Update on Federal Contractor Vaccine Mandate: No Need to Comply for Now, but Private Arrangements May Still be Enforceable
With the U.S. Supreme Court’s consideration of challenges to the OSHA ETS and the CMS Vaccine Mandate making the headlines, less attention has been paid to the federal contractor vaccine mandate even though it remains a separate topic of continuing interest for many employers. Presidential Executive Order 14042 (September 9, 2021) directed the federal agencies to contractually require certain federal contractors and subcontractors to implement COVID-19 workplace safety measures, including a vaccine mandate with no “testing” option. According to an update from Littler, on January 21, the Georgia Federal District Court issued an order stating that its injunction applies only to enforcement of the federal contractor vaccine mandate and that the requirements relating to masking, social distancing, and designation of an individual to coordinate COVID-19 safety protocols at covered workplaces have not been enjoined.
HCAOA has filed litigation in an attempt to block California’s home care registry law that gives home care workers’ personal contact information to unions. While we lost our case in a lower court, we filed an appeal and on January 12, oral argument in the AB 2455 appeal in the Ninth Circuit was held. Maury Baskin from the Littler firm argued the case on behalf of HCAOA to a three-judge panel consisting of two Obama appointees and one Reagan appointee. Attorneys for the State and the SEIU argued in opposition, challenging both HCAOA’s standing to sue and also denying that the Act was preempted by federal labor law.
.HCAOA Associate Member Bob King, Esq., Legally Nanny, represents hundreds of home care agencies in California and nationwide, and has spent much of this time defending home care agencies in wage and hour litigation. He reports that the same claims come up again and again in these cases, so he put together a brief overview of pertinent issues and what owners and managers can do to protect their home care agencies.
Last week, the U.S. Supreme Court heard arguments on challenges to both the CMS vaccine mandate and the OSHA vaccine-or-test Emergency Temporary Standard (ETS) for large employers. Most court observers agreed that a majority of the justices were skeptical of OSHA’s ability to impose its mandate, but seemed more receptive to the CMS rule. The Court’s ruling is expected any day.
Massachusetts High Court Adopts Federal Standard for Joint Employer Liability Under State Wage and Hour Law
Last month in Jinks v. Credico (USA) LLC, the Massachusetts Supreme Judicial Court concluded that the appropriate method for determining whether two companies were “joint employers” for purposes of the Massachusetts wage and hour laws is to evaluate the “totality of the circumstances of the parties’ working relationship.” This is the same test courts apply when analyzing this issue under the federal Fair Labor Standards Act (FLSA).
Chicago employers of domestic workers must provide workers, including home care workers, with a written contact beginning January 1, 2022, under a new ordinance enacted by the Chicago City Council. The ordinance applies to businesses and individuals in Chicago that employ “domestic workers,” including persons whose primary duties include housekeeping, nanny services, caregiving, personal care, or home health services. The contract, which must be written in the worker’s primary languages as requested by the worker, must include the wage and the work schedule agreed upon by the employer and the domestic worker.
Recently, two separate federal district courts - the Western District of Louisiana and Eastern District of Missouri - issued injunctions blocking enforcement of the CMS rule mandating healthcare worker vaccinations. In combination, these rulings result in a nationwide preliminary injunction prohibiting CMS from enforcing the vaccine mandate. And last week, a federal judge in Georgia issued a nationwide injunction that prevents the Biden Administration from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts.
All members are invited to join Polsinelli, HCAOA, and NAHC for a home care industry update on Thursday, December 16 from 12:00 – 2:00 p.m. ET.
U.S. Department of Labor Announces Final Rule to Increase Minimum Wage to $15 for Federal Contractors
By Angelo Spinola, William C. Vail, Christopher Razo – Polsinelli
What a week in the legal world! The Biden Administration issued a Vaccination and Testing Emergency Temporary Standard (ETS) on Thursday, November 4th, which the Fifth Circuit halted on Saturday, November 13. The Administration also issued a rule for certain healthcare providers accepting Medicare and Medicaid funding, and it pushed back the compliance date for federal contractors to comply with a third vaccination mandate. So where does that leave you?