Today (June 17, 2021), the U.S. Supreme Court rejected a challenge to the Affordable Care Act (“ACA”) on procedural grounds, ducking the larger constitutionality question and leaving in place the broad provisions of the law, including the employer mandate requirements. In CALIFORNIA ET AL. v. TEXAS ET AL., Texas and other Republican-led states sought to strike down the ACA because the tax penalty for individuals who fail to have health insurance was reduced to zero. In the 7-2 decision, Justice Stephen Breyer held that the plaintiffs did not suffer any injury from the zeroing out of the penalty and thus… Read more
The Illinois legislature passed Senate Bill 672 (“SB 672”) significantly changing non-compete and non-solicitation law in Illinois. The bill is expected to be signed into law by Governor JB Pritzker and go into effect on January 1, 2022. Under SB 672 a covenant not to compete or solicit is illegal and void unless: (1) the employee receives adequate consideration; (2) the covenant is ancillary to a valid employment relationship; (3) the covenant is no greater than is required for the protection of a legitimate business interest of the employer; (4) the covenant does not impose undue hardship on the employee;… Read more
In the first lawsuit against a private employer on its mandatory vaccine policy, Houston Methodist Hospital won dismissal of the case brought by a group of unvaccinated employees. The Honorable Lynn N. Hughes issued a five-page opinion dismissing the Plaintiffs’ two-count Complaint. As mentioned in our previous Alert, the Plaintiffs alleged that the Hospital wrongfully discharged them from employment under a public policy exception to the employment-at-will doctrine under Texas law and a violation of federal law regarding the use of products approved under the “emergency use authorization.” See 21 U.S.C. § 360bbb-3. In this very narrow opinion, the Court… Read more
In one of his first executive orders upon taking office in January, President Joe Biden ordered the Labor Department to consider issuing an emergency temporary standard, or ETS, for businesses to follow during the COVID-19 pandemic. Today (6/10/2021), the Labor Department’s Occupational Safety and Health Administration (OSHA) issued a highly anticipated ETS that sets workplace safety parameters which employers in the health care sector must meet to protect health care workers from COVID-19 for the duration of the pandemic. (See https://www.osha.gov/coronavirus/ets.) The rule takes effect on the date it is published in the Federal Register, although the exact date hasn’t… Read more
The EEOC issued updated guidance stating that federal equal employment opportunity laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to some exceptions. An employer must permit accommodations for disabilities and sincerely held religious beliefs under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and Title VII of the Civil Rights Act of 1964 (“Title VII”). Our prior article regarding the EEOC’s Guidance on COVID-19 Vaccinations outlines these exceptions. With COVID-19 vaccines now widely available, lawsuits over vaccine mandates are beginning to emerge. Most of these lawsuits target… Read more
On May 5, 2021, New York Governor Andrew Cuomo signed into law the New York Health and Essential Rights Act (“HERO Act”) providing new workplace safety requirements on all employers in New York. The HERO Act goes into effect on June 4, 2021. The HERO Act requires the New York State Department of Labor to adopt industry-specific model airborne infectious disease exposure prevention standards (“Model Plan”) for all employers across the state. This Model Plan will address exposure prevention of airborne infectious diseases and require, among other things: health screenings; appropriate social distancing measures and enforcement of isolation and quarantine… Read more
In January 2020, New Jersey Governor Phil Murphy signed the New Jersey Millville Dallas Airmotive Plant Loss Job Notification Act (“NJ WARN Act”) requiring employers to provide severance to employees who lose their job in a mass reduction in force. Due to the pandemic, New Jersey amended the effective date of the NJ WARN Act to 90 days after the termination of Executive Order 103 (“EO 103”) of 2020, which declares a state of emergency in New Jersey due to COVID-19. Currently, EO 103 is set to expire on June 13, 2021. Governor Murphy indicated that EO 103 may not… Read more
On May 18, 2021, the Health Office of the County of Santa Clara, California, issued a new COVID safety measure order. The Order became effective May 19, 2021, and will remain in effect until rescinded, superseded or amended. The Order can be found here. The most notable portion of the Order is the requirement – in Section 9(c) – that all governmental entities and businesses ascertain the vaccination status of their personnel. This must be done within 14 days of the effective date of the Order, i.e., by June 2, 2021. Thereafter, updated information for all unvaccinated personnel must be… Read more
With many consumers turning to more shopping online, what liability do online marketplaces face when a product is sold to a consumer by a third-party seller that is defective or counterfeit? Often, none. Online marketplaces may escape liability for harmful or counterfeit products sold by third-party sellers if marketplaces are not considered the sellers of these products, but instead are the platform third-party sellers use to execute their sales. Online marketplaces’ liability hinges on status as a seller of a specific product because under § 402A of the Second Restatement of Torts marketplaces must be a “seller” of products to… Read more
The federal Occupational Safety and Health Agency (“OSHA”) has issued a statement indicating that it is reviewing and revising its Workplace Guidance in light of the CDC announcement last week regarding mask requirements for vaccinated individuals. In additions, OSHA has instructed employers to follow the new CDC Covid-19 recommendations until OSHA can revise its own guidance. The Occupational Safety and Health Administration said in a website update Monday that it is “reviewing the recent CDC guidance and will update our materials on this website accordingly.” Until then, it said, employers and workers should refer to the CDC guidance for information… Read more
