On January 13, the U.S. Supreme Court granted a request for emergency relief concerning a Covid-19 “vaccine or test” rule that the Occupational Safety and Health Administration (OSHA) was planning to implement. In granting the stay, the Court halted – for now – what was known as the Emergency Temporary Standard (ETS) to be imposed upon companies with 100 or more employees.

The ETS mandated employers with at least 100 employees to require all members of their workforce to either obtain a Covid-19 vaccination or provide weekly proof of a negative Covid-19 test.

It should be noted that the Supreme Court granted emergency relief, which is not a final review of the OSHA rule. In other words, the decision doesn’t necessarily mean the rule will not ultimately be implemented. To the contrary, the decision only stays, or puts on hold, implementation of the rule until the Sixth Circuit Court of Appeals reviews it. After that, it may come back up to the Supreme Court for further consideration.

The 6-3 decision held that the plaintiffs challenging the law were likely to succeed on the merits of their arguments. Plaintiffs argued, and the Court agreed, that OSHA lacks the authority to implement the ETS. The majority determined that while OSHA has power to impose workplace safety rules, it cannot set broad public health policies. Although Covid-19 affects many workplaces, it is not specifically an occupational danger. Allowing OSHA to impose such a rule, the majority decided, would permit the agency to regulate “the hazards of daily living” – something Congress never intended.

Meanwhile, in a separate concurring opinion (that is, an opinion agreeing with the majority but for a different reason), three Justices contended that OSHA violated what’s known as the major questions doctrine. This rule assumes that when an administrative agency, such as OSHA, promulgates a rule that has major economic and social consequences, there must be clear statutory authority to do so. Put another way, the assumption is that Congress would not intend for OSHA to have such broad power unless that power is expressly stated in a statute. Such power is not contained in any statute concerning OSHA.

The three dissenting Justices took a different view. Not only did they believe the challengers were not likely to prevail on the merits of their claim, they held that OSHA is within its authority to require such an emergency standard to prevent workplace illness. Citing the serious danger of Covid-19 to millions of employees, the Justices concluded that OSHA has the power to impose the ETS.

Again, this emergency ruling is not necessarily the final word. Because the issue has been returned to the Sixth Circuit, with another possible review by the Supreme Court, the original rule could be upheld or OSHA might, in light of this decision, devise a more limited rule.

Employers should also be aware that state and local rules may require policies similar to OSHA’s ETS. The Supreme Court decision does not negate or halt those requirements.

Considering all of these factors, employers are advised to consult with knowledgeable legal counsel both as to current Covid-19 requirements and to prepare for possible future policies. At Gaffney Lewis, LLC, we have your business covered. Our employment law attorneys are at the forefront of the latest legal developments that affect the workplace. We’re prepared to advise your company on the best way to comply with laws and regulations concerning Covid-19. Give us a call today to learn more.

On October 25, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated technical assistance guidance on religious objections/exemptions to mandatory COVID-19 vaccination requirements by employers.  You can read the updated technical assistance guidance at “section L.”

The key updates to the technical assistance are summarized below:

• Employees and applicants must inform their employers if they seek an exception
  to an employer’s COVID-19 vaccine requirement due to a sincerely held religious
  belief, practice, or observance, but employees and applicants and not required to
  use specific language like “religious exemption.”
• Generally, under Title VII, employers should assume that a request for religious
  accommodation is based on a sincerely held religious belief.  If there is an
  objective basis for questioning either the religious nature or the sincerity of a
  particular belief, the employer would be justified in making a limited factual
  inquiry and seeking additional supporting information.
• Title VII requires employers to consider requests for religious accommodations
  but does not protect social, political, or economic views, or personal preferences
  of employees who seek exceptions to a COVID-19 vaccination requirement.
• Employers that demonstrate “undue hardship” are not required to accommodate
  an employee’s request for a religious accommodation.
• Potential accommodations may include remote work or reassignment.

It is important to remember that it is unlawful for an employer to retaliate against an employee for requesting an accommodation based on a religious objection to vaccination.

The EEOC’s guidance answers COVID-19 questions only from the perspective of the EEO laws. Other federal, state, and local laws come into play regarding the COVID-19 pandemic for employers, employees, and applicants. Please let us know if you need assistance from the GAFFNEYLEWIS LLC employment law team regarding any COVID-19 questions, please reach out to us at (803) 790-8838.

Throughout Breast Cancer Awareness Month, GaffneyLewis, LLC is highlighting ways that you can support individuals in your life who may be impacted by a diagnosis of breast cancer. Unfortunately, the statistics show that most of us know someone who has been diagnosed with breast cancer. Individuals who have walked this path have generously offered the following suggestions for ways you can actively support those who are fighting breast cancer.

1. Cards and Letters: It is always nice to receive a note or card from a friend. For cancer patients, letters can offer emotional support and are a way of communication that allows the patient to receive the support without feeling like they need to craft an immediate reply. Fielding calls and in-person visits can sometimes be difficult when you are feeling physically ill, but letters can provide much-needed comfort during those times and can be revisited long after the treatment concludes.

2. Help for Spouse and Family: Cancer does not only affect the patient, there is a ripple effect across the patient’s life. This diagnosis can transform a family member’s occupation into a full-time caretaker. Having emotional and tangible support for a patient’s family is essential for supporting both the cancer patient and their family. An example of this may be ordering dinner for the family. Another way you can support the patient’s family is by offering to update the family’s circle of friends and supporters on news or updates.

3. Prayers and Affirmations: Knowing that you are on someone’s mind or that people are praying for you or sending you good thoughts is a loving way of sending encouragement and comfort.

4. Soft hats, socks, and blankets: Providing tangible physical comfort items to a cancer patient is a great way to provide support and acknowledge a loved one’s physical needs. A soft blanket can make a hospital room feel more like home, provide comfort, and can be used after their treatment ends.

5. Be present: Oftentimes cancer treatment can feel isolating. The patient’s friends and family cannot relate to the specific struggles the patient faces and may feel awkward asking about it or even connecting to share details about their lives. This social disconnection can compound feelings of isolation. Having friends and family who consistently check in and are emotionally present in the struggle can make the experience better. When in doubt about how you can help someone with cancer, just ask.

The Fourth Circuit Court of Appeals recently clarified the extent of workplace protections against same-sex sexual harassment (in other words, sexual harassment where the harasser and victim are of the same gender) under Title VII of the Civil Rights Act, in a case titled Roberts v. Glenn Indus. Grp., Inc. The Court explained there are multiple ways to prove same-sex harassment, including proof of an employee’s failure to conform to gender stereotypes.

The Roberts case has potentially widespread implications for both employers and employees.  The GaffneyLewis employment team is here to serve your legal needs, both inside and outside the courtroom.

In 2015, Chazz Roberts, a male employee, worked as a diver’s assistant for a company that specialized in underwater inspection and repair services. Roberts worked in an all-male environment and claimed he was subjected to homophobic, derogatory, and sexually explicit comments by his male supervisor. For example, Roberts’s supervisor called him “gay” and referred to him as having “retard strength.” The supervisor also physically assaulted Roberts on several occasions.

Roberts sued the company under Title VII, which prohibits same-sex sexual harassment in the workplace. The trial (district) court ruled in favor of the company, dismissing Robert’s sexual harassment claim before it reached trial.  The company prevailed because the district court determined Roberts’s complaints did not fall within any one of the three specific situations set forth in the Supreme Court’s 1998 decision, Oncale v. Sundowner Offshore Services, i.e., the supervisor/harasser was not homosexual, the offending comments did not demonstrate a general hostility toward men in the workplace, and, because the workplace was all male, there was no comparative evidence of the harasser treating female employees better than male employees. The trial court also ignored the physical assaults because they were not of a sexual nature.

On appeal, the Fourth Circuit vacated the district court’s ruling, clarifying that the three examples contained in Oncale by which an employee may allege same-sex harassment are not the only means available for an employee to prove same-sex sexual harassment.

Rather, an employee may use additional forms of proof to demonstrate the harassment was based on sex, including the employee’s failure to conform to gender stereotypes. Moreover, the Fourth Circuit reminded employers of the 2020 Supreme Court decision, Bostock v. Clayton County, which approved of sexual orientation claims under Title VII.

Finally, the Fourth Circuit concluded that the district court erroneously disregarded the physical assaults against Roberts because they were “not of a sexual nature.” There is no requirement under Title VII, the Court said, that only sexual-based assaults can substantiate a claim of a hostile work environment based on sex.

Cases like Roberts demonstrate how important it is for workplaces to not tolerate harassing, derogatory, homophobic, or sexually explicit language. Training should be in place to prevent and appropriately respond to such conduct. It’s a good lesson for employers and their human resources departments, and an encouraging sign to employees experiencing harassment.

If you’re an employee or employer and you have questions about your workplace rights or obligations, give GaffneyLewis, LLC, a call today.

The prevailing wisdom says you can mandate COVID-19 vaccinations for your employees.

The better question is: should you?

What allows you to make the COVID-19 vaccination mandatory?

A mandatory vaccination requirement in your workplace implicates several federal employment laws, including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the religious protections of Title VII of the Civil Rights Act of 1964 (Title VII). Employers with 15 or more employees are generally subject to these laws.

To be fully transparent, there is not a definite answer to the mandatory vaccination question until and unless it is litigated because this is a novel issue. For example, some lawyers are concerned that the vaccine has not actually been fully approved and licensed by the FDA but is instead being administered under an Emergency Use Authorization only. There is, however, guidance from the Equal Employment Opportunity Commission (EEOC), which enforces the above laws, indicating mandatory vaccination policies are lawful if drafted and executed properly.

When might you have to honor an employee’s refusal to accept the mandatory vaccine?

• If a disabled employee has a medical objection and may be owed a reasonable accommodation. Here the company has to perform a direct threat analysis and engage in an interactive analysis with the objecting employee regarding a reasonable accommodation.

• If an employee with a sincerely-held religious belief objects based on his religious belief. The company will have to determine whether the employee’s objection creates an undue hardship and whether the company can accommodate the vaccination refusal.

• For example, some religious leaders have denounced the use of the Johnson & Johnson vaccine because the vaccine was produced using fetal cell lines (made in a laboratory) descended from cells taken from an aborted fetus in the 1980s. (That process is explained here: https://www.nebraskamed.com/COVID/you-asked-we-answered-do-the-covid-19-vaccines-contain-aborted-fetal-cells)

Now that you know you can (probably), should you?

According to research by the Society for Human Resource Management (SHRM), 60% of U.S. workers said they will probably or definitely get the vaccine once it becomes available to them. On the other hand, 28% of workers are willing to lose their jobs if their employer mandates the COVID-19 vaccine. Thus, you need to examine whether your company is prepared for the possibility of losing 28% of your workforce over the vaccine. If you do not terminate the employment of the objecting employees (who have no valid exemption as discussed above), you will now have a different set of legal and practical problems to solve.

Mandating the vaccine in your workplace will surely alienate a significant portion of your employees, especially if any have secular objections to the vaccine (as opposed to religious objections) and/or have adverse reactions to the vaccination. If an employee has an adverse reaction to the vaccination, you will need to report that to your Workers’ Compensation carrier.

Moreover, the recent blood clot issue with the Johnson & Johnson vaccine is a good example of how employers do not know what they are taking on when mandating a vaccine.

Can you be held liable for NOT mandating the vaccine in your workplace?

Are you feeling stuck between a rock and a hard place yet? While employers have an obligation to provide a workplace reasonably free of health and safety hazards (check out OSHA requirements), what this means for a specific employer or industry will need to be addressed on a case-by-case basis.

If you would like help wading through these competing interests as it relates to your company, please call us to schedule a consultation.

Pending South Carolina Legislation

Three House bills and one Senate bill are pending in South Carolina, all of which would prohibit employers from mandating a vaccine. See House Bills 3217, 3511, and 3711 and Senate Bill 177.

Senate Bill 177, and similar House Bill 3711, would prevent any person from being compelled to receive a COVID-19 vaccination and prohibit employers from taking adverse actions—including (i) termination, (ii) suspension, (iii) involuntary reassignment or (iv) demotion—against employees who choose not to be vaccinated. Senate Bill 177 states that individuals treating or caring for vulnerable populations (persons over the age of sixty (60) or with underlying medical conditions) can be required to receive a vaccination. The Bill has no prohibition against an employer encouraging, promoting or administering vaccinations or offering incentives to employees who choose to be vaccinated. Senate Bill 177 was passed by the Senate and sent to the House where it is in committee. https://www.scstatehouse.gov/sess124_2021-2022/bills/177.htm The 2021 session adjourns on May 13.