On September 8, 2021, the Office of the General Counsel to the NLRB issued a memorandum to all Regional Directors encouraging them “to continue exploring new and alternative remedies” to ensure that the victims of unfair labor practices are made whole for the losses they suffer as a result of unlawful conduct. See Memorandum GC 21-06 (Sept. 8, 2021). This is an important development for employers to monitor because it strongly suggests that the NLRB plans to seek harsher remedies for unfair labor practice violations than it has done historically.
On September 9, 2021, the Biden Administration announced a new plan to use federal regulatory powers to reduce the number of unvaccinated Americans. The thrust of the administrative initiative involves “substantially increas[ing] the number of Americans covered by vaccination requirements,” primarily through mandates that “will become dominant in the workplace.” The Administration estimates that these new mandates will affect over 80 million Americans eligible to be vaccinated but who have not yet gotten their first COVID-19 shot.
On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) announced an action OSHA has not taken in 38 years: issuing an Emergency Temporary Standard (“ETS”). This ETS aims to protect “healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 are reasonably expected to be present.” The ETS does not go into effect until publication in the Federal Register, which has not yet occurred but appears imminent (OSHA has submitted the ETS to the Office of the Federal Register for publication and codification in 29 CFR 1910 Subpart U). The text of the ETS, as submitted to the Office of the Federal Register, is available here. OSHA also launched a website with resources regarding the ETS.
On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 related technical assistance document, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which can be found here (“WYSK”). This document was first published on March 19, 2020, and was last updated, as we noted in this previous WorkSmarts update, on December 16, 2020. Although the recent update was published without consideration of updated guidance from CDC for fully vaccinated individuals issued on May 13, 2020, it still contains valuable guidance for employers with respect to vaccines in the workplace.
On May 13, 2021, the Centers for Disease Control and Prevention (CDC) made a surprising announcement: individuals who are fully vaccinated no longer need to wear masks or maintain social distance in most indoor spaces. Individuals are considered fully vaccinated two weeks after their second dose of the Pfizer or Moderna vaccine or two weeks after a single dose of the Johnson and Johnson vaccine.
On May 5, 2021, the United States Department of Labor (“DOL”) withdrew the regulations (i.e. the “Independent Contractor Rule”) that were intended to clarify the standard for determining whether a worker qualifies as an independent contractor for FLSA purposes. See DOL Press Release, US Department of Labor to Withdraw Independent Contractor Rule (May 5, 2021); see also Independent Contractor Status Under the Fair Labor Standards Act: Withdrawal, 86 FR 24303 (Published: May 6, 2021). The withdrawal of the Independent Contactor Rule is effective as of May 6, 2021.
During the COVID-19 pandemic, it is important to stay up-to-date with the latest guidance from the CDC. On February 10, 2021, the CDC released new guidance for the general public regarding mask-wearing and quarantining for individuals who have received both doses of the COVID-19 vaccine. This new guidance is important for employers whose employees are working in-person and for employers in certain industries who may have fully-vaccinated employees.
On Friday, January 29, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a new comprehensive worker safety guidance to protect workers against COVID-19, entitled: “Protecting Workers – Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”
On January 14, 2021, President-elect Biden announced the “American Rescue Plan,” which is the new administration’s first emergency coronavirus and stimulus proposal. If passed, the plan will greatly expand the availability of paid leave and unemployment benefits to U.S. workers. Indeed, the new administration maintains that the plan could provide emergency paid leave to an additional 106 million Americans. To do so, the plan will impose significant new burdens on employers by, for example, closing certain loopholes that previously exempted large segments of employers from federal paid leave requirements.
On Monday, December 21, the stimulus bill from Congress was released. The bill contains individual relief, as well as an extension of federal unemployment assistance benefits. The bill did not, however, contain an extension of the mandatory paid leave benefits provided under the Families First Coronavirus Response Act (“FFCRA”). The stimulus does contain an extension through the end of March, 2021 of the tax credits provided for under the FFCRA leave. As a result, the mandate for FFCRA leave will formally sunset on December 31, 2020, but employers who voluntarily provide leave under the original provisions of the law may be able to qualify for tax credits through the end of March, 2021.