Mandatory COVID-19 Vaccines in the Workplace Update: Ruth Binger Interview

Ruth Binger

By Ruth Binger



covid vaccineRuth Binger spoke with KMOV Channel4 News about a possible increase in companies requiring the COVID-19 vaccination for their employees.

According to Ruth, the fact that the vaccination does not yet have FDA approval is keeping many companies from considering a mandatory vaccination policy at this time. To date, none of her clients have a mandatory policy in place. “I do think it’s changing a little bit because of the Delta variant, and now [companies are] thinking about whether or not they should have a mandatory policy.”

Ruth said that another concern employers about enforcing a mandatory COVID-19 policy is the national worker shortage. Continue reading »

High Burden of Proof Established for COVID-19 Exposure, Medical, and Products Liability Actions

Katherine M. Flett

By Katherine M. Flett



covid19The Missouri House voted to pass Missouri Senate Bill 51, which establishes provisions related to COVID-19 exposure liability actions, COVID-19 medical liability actions, and COVID-19 products liability actions, in the final minutes of the 2021 legislative session.  It was signed by Governor Parsons on July 7, 2021.  The new law will become effective on August 28, 2021, and expire on August 28, 2025.

COVID-19 Exposure Liability

Under Senate Bill 51, no business, service, activity, or accommodation will be liable in any COVID-19 exposure action, unless it is proven by “clear and convincing evidence” that “recklessness or willful misconduct” caused an actual exposure to COVID-19 resulting in personal injury.

  • “Recklessness” is defined as “a conscious, voluntary act or omission in reckless disregard of a legal duty and the consequences to another party.”
  • “Willful misconduct” is defined as “an act or omission that is taken intentionally to achieve a wrongful purpose or in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.”

While we do not know how broadly the courts will interpret these terms, taking actions to prevent the spread of COVID-19, such as requiring mask-wearing, hand sanitizing, and social distancing, could all be helpful in defending a COVID-19 exposure case.  As for vaccinations, the law clearly states, that businesses are not required to establish a policy that requires or mandates vaccination or proof of vaccination to avoid COVID-19 exposure liability.

The new law allows for the presumption that an individual assumes personal risk when the business clearly posts the following message near its entrance: Continue reading »

Illinois Enacts New Restrictions for Considering Criminal History in Employment Decisions and Equal Pay Requirements

Katherine M. Flett

By Katherine M. Flett



employmentEmployment law changes regarding human rights and equal pay have arrived in Illinois.  On March 23, 2021, Governor J.B. Pritzker signed into law S.B. 1480, which makes significant amendments to both the Illinois Human Rights Act (IHRA) and the Illinois Equal Pay Act (IEPA), effective immediately.

Criminal Conviction Record and Employment

S.B. 1480 amends the IHRA with more limitations on how an employer may use an employee’s or applicant’s criminal conviction record when making employment decisions. It is now a civil rights violation for any employer to use a criminal conviction record as a basis to refuse to hire, terminate, or take any other adverse employment action against the applicant or employee with two exceptions:

  1. There is a “substantial relationship” between one or more of the previous criminal offenses and the employment sought or held; or
  2. By granting or continuing employment, an “unreasonable risk” would exist “to property or to the safety or welfare of specific individuals or the general public.”[1]

To determine whether a substantial relationship exists, an employer should consider whether the employment position “offers an opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.”[2]

The new law also requires an employer to consider the following relevant factors when making this determination: Continue reading »

American Rescue Plan Act Brings Changes to Employer Obligations

Jessica A. Gottsacker

By Jessica A. Gottsacker



layoff noticeApril 1, 2021 rings in new employer obligations with the enactment of the American Rescue Plan Act of 2021 (ARP). Employers and employees should take note of the recent changes to Consolidated Omnibus Budget Reconciliation Act (COBRA), Families First Coronavirus Response Act (FFCRA), and unemployment benefits to ensure compliance. We have highlighted those changes for you below.

Consolidated Omnibus Budget Reconciliation Act (COBRA)

Between April 1, 2021 and September 30, 2021, employers must offer 100% subsidized COBRA continuation coverage to “assistance eligible individuals” (“AEIs”).  AEIs are any qualifying plan participants who lose, or have lost, health insurance coverage due to a reduction in number of hours of employment or involuntary termination. The government is expected to provide further guidance, but “involuntary termination” is currently defined as termination of employment for any reason other than “gross misconduct.”

Additionally, the following individuals may also be eligible for the subsidy:

  • Individuals previously eligible for COBRA continuation coverage which would have extended into the subsidy period under the ARP who:
    • Did not elect COBRA coverage (e.g., an individual involuntarily terminated on March 30, 2020 who did not elect COBRA but would be within their 18-month coverage period if they had elected COBRA), or
    • Dropped COBRA coverage (e.g., an individual involuntarily terminated on March 30, 2020, who elected COBRA, but did not pay premiums after December 31, 2020 but are still within their 18-month COBRA coverage period).
  • Individuals who are or become eligible during the subsidy period (e.g., an individual involuntarily terminated on March 15, 2021 or an individual involuntarily terminated on May 1, 2021)

The coverage extends to the employees, their spouses, and their dependent children. Similar to the standard COBRA eligibility, once an AEI becomes eligible for other group health insurance coverage or Medicare, they must notify their employer of their loss of eligibility or face a penalty.

Under ARP, employers are required to provide several new notices to those who become eligible for COBRA continuation coverage by May 31, 2021. (The DOL is scheduled to issue model notices by May 10.)

In addition to the current COBRA notice requirements, the initial notice should include the following information: Continue reading »

Salaries Speak Louder than Words: Equal Pay Day 2021

Katherine M. Flett

By Katherine M. Flett



equal pay dayEqual Pay Day 2021 is March 24, symbolizing how far into the year women must work to earn what men earned in the previous year. Thankfully, this date is not static and falls earlier each year with this year falling 19 days earlier than just five years ago. While we celebrate this achievement, we have a long way to go to completely close the pay gap between men and women.

The Equal Pay Act has prohibited sex-based wage discrimination for over 50 years. Under the Act, an employer may justify wage disparities only based on one of four exceptions:

  • Seniority;
  • Merit;
  • Measurement of earnings by quantity or quality of production; or
  • A differential based on “any factor other than sex.”

The last “catch-all” exception was the focus of Rizo v. Yovino.Aileen Rizo, an experienced middle and high school math teacher, was hired as a math consultant by the Fresno County Office of Education (“Fresno”). Continue reading »

COVID-19 Vaccines and the Workforce – Mandatory or Encouraged?

Ruth Binger

By Ruth Binger



covid-19 vaccineGetting back to normal in the next year or so may be impossible without the widespread use of COVID-19 vaccines. Although authorities do not anticipate the vaccines will be widely available until Spring 2021, employers should be considering whether to mandate or merely encourage vaccinations in the workforce.

Currently there is no definitive answer regarding mandatory vaccinations, and your plan will depend on many variables. Because this is the first pandemic in our memory and it is all new to us, consider forming a committee to monitor the status of laws, regulations, and guidance from various agencies.

Your business may be one of the lucky ones that navigated the pandemic without causing a loss of morale or culture, operating safely by working remotely, social distancing, wearing masks, and following CDC requirements. If so, setting aside all other factors, you may simply want to encourage vaccinations for the first few months that they are available, especially given potential concerns about the safety and efficacy of the vaccines and the ever-changing laws. You could do this by training and educating employees as to the efficacy of the vaccine, encouraging participation, and offering the vaccine for free (if not covered by insurance) at the workplace during work hours. Continue reading »

Is the Arbitration Provision in Your Employment Contract Enforceable?

David R. Bohm

By David R. Bohm



arbitrationMany employers require their employees to execute employment agreements, often containing confidentiality and non-compete clauses, which contain provisions requiring arbitration of any claim which an employee might file against the employer.  However, unless these provisions are carefully drafted, the arbitration provisions may be found unenforceable.

In Caldwell v. Unifirst Corp, et al. issued on October 27, 2020, the Missouri Court of Appeals, Eastern District, upheld a decision by an arbitrator holding the arbitration clause at issue there to be unenforceable due to a lack of consideration.  The Court in Caldwell agreed with the arbitrator that the arbitration clause in the employment agreement Caldwell signed with Unifirst was invalid for lack of mutual consideration because the employer had reserved the right to seek injunctive relief in court in the event the employee violated his non-compete obligations.  Thus, while the employee was required to arbitrate all claims he might have, the employer would not be required to arbitrate its claims for breach of the non-compete clause, the type of claim most likely to be pursued by the employer against a former employee.  As a result, the arbitrator (and the Court) held that the consideration offered by the employer was illusory, such that the agreement to arbitrate was void. Continue reading »

Access to Patient Medical Records During COVID-19

Health Care Law Practice Group

By Health Care Law Practice Group



medical recordsIssues relating to a patient’s right of access to medical records have never been more important than now, in the midst of the COVID-19 pandemic.  Healthcare providers, big and small (from a large New York City non-profit providing health care and other services to the homeless population to small psychiatric services providers in Virginia and Colorado), are facing monetary penalties and having to comply with Corrective Action Plans (CAP) imposed by the Office for Civil Rights (OCR) with strict requirements and short deadlines.

One of these psychiatry services providers must distribute new policies and procedures concerning patient requests for records to all members of its workforce and relevant business associates within 30 days and to new employees upon hiring. Recipients are required to execute certification of having read, understood, and promised to abide by these policies and procedures. Training and individual certifications must be completed within 60 days. Going forward, the practice must implement annual training. Any reportable events must be fully investigated and described in a report as part of the full-scale written “Implementation Report.” The practice must submit the report to the U.S. Department of Health and Human Services (HHS) within 120 days. The CAP concludes with a “Final Report,” again containing specific terms and obligations of the psychiatry practice. Continue reading »

Department of Labor’s Updated Regulations for FFCRA

Lauren L. Wood

By Lauren L. Wood



updateThe Department of Labor (DOL) published new guidelines on September 16, 2020 that revise and clarify portions of the Families First Coronavirus Relief Act (FFCRA). The new guidelines were issued following a ruling by a New York District Court that declared certain previously issued regulations invalid. These updated regulations relate to the following:

  • The requirement of “work availability,”
  • The requirement of employer approval for FFCRA leave to be intermittent,
  • The definition of “health care provider,” and
  • Requirements for notice and documentation.

The new regulations went into effect at the time they were published and will remain in effect until December 31, 2020 when the FFCRA is set to expire.

Work Availability Requirement

The DOL clarified that the work availability requirement applies to all qualifying reasons to take leave under the FFCRA. Thus, the leave may only be taken if the employer has work for the employee. The qualifying reason must be the actual reason the employee is unable to work, rather than not having work to do regardless of whether the qualifying reason occurs. Previously, the work availability requirement was only explicitly applicable to three of the six possible qualifying reasons for leave.

Intermittent Leave Requires Employer Approval Continue reading »

A Closer Look at Title VII and Sexual Orientation and Gender Identity

Katherine M. Flett

By Katherine M. Flett



Authored by Katherine M. Flett with assistance from Connor P. Lynch

The Supreme Court, in a 6-3 decision, ruled that Title VII of the Civil Right Act, which prohibits employment discrimination on the basis of sex, encompasses sexual orientation and gender identity.

Background

discriminationIn recent years, federal circuit courts have come to conflicting conclusions when addressing whether Title VII of the Civil Rights Act, prohibiting employment discrimination on the basis of sex, encompasses sexual orientation and gender identity.  In an attempt to resolve the inconsistent holdings across federal appellate courts, the Supreme Court agreed  to hear three cases that dealt with this issue: Altitude Express,  Inc. v. Zarda; Bostock v. Clayton County; and R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C. All three cases involved an employer allegedly firing a long-time employee simply for being homosexual or transgender. Continue reading »