Beltway Buzz, December 3, 2021
The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.
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Breaking News on the CMS Vaccination Rule: Less Than 24 Hours After Being Shelved in 10 States, the Rule Is Sidelined Nationwide
In a November 30, 2021, order, a federal judge sitting in Louisiana entered a nationwide preliminary injunction against the Biden administration’s Centers for Medicare and Medicaid Services’ (CMS) interim final rule entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination.” The effect of the order is that CMS must immediately “cease all implementation or enforcement of the [CMS] Rule” in the remaining 40 states not covered by an earlier November 29, 2021, order from a federal judge sitting in Missouri that prevented implementation and enforcement of the CMS rule in only 10 states.
Federal Judge Shelves President Biden’s CMS Vaccine Mandate … But in Only 10 States
In a 32-page order issued on November 29, 2021, United States District Judge Matthew T. Schelp entered a preliminary injunction against the Biden administration’s Center for Medicaid and Medicare Services (CMS) interim final rule entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination.”
Beltway Buzz, November 5, 2021
The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.
CMS Gives a Boost and Takes a Shot at Full Vaccination for Millions of U.S. Healthcare Workers
Many hospitals and other healthcare organizations started mandating COVID-19 vaccinations for some or all of their workers over the last six months. Now all of the specified Medicare and Medicaid-certified provider and supplier types that are regulated under the Medicare health and safety standards must get all of their workers fully-vaccinated by January 4, 2022, pursuant to the Center for Medicare & Medicaid Services’s Omnibus COVID-19 Health Care Staff Vaccination interim final rule.
Missouri Governor Thumbs Nose at Federal Mandates, but Private Employers Still Left Wondering Whether and How to Comply
Following in the footsteps of governors in states such as Alabama, Arkansas, and Texas, on October 28, 2021, Missouri Governor Mike Parson issued Executive Order 21-10, a measure intended to chip away at the reach of federal vaccine mandates.
President Biden Signs Executive Order Requiring COVID-19 Vaccine for Federal Government Contract Workers
To ensure “that the parties that contract with the Federal Government provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract,” President Biden has issued yet another executive order (EO) mandating that some federal contractors and subcontractors comply with Guidance published by the Safer Federal Workforce Task Force.
FDA’s Full Stamp of Vaccine Approval Delivers Progress, but Issues With Vaccine Passports and Policies Are Looming
On August 23, 2021, the U.S. Food and Drug Administration (FDA) granted full approval to Pfizer’s COVID-19 vaccine. Moderna’s expedited application for full approval is still pending, and Johnson & Johnson plans to submit its application for full approval sometime later this year.
COVID-19 Variants and Key Government Actions Accelerate Employer Vaccination Policy Implementation
With transmission of the Delta variant on the rise, many employers are revisiting plans to implement COVID-19 vaccination policies. As we have previously explained, employers may encourage and mandate vaccination against COVID-19, subject to exceptions for covered disabilities under the Americans with Disabilities Act and sincerely held religious beliefs under Title VII of the Civil Rights Act of 1964. Guidance that the U.S. Equal Employment Opportunity Commission (EEOC) recently issued has been consistent with this position and federal courts have recently affirmed the same.
Missouri Governor Immunizes Citizens From Vaccine Passport Requirements by Cities and Counties
On June 15, 2021, Missouri Governor Mike Parson signed House Bill 271 prohibiting any county, city, town, or village government receiving public funds from requiring COVID-19 vaccination documents (commonly known as “vaccine passports”) from citizens. In addition, according to the new law, Missouri citizen must be allowed access to any building, transportation system, or service without showing proof they have received the vaccine.
Mandatory Vaccination Policy Lawsuit Update: Nurses Take a Shot Against Hospital, But Judge Jabs Back
Many workplace leaders have been wondering, “Can we require employees to get the COVID-19 vaccine as a condition of employment?” According to a recent Ogletree Deakins benchmarking survey, most employers are not ready to implement mandatory vaccination policies, and 87.9 percent of employers reported that they currently do not plan to require workers to get the vaccine. On the other end of the spectrum, 7.6 percent of respondents have implemented (or are planning to implement) a vaccination mandate. The rest have been undecided, but a recent court opinion on the legality of such mandatory policies may shift some employers’ feelings about which direction they should go and when.
Twisting Arms to Get Jabbed, White House Says: ‘Vaccination Incentives All Around!’
On April 21, 2021, in a further push to encourage COVID-19 vaccinations for those individuals who have been hesitant, the White House issued a fact sheet titled, “President Biden to Call on All Employers to Provide Paid Time Off for Employees to Get Vaccinated After Meeting Goal of 200 Million Shots in the First 100 Days.” This announcement further signals the administration’s dedication to vaccinating the U.S. population and its willingness to offer incentives to employers that support their employees in becoming vaccinated. Employers that have remained neutral on this issue could be persuaded to “take up arms” and join the fight against COVID-19.
Goodbye COVID-19 Priority Phases and Tiers, Hello Battles With Vaccine Passports!
On Tuesday, April 6, 2021, while touring a vaccination site in Alexandria, Virginia, President Joe Biden imposed a deadline on every state to open up vaccination eligibility to all adults by April 19, 2021 (moving up the previous target date of May 1, 2021). The White House COVID-19 coordinator, Jeffrey Zients, told governors also on April 6, 2021, that more than 28 million doses of vaccines will be delivered to all of the states the week of April 4-12, 2021. The president’s directive matches Dr. Anthony Fauci’s estimate in November 2020 that the earliest a vaccine would be available for most nonprioritized Americans would be April 2021.
COVID-19 Vaccinations Arriving For the Holidays: What Employers Need to Know and Can Do
As we discussed in a previous post, employers have already been planning for the arrival of a vaccine—and for good reason given the array of issues to consider when implementing vaccination-related policies. Although mandatory vaccination policies are legal (possibly subject to two limited categories of exemptions and variations in state laws), implementing such policies may prove challenging, at least in the near term.
Mandatory COVID-19 Vaccination: Is It Legal and Is It Right for Your Workplace?
By all accounts, the availability of a vaccine for COVID-19 is a matter of when, not if. According to the World Health Organization, as of August 25, 2020, 173 potential vaccines are currently being developed in labs across the world, 31 of which have advanced to clinical stage testing on humans. Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year or early 2021.
Missouri Tightens the Leash on Fake Fidos
On July 14, 2020, Missouri Governor Mike Parson signed Senate Bill (SB) 644, increasing the potential penalties imposed on Missourians and visitors who attempt to pass off their pets as bona fide service dogs. While Missouri law previously made it a crime to impersonate an individual with a disability, now the misrepresentation of a dog as a valid and properly trained service animal is also a crime.
Missouri Limits Punitive Damages in Workplace Lawsuits
On July 1, 2020, Missouri Governor Mike Parson signed Senate Bill (SB) 591, which modifies various provisions relating to civil actions. Notably, for Missouri employers, the bill modifies and restricts the way punitive damages are considered in lawsuits brought by current or former employees who allege intentional harm by an agent of the employer (e.g., a manager, supervisor, or HR professional).
A ‘Get Out of Masking Free’ Card Based on the ADA?
It should come as no surprise that the masking debate continues to heat up. In the past week, news outlets and social media platforms have been abuzz about face mask exemption cards.
Let the Masking Debate Continue, but Maybe Not in Our Hospitals
In 2015, long before COVID-19 emerged, a hospital disciplined and discharged a recruiter in its HR department who refused to obtain a hospital-required influenza vaccination or to don a mask at work as an alternative. In a case we started to track three years ago, a federal judge entered summary judgment for the employer this week.
Missouri Supreme Court Gives Early Holiday Present to Easter Seals
It’s time for our annual holiday season blog on the status of arbitration agreement enforceability in Missouri.
Beltway Buzz, January 12, 2018
The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.
DOL Gives Credit to Unpaid Student Interns After Getting Schooled by the Courts
Over the last few years, several federal courts—and, most recently last month, another appellate court—rejected the Obama administration’s mandatory six-prong test for whether someone can properly be classified as an unpaid intern under the Fair Labor Standards Act (FLSA). On January 5, 2018, the Trump administration issued an overhauled Fact Sheet #71, which formerly adopts a more flexible “primary beneficiary/economic reality” test.
Missouri Supreme Court Punts Two Lawsuits in a Row, on Direct Flights to Arbitration
Arbitration agreements have faced tackles and turbulence in a series of cases litigated in Missouri courts over the past few years. In the fall of 2017, the Supreme Court of Missouri issued two favorable arbitration agreement decisions: one involved an aviation school, the other arose from a training facility lease with the Rams football team, which has since left Missouri for California and was previously involved in a different arbitration-related case in Missouri.
Mandatory Flu Vaccine Policies: Dealing With Employees Who Refuse the Shot
Flu season is coming, and healthcare (and other) organizations may be asking whether they should have mandatory flu vaccine policies. If an employer decides to implement a mandatory program, the next question is how to administer it.
Missouri Governor Greitens Signs Bill Amending MHRA, Bringing State Law More Into Line With Federal Law
On June 30, 2017, Governor Greitens signed a bill which makes sweeping reforms to the Missouri Human Rights Act (MHRA). The MHRA is the state of Missouri’s primary anti-discrimination statute. The MHRA codifies for the state many of the federal anti-discrimination provisions found in the Americans with Disabilities Act, Age Discrimination in Employment Act, and Title VII of the Civil Rights Act of 1964.
The Missouri Human Rights Act—The Playing Field Has Been Leveled
The Missouri Human Rights Act (MHRA) is the state of Missouri’s primary anti-discrimination statute. The MHRA codifies for the state many of the federal anti-discrimination provisions found in the Americans with Disabilities Act, Age Discrimination in Employment Act, and Title VII of the Civil Rights Act of 1964. On May 8, 2017, the Missouri House of Representatives passed Senate Bill 43 (SB 43). The bill, which significantly modifies the MHRA and also codifies and limits workplace “whistleblower” liability, is now on the desk of newly-elected Governor Eric Greitens, who is expected to sign the legislation.
Can Fido Come to Work? EEOC Files Suit to Require Emotional Support Dog on Truck Route
It’s true. The U.S. Equal Employment Opportunity Commission (EEOC) is taking the position that an emotional support animal may be a required reasonable accommodation in the workplace. In January, we explained that federal (and most states’) public accommodation laws do not require businesses and organizations to accommodate disabled individuals with regard to their requested use of emotional support dogs or other animals. Some state laws and city ordinances even make it a crime to try to pass off an emotional support dog or pet as a legally-protected, disability-related service animal.
Fido Can’t Help Ring in the New Year (Unless He’s a True Service Animal)
Individuals wishing to begin the new year by taking a beloved pet or emotional support animal out to a restaurant may run into new legal deterrents in some states. While the Americans with Disabilities Act (ADA) entitles people with disabilities to bring “service animals” into public places such as restaurants and stores, many individuals do not realize which animals the law covers.
“Deaf Culture” Expert to Testify at Trial? Judge Allows EEOC to Test the Limits
In the last couple of years, pursuant to the Americans with Disabilities Act (ADA), the U.S. Equal Employment Opportunity Commission (EEOC) has prosecuted at least 12 lawsuits on behalf of deaf or hard-of-hearing employees or job applicants. And, within the last 10 years, the U.S. Department of Justice has litigated and/or settled close to 40 cases involving the failure to adequately accommodate deaf or hard-of-hearing individuals under Titles II or III of the ADA. A jury trial in one such case brought by the EEOC started this week in Sacramento, California. The case includes a claim that, while the employer previously provided an American Sign Language (ASL) interpreter for the employee at certain times during the workday, a new manager provided only “fingerspelling” (i.e., the actual spelling of words, letter by letter) instead of ASL for communication.
Another One Bites The Dust: Missouri Court Refuses to Enforce Arbitration Agreement Due to Unilateral and Retroactive Modification Clause
Arbitration agreements have been a roller coaster for Missouri employers. Recently, in State ex rel. Hewitt v. Kerr, the Missouri Supreme Court enforced such an agreement, sending an employee’s discrimination lawsuit to arbitration. But overall, courts in Missouri have restricted the enforceability of arbitration agreements entered into between employees and employers. This month, the Missouri Court of Appeals continued that trend in Bowers v. Asbury St. Louis Lex, LLC, No. ED102229 (July 7, 2015). In Bowers, the court analyzed an arbitration agreement, which included a clause that purportedly allowed the employer to modify the agreement unilaterally and retroactively.