Moses Tincher

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Q. Has OSHA issued any new rules addressing employees’ rights to have representation during an OSHA inspection at a private employer’s worksite?

A. Yes. Earlier this month, the Occupational Safety and Health Administration (OSHA) issued a Final Rule that significantly revises OSHA’s longstanding regulations concerning an employee’s right to choose a representative to participate during OSHA’s physical inspection of a workplace. Under the new final rule, employees will be permitted to bring other employees or nonemployee third parties (including nonemployee union representatives) on OSHA walkarounds at union and nonunion workplaces, if these individuals are “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience.” The new rule will take effect on May 31.

Executive Summary

On February 21, the National Labor Relations Board (NLRB or Board) reversed course from its own Trump-era precedent when it held that an employer’s offer of employee severance agreements with broad confidentiality and non-disparagement provisions is an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act (Act). In light of this change, all employers, regardless of whether they are unionized, should carefully consider actions including:

Q. Have there been any updates since the federal court previously determined that the employer did not violate Title VII in prohibiting employees from wearing Black Lives Matter and other social justice attire to work?

A. Yes. In a prior blog post, we discussed companies taking various approaches toward employees wearing Black Lives Matter (BLM) attire to work during the pandemic. Some employers permitted such attire at work, while others did not. We also discussed a federal district court decision that addressed a novel issue — whether a claim under Title VII of the 1964 Civil Rights Act premised entirely on wearing BLM attire is legally cognizable.

Q. Have any courts addressed companies’ obligations under the WARN Act, particularly in light of COVID-19?

A. Yes. Since COVID-19 was first confirmed in the United States more than two years ago, employers have faced many challenges, including, in some cases, the difficult decision to lay off or furlough employees. This decision has not been without legal implications. For example, depending on a variety of factors, companies that lay off employees may be required to provide written notice of the layoff under the Workers Adjustment and Retraining Notification (WARN) Act and similar state law. Specifically, the WARN Act requires employers to provide written notice to workers at least 60 calendar days ahead of “plant closings” or “mass layoffs.” The WARN Act defines a plant closing as the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees (excluding part-time employees). The WARN Act defines a mass layoff as a reduction in force that does not result from a plant closing, and results in an employment loss at the single site of employment during any 30-day period for: (1) at least 50-499 employees if they represent at least 33% of the total active workforce (excluding part-time employees) or (2) 500 or more employees (excluding part-time employees).

Q. What is the status of the Sixth Circuit’s consideration of the challenges to the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS), and how does it impact the upcoming deadlines set by the ETS?

A. As discussed in our previous alert, on November 5, OSHA published an ETS that would require private employers with 100 or more employees to establish, by January 4, 2022 either (1) a mandatory COVID-19 vaccination policy; or (2) a vaccination policy that requires employees to either be fully vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The ETS would also require covered employers, by December 6, to: (1) determine the vaccination status of all employees; (2) provide leave for them to get vaccinated and recover from side effects of vaccination; and (3) ensure unvaccinated employees wear face coverings at work. Multiple challenges were filed over the ETS after OSHA’s issuance of the ETS, and, on November 16, the U.S. Court of Appeals for the Sixth Circuit was selected by lottery to hear the consolidated challenges to OSHA’s recent ETS, including the Fifth Circuit’s extension of a nationwide stay of the ETS on November 12.

Q: Now that DOL-OSHA announced its COVID-19 vaccine ETS for private-sector workers, what does my company need to do to adhere to the guidelines?

A: On November 4, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard (ETS), containing the anticipated COVID-19 vaccination rule covering private companies with 100 or more employees. The ETS became effective immediately on November 5 upon its publication in the Federal Register. On November 6, the Fifth Circuit Federal Court of Appeals granted an emergency motion to stay enforcement of the ETS effectively nationwide, pending further action by the court, which could come as early as November 9 at 6 p.m. ET. Other challenges to the ETS’s enforcement have been filed in the Eighth, Sixth, and Eleventh circuits thus far.

Q. Have any court rulings upheld the denial of requests for exemption from the COVID-19 vaccine?

A. Yes. Coming on the heels of President Joe Biden’s plan to require millions of workers to receive COVID-19 vaccinations, many employers either have already implemented or have begun implementing vaccine mandates. As expected, these mandates have triggered some employee pushback, particularly from those requesting an exemption from the vaccine requirement based on a disability or religious belief. While there have not been many published decisions on this issue yet, one recent decision from the Pennsylvania Court of Common Pleas provides guidance to employers in determining whether a request for exemption from a vaccine mandate based on a religious belief must be accommodated.

Q: Have there been any court rulings on whether companies can limit employees from wearing Black Lives Matter and other social justice attire to work?

A: Yes. During this pandemic and the political and social unrest underlying the Black Lives Matter (BLM) movement, many employees have come to work wearing BLM masks and other attire. Some companies initially banned all BLM attire on the grounds that it could alienate prospective customers with differing opinions, lead to misunderstandings, and incite workplace violence. However, they later changed their decision in light of public backlash. Others continued to ban BLM masks and other attire by relying on companywide dress code policies that prohibit employees from wearing masks and clothing with any visible slogans or messages unrelated to the company. These workplace policies recently came under fire when a group of employees filed a class-action lawsuit against a grocery chain, alleging unlawful discrimination and retaliation for wearing BLM attire.

Specifically, the workers alleged that the employer rarely enforced its dress code policy and that it did not prohibit workers in the past from wearing clothing with messaging unrelated to the company, such as Pride pins or apparel supporting LGBTQ+ workers and even a SpongeBob SquarePants mask. According to the workers, the employer selectively enforced its policy to target and suppress BLM messaging, and, thus, discriminated against Black employees and others associating with and advocating for Black employees in violation of Title VII of the 1964 Civil Rights Act. The workers also alleged they were retaliated against for continuing to wear BLM apparel and protesting the dress code policy.

Q: What is the definition of “close contact” for purposes of COVID-19 contact tracing and quarantining requirements?

A: The Centers for Disease Control and Prevention (CDC) recently issued guidance that significantly expands the definition of “close contact” for purposes of COVID-19 contact tracing and quarantining requirements. Previously, the CDC defined “close contact” to include only certain individuals who spent at least 15 consecutive minutes within six feet of someone with COVID-19. Because this previous definition was in place before the CDC issued its mask guidance, many, including employers, inferred that “close contact” meant contact without any face coverings.

Authors:
Lee E. Tankle, Associate, Pepper Hamilton
Moses M. Tincher, Associate, Troutman Sanders

As governors begin to lift stay-at-home orders and communities around the country continue to progress through various phases of reopening, employers and employees alike are starting to plan for workers to return to offices and worksites. Although many Americans are adapting to the temporary “new normal,” COVID-19 remains a threat and must continue to be taken seriously. In preparation for returning employees, employers should be asking the following questions: