skip to main content

Law In The Workplace

Supreme Court Stays OSHA's 100+ Employee Mandate; Health Care Rule Permitted, However

“There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.”

“For any young democracy, the most difficult but important step is burying the legacy of tyranny and establishing an economy and a government and institutions that abide by the rule of law. Every country faces challenges to the rule of law, including my own.” -Joe Biden

Andrea Johnson

Top Five Year-End Immigration Planning Tips

As we head toward year-end and look forward to 2022, there are planning tips for businesses and individuals to consider in order to retain current U.S. immigration benefits and the ability to travel internationally and return to the U.S.  The ability […]

OSHA Ordered to “Take No Steps to Implement or Enforce the Mandate"

OSHA Ordered to “Take No Steps to Implement or Enforce the Mandate."1 Fifth Circuit Stay of Vaccine-Mandate ETS Continues through Court’s Temporary Injunction Issued 11/12/2021. OSHA Rule Denigrated as “One-Size-Fits-All Sledgehammer.”2

On Friday, November 12, 2021, the Fifth Circuit entered its temporary injunction against the “Mandate” also referred to as the “emergency rule” or “ETS.”  This swift shut down of both the rule and its enforcement by OSHA (the Occupational Safety and Health Administration), followed the appellate court’s original emergency stay, entered less than one week ago, on November 6, which came just one day after the official issuance of the OSHA rule.  

Andrea Johnson

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