May 12, 2022

Hyland Levin Shapiro LLP Attorney, Opeyemi (Yemi) Akinde Appointed New Lawyer Trustee for the Gloucester County Bar Association

Hyland Levin Shapiro LLP attorney, Opeyemi (Yemi) Akinde has been appointed a New Lawyer Trustee for the Gloucester County Bar Association and will serve on its Board for the 2022-2023 term.

For over 100 years, the Gloucester County Bar Association has served the community at large by improving access to the legal system, facilitating professionalism in the legal community, and promoting justice for everyone. Yemi has been a member of the Gloucester County Bar Association for the two years, since the start of her clerkship with Gloucester County Assignment Judge Benjamin C. Telsey.  She is also a member of the New Jersey Bar Association and the Burlington County Bar Association.

Yemi is an associate in the Litigation and Employment Practice Groups at Hyland Levin Shapiro LLP, and devotes her practice to assisting businesses navigate – or avoid – the many stages of commercial litigation. Yemi is a graduate of Rutgers Law School (J.D., 2020), receiving the Myron Harkavy Graduation Prize for Most Promise as a Trial Lawyer. While in law school, Yemi served as President of the Labor & Employment Law Society, Secretary of the Moot Court Board, and successfully competed on the Rutgers National Trial Team, winning awards from the American Bar Association and other renowned legal organizations.

Yemi can be reached at or (856) 355-2999.

April 29, 2022

Partner Megan Knowlton Balne Receives The Katherine D. Hartman Outstanding Woman in the Profession Award

pic_megan_balne_newHyland Levin Shapiro LLP is pleased to announce that partner, Megan Knowlton Balne, received the Katherine D. Hartman Outstanding Woman in the Profession Award.  The Katherine D. Hartman Outstanding Woman in the Profession Award was created in 2015 by the Burlington County Bar Association’s Women in the Profession Committee.  The award honors a woman in the legal profession who demonstrates outstanding leadership, dedication, mentorship and service to the Burlington County Bar Association and the surrounding community.

“I am very humbled to be chosen as this year’s Woman in the Profession by the Burlington County Bar Association and it is an honor to be listed alongside the prior award recipients,” Balne states.  Balne received the award at a reception on April 27, 2022 attended by members of the bench and bar of Burlington County.  In her remarks accepting the award, Balne emphasized the importance of mentorship in her career and how she strives to be an example to others in the profession.

Megan leads the Employment Law Group at Hyland Levin Shapiro LLP, and devotes her practice to helping businesses stay compliant and grow sustainably.  Megan is a graduate of Rutgers University School of Law-Camden (J.D., magna cum laude, 2010) and Ramapo College (B.A. summa cum laude, 2007).  In 2016, Megan was recognized as New Leader of the Bar by the New Jersey Law Journal.  In 2019, Megan received the New Jersey State Bar Association Professional Achievement Award, and in 2020, Megan was recognized as a 40 Under 40 Award Recipient by NJ Biz.  Megan is the Chair of the Legal/Legislative Committee of the Human Resources Association of Southern New Jersey and will be installed as the Vice President of the Burlington County Bar Association in June.

Megan can be reached at or (856) 355-2936.

January 13, 2022


What Happened?

The Supreme Court issued two opinions today in the highly-watched cases regarding COVID-19 vaccine mandates.  Addressing the nation-wide vaccine mandates issued by OSHA covering employers with 100 or more employees, the Court found that the mandate exceeded OSHA’s statutory authority.  Specifically, the Court held that requiring vaccinations for all employees went far beyond addressing occupational hazards and regulating the health and safety of employees.

Why It Matters?

With the stay of the OSHA vaccine mandate upheld, covered employers are no longer under any compliance obligations previously imposed by the mandate.  Employers should, however, be prepared for new potential obligations as it is presumed that the Biden Administration could pursue executive action to implement its vaccination goals. Similarly, states and local governments will likely continue to issue their own vaccine mandates targeting specific industries or locations such as food establishments.

What Should you Do?

In a second opinion, the Court denied the stay targeting the CMS vaccine mandate applicable to healthcare facilities that receive federal funding.  The Court held that the unique and specific nature of healthcare facilities permitted this type of mandate and was within the applicable statutory authority of CMS.  As a result of this decision, covered health care employers will need to abide by the CMS vaccine mandate and do so by the first compliance date of January 27, 2022.  By that date covered employers are required to have developed and implemented policies and procedures addressing vaccinations and that all staff either: (a) have received at least one dose of a COVID-19 vaccine; (b) have a pending request for a qualifying exemption; (c) have been granted a request for a qualifying-exemption; or (d) Have identified as meriting a temporary delay as recommended by the Centers for Disease Control and Prevention.  Additional compliance deadlines will then follow.

HLS employment practice routinely assists employers in staying up to date and compliant with all COVID-related regulations and guidance.

Please feel free to contact Megan Knowlton Balne of Hyland Levin Shapiro’s employment practice group to answer any questions you may have.

December 21, 2021

OSHA Resumes Implementation and Enforcement of Vaccine Mandate

On Friday, December 17, the Sixth Circuit Court of Appeals dissolved the Fifth Circuit’s stay of the federal Occupational Safety and Health Administration (OSHA) COVID-19 Emergency Temporary Standard (ETS), and reinstated the ETS’ “vaccine or test” requirements for private employers with 100 or more employees.  Just hours after that decision, the first of several emergency appeal applications to the United States Supreme Court were filed.

Despite those legal challenges and impending Supreme Court action, OSHA announced that it would resume implementation and enforcement of the ETS.  OSHA has granted employers a limited grace period to achieve compliance with the ETS’ requirements and set new compliance dates.  The ETS’ original compliance dates, as discussed in greater in our prior alert, were December 6, 2021 and January 4, 2022.  Those dates have been extended, and the new compliance dates are January 10, 2022 and February 9, 2022.  Granted, however, that the extension to February 9, 2022, for the enforcement of the ETS’ testing requirement is only applicable to employers who are actively working towards compliance with the ETS.

Covered employers must implement the required policies, identify and record the vaccination status of all employees, and be prepared to comply with information requests from employees and OSHA by January 10.  Employees must have received their primary vaccination series (i.e. a single dose of the Johnson & Johnson vaccine or the second dose of the Pfizer or Moderna vaccines) by February 9, 2022.  Any employee who has not completed their primary vaccination series by February 9, 2022, will be required to undergo weekly testing in accordance with the ETS.  An employer who is not working towards compliance, will be subject to citation for violation of the ETS’ testing requirements prior to the extended deadline of February 9, 2022.

Although the legal battle will continue and the ultimate fate of the ETS is unknown, it is clear that OSHA will enforce the ETS as soon as possible.  Employers should respond accordingly and either resume or restart their compliance efforts to ensure they meet the ETS’ new deadlines.

For more information on compliance with the ETS, see our prior E-Alert, HLS Employment Law Update – OSHA ETS.

November 9, 2021

OSHA Issues Emergency Vaccine Mandate for Employers with 100+ Employees

UPDATE:  Citing potential “grave statutory and constitutional issues” with the ETS released by OSHA on Thursday, the Fifth Circuit Court of Appeals issued a temporary stay blocking the ETS from going into effect.  The stay was issued in response to a suit filed by multiple parties and was just one of a host of similar suits filed in Circuit Court of Appeals across the country.  The Order issuing the stay provided no analysis and directed the government to respond to the request for permanent injunction by 5:00 p.m. on Monday, November 8 with the challengers’ reply due the following day.

While such challenges were expected, this does further complicate compliance efforts by employers as there may not be a binding determination for weeks and the first compliance date for employers is December 5.  For now, employers should still prepare to comply with the ETS as though it will take effect, but refrain from implementing those measures until a final determination is made.

We invite you to join us for an informal roundtable discussion of OSHA’s vaccine mandate.

What Happened?

The long-awaited COVID-19 vaccine mandate affecting private employers is here: released on November 4, 2021, set to become effective November 5 and expected to remain in effect for up to six months.  This vaccine mandate is perhaps the most significant COVID-related happening in what has been nearly two years of unprecedented change in employment law.  At a robust 490 pages, OSHA’s Emergency Temporary Standard (“ETS”) which establishes, implements and enforces the vaccine mandate, will require most covered employers to take significant steps to ensure compliance.

Employers should also keep in mind that the mandate is subject to a 30-day comment period and will likely be amended between now and its vaccination deadline of January 4, 2022.  Below are the key compliance issues for employers.

What Does the Mandate Require for Employers?

Covered Employers

As known since the announcement of President Biden’s executive order that paved the way for the ETS, the ETS will apply to private employers with 100 or more employees not already covered by another emergency standard or executive order.  However, there are several nuances to what was the most well-known detail of the mandate prior to its publication:

  • The number of employees is measured by the employer’s total employees across all workplace locations, including remote workers.  The requirements apply to those employees working in the office for any amount of time;
  • If an employer experiences fluctuating employee numbers, the starting point is the number of employees on November 5, 2021.  If the employer has 100 or more employees as of that date, the employer must comply with the ETS for its duration.  If the employer is below the threshold the ETS does not apply unless and until the employer passes the 100-employee mark at which point the ETS would apply for its duration;
  • For franchises, each franchisee is considered a separate employer, as is the franchisor.  For example, if the franchisor has 100 employees, but none of the franchisees meet the threshold, then only the franchisor is a covered employer;
  • One of the primary exceptions is employees who work exclusively outdoors, meaning they work outdoors on all days with only de minimis use of indoor spaces, and do not routinely occupy vehicles with other employees as part of work duties;
  • Part-time employees are counted towards the threshold number of employees, but independent contractors are not counted;
  • Workers supplied by staffing agencies are considered employees of the agency, not the host employer and at multi-employer worksites, each employer will only count their own employees towards the threshold.
  • Minors, as well as temporary or seasonal workers, working directly for the employer, are covered so long as they are employed while the EST is in effect.

Vaccination Policy

  • Covered employers must develop, implement and enforce a mandatory vaccine policy compelling all employees to be fully vaccinated by January 4, 2022 other than those employees who fall into one of three categories: (a) those for whom a vaccine is medically contraindicated; (b) those for whom medical necessity requires a delay in vaccination; or (c) those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
  • To ensure mandatory vaccine policies are comprehensive and effective, the policies should address the following: (a) requirements for COVID-19 vaccination; (b) applicable exclusions from the written policy; (c) information on determining an employee’s vaccination status and how this information will be collected; (d) paid time and sick leave for vaccination purposes; (e) notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace; (f) information to be provided to employees; and (g) disciplinary action for employees who do not abide by the policy.
  • An employer may feature a tiered policy under which certain positions or roles, e.g., direct contact with the public, must be vaccinated, while other positions may choose between vaccination or weekly testing.
  • There is no requirement for an employer to continue employing an employee who refuses to get vaccinated in violation of its policy as a refusal is not generally protected by the OSH Act.

Determination of Vaccination Status

  • Employers are required to determine and record the vaccination status of every employee whether they are vaccinated or not.  When determining vaccination status, an employer may rely on physical or digital copies of acceptable proof of vaccination status.  The ETS enumerates what constitutes acceptable proof of vaccination status.
  • For purposes of the ETS, booster shots and additional doses are not included in the definition of fully vaccinated.
  • The ETS does not require employers to monitor for or detect fraud by employees with regard to their vaccination status.  However, employers may not invite or facilitate fraud, and the ETS provides for criminal penalties for knowingly providing false information regarding vaccination status.

Employer Support for Vaccinations

  • Employers must provide paid time off, up to four hours at the employee’s regular rate, for the purposes of vaccination, unless the employee gets vaccinated on a non-working day.  Employers are prohibited from requiring employees to use sick, vacation or some other form of leave to get vaccinated.
  • Employers may, however, require employees to use accrued sick time or other paid leave to recover from the side effects of the vaccination, but an employer cannot require employees to use advanced sick leave or otherwise go into the negative for paid sick leave to recover from side effects.
  • Employers may set a cap on the amount of paid sick leave available to employees to recover from any side effects, but the cap must be reasonable. OSHA presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with this requirement.

Testing Policy

  • Employers may forgo implanting a mandatory vaccine policy and instead opt to  develop, implement and enforce a policy requiring employees who are not fully-vaccinated to undergo weekly testing to enter the employer’s premises.  Such a policy would only apply to those employees who report to the employer’s workplace.  Employees who fail to obtain and provide a COVID test will not be permitted to come to the workplace regardless of any other safety measures.
  • For employees who only report to the workplace occasionally, they must be tested within seven days prior to returning to the workplace and provide documentation of that result to their employer.
  • The ETS details what types of test and testing are acceptable including pool testing, any test authorized by the FDA (including on an emergent basis) and tests that are self-administered and self-read so long as the test is observed by the employer or authorized telehealth proctor.
  • Employers generally do not have to cover the cost associated with employee testing, but other federal laws such as the FLSA may apply requiring employers to pay for employee time spent getting tested.
  • Even if an employee has obtained a recognized accommodation to an employer’s vaccine mandate, that employee must still undergo weekly testing in order to enter the workplace.
  • Employers electing to utilize a testing policy, must require that all unvaccinated employees wear acceptable face coverings unless an exemption from that requirement exists.


  • Employers are required to maintain a roster of every employee’s vaccination status along with acceptable proof of fully vaccinated status as well as every test result for every employee undergoing weekly testing in lieu of becoming fully vaccinated.
  • OSHA may request the aggregate number of fully vaccinated employees at the workplace along with the total number of employees at the workplace.  If requested, the employer must provide the information within four hours of the request and may be publicly disseminated.
  • Employers are also required, when requested by an employee or an employee’s authorized representative, to provide to the requesting employee with the aggregate number of fully vaccinated employees along with the total number of employees.  When requested, that information must be produced by the end of the next business day and may be publicly disseminated.
  • The records and roster required by the ETS are considered to be employee medical records and must be maintained as such records, including with regard to confidentiality.  These records must not be disclosed except as required or authorized by the ETS or other federal law such as the ADA.
  • Employers must also retain a record of each test for each employee for the duration of the employer’s testing policy and/or the ETS.

Notification of Positive Test and Removal

  • All employees, regardless of vaccination status, must be removed from the workplace if the employee tests positive or is diagnosed with COVID-19.  The employee cannot return to the workplace until the employee (a) receives a negative test result; (b) meets the return to work criteria in CDC’s “Isolation Guidance”; or (c) receives a recommendation to return to work from a licensed healthcare provider.
  • Paid time off is not required for employees removed from the workplace due to a positive test or diagnosis.
  • The ETS does not require the removal of an unvaccinated employee if they have been exposed to a COVID-19 positive person.

The above only scratches the surface of the nuances of the ETS and there are additional requirements including the provision of information to employees which can be in the form of typical workplace notices.  The sheer scope and significance of the ETS demands that employers work with experienced employment counsel to ensure their compliance.

What Should Employers Do to Prepare?

Employers should waste no time preparing compliant policies.  The first step for employers will be determining whether it is covered. If so, then assessing their workforce to determine vaccination status and choose the appropriate type of policy to be enacted.  Employers should then analyze any existing policies to determine the level of revision that will be needed.   At the point employers can begin identifying and implementing procedures for compliance with the ETS.  At every step there will be questions and unforeseen complications all of which will occur under the specter of non-compliance which can result in costly penalties, potential criminal liability and the threat of litigation.  Given the complexity of the ETS and the near-guarantee that the ETS will change multiple times before the compliance dates, working with employment counsel is the best course of action for employers.

HLS’s employment practice group routinely advises employers on complying with all COVID-related regulations while preserving business operations and performance.

Please feel free to contact Megan Knowlton Balne Hyland Levin Shapiro’s employment practice group to answer any questions you may have.

October 22, 2021

Biden Administration Issues Federal Contractor Vaccine Mandate

What Happened?

On September 9, 2021, President Biden issued an Executive Order requiring employees of federal contractors and subcontractors to get vaccinated against COVID-19.  As part of the Administration’s effort to get as many individuals as possible vaccinated, the Executive Order is broadly drafted to require nearly every employee of businesses contracting with the federal government to be vaccinated or risk losing their federal contracts.  The Order directs the Safer Federal Workforce Task Force (“Task Force”) to issue guidance (the “Guidance”), which was released on September 24, 2021, to implement the Order.  On September 30, the Federal Acquisition Regulatory Council issued a contract clause requiring contractors and subcontractors at any tier to comply with the guidance published by the Task Force and recommended that federal agency acquisition offices exercise their authority to develop Federal Acquisition Regulation (“FAR”) deviation clauses implementing the Task Force’s guidance.  With the release of the Guidance and contract clause, employers must immediately be prepared to implement and comply with these requirements.

Why it Matters?

The Guidance applies to any contract or contract-like instrument with a federal agency or department (“covered contract”) and covers a prime contractor or subcontractor at any tier who is a party to a covered contract (“covered contractor”).  In turn, a “covered contractor employee” is any employee of a covered contractor working on or in connection with a covered contract.  The “in connection with” language is purposely broad and includes employees who are indirectly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review.

Covered contractor employees must be vaccinated no later than December 8, 2021 or by the first day of performance of a covered contract, option exercise, or renewed contract when a clause requiring compliance with the Guidance has been incorporated into a contract.

There are certain exceptions to the Guidance. The two most significant exceptions are contracts below the Simplified Acquisition Threshold, currently set at $250,000, and contracts or subcontracts for the manufacturing of products or for supplies.  However, the Guidance expressly states that in such contracts the contracting agency is “strongly encouraged” to include the contract clause implementing the Guidance and the discretion to do so rests entirely with the contracting agency.  This unilateral discretion and the clear aim of the Guidance, makes it highly likely that even these generally-exempted contracts will still require compliance with the Guidance.

Acceptable proof of fully vaccinated status is limited to digital or hard copies of an immunization record from a healthcare provider or pharmacy, a COVID-19 Vaccination Record Card, medical records documenting the vaccination, immunization records from a public health or state immunization information system, or other official documentation detailing the type of vaccine administered, date(s) of administration, and the name of the healthcare professional or clinic site that administered the vaccine.  An employee’s attestation of vaccination, proof of prior infection, or an antibody test are not sufficient proof of vaccination.

Although there is no testing alternative in the Guidance, employees may still seek an accommodation based on a disability and/or medical condition or a sincerely held religious belief.  Employers should maintain and engage in their usual interactive process and reasonable accommodation procedures when faced with such a request and should, ideally, involve employment counsel.

Finally, and in addition to the vaccine requirements, the Guidance also requires that covered contractors ensure that all individuals, including covered employees and visitors, comply with published CDC guidance for masking and social distancing at covered contractor workplaces.

What you Should do Now?

Covered contractors should designate their COVID-19 workplace safety monitor and continually check for updated guidance, FAQs and contract clauses released by the Task Force.  Employers should then evaluate their worksites and operations to determine which workplaces and employees are covered by the Guidance and implement policies and procedures to ensure their compliance. All compliance efforts should be documented and done in conjunction with experienced employment counsel.  HLS’s Employment Practice Group has extensive experience in assisting government contractors prepare for and comply with the Guidance and upcoming enforcement.

Governor Murphy Issues Executive Order Mandating Contracting Employers Implement COVID Vaccine and Testing Requirements

What Happened?

On October 20, 2021, Governor Murphy issued Executive Order No. 271 requiring that new state contracts, solicitations for contracts, extensions or renewals of existing contracts, and options on existing contracts contain a clause mandating the contracting employer to implement a vaccine-or-testing policy.  The required policy would apply to any employees of the contracting employer who enter, work at, or provide services in any state agency location.  Executive Order No. 271 expands upon Governor Murphy’s previous Order requiring all state employees be fully vaccinated and is another step towards the objective of getting as many individuals vaccinated as possible.  The Order is drafted and to be implemented broadly and is immediately effective.

Why it Matters?

The Order requires that each executive department and agency including independent authorities ensure that contracts or agreements entered into by the executive department or agency include a clause that the contractor or subcontractors, at any tier, must maintain a policy requiring all covered workers to either provide proof of fully vaccinated status or submit to COVID-19 testing at minimum one to two times per week.  The Order applies to any new contract, new solicitation for a contract, extension or renewal of an existing contract, and exercise of an option on an existing contract, if it is a contract for services, construction, including demolition, remediation, removal of hazardous substances, alteration, custom fabrication, repair work, or maintenance work, or a leasehold interest in real property through which covered workers have access to State property, and the cost or contract price thereof is to be paid, in whole or in part, with or out of executive department or agency funds.

Pursuant to the Order, “covered workers” include employees of a covered contractor working on or in connection with a contract with an executive department or agency that requires the worker enter, work at, or provide services in any place, site, installation, building, room, or facility in which any executive department or agency conducts official business or is within an executive department or agency’s jurisdiction, custody, or control, or that relates to offering services for State employees, their dependents, or the general public.

To satisfy the testing alternative, a covered worker must undergo screening testing at minimum one to two times weekly. Where a covered contractor requires an unvaccinated covered worker to submit proof of a COVID-19 test, the worker may choose either antigen or molecular tests that have EUA by the U.S. Food and Drug Administration (“FDA”) or are operating per the Laboratory Developed Test requirements by the U.S. Centers for Medicare and Medicaid Services.  If the covered contractor provides onsite testing, either antigen or molecular testing may be used, and testing is not required for a covered employee not working on-site during a particular week.

Adequate proof of full vaccinated status includes: (a) CDC COVID-19 Vaccination Cards; (b) official record from the New Jersey Immunization Information System (NJIIS) or other State immunization registry; (c) a record from a health care provider’s medical record system on official letterhead signed by a licensed physician, nurse practitioner, physician’s assistant, registered nurse or pharmacist; or (d) military immunization or health record from the United States Armed Forces; or Docket mobile phone application record or any state specific application that produces a digital health record.

What Should you do now?

Because the Executive Order provides a testing alternative, it is effective immediately and does not include a compliance period.  Employers who directly contract with the state need to immediately review their policies and either amend existing policies or adopt a new policy requiring employees working on or in connection with those contracts to be fully vaccinated or submit to weekly testing.  Employers who are not direct contractors should review their operations to determine if they are a subcontractor of the state and adopt or amend their policies accordingly. Given the policy aim behind the Order and the wide application, employers should broadly apply the Order’s requirements in both their policies and their actions.

Failure to abide by the Order constitutes disorderly conduct and the penalties can include monetary fines and imprisonment.  It is also possible that a business failing to follow the Order will jeopardize their existing and future contracts with the state.  Employers should work with experienced employment counsel to ensure their policies and practices are compliant with the Order.

HLS’s Employment Practice Group regularly advises businesses on compliance with ever-changing COVID regulations and guidance and can help employers avoid costly penalties while preserving business operations.

September 13, 2021

Opeyemi D. Akinde Joins Hyland Levin Shapiro LLP

Hyland Levin Shapiro is excited to announce that Opeyemi (Yemi) D. Akinde has joined Hyland Levin Shapiro LLP as an Associate. Ms. Akinde enters as a member of the Litigation and Employment practice groups.

Prior to joining Hyland Levin Shapiro, Yemi served as a law clerk to the Honorable Benjamin C. Telsey, A.J.S.C. in the Superior Court of New Jersey. She also completed judicial internships with the Honorable Esther Salas, U.S.D.J. for the District Court of New Jersey and at the U.S. Department of Labor, Office of Administrative Law Judges.

“We are thrilled to have Yemi join Hyland Levin Shapiro,” says Megan Knowlton Balne, Partner and Head of the Employment Practice Group at the firm. “As a new attorney, Yemi has a great skillset to bring to the practice and we are excited to welcome her to our team.”

Yemi is a graduate of Rutgers Law School (J.D., 2020), receiving the Myron Harkavy Graduation Prize for Most Promise as a Trial Lawyer. While in law school, Yemi served as President of the Labor & Employment Law Society, Secretary of the Moot Court Board, and successfully competed on the National Mock Trial Team, winning awards from the American Bar Association and other renowned legal organizations.

In her spare time, Yemi enjoys cooking, reading, exercising, and traveling.

September 10, 2021

Biden Administration Announces Vaccine Requirement Impacting 100 Million Americans

What Happened?

On September 9, 2021, in its most forceful actions in combatting COVID-19, the Biden Administration announced new rules that will mandate all private employers with 100 or more employees to require those employees to be vaccinated or undergo weekly testing.  It is estimated the new rules will impact roughly 80 million workers and an untold number of businesses.  The vaccine requirement will be enacted through a forthcoming Emergency Temporary Standard from the Occupational Safety and Health Administration (“OSHA”).  This marks the most impactful regulations since the development of the COVID-19 vaccines and will have a massive impact on workplaces and workforces across the country.

The announcement of the mandate was accompanied by President Biden’s sharp words regarding the continued hesitancy or refusal of nearly 80 million Americans to receive the COVID-19 vaccine despite multiple endeavors to incentivize and encourage vaccinations as well as the Food and Drug Administration’s full approval of the Pfizer vaccine.  Those words evince a strong public policy presumption in favor of vaccine mandates and will play a role in any legal actions against the new rule.

Why you need to know about this?

Since the development and distribution of the COVID vaccines, employers have wrestled with whether they could or should require their employees to get vaccinated.  That dilemma has now been rendered moot for many employers as they will now be required to impose a vaccine mandate.  As previously discussed here, a mandatory vaccine policy carries with it several issues and pitfalls that employers must be aware of and prepare for.  The most impactful of which is that employees may still seek to opt out of vaccinations based on medical conditions and sincerely held religious beliefs.  Such requests for accommodations are expected to dramatically increase under this new rule.  In turn, employers can also expect an increase in employees pursuing litigation if their accommodation request is denied.  Therefore, employers must fully understand the rights and obligations of both themselves and their employees when accommodation requests are made.

In addition to requests for accommodations, employers must also be aware of:

  • Disruptions to the workforce from unhappy employees;
  • How testing and test results will be handled for employees who are unvaccinated;
  • Many employees may leave their employment and employers may experience even smaller pools of applicants further complicating an already tight labor market;
  • Confidentiality concerns regarding how employers will confirm vaccination status and the related recordkeeping;
  • Possible liability risk if the vaccine causes an adverse reaction in an employee who only receives because it is mandated.

Employers should work with experienced employment counsel to consider and prepare for the above considerations before implementing a mandatory vaccine policy.

The new rule is already receiving harsh responses from those asserting the rule is an overreach and impermissible action by the Biden Administration.  Critically, the rule is being developed and issued by OSHA under its statutory obligation to protect the health, safety and well-being of workers and workplaces.  By going that route, many of the potential legal challenges from state and local leaders to union officials may fall on deaf ears.  However, even OSHA action will not insulate or immunize employers from facing litigation and threats of litigation from their employees.

What should you do now?

Employer should immediately begin or continue working with experienced employment counsel to identify and prepare for the significant issues at play when implementing a mandatory vaccine policy.  Employers can have their policy in place when the OSHA Standard becomes effective and can be further prepared to address any onrush of accommodation requests.  By having an established and well-defined interactive process procedure employers can proactively establish a defense to employee claims resulting from an accommodation request denial.

This new rule is bound to cause considerable consternation and disruption within workforces and communication will be key.  The OSHA Standard is still in the development stage and there are more questions/concerns than answers at this time.  As more details emerge, employers will better understand their obligations and the true impact of this new rule.  One such area where questions loom large are whether employers with less than 100 employees will be impacted or addressed by the OSHA Standard.  Be on the lookout for further analysis as the new rule gets closer to enactment.

HLS’s employment practice group routinely advises employers on complying with ever-changing guidance on COVID-19 and related issues to lower the risks faced by employers while preserving business operations.

Please feel free to contact Megan Knowlton Balne of Hyland Levin Shapiro’s employment practice group to answer any questions you may have.

August 2, 2021

There and Back Again: CDC Reverses Mask Guidance and DOJ Says Employers Can Mandate Vaccines

What happened?

With COVID infections once again on the rise, federal agencies have issued new guidance regarding masking recommendations for fully vaccinated individuals and whether employers can mandate COVID vaccines as a condition of employment regardless of the vaccine’s status with the Food and Drug Administration (“FDA”).

On July 27, 2021, the U.S. Centers for Disease Control and Prevention (CDC) announced that the agency now recommends that individuals in areas of “substantial” and “high” COVID-19 transmission should wear masks indoors even if fully vaccinated.  This reversal of the CDC’s May 3, 2021 guidance is a result of a dramatic increase in infections due in large part to the Delta Variant.  Although the vast majority of new infections are among the unvaccinated, there have been enough “breakthrough” cases that the CDC felt compelled to act.  The CDC has established a tracking website that employers can use to monitor the transmission rate on a county-by-county basis.

Not to be outdone, the Department of Justice’s Office of Legal Counsel (OLC) issued an opinion stating that the COVID-19 vaccinations’ Emergency Use Authorization (EUA) status under the Food, Drug, and Cosmetics Act (FDCA) does not prevent public and private entities from imposing vaccine requirements, and doing so as a condition of employment.  This mirrors what the State of New Jersey has already proclaimed in its updated guidance issued on March 19, 2021.  While there are still issues for employers to be aware of and reconcile before mandating the vaccine, the OLC’s opinion removes what was perhaps the biggest concern for employers seeking to require their employees be vaccinated.

Why you need to know about this?

Although the CDC’s newest guidance is just a recommendation, employers must still be aware of the change in guidance and understand that failing to follow those recommendations could result in costly fines and the threat of litigation.  On June 10, 2021 the Occupational Safety and Health Administration issued its own updated guidance lifting mask requirements and did so by expressly relying on the CDC’s conclusion that fully vaccinated individuals no longer needed to wear masks indoors.  Given that the CDC’s conclusion has changed, it stands to reason that OSHA’s guidance is no longer valid.  OSHA, as the federal agency tasked with enforcing safety regulations at the workplace, has the authority to level fines and other sanctions against non-complying employers.  Therefore, an employer not adhering to the CDC’s recommendation to again mandate masking indoors could result in a complaint to OSHA that the employer is not following their duty to preserve the health and safety of its workers.  Such complaints are time consuming, public record and can result in fines and remediation programs.  To avoid facing an OSHA complaint or other legal action, employers should strongly consider heeding CDC’s new recommendation and returning to mask mandates even for fully vaccinated workers.

Regarding COVID vaccines, the OLC’s Opinion puts employers on strong legal footing to begin requiring employees to get vaccinated or be excluded from the workplace.  However, while the Opinion does remove a significant barrier to employer mask mandates, employers must still be cognizant of other legal pitfalls associated with vaccine mandates.  Employers considering mandatory vaccination policies should consider, among other things:

  • Bargaining obligations for unionized workforces;
  • Accommodations are still available for individuals who cannot receive the vaccine due to disability, pregnancy, or sincerely held religious beliefs;
  • Disparate impact risk, and whether the employer can show the vaccine mandate is job-related and a business necessity;
  • Employee relations considerations and whether a mandate will cause disruptions in the workplace which are of increasing concern as workplace violence stemming from the politicization of these issues is on the rise;
  • Vaccine mandates can also cause an employer to lose employees or limit the pool for new hires which may be particularly difficult in the current labor market;
  • The business’s risk tolerance as legal challenges to mandatory programs will continue even with the OLC’s Opinion;
  • Confidentiality concerns regarding how employers will confirm vaccination status and the related recordkeeping;
  • Wage and hour compliance; and
  • Possible liability risk if the vaccine causes an adverse reaction in an employee who only receives the vaccine because it is mandated.

Employers should work with experienced employment counsel to consider the above factors before implementing a mandatory vaccine policy.

What should you do now?

On the issue of masking requirements, employers should start by consistently monitoring the CDC’s transmission tracker to know whether any county in which the employer operates has a “substantial” or “high” transmission rate.  In addition to that monitoring, employers should determine how they will respond if and when they are operating in areas covered by the CDC’s updated guidance.  Re-instituting mask mandates could have several adverse impacts on the workplace including workforce disruptions, employee complaints and even the threat of litigation.  These issues should be thoroughly considered before an employer decides how it will respond to the CDC’s new guidance.

For vaccine mandates, employers should re-visit any prior considerations for mandating the vaccine and also work with experienced employment counsel before proceeding with a vaccine mandate.  Employers should be aware of the workplace climate as an initial step in mandating COVID vaccines.

Please feel free to contact Megan Knowlton Balne of Hyland Levin Shapiro’s employment practice group to answer any questions you may have.