Last week, the Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445) (the “Act”), which prohibits the enforcement of mandatory arbitration agreements in connection with sexual harassment and sexual assault claims. The measure had previously passed in the House on February 7th. Although President Biden has not yet signed the Act into law, he has voiced support for the Act, and therefore, his signature is expected any day.

The Act is a win for #MeToo advocates who have lobbied that mandatory arbitration agreements create a culture of secrecy regarding workplace harassment and have protected serial harassers from public scrutiny. The Act was passed approximately four years after the #MeToo movement gained momentum in the fall of 2017.

Employers who utilize employee arbitration agreements should take note of the following key points in the Act:

  • The Act only prohibits the enforcement of arbitration agreements for certain claims. Accordingly, employers do not need to nullify current arbitration agreements or refrain from providing arbitration agreements to new hires.
  • Arbitration agreements can still be enforced in connection with other employment-related claims, such as other forms of discrimination or harassment.
  • Arbitration of sexual harassment or sexual assault claims is permitted if the employee bringing the claim selects arbitration rather than court.
  • The Act will apply to any claim that accrues after the enactment of the law. Therefore, it will not affect any claims currently in arbitration.

The Bureau of Workers’ Compensation (BWC) began the new year with a rate reduction for Ohio’s public employers, estimating that those employers will pay nearly $17 million less in workers’ compensation insurance premiums next year thanks to the cut. The BWC announced that this 10% rate reduction was made possible by a decline in injury claims and low medical inflation costs by Ohio’s public taxing districts. The BWC is now weighing whether to also cut rates for Ohio’s private employers, with the same 10% reduction going to a vote by the agency’s Board of Directors at its February 25th meeting.  

For Ohio’s private employers, the 10% rate reduction would amount to nearly $106 million less in premiums paid for the next fiscal year. If approved, it will go into effect on July 1, 2022.  

In a press release from January 28th, the BWC boasts that the overall average rate levels for the 249,000 private and public Ohio employers in the BWC’s system are at their lowest in 40 years.  For Ohio’s public employers—which include the state and any political subdivisions of the state, school districts, state institutions of higher learning, and other state agencies, commissions, and boards—this rate reduction was the 13th cut since 2009, as the BWC notes in a prior press release from January 3rd. In that same press release, the BWC noted that there have been 11 rate reductions for private employers since 2008, not including the one going to a vote on February 25th. If approved, the rate cut for private employers would also be the fourth since Governor DeWine took office in 2019.  

Finally, for both public and private employers, the 10% rate cut represents a statewide average, but the actual premiums paid by employers are determined by a number of different factors, including expected future claim costs of their particular industry, their claims history, and their participation in certain BWC programs that could entitle them to various rebates and discounts.  

Shortly after taking office in January, 2021, President Biden created the White House Task Force on Worker Organizing and Empowerment. The Task Force’s mission is to develop policies, programs and practices to promote worker organizing and collective bargaining. It is chaired by Vice President Harris, its vice chair is Labor Secretary Marty Walsh, and its members include more than 20 federal agencies.

In October, 2021, the Task Force presented almost 70 recommendations to the White House, all of which were accepted by the President and announced by the Task Force in a press release issued on February 7, 2022. The recommendations are contained within a 45-page report and are designed to promote and increase unionization in both the public and private sectors. The suggested actions to be taken are far ranging and include eliminating barriers to union organizers and increasing worker’s access to information regarding their right to bargain collectively and the process by which to do so. More specifically, the recommendations include:

  • Ensuring workers know their rights with respect to union organizing and bargaining.
  • Establishing a resource center on unions and collective bargaining.
  • Collecting and reporting more information on unions and their role in the U.S. economy.
  • Providing information about an employer’s use of anti-union consultants.
  • Protecting workers who face illegal retaliation when they organize and when they assert their right to organize.
  • Supporting worker organizing and collective bargaining in underserved communities in order to advance equity in those areas.

The Task Force report follows several other pro-union initiatives and actions from the Biden Administration in the preceding weeks, such as:

  • The Biden Administration’s January 21, 2022 “Good Jobs” initiative that, similar to some of the Task Force recommendations, is designed to provide additional information to workers and support organizing efforts. (Click HERE to read)
  • The memo issued by the NLRB on February 1, 2022, in which General Counsel Jennifer Abruzzo announced an initiative to seek injunctions under Section 10(j) of the National Labor Relations Act in certain cases where workers have been subjected to threats or other coercive action during an organizing campaign.
  • President Biden’s February 4, 2022 Executive Order mandating that all federal construction projects valued at $35 million or more must use a project labor agreement, which is a labor agreement between employers and trade unions that establishes common labor and dispute resolution terms for that project.

As the Biden Administration continues on its path of increasing union membership and unionized workforces, we will keep you informed of the latest developments and hurdles facing U.S. businesses.

If you have questions about this or other labor or employment issues, please contact Joel Hlavaty or another member of the Frantz Ward Labor & Employment Group.

Even though the calendar has not even turned to February, we already have seen major updates on the federal government’s COVID-19 rules and guidance.  This past week proved no different.  On Friday, January 21, 2022, a Texas federal judge blocked, on a nationwide basis, President Biden’s executive order mandating that federal workers get a COVID-19 vaccine.  The Justice Department already appealed the injunction and only time will tell how that mandate is resolved.

Also on Friday, January 21, the Department of Labor (“DoL”) issued Fact Sheet #84, which addressed the compensability of time spent undergoing COVID-19 health screenings, testing, and vaccinations under the Fair Labor Standards Act.  In particular, the Fact Sheet gave advice concerning the following circumstances:

  • Activities Occurring During Normal Working Hours: The DoL first clarified that health and safety measures that occur during normal working hours are compensable and stated: [I]f an employer requires an employee to obtain a COVID-19 vaccine dose, undergo a COVID-19 test, or engage in a COVID-19 related health screening or temperature check during the employee’s normal working hours, the time that the employee spends engaged in the activity is compensable.
  • Activities Outside of Normal Working Hours: The DoL also addressed whether time spent undergoing health and safety measures outside of normal working hours – such as getting vaccinated – is compensable. In particular, the Fact Sheet stated that: Employers must pay employees who report to a workplace where other individuals are present and who do not work exclusively outdoors for time spent going to, waiting for, and obtaining a mandatory COVID-19 vaccine dose because it is necessary that employees be able to perform their jobs safely and effectively during the pandemic
  • Compensation for Time Spent Testing: Finally, the DoL also addressed whether time spent undergoing testing is compensable. Where an employer mandates the vaccine and an employee undergoes testing as a reasonable accommodation based upon a religious or medical exemption, time spent undergoing testing outside of normal working hours is compensable.  However, where an employee can provide regular proof of testing as an alternative to getting vaccinated, the employer does not have to pay for time spent undergoing testing.

Later that same day, the DoL withdrew Fact Sheet #84 (likely because it is rife with references to the OSHA ETS).  Since it was withdrawn, the Fact Sheet should be considered unofficial.  However, it’s substantive and useful guidance concerning the compensability of time spent undergoing COVID-19 health screenings, testing, and vaccinations should not be ignored.

Finally, effective Wednesday, January 26, 2022, OSHA officially withdrew its ETS regarding COVID-19 vaccination and testing requirements.  In doing so, OSHA stated that it plans to implement a “permanent COVID-19 Healthcare Standard.”  In its decision, the Supreme Court had said that OSHA has the power to regulate risks related to COVID-19 that are “occupation specific” based on a worker’s job or workplace.  This gave OSHA an avenue to issue a narrower rule and likely is what OSHA will pursue in a “permanent COVID-19 Healthcare Standard.”

Frantz Ward will continue to monitor developments as it relates to administrative rules, regulations, and guidance concerning the COVID-19 pandemic.  If you have questions about this or other Labor and Employment issues, please contact Andrew Cleves or another member of the Frantz Ward Labor and Employment Practice Group.

The Biden Administration recently issued an Order requiring insurance companies and group health plans to cover the cost of at-home COVID-19 tests. The Administration did not give much time to prepare as it required insurance companies and group health plans to cover the cost of these tests starting January 15th.

Preferred Pharmacies or Retailers: On January 10th, the Department of Labor (“DOL”) published a Frequently Asked Questions page to help implement the Administration’s Order. There, the DOL explained that plans and insurers cannot limit coverage to tests that are only provided through preferred pharmacies or other retailers, and that participants, beneficiaries, and enrollees should receive reasonable reimbursement for OTC COVID-19 tests purchased from pharmacies or retailers of their choice. However, plans and insurers can make tests available through, and encourage the use of, preferred retailers.

Reimbursement: The DOL also explained that plans or issuers are not required to provide coverage by reimbursing sellers of OTC COVID-19 tests directly (“direct coverage”) but may, instead, require a participant, beneficiary, or enrollee who purchases an OTC COVID-19 test to submit a claim for reimbursement to the plan or issuer. However, the DOL also strongly encourages plans or issuers to provide direct coverage for OTC COVID-19 tests to participants, beneficiaries, and enrollees by reimbursing sellers directly.

Limit on the Number of Tests: Under the Administration’s Order, there is no limit on the number of tests, including at-home tests, that are covered if ordered or administered by a health care provider following an individualized clinical assessment. However, OTC COVID-19 tests purchased without an individualized clinical assessment may be capped at no less than 8 tests per 30-day period (or per calendar month). This means that a family of four, all on the same plan, would be able to get up to 32 of these tests covered by their health plan per month. When plans and insurers make tests available for upfront coverage through preferred pharmacies or retailers, they are still required to reimburse tests purchased by consumers outside of that network, at a rate of up to $12 per individual test (or the cost of the test, if less than $12).

The United States Supreme Court (“SCOTUS”) issued its decisions on the Biden Administration’s testing and vaccination mandates earlier today. The court was divided in both cases. The court ruled 6-3 in blocking the Occupational Health and Safety Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”) which required that employers with 100 or more employees require employees to get a COVID-19 vaccination or to comply with a masking and testing policy.

The court, however, ruled 5-4 in upholding mandatory vaccinations for Medicare and Medicaid providers under the Centers for Medicare and Medicaid (“CMS”) Interim Final Rule which requires most Medicare and Medicaid certified providers and suppliers to vaccinate staff members within 60 days.

Did the federal government overreach when it issued emergency rules forcing employers to impose vaccine mandates? The United States Supreme Court will take up that important question today when it examines emergency COVID-19 vaccine rules issued by the Occupational Safety and Health Administration and the Centers for Medicare & Medicaid Services.

The Supreme Court will conduct two hours of oral argument today pitting representatives of the Biden administration against states and trade groups who are challenging the federal COVID-19 vaccination rules. One of the key issues with regard to the OSHA rule will be whether the circumstances involve “grave danger” significant enough to allow OSHA to impose the rules without first seeking public feedback. With regard to the CMS rule, the issues will include whether the agency exceeded its statutory authority and whether the agency should have conducted a public notice-and-comment period before issuing the rule.

The Supreme Court will address the OSHA and CMS rules separately, which means that it could allow both to take effect, it could block both, or it could allow one to take effect while blocking the other. Regardless, employers in all sectors will be anxiously awaiting the Supreme Court’s decision, since certain of the emergency rules could take effect as soon as Monday, January 10.

Notably, all nine Supreme Court justices are reported to be fully vaccinated and boosted.

We will continue to monitor this situation. If you have questions about this or other Labor and Employment issues, contact Brian Kelly or another member of the Frantz Ward Labor and Employment Practice Group.

On December 27, 2021, the National Labor Relations Board (“NLRB”) invited public briefing on a critical issue affecting employers (and especially gig economy companies and workers) regarding independent contractor status. In 2019, the republican-controlled NLRB in SuperShuttle DFW, Inc., 367 NLRB 75 (2019), made it easier for employers to prove independent contractor status by reaffirming adherence to the NLRB’s traditional common law agency test. In SuperShuttle, the NRLB found that entrepreneurial opportunity for economic gain is a relevant factor to show a putative contractor is rendering services as part of an independent business. This overruled the prior standard contained in FedEx Home Delivery, 361 NLRB 610 (2014), which made it more difficult to prove independent contractor status. The NLRB’s request for public briefing on the issue is part of a pending case involving makeup artists, wig artists and hairstylists at the Atlanta Opera, Inc., who are attempting to unionize. Given the current democratic board majority, it is possible that in 2022 the NLRB independent contractor test may revert back to the FedEx test and overrule the existing SuperShuttle test. The Frantz Ward Labor and Employment Group will continue to monitor and report on these developments.

Since the start of the pandemic, much of the discourse regarding COVID-19 and workers’ compensation has centered around questions of compensability—that is, under what circumstances contraction of COVID-19 can qualify as a compensable workers’ compensation claim, what types of benefits are available for covered employees, and what types of defenses employers may have at their avail. As more and more employers consider and implement mandatory vaccination and booster policies, additional questions have arisen regarding the fairly novel—though not entirely COVID-19-exclusive—issue of the compensability of vaccination and booster side effects.

The most common side effects associated with COVID-19 vaccinations and boosters, according to the CDC’s website here, are pain and swelling in the arm where the shot was administered and tiredness, headaches, muscle pain, chills, fever, and nausea throughout the rest of the body. Again according to the CDC, not everyone experiences all or even any of these side effects, and even those who do should feel back to normal after a few days. The CDC website also notes that rare cases of myocarditis (inflammation of the heart muscle) and pericarditis (inflammation of the outer lining of the heart) have been reported following the Pfizer and Moderna vaccines and mentions “severe allergic reactions” to any of the COVID-19 vaccines as a possibility. Of course, studies regarding the long-term side effects are ongoing and a wide range of opinions regarding possible long-term and short-term side effects can be found depending on where you look.

Even for just those common side effects lasting only a few days, there can be workers’ compensation implications. Certainly, an allergic reaction, even a minor one, can qualify as a compensable medical condition; the question for COVID-19 vaccine and booster side effects is whether it they are sufficiently connected to the employment to constitute a workers’ compensation claim. That question comes down to the nature and circumstances of the vaccination. For employees who voluntarily decide on their own to get vaccinated, there is no real connection to the employment and therefore no claim. For employees whose jobs require them to be vaccinated as part of a mandatory-vaccination policy, however, there is a direct link to their employment and there will likely be a compensable claim for adverse side effects to the vaccine. Then there is the gray area in between—employers encouraging or even offering vaccinations to their employees, but not strictly requiring them. Generally, if the vaccination is not mandatory, even if offered by the employer and administered right on the premises, side effects will likely not be compensable unless the employee can show that the vaccination was somehow made “basically” mandatory by the actions of their employer, requiring a very fact-specific analysis.

It is not all bad news for mandatory-vaccination employers in Ohio, however. Based on current evidence, it seems that the vast majority of potential claims for COVID-19 vaccine side effects will be fairly insignificant in terms of the financial exposure to employers, whether directly as self-insured employers or via impact to BWC premiums for state-fund employers. It appears that most of these side effects require little to no medical attention, with medical bills usually limited to a single hospital visit if there is any treatment at all. Moreover, for claims in Ohio, there is no compensable lost time if the claimant is out of work for less than seven days, while the most common side effects typically last no more than a few days. As such, for Ohio employers deciding whether to implement mandatory vaccination policies, the workers’ compensation exposure for vaccine side effects should not be a crucial factor in the analysis.

Over the weekend, in a 2-1 decision, the Sixth Circuit lifted the stay of OSHA’s Emergency Temporary Standard (“ETS”) regarding mandatory employee vaccination or testing requirements. The ETS was originally issued on November 5, 2021 but was stayed by the Fifth Circuit on November 6, 2021.

In its decision to lift the stay, the Sixth Circuit determined that OSHA did not exceed its statutory authority by issuing the ETS, noting that “OSHA’s authority includes protection against infectious diseases that present a significant risk in the workplace, without regard to exposure to that same hazard in some form outside the workplace.” The Sixth Circuit also determined that OSHA sufficiently demonstrated the danger that COVID-19 poses to workers and that the ETS is necessary to protect employees from that grave danger.

Shortly after the Sixth Circuit announced its decision, OSHA updated the schedule for employers to comply with the ETS’ requirements to January 10, 2022 and February 9, 2022.

As a refresher, the primary provisions of the ETS are outlined below:

  • WHO:
    • The ETS applies to employers with 100 or more employees.
  • WHAT:
    • Covered employers must ensure that all employees are fully vaccinated or produce a negative COVID-19 test result on at least a weekly basis.
  • WHEN:
    • January 10, 2022: Employers must have a written vaccination policy and all other vaccine or test requirements in place.
    • February 9, 2022: All employees must be vaccinated or show weekly proof of a negative COVID-19 test.

Despite the Sixth Circuit’s ruling, the future of the ETS remains unclear, as it has been reported that several appeals have already been filed to the United States Supreme Court. Certain groups have asked the Supreme Court to intervene on the case as part of its “emergency docket,” which could expedite the review process. Justice Brett Kavanaugh, an appointee of President Trump, is the Justice responsible for overseeing appeals from the Sixth circuit.

Given the political messaging behind the ETS, it is possible that it will be stayed once again in the near future. In the meantime, however, employers should exercise reasonable, good faith efforts to come into compliance with the ETS by January 10th and February 9th. Feel free to reach out to Megan Bennett, Jon Scandling or any member of Frantz Ward’s labor & employment group if you have additional questions regarding the ETS, or its current state.