Executive Order Mandating Federal Contractor Vaccination Blocked in Three States (US)

VirusIn the latest in a series of judicial decisions impeding executive agency action that had been aimed at slowing COVID-19 vaccination rates in the U.S. (see here and here), on November 30, 2021, a federal judge for the Eastern District of Kentucky issued a preliminary injunction blocking implementation of President Biden’s Executive Order 14042 which would require federal contractors to ensure their employees are vaccinated against COVID-19. The 29-page order and preliminary injunction in Kentucky v. Biden, 3:21-cv-00055-GFVT (E.D. Ky. Nov. 30, 2021), applies to federal contractors only in Kentucky, Ohio, and Tennessee, but similar challenges are percolating in other jurisdictions as well, including Arizona, Florida, Georgia, Oklahoma, and Texas.

After finding that the plaintiff State Attorneys General had standing to challenge the Executive Order, as the citizens of their states had lucrative current and future government contracts at stake, Judge Gregory F. Van Tatenhove concluded that the petitioners were likely to succeed in their argument that the Biden administration exceeded its authority over the federal procurement of goods and services when it issued an executive order requiring that the providers of those services impose vaccine mandates on their workforces. Although the Court recognized Congress had delegated its procurement authority to the President through enactment of the Federal Property and Administrative Services Act (FPASA) in order to promote economy and efficiency in federal contracting, he wrote: “[T]his power has its limits.” Continue Reading

The Sixth Circuit and OSHA’s Upcoming December 6th Deadline (US)

Courthouse close with Justice inscribedOur colleague Colter Paulson at Squire Patton Boggs’ Sixth Circuit Appellate Blog provides an update on the status of the lawsuits challenging OSHA’s Emergency Temporary Standard on COVID-19 vaccination and testing.

Employers across the United States are wondering whether they need to comply with OSHA’s original, rapidly-approaching December 6th and January 4th deadlines.  And while no-one yet knows with 100% certainty, probably including the judges themselves, a few things seem clear from the Sixth Circuit’s approach in this consolidated appeal.  The Circuit has not ordered parties to comply with the kind of incredibly-rushed deadlines typically seen in elections appeals, as some parties have asked for.  Nor has it issued any precipitous decisions on the merits, deciding weighty constitutional matters before the issues are fully briefed.

The Circuit has instead taken a middle course:  it has ordered accelerated but reasonable deadlines on critical issues and allowed all interested parties to make their arguments.  As we’ve previously explained, one of the court’s early orders regulated briefing on whether the court should take the consolidated petitions initially en banc.  Per that schedule, the Government filed its response today, arguing that “complex and time-sensitive issues are more efficiently considered by a three-judge panel, and not the full sixteen-member Court.”  (The schedule did not explicitly allow reply briefs on that issue; in our experience that means that they will be accepted, but might be ignored.)  We expect an order on this crucial issue in the coming days, likely before we hear anything on the merits.

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California Legislature Enacts New Employment Laws To Take Effect in 2022 (US)

The California Legislature increased the complexity of employment law in the Golden State by enacting several employment laws that will soon take effect.  Below we summarize key aspects of the more significant new legislation.

Intentional Failure to Pay Wages May Constitute the Felony of “Grand Theft” (Assembly Bill 1003)

Under current law, employers who wrongfully and intentionally withhold wages from employees may be convicted of a misdemeanor.  AB 1003 increases the potential punishment and makes it a felony if an employer, acting intentionally, wrongfully fails to pay wages in an amount greater than $950 to one employee, or $2,350 in the aggregate to two or more employees, within a 12-month period.  Under AB 1003, independent contractors are considered employees, and entities that hire such contractors are considered employers.  Although AB 1003 does not define “employer,” that term is most likely to be construed broadly consistent with California court decisions that define an employer to include any person who exercises control over wages, hours, or working conditions of the employee, and which may include managers, supervisors, officers and owners of a business who are involved in implementing wage and hour policies and practices.  An employer acts “intentionally” when it deprives an employee of wages with knowledge that the wages are due.  Grand theft is punishable by imprisonment in a county jail for up to three years.  Although we expect that prosecutions for grand theft based on a failure to pay wages will be rare, employers must ensure they satisfy their wage payment obligations, as no employer wants to end up singing the Folsom Prison Blues. Continue Reading

Judge Blocks Portions of Centers for Medicare and Medicaid Services (CMS) Vaccine Mandate (US)

COVID-19 VaccineOn November 5, 2021, the federal Centers for Medicare and Medicare Services (CMS) issued an emergency regulation requiring that many types of health care facilities and providers that receive Medicare or Medicaid funds ensure that their staff, contractors, and volunteers receive at least their first COVID-19 vaccine dose by December 6, 2021 and be fully vaccinated by January 4, 2022. The vaccination requirements apply to 15 categories of Medicare and Medicaid-certified provider and supplier types that are regulated under the Medicare/Medicaid health and safety standards known as Conditions of Participation (CoPs), Conditions for Coverage (CoCs), or Requirements, including hospitals, ambulatory surgery centers, community mental health centers, end-stage renal disease facilities, home health agencies, hospices, and rehabilitation agencies, among others. The Rule does not provide an alternative for periodic testing in lieu of vaccination, but does still require reasonable accommodation for religious, medical, and disability reasons.

The Attorneys General of ten (10) U.S. states brought suit in Missouri on November 10, 2021 to block the implementation of the CMS vaccine mandate, arguing that the rule would lead to widespread staffing shortages in hospitals and health care facilities, particularly vexing rural healthcare providers. The petitioners also argued that the interim final rule, which went into immediate effect but is still subject to public comment, violated the Administrative Procedure Act’s requirement of notice-and-comment rulemaking, and is unconstitutional. Continue Reading

Just When I Thought I was Out: Omicron Variant and the Return of Regional COVID-19 Travel Bans

Following its November 8, 2021 move to remove and replace all regional COVID-19 Travel bans with a blanket vaccination requirement, the Biden administration announced a new COVID-19 travel ban on those seeking to enter the U.S. from various African nations.  The new Proclamation bars most non-U.S. citizens who have been physically present in the following countries during the 14-day period prior to attempting to enter the United States:

  • Republic of Botswana
  • The Kingdom of Eswatini (formerly Swaziland)
  • The Kingdom of Lesotho
  • The Republic of Malawi
  • The Republic of Mozambique
  • The Republic of Namibia
  • The Republic of South Africa
  • The Republic of Zimbabwe

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Global Edge 2.0, The Inside Track: Part 4 – New Country Music To Your Ears

Global Edge LogoIf you have become weary of the several seconds it can sometimes take you to get from opening up Global Edge to reaching information on your usual country of choice, we can help you!

Global Edge 2.0 allows each country what is effectively its own home page containing immediate access to helpful summaries, future legal developments under the On the Horizon section, articles and blog posts, webinars, podcasts and other useful links all specific to that particular jurisdiction, so you no longer have to go back and forth between indexes and drop-downs to find a collation of material on that country.

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Belgium’s largest Joint Committee reaches a new agreement on employment and working conditions – deadlines for employers to act are tight!

Belgium Hourglass

Against the background of industrial unrest in other sectors, the social partners of Joint Committee 200 –the Committee representing the largest number of employees in the country, more than 480.000 in total – have quietly come to an agreement on employment and working conditions. The most important provisions of the agreement are summarized within this post.

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New Acas fire and re-hire guidance – how to do the wrong thing in the right way (UK)

Editing a contractBack in June Acas produced a report on the “fire and re-hire” practices used by some employers to make detrimental changes to employees’ terms and conditions of employment. In essence, the employee is given notice of dismissal from his old contract but offered immediate reinstatement on a new one which incorporates the changes the employer wanted to make.  The practice has been thrown into particular relief by the Covid pandemic and the consequence adverse impact on some employers’ ability to maintain previous contract terms.

A political hot potato at the best of times, opinion on the practice is starkly polarised – for employers, it grants necessary flexibility and helps avoid or reduce compulsory redundancies, while for those on the other end, it is a means of worsening contractually-negotiated terms, the pandemic is being exploited as a smokescreen for reducing benefits without the financial imperative to do so, the tactic is used or threatened to undermine or bypass genuine workplace dialogue on change, and so on.  Sensing an opportunity to make some electoral capital out of the practice, MPs and ministers across the political spectrum have all leapt into the fray brandishing their own strong opinions and only somewhat belatedly commissioning Acas to find the facts which may justify them.  In the end, however, the resulting report did not add a great deal to those respective perceptions other than confirming that a lot of people feel terribly strongly about fire and re-hire one way or the other and have done so for many years pre-Covid.

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OSHA Files Emergency Motion to Allow Vaccine-or-Test ETS to Move Forward (US)

Courthouse close with Justice inscribedOur colleagues Shams Hirji and Colter Paulson at SPB’s Sixth Circuit Appellate Blog provide an update on the latest legal maneuvers involving OSHA’s Emergency Temporary Standard requiring larger US employers to require employees be vaccinated against COVID-19 or submit to regular testing and other infection prevention measures.

At 2:28 a.m. this morning [November 23, 2021], OSHA filed an (overlength) emergency motion to dissolve the Fifth Circuit’s stay of OSHA’s vaccine mandate, taking three distinct positions.  OSHA principally argues, as expected, that it is likely to succeed on the merits because OSHA reasonably concluded that the standard is necessary to address a grave danger, the Fifth Circuit’s statutory interpretation was flawed and its “constitutional concerns” were mistaken.  OSHA also argues there was ample support for its determinations, and that the balance of equities tips in its favor. Continue Reading

Major Changes Implemented in Employment Authorization Procedures for Spouses of H, E and L Visa Holders (US)

On November 12, 2021, the US Citizenship and Immigration Service (USCIS) issued new policies conferring the benefit of automatic extension of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses.  This significant shift in policy comes on the heels of the Department of Homeland Security’s (DHS) settlement in Shergill et al v. Mayorkas, 2:21-cv-01296 (U.S.D.C., Western District of Washington), with H-4 and L-2 spouses challenging protracted delays in processing their work authorization applications. Continue Reading