Recent Fifth Circuit Ruling Offers Great Tips for Avoiding Osha Citations

Yesterday the Fifth Circuit Court of Appeals issued a ruling in a case in which an employer, Angel Brothers, sought review of a decision from the Occupational Safety & Health Review Commission affirming a Citation against it.  You can find the decision here if you care to read it.

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Fifth Circuit Court of Appeals Issues Stay of Osha Covid-19 ETS

For those of you who may not have heard yet, as we predicted, the Fifth Circuit Court of Appeals has issued an Order staying application of the new OSHA COVID-19 ETS.  The stay is only temporary, and the parties will orally argue their cases tomorrow, after which the court will issue a ruling, which could extend or vacate the stay. 

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EEOC’s 10/25/2021 Updated Technical Assistance Regarding COVID-19 Vaccination Religious Exemption Requests Really Doesn’t Change Much

On October 25, 2021, the EEOC issued updated guidance related to COVID-19: “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”  You can find the updated guidance here:

The new guidance adds section L.1 through L.5 dealing with Title VII and religions objections to COVID-19 vaccine mandates. In my opinion, the updated guidance does not change much and should really be more of  a re-affirmation of what you are already doing. The key takeaways from this updated guidance are:

I. Employee Notification Obligations

An employee must notify his employer if the employee is requesting an exception to a COVID-19 vaccination requirement due to a sincerely held religious belief. However, the employee need not use the words “accommodation,” “Title VII” or any other magic words. Ideally, employers will educate employees on the process that they should use in order to a religious accommodation.   This will assist employers in controlling the process.

II.  Assessing Religiousness and Sincerity

The EEOC takes the position that an employer would be justified in questioning the religious nature or sincerity of an employee’s professed belief and challenging that belief through a limited factual inquiry only if the employer had an “objective basis” for doing so. 

Although Title VII protection extends to “nontraditional religious beliefs,” it does not require accommodation for “social, political, or economic views, or personal preferences.”

III. Undue Hardship

Deciding whether an undue hardship exists depends on the particular facts of each situation. Employers  “will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve.” in order to reject it as an undue burden.

The burden of proving an undue hardship in the context of a religious accommodation is a relatively low one for an employer. Requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief may be an undue hardship. Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business – including, the risk of the spread of COVID-19 to other employees or the public. Other relevant considerations are the number of employees seeking a similar accommodation and the cumulative cost or burden to the employer.

IV. Universal Accommodations

Accommodations are a personal thing.  Granting a religious accommodation to one employee does not mean that an employer must grant religious accommodations to all employees. The determination of whether an accommodation will cause an undue hardship is case-by-case and depends upon the individual employee’s position and duties.

V. Preferred Accommodation

Employer’s do not have to provide the specific accommodation requested by an employee. “If more than one accommodation would be effective in eliminating the religious conflict, the employer should consider the employee’s preference but is not obligated to provide the reasonable accommodation preferred by the employee.” 

VI. Reconsideration After Granting an Accommodation

The fact that an employer has granted an accommodation does not mean that it must continue to do so in perpetuity. An employer may reconsider and even discontinue an accommodation “if it is no longer utilized for religious purposes” or poses an undue hardship “due to changed circumstances.”

As always, don’t hesitate to call me directly if you have any questions. 

Back to the Basics

Some of you probably know that my father is the former head football coach of the LSU Football Tigers.  My Dad used to tell me that if you take care of the basics: knowing your assignment, blocking, and tackling, the wins will usually follow. In HR, like football, there are some basic concepts that we really need to get right if we are going to be successful.  (Have you ever seen a more tortured segue from football to wage and hour law?)

One of the basic concepts that I have recently seen employers neglect is that an employee can almost never qualify as exempt from overtime under the FLSA if they are not paid on a salary basis.  Over time, deductions from salaries seem get implemented without anyone noticing that they are jeopardizing the exempt nature of the position.

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Democrats Propose Bill to Increase Maximum Penalty for OSHA “Willful” Violations to $700,000 as Part of $3.5 Trillion Budget Reconciliation Package

The proposed penalty increase is part of a $707 million OSHA budget increase through 2026 that is contained in President Biden’s $3.5 trillion budget reconciliation package.  President Biden has repeatedly expressed his intent to ramp up staffing levels at OSHA to facility increased inspections and investigations.  This budget increase will allow OSHA to do just that.

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OSHA is Tripling Down on Heat-Related Hazards

Today the Occupational Safety and Health Administration issued a Press Release announcing OSHA’s intention to take aggressive action to “combat the hazards associated with extreme heat exposure…” Given our climate, these actions will necessarily impact a great many of us.

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President Biden Outlines New Vaccination Plan

On September 9th President Biden outlined his multi-prong plan to combat the COVID-19 epidemic. 

Most significantly to employers, the President directed the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) requiring all employers with 100 or more employees require that employees either be fully vaccinated or produce a negative COVID-19 test result on at least a weekly basis. Then ETS will include language requiring employers to provide paid time off for employees to be vaccinated or recover from being vaccinated. It is unclear whether or not the ETS will contain a similar mandate for employees to obtain a COVID-19 test. Under some circumstances, an ETS can become effective immediately upon publication.

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The ARPA COBRA Notice Deadline is Just Around the Corner

You may recall that under the American Rescue Plan Act of 2021 (ARPA), group health plans that are subject to COBRA must provide coverage to assist eligible individuals (AEI) at no cost between April 1, 2021, and September 30, 2021 (the Subsidy Period). In addition, plan sponsors must notify affected AEIs within a window (45 to 15 days) before the premium assistance will end. So, plan sponsors must issue notices to AEI’s whose continuation coverage runs through September 30 no later than next Wednesday, September 15, 2021.

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You Absolutely Can Require Your Employees to be Vaccinated; Unless…

The EEOC’s position on this issue is pretty clear: Federal law does not prevent an employer from requiring all employees entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations. Section K.1.

Recent judicial rulings have agreed. As the judge in the recent Houston Methodist Hospital case held, the hospital is in the business of saving lives without infecting patients with the virus, and as such, an employer that mandates vaccines, regardless of whether it is in a safety-sensitive industry, may intend to demonstrate that it cares for all of its employees and wants to ensure a safe workplace.

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Texas Increases Protections for Employees Filing Sexual Harassment Claims

Texas recently passed two new Bills (Senate Bill 45 and House Bill 21) that increase protections for sexual harassment claimants. Each new statute goes into effect on September 1, 2021. These laws present significant changes to existing Texas law.

Definition of an “Employer”

Prior to the enactment of Senate Bill 45, the relevant portions of the Texas Labor Code applied only to employers with fifteen (15) or more employees, and only the entity could be held liable, not an individual. Under the new law, the definition of an employer has been expanded to include any person or entity who employs one or more employees, or “acts directly in the interests of an employer in relation to an employee.” This change means that many more small employers, and their owners and supervisors, will face potential liability.

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