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A New World: 5th Circuit Stays OSHA COVID-Vaccination Mandate ETS, Affecting Employers with 100-plus Employees - Court Finds "Grave Statutory and Constitutional Issues with the Mandate."

Scarcely two days after OSHA had issued its emergency rule or "ETS" mandating COVID vaccinations in the workplace, the Fifth Circuit on November 6, 2021, granted an emergency stay of the entire rule - stopping in its tracks the federal government (OSHA), from proceeding with a very lengthy rule and, some contended, a rather oppressive mandate, all fashioned through the auspices of OSHA. The just-inked ETS mandated that employers with 100 or more employees had to act as the government's COVID vaccination enforcers so that their employees were either fully vaccinated against COVID or tested, at least, weekly, if an employee was unvaccinated, to ensure that he/she was not COVID-positive. At this point, the entire OSHA rule is suspended while the courts consider the matter further. The Fifth Circuit decision is linked here.

Andrea Johnson

Handling Employee Religious Objections to Mandatory Vaccine Policies

Mandatory Employee Vaccination Rules Present Challenges when Considering Religious Exceptions to the Rule.

As we reported earlier (see the KRCL blog post, here), the Occupational Safety and Health Administration (“OSHA”) is in the process of developing an “emergency” temporary standard, requiring employers with more than 100 employees to mandate that their employees be fully vaccinated or, if the employee is excused from the mandate, to produce a negative COVID-19 test at least once per week.  Although it is not clear when OSHA’s temporary rule will be issued (and there will likely be several state challenges to the anticipated rule), a number of employers are already implementing mandatory vaccine policies in the workplace.  

Fifth Circuit Declares Day-Rate Workers, even Those Earning over $200K/Year, Not Exempt—Unless the Employer Also Pays a Weekly Guaranteed Amount

By: Dennis P. Duffy1

In an en banc decision that the dissent predicted will wreck needless and excessive suffering to the “oyl biddness,” the Fifth Circuit held that a day rate—even for employees earning over $200k a year—does not meet the salary basis test for exempt status under the Fair Labor Standards Act (“FLSA”), unless the employer also provides a minimum weekly guarantee that the employee must earn regardless of hours worked. Hewitt v. Helix Energy Solutions, No. 19-20023 (5th Cir. September 9, 2021) (en banc).  

Dennis P. Duffy

As Pandemic Eases, New DOL, OSHA, and TWC Rules Inform Both Employees and Employers

New DOL, OSHA, and TWC Rules Inform Both Employees and Employers, as Pandemic Eases[1]

A. New Standard Issued by DOL Aimed at Protecting At-Risk Workers in Healthcare

On June 10, 2021, the Department of Labor (“DOL”) issued a highly anticipated emergency temporary standard (“ETS”) setting workplace safety parameters for employers in the healthcare sector during COVID-19. What does this new standard mean for employers?

Andrea Johnson

Texas “Anti-Vaccination Passport” Law

On May 7th, 2021, Texas Governor Greg Abbott signed a law banning COVID-19 “vaccine passports” effective immediately. So, what does SB 968 mean for employers? Does SB 968 prevent an employer from requiring employees to show proof of vaccination […]

Dennis P. Duffy