such an agreement constitutes a form of prohibition on the employee “performing work or providing services for pay” thereby constituting a banned and unenforceable non-compete.

Limits on Protection.  As in most states, the DC Act does not ban a non-compete used in connection with the sale of a business. 

Every reform effort also seems to have its unique quirks, often the product of legislative lobbying, constituent pressure or unintentionally funny drafting.  The DC Act has some of its own, with carve-outs to the definition of an “employee” to whom the act and its non-compete ban applies.  For example, (a) volunteers to educational, charitable, religious or nonprofit organizations and (b) lay members elected or appointed to office within the discipline of any religious organization and engaged in religious functions are not “employees” defined in the DC Act.  Also excluded – “casual babysitters employed in or about the residence of the employer.”  Hopefully, this carve-out was intended to avoid the need to give the mandatory notice, not to subject middle-schooler Jennifer to a non-compete foist upon her by Mr. and Mrs. Abercrombie so as to avoid their secret lobster bisque recipe finding its way into the hands of the neighboring Fitches.

It is often said, for good or for bad, that legislation at the local level is the place where creativity and ingenuity can be tested (or can go to die).  This theory continues to apply in the non-compete reform field.  Undoubtedly, that trend will continue as legislatures attempt to find the sweet spot between (i) encouraging aspiring entrepreneurs and (ii) protecting those entrepreneurs who have succeeded in developing the better mousetrap.

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Don’t Forget! Minimum Wage Rates in Massachusetts Increase, Effective January 1, 2022

The minimum wage in Massachusetts will increase from $13.50 to $14.25 an hour, effective January 1, 2022.

In addition, the minimum wage for tipped employees who make more than $20/month in tips will increase from $5.55/hour to $6.15/hour. Employers may pay tipped employee this hourly wage rate only if the employee receives at least $14.25/hour when actual tips and wages are combined.

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CDC Shortens COVID-19 Related Isolation and Quarantine Period, and Distinguishes Between Vaccinated Individuals With/Without Booster

On December 27, 2021, the CDC issued updated guidance which significantly shortens the periods of isolation and quarantine it recommends for COVID-related diagnosis and/or exposure. Specifically, the CDC now recommends that individuals who test positive for COVID-19 (regardless of vaccination status) isolate for only 5 days, provided that they are asymptomatic and then wear a mask when around others for 5 days. The CDC previously had recommended 10 days of isolation.

The CDC recommends that individuals who have received a booster shot or completed the primary series of the Pfizer or Moderna vaccine within six months prior to exposure (or the J&J vaccine within two months prior to exposure) wear a mask around others for 10 days after they have been exposed to someone with COVID-19 so long as they are asymptomatic and, if possible, test for COVID-19 on the fifth day after the exposure. If such individual develops symptoms, then they should quarantine and obtain a test.

In addition, the CDC now recommends that unvaccinated individuals who were exposed to COVID-19 but are asymptomatic: test for COVID-19 on the fifth day after exposure; quarantine for five days after exposure; and, after quarantine, wear a mask when around others for five days. The foregoing applies to individuals who received their last dose of the Moderna or Pfzier vaccine more than six months prior to the exposure (or received their dose of the J&J vaccine more than two months prior to the exposure) and have not yet received a booster shot.

In applying the same standards to both (a) unvaccinated individuals; and (b) individuals who have not received a booster within 6/2 months after their primary vaccine, the CDC is essentially requiring individuals to receive booster shots in order to be considered fully vaccinated. This may foreshadow changes to the CDC’s definition of “fully vaccinated” which, in turn, could have implications for employers’ policies and recordkeeping requirements.

The CDC also provided that unvaccinated individuals/individuals who have not received a booster may chose not to quarantine so long as they are asymptomatic and wear a mask for 10 days after exposure.

To the extent state and/or local Department of Public Health agencies recommend longer periods of isolation and/or quarantine, employers would be well-advised to follow the more conservative guidance. As always, employees who have been diagnosed with or exposed to COVID-19 should consult with their healthcare provider and follow their provider’s recommendations.

If you have any questions about the new guidance and/or any COVID-19 related policies or situations, please do not hesitate to reach out.

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Massachusetts Supreme Judicial Court Adopts FLSA’s Joint Employer Test

Jonathan R. Sigel and Ashlyn E. Dowd

On December 13, 2021, the Massachusetts Supreme Judicial Court (SJC) considered whether the so-called “ABC Test” set forth in M.G.L.c. 149, §148B (“Section 148B”) should be applied to determine whether an entity is a worker’s “joint employer” for purposes of Massachusetts’ wage laws.  In Jinks v. Credico (USA) LLC, the SJC held that it does not.

The ABC Test provides the standard to determine whether a worker is an employee or an independent contractor.  Specifically, Section 148B provides that an “individual performing any service, except as authorized under this chapter, shall be considered to be an employee under those chapters unless:

(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and

(2) the service is performed outside the usual course of the business of the employer; and,

(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

In holding that the ABC Test does not apply to the joint employer determination, the SJC rejected the plaintiffs’ argument – namely, that an entity is an individual’s employer so long as the individual is performing any service’ from which the entity derives an economic benefit.  Jinks v. Credico (USA) LLC, No. SJC-13106 (December 13, 2021).

Instead, the SJC utilized the test under the federal Fair Labor Standards Act (the “FLSA”) to determine joint employer status. The FLSA test considers the totality of the circumstances of the relationship between the individual and the entity.  The four factors considered under the FLSA include: “whether the entity (1) had the power to hire and fire the individual, (2) supervised and controlled the individual’s work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” 

In Jinks, plaintiffs were salespersons directly retained by DFW Consultants Inc. (“DFW”), an entity that Credico subcontracted to provide regional direct sales services for its national clients. The SJC applied the four-factor framework from the FLSA to the facts of Jinks and concluded that Credico could not be held liable for violations of wage laws as Jinks’ joint employer because Credico did not exercise the type of control over plaintiffs’ employment necessary to conclude it was their joint employer.

Although the SJC’s holding clarified that the ABC Test does not apply to the determination of joint employer status under Massachusetts law, employers should be aware of the FLSA’s totality of the circumstances test and be cautious when exercising control over workers employed by other entities.  As our firm has previously reported, in Could You be Liable for the Sins of Your Staffing Agency, employers can indeed be liable for the legal violations committed by their staffing agencies.

If you have any questions regarding the FLSA joint employer test or any other concerns regarding wage & hour law, please contact a member of our Labor & Employment Group.



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OSHA Exercising Discretion in Enforcing the ETS Until January 10

As posted here, the Sixth Circuit Court of Appeals lifted the stay of the Vaccination and Testing Emergency Temporary Standard (the “ETS”) issued by OSHA. The Department of Labor announced on Saturday, December 18 that OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. Accordingly, OSHA will not issue citations for noncompliance with any of the requirements of the ETS (apart from the testing requirements) before January 10, and OSHA will not issue citations for noncompliance with the ETS’ testing requirements before February 9, so long as an employer is exercising “reasonable, good faith efforts to come into compliance with the standard.”

The parties challenging the ETS have reportedly filed an application with the United States Supreme Court to reinstate the stay.

Importantly, employers may choose to implement a vaccination policy regardless of the ultimate outcome of the ETS-related litigation. We will continue to keep you updated, but please feel free to reach out with any questions.

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Court Lifts Stay on OSHA’s Emergency Temporary Standard Regarding COVID-19

On Friday, December 17, 2021, the United States Court of Appeals for the Sixth Circuit lifted the stay on OSHA’s Emergency Temporary Standard that mandates employers with 100 or more employees to require unvaccinated workers to wear a mask on the job and test for COVID-19 weekly (the “ETS”).

In dissolving the stay, Judge Jane B. Stranch wrote that “COVID-19 has continued to spread, mutate, kill, and block the safe return of American workers to their jobs.  To protect workers, OSHA can and must be able to respond to dangers as they evolve.”   In its 37-page Order, the Court held that: (1) “there is little likelihood of success for the challenges against” the ETS; and (2) the parties challenging the ETS did not demonstrate that they would suffer an irreparable injury if the stay was lifted; in contrast, the “costs of delaying implementation of the ETS are comparatively high” as OSHA conservatively estimated that the ETS will “save over 6,500 worker lives and prevent over 250,000 hospitalizations” in just six months.

Accordingly, the ETS is now back in effect and employers with 100 or more employees must comply with its requirements, which we previously discussed here. If you have any questions about the ETS or any other COVID-19 or vaccination related issues, please do not hesitate to contact any member of our Firm’s Labor, Employment and Employee Benefits Group.

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OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) – Temporarily Blocked

As part of President Biden’s “Path Out of the Pandemic” COVID-19 plan, the Biden Administration instructed the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to promulgate an Emergency Temporary Standard (the “ETS”) regarding mandatory vaccinations or weekly testing for large employers. On November 5, 2021, the ETS on vaccinations and testing was officially published in the Office of the Federal Register. During this past weekend, the Fifth Circuit Court of Appeals suspended the ETS, opining that the rule presents constitutional issues. However, there is ongoing litigation in that regard, and the ETS may still be upheld by the courts and go into effect soon. Therefore, while that litigation is pending, employers are well advised to take steps to prepare for the ETS’ implementation so they are ready to comply with it immediately if/when the rule is upheld by the courts. We will continue to monitor the progress of that litigation and publish further updates, as needed.

The new ETS (Federal Register :: Public Inspection: COVID-19 Vaccination and Testing; Emergency Temporary Standard) establishes requirements for vaccinations, vaccination verification, face coverings, and weekly testing to address the grave danger of COVID-19 in the workplace.

Who is Covered by the ETS? 

The ETS applies to employers in all workplaces under OSHA’s authority and jurisdiction that have a total of at least100 employees, at any time while the ETS is in effect, regardless of fluctuation in size. The 100-employee threshold factors in the number of total employees working for the organization, including employees working in separate locations.

Employees who do not report to a workplace where other individuals (e.g., co-workers or customers) are present, employees working remotely, and employees working entirely outdoors are not covered by the ETS. Additionally, the ETS does not apply to workplaces covered under (a) the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or (b) settings subject to the Emergency Temporary Standard for healthcare employers (Subpart U – 29 CFR §1910.502).

Since federal OSHA does not have jurisdiction over public employees in states without OSHA-approved State Plans, and Massachusetts does not have such a State Plan, the ETS does not currently cover public employers in Massachusetts. However, given Governor Baker’s Administration’s position on mandatory vaccinations for state employees, the ETS could be adopted in Massachusetts at a later time and subject to enforcement by the Massachusetts Department of Labor.

What Does the ETS Require? 

Employer Policy on Vaccination, Testing, and Face coverings. Under the ETS, covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy OR enforce weekly COVID-19 testing and facemask requirements for unvaccinated employees. The ETS does not require employers to pay for any costs associated with testing. However, employers may be required to pay for testing under other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. In addition, the ETS does not prohibit employers from voluntarily assuming the costs associated with testing if they wish to do so.

Determination of employee vaccination status. Employers also must determine each employee’s vaccination status, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. 

Employer support for employee vaccination. Covered employers are required to provide paid time off (up to four (4) hours for each dose) for their employees to receive vaccinations. Employers are required to provide reasonable time and paid sick leave to employees to recover from side effects experienced following each primary vaccination dose (i.e., not including booster doses), but the ETS does not specify the amount of paid sick leave that the employer is required to provide for that purpose. Employers may set a cap on the amount of paid sick leave available to employees to recover from any side effects, but the cap must be reasonable. Massachusetts employees could use any available COVID-19 sick pay for time off needed to recover from vaccine side effects. 

Information provided to employees and reporting requirements. The ETS further requires covered employers to provide employees: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines (cdc.gov)”; (3) information about OSHA prohibitions against retaliation and discrimination for reporting workplace illnesses or injuries and OSHA Whistleblower protections; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation. Lastly, covered employers must report work-related COVID-19 fatalities to OSHA within eight hours of their learning about them. Such employers must also report work-related COVID-19 in-patient hospitalizations within 24 hours of the employer’s learning about the hospitalization.

It is noteworthy that nothing in the ETS prevents employers from implementing vaccination policies that are more stringent than those provided by the ETS, subject to legitimate medical and religious exemptions. Likewise, employers with fewer than 100 employees are free to mandate vaccinations and mask wearing requirements.

When Do Employers Need to Comply? 

As discussed above, while the ETS has been put on hold, employers should still be aware of the compliance dates if/when the ETS goes into effect. Thus, assuming that the courts clear the way for implementation of the rule and do not extend the deadlines, covered employers must begin providing paid-time off for employees to get vaccinated and ensure that unvaccinated employees are properly wearing facemasks by December 5, 2021, and all such employers must ensure that their employees are fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 4, 2022. After that date, covered employers must ensure that any employees who have not received a vaccine begin producing verified negative tests to their employers on at least a weekly basis. Employers must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider.

Assuming that the ETS goes into effect, covered employers will be well advised to strictly adhere to its requirements. Failure to do so could result in employers receiving citations from OSHA and facing fines of up to $13,653 for each violation. Furthermore, any employer who deliberately disregards the mandate, could face a fine as high as $136,532.

If you have any questions about the ETS or any other COVID-19 or vaccination related issues, please do not hesitate to contact any member of our Firm’s Labor, Employment and Employee Benefits Group.

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Massachusetts COVID-19 Emergency Paid Sick Leave – Benefits Extended

As employers know, in May 2021, Massachusetts passed a law, “An Act providing for Massachusetts COVID-19 emergency paid sick leave,” which requires employers to provide employees up to 40 hours of paid leave for reasons related to the effects of the COVID-19 pandemic. On September 29, 2021, on the eve of its expiration, the law was amended to extend the time period for the entitlement to benefits and to add a category for which employees may take leave.

Under the law, employees are entitled to use up to a total of 40 hours of leave in order to quarantine/isolate, obtain a diagnosis or treatment, or obtain or recover from a vaccine due to COVID-19, for themselves or in order to care for a family member for these reasons. This leave is paid, but with a cap of $850, and employers can apply for reimbursement of these sums from a fund established by the Commonwealth.

The amendments to the law do not provide any additional leave for employees, so employees remain entitled to a total of 40 hours beginning May 28, 2021.

Extension of Time Period for Leave Benefit

Under the law, the requirement for employers to provide leave to employees was set to expire on September 30, 2021, or earlier if the $75 million fund designated for reimbursement of the leave was exhausted. The law has been amended to permit employees the ability to use COVID-19 emergency paid sick leave until April 1, 2022, or until the fund is exhausted. It appears that no additional money has been allocated to the fund, so the benefit will end when the original fund is exhausted.

According to guidance from the Commonwealth, if the fund is expected to become depleted prior to April 1, 2022, employers will be notified with 15 days’ advance notice.

Family Immunization Leave

The amendment also expands a category for which employees may use COVID-19 emergency paid sick leave. Previously, leave could be used by an employee to obtain a vaccination against COVID-19 or to recover from a vaccination, but the law did not permit leave for an employee to care for a family member for the same reasons. With the amendment, employees are now permitted leave to care for a family member who is obtaining an immunization related to COVID-19 or is recovering from an injury, disability, illness or condition related to an immunization. This amendment resolves a disparity in the law’s reasons for which leave is permitted for the employee’s own needs versus those to care for an employee’s family member. Now, employees are entitled to leave for the same reasons for themselves and their family members.

Therefore, in addition to permitting leave for an employee to receive or recover from a COVID-19 vaccine, employers must permit leave for an employee to care for or assist a family member in obtaining or recovering from side effects of a COVID-19 vaccine.

The Commonwealth has updated its website in accordance with the amendments to the law. As a reminder, the website includes additional information, form notices, and frequently asked questions regarding the law, and can be found here.

If you have any questions regarding this law or other employee leave issues, 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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EEOC Recognizes “Long COVID” as a Disability

Last week, the United States Equal Employment Opportunity Commission (the “EEOC”) formally recognized that “long COVID” may be a disability under the Americans with Disabilities Act.

“Long COVID” occurs when an individual had COVID-19 and continues to suffer from a range of new or recurring symptoms of COVID-19 that can last weeks or months after the individual is first infected with the virus, and the symptoms can worsen with physical or mental activity. 

The United States Department of Health and Human Services (“HHS”) describes common symptoms of long COVID as: tiredness, difficulty thinking/concentrating (“brain fog”), heart palpitations, chest pain, fever, depression or anxiety, joint or muscle pain, headache, and damage to organs including the heart, lungs, kidneys, skin, and brain.  That is not an exhaustive of list of symptoms, and there is no specific number or combination of symptoms that must appear for an individual to be diagnosed with long COVID.

With the EEOC’s recognition of long COVID as a disability, employers must alert to their obligations to reasonably accommodate and engage in the interactive process with employees suffering from long COVID.  Not all individuals suffering from long COVID will necessarily meet the legal standard of “qualified individual with a disability” that triggers such protections; however, in the absence of clear guidance and standards, employers should consult with counsel prior to denying an accommodation to (or taking an adverse action against) an employee with long COVID.

The EEOC is expected to issue technical assistance regarding long COVID in the coming weeks, and we will keep you updated.

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