Sparing no time since she issued her Advice Memorandum last week, NLRB General Counsel Jennifer Abruzzo issued Memorandum GC 21-05, outlining her position on the importance of 10(j) injunction proceedings.

Section 10(j) of the National Labor Relations Act authorizes the National Labor Relations Board to seek temporary injunctions in federal district courts to stop alleged unfair labor practices (including maintaining the “status quo”) while the case is being litigated before the NLRB. While 10(j) injunctions have long been understood to be a powerful tool at the General Counsel’s disposal, how often they are used has generally been dependent on the political party in power. While the General Counsel must seek authorization from the Board prior to proceeding to court to obtain a 10(j) injunction, Memorandum GC 21-05 certainly suggests the Board appears poised to utilize 10(j) injunctions more than the prior administration.

General Counsel Abruzzo’s memorandum makes clear that she will not shy away from using 10(j) injunctions to “timely protect employees’ Section 7 rights.” General Counsel Abruzzo firmly believes 10(j) injunctions have led to positive results in ensuring the protection of employees’ rights. As such, she intends “to aggressively seek Section 10(j) relief where necessary to preserve the status quo and the efficacy of final Board orders.”

Employers should take notice of the General Counsel’s warning, and should not be surprised if more Board investigators mention 10(j) injunctions early in unfair labor practice investigations. Employers should also think critically about charges and allegations that may raise 10(j) concerns at the Board, and work swiftly to ensure their position does not warrant court involvement.

If you have any questions regarding the General Counsel’s memorandum, 10(j) injunctions, or issues related to labor and employment law, feel free to contact an attorney in Frantz Ward’s Labor & Employment Practice Group.

On August 12, 2021 NLRB General Counsel Jennifer A. Abruzzo issued her “Mandatory Submissions to Advice” memorandum (Memorandum GC 21-04), outlining her agenda items and priority issues for NLRB Regional Directors, Officers-in-Charge, and Resident Officers. The memorandum offers a glimpse into a number of issues the new General Counsel believes need to be re-evaluated, largely because, as she indicated in the memo, the prior Board “overrul[ed] many legal precedents which struck an appropriate balance between the rights of workers and the obligations of unions and employers.” Given the current political climate, and the position of the General Counsel, employers can expect significant NLRB policy changes in the coming years.

The memo is divided into three sections. The first section Identifying “doctrinal shifts” of the past several years. The memorandum identifies 11 precedential topics she will be focusing on, likely to the detriment of employers, those being:

  • Employer Handbook rules
  • Confidentiality provisions/Separation agreements and instructions
  • What constitutes protected concerted activity
  • Wright Line/General Counsel’s burden
  • Remedial issues
  • Union access
  • Union dues
  • Employee status
  • Board jurisdiction over religious institutions
  • Employer duty to recognize and/or bargain
  • Deferral

The second section identifies seven additional areas and initiatives the General Counsel wants to carefully examine during her tenure, including: (1) Employee status, (2) Weingarten, (3) National Mediation Board vs. NLRB jurisdiction, (4) Employer duty to recognize and/or bargain, (5) Employees’ Section 7 right to strike and/or picket, (6) Remedies and compliance, and (7) Employer interference with employees’ Section 7 rights.

The third and final section identifies a litany of other casehandling matters the General Counsel will be focusing on, ranging from cases involving injunctions, partial lockouts, and the need to harmonize the NLRA with local, state and other federal statutes.

While the General Counsel’s memorandum is extensive, it only generally outlines topics that General Counsel, and presumably the Biden administration, will be focusing on over the next several years. It is not entirely clear how the General Counsel plans to change the matters identified. It is fair to assume, however, that the General Counsel will focus on changing the identified topics in such a way to further protect employees and their right to collectively bargain. At this time we don’t know precisely what changes will be made, but it is fair to assume the Board will seek to reimplement prior-democratic era interpretations of the issues identified. Unless and until a case is actually before the NLRB, how the current law will be changed is unknown.

Based on the topics covered in the General Counsel’s memorandum, employers approaching collective bargaining should think strategically about the current state of their management’s rights clauses, and other reserved rights as outlined in their CBA. The General Counsel may very well focus on specific rights and waivers outlined in the CBA. Employers should likely proceed with trying to obtain contract language that is as specific as possible in the near future.

Employers should also be thinking more critically about what constitutes protected concerted activity, looking closely at workplace rules that may be focused on limiting certain speech or behavior at work. This exercise should also not be limited to unionized employers as non-union employees have Weingarten rights, and a proactive Board will seek to ensure that standard is maintained, and potentially even expanded. Non-union employers need to be on guard for expansive labor policies that the new General Counsel could seek to enforce, likely attempting to distance the current Board from policies implemented and utilized during the Trump administration.

If you have any questions regarding the General Counsel’s memorandum, or issues related to labor and employment law, feel free to contact an attorney in Frantz Ward’s Labor & Employment Practice Group.

Today OSHA updated its previously issued “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”  The updates focus on: 1) helping employers protect unvaccinated workers (including those who are only partially vaccinated) or otherwise at risk (including those who are immunocompromised; and 2) implementing new guidance involving fully-vaccinated workers located in areas of substantial or high community transmission.  They also highlight high-risk industries, including manufacturing, and provide additional recommendations for those industries.

General Recommendations for all Workplaces

Noting updated evidence and information issued by the CDC on July 28, 2021, and preliminary evidence suggesting that fully vaccinated people who do become infected with the Delta variant can be infectious and can spread the virus to others, OSHA has largely adopted the CDC’s recommendations, noting specifically that “employers should “consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”

Citing the OSH Act’s General Duty Clause, as well as its established standards that remain in place regarding PPE, respiratory protection, sanitation, bloodborne pathogens and access to medical and exposure records, OSHA offers the following multi-layered interventions on which employers should engage with workers and representatives and consider implementing (many of which are included in existing COVID-19 prevention programs):

  1. Facilitating employee vaccinations, including granting paid time off for employees to get vaccinated and recover from any side effects and adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.
  2. Instructing workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work, including ensuring that absence policies are non-punitive and eliminating or revising policies that encourage workers to come to work sick or when unvaccinated workers have been exposed to COVID-19.
  3. Implementing 6 feet of physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers, including limiting the number of unvaccinated or otherwise at-risk workers in one place at any given time and using transparent shields or other solid barriers to separate workers at fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least 6 feet away from other people.
  4. Providing workers with face coverings or surgical masks at no cost as appropriate, unless their work task requires a respirator or other PPE and while providing reasonable accommodations for workers unable to wear or who have difficulty wearing certain types of face coverings due to a disability or based on a religious accommodation under federal anti-discrimination laws.
  5. Educating and training workers on COVID-19 policies and procedures using accessible formats and in language they understand, including training management and non-management employees, contractors and visitors on policy implementation and the risks of contracting COVID-19 and the Delta variant.
  6. Suggesting or requiring that unvaccinated customers, visitors, or guests wear face coverings in public-facing workplaces such as retail establishments, and that all customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission based on the CDC’s Integrated COVID-19 County Tracking System
  7. Maintaining and Improving Ventilation Systems, some options for which are discussed in the CDC’s Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace.
  8. Performing routine cleaning and disinfection, including following CDC cleaning and disinfection recommendations if someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, as well as mandatory OSHA standards 29 CFR 1910.1200 and 1910.132, 133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.
  9. Recording and reporting COVID-19 infections and deaths under OSHA’s mandatory rules in 29 CFR part 1904 for work-related cases of COVID-19 illness if: 1) the case is a confirmed case of COVID-19; 2) the case is work-related (as defined by 29 CFR 1904.5); and 3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7) (e.g., medical treatment, days away from work).
  10. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards, being mindful of Section 11(c) of the OSH Act, which prohibits various adverse actions against employees who engage in various protected activities, and ensuring workers know whom to contact with questions or concerns about workplace safety and health (ideally using a hotline or other method for workers to voice concerns anonymously).
  11. Following other applicable mandatory OSHA standards that apply to protecting workers from infection remain in place, including PPE (29 CFR part 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), OSHA’s requirements for employee access to medical and exposure records (29 CFR 1910.1020), and OSHA’s mandatory Emergency Temporary standard for many healthcare workplaces.

Additional Recommendations for High-Risk Workplaces, Including Manufacturing Settings

In addition to those general recommendations described above, OSHA also provides in its updates certain best practices for higher-risk workplaces – which include manufacturing; meat, seafood, and poultry processing; high-volume retail and grocery; and agricultural processing settings – to protect unvaccinated and otherwise at-risk workers.

In all workplaces with heightened risk due to workplace environmental factors where there are unvaccinated or otherwise at-risk workers in the workplace, OSHA recommends that employers:

  • Stagger break times in these generally high-population workplaces, or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks. Such workers should maintain at least 6 feet of distance from others at all times, including on breaks.
  • Stagger workers’ arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk workers in parking areas, locker rooms, and near time clocks.
  • Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing.
  • Require unvaccinated or otherwise at-risk workers, and also fully vaccinated workers in areas of substantial or high community transmission, to wear masks whenever possible, encourage and consider requiring customers and other visitors to do the same.
  • Implement strategies (tailored to your workplace) to improve ventilation that protects workers as outlined in CDC’s Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace, and ASHRAE Guidance for Building Operations and Industrial Settings During the COVID-19 Pandemic.

In meat, poultry, and seafood processing settings; manufacturing facilities; and assembly line operations (including in agriculture) involving unvaccinated and otherwise at-risk workers, OSHA recommends that employers:

  • Ensure adequate ventilation in the facility, or if feasible, move work outdoors.
  • Space such workers out, ideally at least 6 feet apart, and ensure that such workers are not working directly across from one another. Barriers are not a replacement for worker use of face coverings and physical distancing.
  • If barriers are used where physical distancing cannot be maintained, they should be made of a solid, impermeable material, like plastic or acrylic, that can be easily cleaned or replaced. Barriers should block face-to-face pathways and should not flap or otherwise move out of position when they are being used.
  • Barriers do not replace the need for physical distancing – at least six feet of separation should be maintained between unvaccinated and otherwise at-risk individuals whenever possible.

It is important to note that while OSHA specifically qualifies its updates as “advisory in nature and informational in content,” employers should anticipate that OSHA inquiries will include questions regarding some or all of the foregoing recommendations on a going forward basis.

As anticipated and reported in a prior blog discussing action items on President Biden’s agenda, and as foreshadowed by the Notice of Proposed Rulemaking issued by the U.S. Department of Labor (DOL) in March, 2021, the DOL on July 30, 2021 withdrew the prior Joint Employer Final Rule that was published during the Trump administration, and which had been in effect since January, 2020. The Recission of the Final Rule takes effect on September 28, 2021.

Under the Final Rule published during the Trump administration, the decision of whether an employee was jointly employed by two or more employers was determined by analyzing the extent to which an alleged employer was involved in the following four employment actions:
1) the hiring and firing of the employee
2) the supervision and control of the employee’s work schedule or conditions of employment
3) the determination of the employee’s rate of pay and the employee’s method of payment
4) the maintenance of the employee’s employment records.

The Trump Final Rule also focused on whether there was actual, rather than theoretical, control over the above factors. This Final Rule had been successfully challenged by a number of states, with the S.D. N.Y. vacating the Final Rule in September, 2020, on the basis that it conflicted with the Fair Labor Standards Act (FLSA) and violated the Administrative Procedures Act. The court also stated that it was arbitrary and capricious since the Final Rule did not adequately explain the change from prior DOL interpretations. State Of New York et al v. Scalia, No. 1:2020cv01689 (S.D.N.Y. 2020). While the DOL appealed the decision of the S.D.N.Y., it noted in its appeal that its then proposed rulemaking would likely moot the appeal.

With the recission of the Trump Final Rule, the DOL is not proposing a new rule or guidance, but rather reverting to the rules in place under the FLSA and court decisions prior to January, 2020, namely whether there is joint employment depends upon a number of factors under an “economic realities” test, such as the nature of the work being performed, whether the workers are integral to a company’s business, and whether the companies could potentially control the worker’s working conditions.

Non-compete agreements have recently become a popular focus of the federal and state governments. Several weeks ago, President Biden issued an Executive Order, “Promoting Competition in the American Economy” which asked the Federal Trade Commission (“FTC”) to exercise the FTC’s statutory rulemaking authority to curtail the unfair use of non-compete agreements and other clauses or agreements that may unfairly limit worker mobility.

Like the federal government, states have taken up similar initiatives with the goal of limiting an employer’s use of non-compete and/or non-solicitation agreements. For example, the Illinois General Assembly recently passed an amendment to the Illinois Freedom to Work Act which would require employers to drastically alter their non-compete and non-solicitation agreements, and their use of the same. The amendment is expected to be signed into law by the Governor and will become effective January 1, 2022.

Among other things, the amendment would:

  • Require non-competes and non-solicitation agreements to be supported by “adequate consideration” as defined by the law;
  • Define “adequate consideration” as either: (i) two years of continuous employment, or (ii) employment of the individual by the employer for “a period of employment plus additional professional or financial benefits or merely professional or financial benefits that are adequate by themselves.”
  • Require employers to (i) advise the employee in writing to consult with an attorney before entering into a non-compete or non-solicitation agreement, and (ii) provide the employee with a copy of that agreement at least 14 calendar days before the employee begins employment or provide the employee at least 14 calendar days to review the agreement.
  • Prohibit non-competes with employees who have actual or expected “earnings” of $75,000 per year or less.
  • Prohibit non-solicitation agreements with employees who have actual or expected “earnings” of $45,000 per year or less.

The amendment would only apply to non-compete and/or non-solicitation agreements entered into after its effective date – so January 1, 2022. The amendment virtually guarantees that employers who operate in Illinois must re-write their non-compete and non-solicitation agreements. Employers should have those agreements prepared by January 1, 2022.

President Biden’s executive order, and the passage of this amendment by the Illinois state legislature, show that governing bodies are focused on limiting the use of non-compete agreements. Employers should monitor developments in non-compete law and can expect for the law, at least in the short term, to continue to change. Employers should review their non-compete, non-solicitation, and confidentiality agreements to ensure that each is not broader than necessary to protect legitimate business interests. And, employers should refine these agreements so that they protect those interests that are truly important to the business.

Recently, President Biden issued an Executive Order titled, “Promoting Competition in the American Economy.” Notably, among other things, the Executive Order recommends that the Federal Trade Commission (“FTC”) curtail the use of non-compete agreements.

The Executive Order seeks to “. . . address agreements that may unduly limit workers’ ability to change jobs” by encouraging the Chair of the FTC to “consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” In a Fact Sheet that accompanied the Executive Order the Biden Administration further outlined the seriousness of its policy goals stating that it aims to “tackle some of the most pressing competition problems across our economy” and intends to “make it easier to change jobs and help raise wages by banning or limiting non-compete agreements . . .”

The Executive Order and accompanying Fact Sheet do not change current non-compete law, and do not nullify current non-compete agreements. Instead, they are policy goals of the Biden Administration. As such, non-compete law is still currently controlled by state law.

The Executive Order and accompanying policy statements do, however, show that the Biden Administration is serious about changing non-compete law and is serious about limiting the use of non-compete agreements. As such, employers can expect that the FTC will issue some type of guidance, regulation, or rule addressing the Biden Administration’s concerns – it is unclear when the FTC plans to do so or what the scope of that rule will be. Employers should continue to monitor the situation and take this time to review their non-compete, non-solicitation, and confidentiality agreements to ensure that each is enforceable and not broader than necessary to protect legitimate business interests.

The Equal Employment Opportunity Commission (“EEOC”) recently issued guidance and online resources to aid employers in avoiding sexual orientation and gender identity discrimination in the workplace. The guidance coincides with the one-year anniversary of the Supreme Court’s decision in Bostock v. Clayton County, finding that firing individuals because of their sexual orientation or transgender status constitutes discrimination  because of sex.

The EEOC’s guidance provides more nuanced detail regarding the Agency’s position on sexual orientation and gender identity discrimination, including the following:

  • Protections for Straight Individuals – Non-LGBTQ+ applicants and employees also are protected from discrimination and harassment based on their sexual orientation or gender identity.
  • Customer/Client Preferences – Employers may not segregate or otherwise discriminate against employees based upon the actual or perceived preferences of customers or clients.
  • Bathrooms and Locker Rooms – While employers may maintain separate, sex-segregated bathrooms, locker rooms, and showers for men and women, they may not deny an employee equal access to these facilities based upon the employee’s gender identity. According to the EEOC, “all men (including transgender men) should be allowed to use the men’s facilities, and all women (including transgender women) should be allowed to use women’s facilities.”
  • Pronouns – While an employer’s accidental misuse of pronouns is not problematic, an employer’s intentional and repeated use of the wrong name and/or pronouns could result in an unlawful hostile work environment.
  • Clothes and Outward Appearances – Prohibiting a transgender person from dressing or otherwise presenting in a manner consistent with the person’s gender identity will constitute sex discrimination.

Employers should take the EEOC’s guidance into account when drafting, enforcing, and training on anti-discrimination and harassment policies.

On June 24, 2021, the U.S. House of Representatives voted to roll back a rule created under the Trump Administration governing EEOC conciliation as an alternative process to litigation for resolving workplace discrimination allegations. This paves the way for final repeal of the rule through President Biden’s signature since the Senate also voted to repeal the rule.

Conciliation is a process that occurs only after the EEOC makes a finding that discrimination or retaliation has occurred. The initial goal of the conciliation rule was to better inform employers on the EEOC’s findings in conciliated cases and encourage informal resolution instead of litigation of EEOC charges. It required the EEOC to provide employers with the name of the complaining employee and any witnesses to the alleged conduct. The EEOC was also required to share facts it relied upon in making a finding of discrimination, as well as a detailed calculation of damages.

Opponents of the rule felt it gave employers an opportunity to delay resolution by dragging out settlement talks and resulted in the disclosure of too much information that gave employers an advantage in settlement discussions. The repeal of the rule is likely to be signed by President Biden. While it is too early to tell how the repeal of the rule will impact EEOC conciliation going forward, the likely result will be fewer conciliated resolutions since employers will not be provided with detailed background regarding the EEOC’s findings in making a determination of whether to settle an EEOC charge prior to litigation.

On Thursday, June 10, 2021, OSHA released its long awaited COVID-19 Emergency Temporary Standard (ETS). Despite beliefs that the ETS would address all workplace settings, it only addresses workplace safety in the health care industry. Answers to the key questions regarding the ETS are outlined below:

Who does the ETS apply to?
The ETS generally applies in all settings where any employee provides healthcare services or healthcare support services. This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated.

What does my workplace need to do to comply with the ETS?
The ETS requires covered employers to implement varying, overlapping controls to protect workers from the virus. Pursuant to the ETS, covered employers need to implement and practice the following:

  • COVID-19 Plan – Develop and implement a specific COVID-19 plan (in writing if more than 10 employees) that includes a designated safety coordinator, a workplace-specific hazard assessment, input and involvement of non-managerial employees and their representatives, and policies and procedures to minimize the risk of transmission of COVID-10 to employees, including policies and procedures to determine employees’ vaccination status.
  • Patient screening and management – Limit and monitor points of entry to areas where direct patient care is provided, and screen every person who enters the facility.
  • Standard and Transmission-Based Precautions – Develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
  • Personal protective equipment (PPE) – Provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes; provide and ensure employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19, and for aerosol-generating procedures on a person with suspected or confirmed COVID-19.
  • Aerosol-generating procedures on a person with suspected or confirmed COVID-19 – Limit employees present to only those essential; perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
  • Physical distancing – Keep people at least 6 feet apart when indoors.
  • Physical barriers – Install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where employees are not separated from other people by at least 6 feet.
  • Cleaning and disinfection – Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment; in all other areas, clean high-touch surfaces and equipment at least once a day and provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities.
  • Ventilation – Ensure that employer-owned or controlled existing HVAC systems are used in accordance with manufacturer’s instructions and design specifications for the systems and that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it.
  • Health screening and medical management 
    • (1) Screen employees before each workday and shift;
    • (2) Require each employee to promptly notify the employer when they are COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms;
    • (3) Notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive;
    • (4) Follow requirements for removing employees from the workplace;
    • (5) Employers with more than 10 employees, provide medical removal protection benefits in accordance with the standard to workers who must isolate or quarantine.
  • Vaccination – Provide reasonable time and paid leave for vaccinations and vaccine side effects.
  • Training – Ensure all employees receive training so they comprehend COVID-19 transmission, tasks and situations in the workplace that could result in infection, and relevant policies and procedures.
  • Anti-Retaliation – Inform employees of their rights to the protections required by the standard and do not discharge or in any manner discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the standard.
  • Compliance Costs – Requirements for complying with the ETS must be implemented at no cost to employees.
  • Recordkeeping – Establish a COVID-19 log (if more than 10 employees) of all employee instances of COVID-19 without regard to occupational exposure and follow requirements for making records available to employees/representatives.
  • Reporting – Report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

When does my workplace need to comply with the ETS?
Covered employers must comply with most provisions of the ETS within 14 days, and with provisions involving physical barriers, ventilation, and training within 30 days.

My Healthcare Employees are vaccinated, do they need to comply with the ETS?
The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. However, some protective measures of the ETS are still required for those whose jobs require them to work in settings where patients with suspected or confirmed COVID-19 may be present.

What if my Company is not covered by the ETS?
The ETS is aimed at protecting workers facing the highest COVID-19 hazards—those working in healthcare settings where suspected or confirmed COVID-19 patients are treated. If your Company is not in the healthcare industry, and the ETS does not apply to your workplace, you should adhere to OSHA’s Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. From a general perspective, OSHA non-health care guidance specifies that fully vaccinated people need not take all the precautions that unvaccinated people should take. As such, unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.

Covered employers should review their current COVID-19 policies and procedures to ensure compliance with the ETS.

If you have any questions regarding the ETS, OSHA or other COVID-19 workplace issues please contact Frantz Ward attorney Jonathan Scandling of Frantz Ward’s Labor & Employment Group.

The EEOC issued significant new guidance today covering workplace COVID-19 vaccination policies and practices. Click Here to View.  The EEOC’s new guidance answers several of the frequently asked questions about COVID-19 vaccination policies.

Some of the most notable answers in the new EEOC guidance include the following:

  • Employers can require all employees who physically enter the workplace to be vaccinated for COVID-19, subject to the obligation to make reasonable religious and medical accommodations.
  • Employers can offer incentives to employees who confirm that they are vaccinated for COVID-19, subject to the obligation to keep that information confidential under ADA.
  • Employers can set up programs to administer vaccines to their employees, and employers can offer incentives to employees who participate in the programs. Employers cannot, however, pressure or coerce employees to participate in these programs, which could involve disclosing protected medical information in response to pre-vaccination disability-related screening questions.
  • Employers can provide employees and their family members with educational materials regarding COVID-19 vaccines, including the materials available through the EEOC and other federal agencies.

Notably, the EEOC’s guidance only covers federal EEO laws. Employers still must consider other federal laws and state and local laws when implementing COVID-19 vaccination policies and practices.

Although the new EEOC guidance answers a number of important questions for now, the EEOC noted that further updates will follow as new developments occur.