On June 15, 2021, the Office of General Counsel of the National Labor Relations Board (“NLRB” or “Board”) released an Advice Memorandum, explaining that an Illinois pub did not commit an unfair labor practice when it fired an employee who had previously complained about the pub’s COVID-19 safety policies, because the employee’s complaints did not constitute “protected concerted activity,” as defined under the National Labor Relations Act (“NLRA”). The NLRA protects employees engaged in concerted activity, including participating in union activities and union organizing and other activities that the Board considers to be for their mutual aid and protection. Peter Sung Ohr, since his appointment as the NLRB’s Acting General Counsel following the discharge of his predecessor, Peter Robb, by President Joseph Biden, has taken a far broader view than his predecessors as to the types of subjects to which Section 7 of the NLRA’s protections apply. In the light of the COVID-19 pandemic, however, what constitutes concerted activity remains uncertain. The Advice Memorandum sheds light on how the Board may define concerted activity moving forward in the context of employee responses to COVID-19 workplace policies.
Labor & Employment
NLRB’s Division of Advice Concludes That Employee’s COVID-19 Policy Complaints Are Not Protected Concerted Activity
On June 12, 2021, a federal District Court in Texas soundly rejected an attempt by Houston medical workers to challenge the legality of their employer’s decision to require that all employees receive a COVID-19 vaccine. In the lawsuit, Bridges, et al. v. Houston Methodist Hospital et al., 117 hospital workers sued for an injunction to block the hospital’s mandatory vaccination policy as well as the termination of any employee unwilling to comply with the employer’s mandate that all employees be vaccinated against COVID-19. More specifically, the employees asserted that the vaccine mandate would result in wrongful termination in violation of the public policy of the state of Texas and federal law.
Cal/OSHA Has Approved Revisions to the Emergency Temporary Standards Related to COVID-19 Which Are Now in Effect
As we previously reported, on June 9, 2021, the California Occupational Safety and Health (“Cal/OSHA”) Standards Board (“the Board”) withdrew its prior proposed revisions to the Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (“ETS”), effectively returning to the original ETS approved in November 2020. A week later, however, on June 17, 2021, the Board approved revisions to the ETS (“Revised ETS”) which, among other things, align with current guidance from the California Department of Public Health (“CDPH”) and Centers for Disease Control and Prevention (“CDC”) with respect to physical distancing and the use of face coverings for vaccinated individuals.
On June 15, 2021, New York State celebrated reaching 70 percent of its adult population having received at least one vaccination dose. As a result, the State lifted most of its New York Forward industry-specific COVID-19 guidelines—including social gathering limits, capacity restrictions, cleaning and disinfection, health screening, and gathering contact information for tracing—making them optional for most employers. The State has archived its industry-specific reopening guidance, which employers may, but are not required to, continue to follow.
On June 11, 2021, Illinois and the City of Chicago entered Phase 5 of its five-stage reopening plans. As part of the transition, Illinois released Executive Order 2021-12 (the “Phase 5 Reopening Order”) and new Phase 5 Guidance. Chicago also issued Phase 5 Recommendations and provided a helpful graphic that provides additional recommendations, which apply to all businesses. For Illinois and Chicago businesses, Phase 5 means a lifting of many COVID-19 restrictions across industries. Although businesses can start operating closer to normal, Phase 5 is a new normal that still includes social distancing and masking recommendations that should be on your Company’s radar.
The issue of mandatory vaccines has been a sensitive one for employers. Although the EEOC cleared the way for employers to mandate vaccines in its Technical Assistance guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, most employers have taken the route of strongly encouraging rather than mandating vaccines. Now, with the rate of vaccines leveling off, employers are re-thinking that approach. A Texas federal court’s recent decision dismissing a challenge to an employer’s vaccine requirement may provide just the legal support some employers need to implement a vaccine mandate. Read more…
The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has announced it will issue an emergency temporary standard (ETS) to protect healthcare workers from contracting coronavirus. Read more…
Video: CDC Guidance for the Fully Vaccinated, NY HERO Act, ABC Test, and FAAAA Preemption – Employment Law This Week
As featured in #WorkforceWednesday: This week, we focus on the Centers for Disease Control and Prevention’s (CDC’s) new guidance for vaccinated individuals and what it means for accommodations.
Employers Navigate New CDC Guidance for Fully Vaccinated Individuals
Last week, the CDC updated its guidelines to state that it is safe for fully vaccinated people to resume normal activities without masks or social distancing “except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” Attorneys Shira Blank and Susan Gross Sholinsky explain what this means for employers and businesses that are places of public accommodation.
Governor Cuomo signed the HERO Act (the Act) into law on May 5, 2021. The Act requires all private New York employers to put certain COVID-19 safety standards into place and prepare a plan aimed at preventing the transmission of COVID-19 and other airborne infectious diseases at work. Most provisions of the Act go into effect on June 4, 2021. However, the provision of the Act that permits employees to form a joint labor-management health and safety committee does not become effective until November 1, 2021, and applies only to private employers with 10 or more employees. Read more…
The City of Chicago recently enacted the Chicago COVID-19 Vaccine Anti-Retaliation Ordinance.
The Vaccine Anti-Retaliation Ordinance allows workers in Chicago – including independent contractors — to get vaccinated during a scheduled “shift,” requires pay for hours taken to get vaccinated (if an employer mandates the vaccine), and prohibits retaliation for getting vaccinated during a scheduled shift.