Business Owners: Private Company in Missouri Wins Challenge to Its COVID-19 Vaccine Mandate

Missouri has its first decision on a challenge to a private company’s COVID-19 vaccine mandate. The U.S. District Court of Western Missouri heard a petition for an injunction against Tyson Foods’ COVID-19 vaccine mandate and the company prevailed. In Reese v. Tyson Foods, Inc., Clifton Reese, a Tyson Foods employee, had requested a Temporary Restraining Order and/or Preliminary Injunction against Tyson Foods regarding its COVID-19 vaccine mandate.

In Reese, Tyson announced a vaccine mandate that all employees nationwide to be fully vaccinated by specified dates. The policy stated that employees seeking religious or medical accommodations should contact Tyson human resources “immediately.” Clifton Reese waited a month before making his request for religious accommodation. He refused the company’s accommodation of unpaid leave, but Tyson formally notified Reese that his religious accommodation was granted with the following stipulations:

1. The accommodation status could change at any time.
2. Because his accommodation of unpaid leave of absence was not job-protected, the position could be filled if necessary.
3. If providing the accommodation was an undue hardship to the employer, the accommodation could be revoked. The employee would then have to comply with the mandate or be subject to termination.

Reese filed a complaint with the Missouri Human Rights Commission and sent a demand letter to Tyson to continue his employment under existing COVID-19 restrictions to receive his full bonus, salary, and benefits. During the hearing, the Reese admitted he did not understand benefits he would receive during unpaid leave, such as continuation of health benefits, the ability to look for new employment within or outside of the company, and keeping earned bonuses. Continue reading »

Missouri Employee Not Entitled to Injunctive Relief Against Private Employer’s COVID-19 Vaccine Mandate

Recently, Clifton Reese, an employee of Tyson Foods, requested a Temporary Restraining Order and/or Preliminary Injunction against his employer regarding its COVID-19 vaccine mandate in Reese v. Tyson Foods, Inc.

On August 3, 2021, Tyson Foods announced a vaccine mandate which required all employees nationwide to be fully vaccinated by specified dates. Moreover, the policy requested that employees seeking religious or medical accommodations contact human resources “immediately” to allow Tyson time to consider each employee’s request to meet company deadlines. Despite the notification to contact human resources immediately, Reese waited a month before contacting human resources seeking a religious exemption.

In response to his request, Tyson offered Reese an accommodation of an unpaid leave of absence, which he rejected. Tyson then confirmed Reese’s request for a religious exemption from the company vaccine mandate had been granted, the status of the accommodation was subject to change, and if the accommodation was an unpaid leave of absence that was not job-protected, “it may be necessary to fill your position.” Tyson also explained that if providing the accommodation was an undue hardship to the company, the accommodation could be revoked, and Reese would have to either comply with the mandate or be subject to termination.

In response to Tyson’s confirmation of the accommodation, Reese filed a complaint with the Missouri Commission of Human Rights. Reese hired an attorney and sent a demand letter to Tyson demanding that Tyson continue Reese’s employment “with the already existing COVID-19 restrictions in place,” and that he receive his full bonus, salary, and benefits. Tyson said they would review the demand. Continue reading »

Private Employer Mandatory Vaccination Policy With Medical and Religious Accommodations Is Allowed

Recently, a group of healthcare workers in Kentucky requested a Temporary Restraining Order and/or a Preliminary Injunction from the U.S. District Court of Eastern Kentucky against an employer’s COVID-19 vaccination mandate in Beckerich, et al. v. St. Elizabeth Medical Center, et al. At question was whether a private employer is allowed to modify its employment conditions to require employees to be vaccinated in response to the unprecedented global pandemic known as COVID-19.

In Beckerich, St. Elizabeth’s Medical Center and physicians group implemented a mandatory COVID-19 vaccination policy for its employees. Under the policy, employees could avoid the mandatory vaccination by submitting a request for a medical exemption or sincerely held religious beliefs before October 1, 2021. The policy also indicated that failure of an employee to comply without an accepted exemption could result in termination. The employees argued that the policy violated their constitutional rights and claimed St. Elizabeth’s had not approved religious and medical exemptions to the vaccination policy in compliance with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.

Regarding the ADA claims, U.S. District Court Judge David Bunning noted private employers are required to offer medical and religious accommodations but the employees in Beckerich failed to show that St. Elizabeth had not complied with the ADA reasonable accommodations. The evidence revealed St. Elizabeth granted medical exemptions 13% of the time and granted deferments 61% of the time. Only 14% were denied with 10% pending. Judge Bunning noted St. Elizabeth had granted more medical accommodations than there were plaintiffs in the case. No evidence was provided showing that over 5,000 medical and religious exemptions had been requested. The judge determined the employees had very little chance at success on the merits because they failed to meet the key elements to prove an ADA claim.

Regarding Title VII claims, Judge Bunning noted the employees failed to suggest they could raise a preliminary case of religious discrimination. None of the named plaintiffs had been denied a religious exemption with only one marked pending but St. Elizabeth’s noted that request was approved.  Because no religious exemptions were denied, the employees were not able to prove any religious discrimination. Continue reading »

Modifications of Telehealth and Interstate License Compacts Due to COVID-19

In response to the COVID-19 pandemic, many states have modified licensure requirements and renewal policies for medical providers to respond to the pandemic, including out-of-state license requirements for telemedicine.

Nationwide, the U.S. Department of Health & Human Services (HHS) is authorized to make declarations during certain emergencies regarding immunity from liability under the 2005 Public Readiness and Emergency Preparedness Act (PREP Act). In 2020 and 2021, HHS added several amendments to the PREP Act including countermeasures for treatment and prevention of COVID-19, interstate telehealth expansion related to COVID-19, and liability protection for medical providers of COVID-19 related services and products.

Covered Persons

Under the PREP Act, covered persons include “manufacturers, distributors, program planners, and qualified persons, and their officials, agents, and employees, and the United States.” To increase access to vaccines, Amendments 5 through 8 expand the categories of covered persons who  may “prescribe, dispense, and administer COVID-19 vaccines” to include: Continue reading »

Eviction/Foreclosure Moratorium Changes and the Consumer Financial Protection Bureau’s Final Rule on Foreclosure

On June 24, 2021, the Centers for Disease Control (CDC) extended its eviction moratorium order which was set to expire on June 30, 2021.  According to CDC Director Dr. Rochelle Walensky, the eviction moratorium will now expire July 31, 2021 and is intended to be the final extension.

Just a few days later, the U.S. Supreme Court denied a request by a group of landlords to allow a federal judge’s decision to block the eviction moratorium to go into effect nationwide while litigation disputes continued to vacate a stay order from Federal Judge Dabney Friedrich that declared the CDC moratorium unlawful (see “Federal Judge Dabney Friedrich Vacates CDC Nationwide Eviction Moratorium”). Washington-based U.S. District Court Judge Dabney Friedrich ruled in favor of the landlords in May 2021 but put her ruling on hold pending the government’s appeal in the case. The landlords appealed to the Supreme Court after a lower appellate court rejected their request to unfreeze Judge Friedrich’s ruling. The landlord groups, led by the Alabama Association of Realtors, sued to challenge the moratorium, arguing that the CDC exceeded its authority under a federal law called the Public Health Service Act. They wrote in court papers: “Congress never gave the CDC the staggering amount of power it now claims.”  The groups said an eviction ban is no longer needed for public health reasons in light of declining COVID-19 cases and deaths. They also cited the CDC’s May 13, 2021 announcement that vaccinated people no longer need to wear masks or practice social distancing indoors. Continue reading »

Federal Judge Dabney Friedrich Vacates CDC Nationwide Eviction Moratorium

On May 5, 2021, Federal District Court Judge Dabney Friedrich in Alabama Association of Realtors, et al.  v. United States Department of Health and Human Services, et al., determined the Federal Public Health Service Act, which governs the federal government’s response to infectious diseases such as COVID-19, does not provide legal authority for the Centers for Disease Control (CDC) to impose a nationwide eviction moratorium. Originally set to lapse on December 31, 2020, the eviction moratorium is set to lapse on June 30, 2021. Judge Friedrich reasoned the Public Health Service Act unambiguously forecloses the nationwide eviction moratorium and issued an Order advising that the current CDC nationwide eviction moratorium issued is vacated.

The nationwide eviction moratorium was initially put in place in September 2020 under the Trump Administration and has been extended three times. Judge Friedrich indicated there was “no doubt” Congress intended to empower the CDC to combat COVID-19 through different measures, such as quarantines, but not a moratorium on landlord evictions.  Other federal courts have been divided over the CDC landlord eviction moratorium, with some also finding the CDC exceeded its authority, though none formally blocked its enforcement. The March 25, 2021 blog post “CDC Eviction Moratorium Declared Unconstitutional by Texas Court” discussed other recent rulings in Ohio and Texas: Continue reading »

CDC Eviction Moratorium Declared Unconstitutional by Texas Court

On February 25, 2021 the U.S. District Court for the Eastern District of Texas granted plaintiffs’ (landlords’ and property managers’) Motion for Summary Judgment, ruling that decisions to enact eviction moratoriums rest with the states. In Lauren Terkel, et al. v. Centers for Disease Control and Prevention, et al., the court ruled that the federal government’s Article I power under the U.S. Constitution to regulate interstate commerce and enact necessary and proper laws (Necessary and Proper Clause) “does not include the power” to order all evictions be stopped during the Covid-19 pandemic.

The Centers for Disease Control and Prevention (CDC) issued an eviction moratorium order in September 2020 which was set to expire on December 31, 2020. Initially extended to January 31, 2021, the Order was then extended to March 31, 2021.  The CDC Order “generally makes it a crime for a landlord or property owner to evict a ‘covered person’ from a residence” provided certain criteria are met. Under the CDC Order, the tenant(s) must submit a Declaration, signed by the tenant(s) and served on the landlord, and requires the tenant(s) to make their best efforts to obtain governmental assistance before they can obtain status as a covered person to avoid an eviction. The landlord is not required to notify the tenant that they can execute a CDC Declaration to obtain status as a covered person.  The CDC’s Order also grants the Department of Justice (DOJ) authority to initiate criminal proceedings and allows the imposition of fines up to $500,000 against landlords who violate the Order after receiving a CDC Declaration from all tenants on the premises. Continue reading »

Emergency Rental Assistance Program (ERAP) and Extension of the CDC Halt to Temporary Evictions to Prevent Further COVID-19 Spread

Updated 4/1/2021

On September 4, 2020, the Centers for Disease Control and Prevention (CDC), issued an Order under Section 361 of the Public Health Service Act (PHSA) to temporarily halt residential evictions to prevent the further spread of COVID-19. The CDC Order was deemed to terminate by December 31, 2021; however, the December 27, 2020 Coronavirus Relief & Omnibus Agreement extended the moratorium until January 31, 2021. After an extension in January until March 31, the eviction moratorium is now extended until June 30, 2021. However, In Terkel v. CDC, a Texas District Court determined the CDC Order was unconstitutional. The Department of Justice field an appeal in Terkel. Since the DOJ appealed the Texas case, it would be wise for landlords to continue to operate as if the CDC Order is constitutional and in effect, especially outside of Texas. However, this does not prevent landlords from requesting an evidentiary hearing and contesting whether the tenant(s) met all the criteria in the CDC Declaration to obtain status as a covered person. If not, or if the tenant(s) did not serve a CDC Declaration on the landlord, then it appears the landlord can proceed with the eviction.

To invoke protection from the CDC Order, all tenants on the lease, rental agreement, or housing contract must execute the CDC Declaration and give notice to their landlord. The landlord is not required to notify the tenant(s) about the CDC Declaration.

Failure to execute the CDC Declaration by all tenants prohibits any potentially covered person from being protected from an eviction through the CDC Order if  solely for failure to pay rent.  A landlord can still evict a tenant for any other breach of the residential lease while the CDC order is in effect. Continue reading »

CDC Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19

On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law.  This law provided different types of relief to Americans and business entities as a result of financial damage caused COVID-19.  The CARES Act prohibits the filing of eviction lawsuits by a landlord against a tenant to recover possession for nonpayment of rent if the dwelling is a “covered property” as that term is defined in the CARES Act.  Covered properties include a covered housing program (as defined in section 41411(a) of the Violence Against Women Act of 1994), the rural housing voucher program under section 542 of the Housing Act of 1949, federally backed mortgage loans and federally backed multifamily mortgage loans.  After the CARES Act was signed into law, this meant landlords who owned residential properties that were not covered by the two Acts mentioned and were not backed by federal mortgages could proceed with filing eviction lawsuits to evict tenants solely for not paying rent, which typically requires the landlord to state under oath through an affidavit or verified petition that the property they own is not a covered property under the CARES Act.

On September 4, 2020, the Centers for Disease Control and Prevention (CDC), which is part of the Department of Health and Human Services (HHS), announced the issuance of a CDC Order under Section 361 of the Public Health Service Act (PHSA) to temporarily halt residential evictions to prevent the further spread of COVID-19.  Continue reading »

NYSE and Deutsche Boerse (DB) Merge to Survive

Is America’s dominance in capitalism clearly over?

The NYSE merger is one of survival both for the NYSE and for the German securities exchange Deutsche Boerse.

The NYSE is inefficient, i.e. the pit, traders on the floor. Lower fees and better efficiencies created the mess at the NYSE.  The NYSE has too many outdated traditions which created numerous types of inefficiencies, forcing the NYSE into a downward position. Even the NASDAQ was doing better than the NYSE regarding efficiencies via electronic trading.

We live in a global economy. There are trading exchanges all over the world, i.e. China, Tokyo, Brazil , Russia, India, Australia, London, etc. The stock exchanges in China and Brazil are some of the largest in the world. Everybody in the world can access securities exchanges via the Internet.

The dollar is weak right now. Europe has a debt crisis and the Euro is not so stable.

Not long ago, one of Europe’s leading independent forecasters for the Treasury asserted that the Euro could collapse as a result of Europe’s debt crisis. The European Central Bank’s Governing Council Member asserted that it is not up to the bank to save countries where governments run the risk of being insolvent.

Right now, Ireland, Greece, Portugal, Italy, and Spain have a lot of debt problems and plenty of entities are buying more insurance at higher prices to cover potential losses in those countries.

Germany had good growth in 2010 but their economic model is centered around exports, i.e. cars and machines. Asia (China) drove Germany’s growth in 2010. Can Germany sustain their economic model since other European countries (mainly southern Europe) have stagnant economies re: exports and imports? The European debt crisis has pushed the Euro down which has made German exports more competitive.

Right now, US exports are even better than German exports because the US dollar is weak, too.

Since Germany appears to be in the best economic position in Europe more people are putting capital in Germany when investing in Europe. German exporters could take a huge hit if Europe’s debt crisis runs into other European countries.

Who knows what will happen because regulators have to look this over. Also, there are may political issues with this deal starting with a fight over what to name the exchange. Politicians could crush the regulatory process simply because they do not like the proposed name. I suspect it will go through because both exchanges need this for survival.

I think the NYSE deal is a play on a world asset which is undervalued as a result of a weak US dollar.

Ex: InBev could not purchase AB if the US dollar was strong. InBev took advantage of a weak US dollar and is now dealing with a lot of debt and debt service. The strength of the US dollar runs in cycles just like the markets. Will the US dollar stay at its current value forever or remain at lower values when priced against other global currencies? I suspect not.

The World Bank has predicted a global growth of 3.3% for 2011. Europe’s debt crisis is a huge factor which could derail any global recovery.

The European Central Bank has asserted that inflation may be around for months in Europe which would probably require a European interest rate hike which would make borrowing from global banks tougher than it already is.

However, major companies are lean and mean now and sitting on trillions of dollars of cash. In addition to inflation and a debt crisis, the 17 member European nation is still facing 10% unemployment which was after a recent drop. Also, housing prices continue to drop in Europe although it appears that it has bottomed out.

Is America’s dominance in capitalism clearly over? I would say no since nothing is clear right now with global economies, global financial markets and global debts and debt service.