Many employers use computer-based technology such as artificial intelligence, software, and algorithms throughout the hiring and employment process. Examples of the types of tools used in the hiring process include resume-screening software, chatbots, and digitized interviews. These tools have replaced many basic human resource tasks in employment recruitment and have streamlined the hiring process.

While such technology-enabled employment selection promotes efficiency and cost-savings, employers must ensure that its use is not in violation of the Americans with Disabilities Act (“ADA”). The ADA is a federal civil rights law that prohibits employers, employment agencies, labor organizations, and joint labor-management committees with 15 or more employees from discriminating based on disability.[1]

If a computer-based tool improperly “screens out” or rejects an applicant for employment who has a disability, the employer may be in violation of the ADA. This is the case whether or not the rejection was intentional or unintentional. For instance, digitized interviews use software that assesses an applicant’s tone of voice, speech patterns, and facial movements to evaluate the applicant’s fit for the role. However, if the applicant has a speech impediment, the software may not evaluate the applicant effectively and may automatically reject the applicant due to a low evaluation rating.

Employers should be mindful of tools that indicate they are “bias free” as this designation may be misleading. “Bias free” tools typically mean that steps have been taken to prevent discrimination under Title VII, based on race, sex, national origin, color, or religion.[2] However, the steps required to prevent disability discrimination are unique based on the disability and must be distinguished from the steps required to prevent Title VII discrimination.

Employers who choose to use AI in the hiring process can and should take steps to reduce the chances of prejudicing individuals with disabilities. For example:

  • Employers should develop and select tools that measure abilities or qualifications that are truly necessary for the job, including for individuals who are entitled to a reasonable accommodation.
  • Employers must provide a reasonable accommodation to qualified individuals with disabilities, unless doing so would cause undue hardship. Therefore, employers must provide clear and accessible instructions for requesting such accommodation to those who are being evaluated. The ADA permits employers to request reasonable medical documentation in support of a request for reasonable accommodation, when necessary.[3]
  • Employers should clearly describe, in accessible formats, what traits the AI will be assessing and how, so applicants will better understand when they may need to request a reasonable accommodation.
  • Decision-making tools that rate an applicant’s ability by measuring the similarity between an applicant’s personality and the typical personality for successful individuals holding the open position should be avoided.
  • Prior to purchasing employment technology that is administered by an outside vendor, employers should request that the vendor forward all requests for accommodations to be processed by the employer in accordance with the ADA, or enter into an agreement with the outside vendor to provide reasonable accommodations on the employer’s behalf, in accordance with the ADA. It is important to note that any potential liability extends to the employer even if the tool is administered and/or developed by an outside vendor.

Employers must be able to navigate the pitfalls of employment selection technology and ensure that these tools are used to enhance the hiring process to build an inclusive and accessible workforce.

For further information or guidance on how this law may affect your business, please contact Tyleana K. Venable at tvenable@jaspanllp.com.

[1] 42 USC 12101 et seq.

[2] https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence

[3] https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada

In the latest Jaspan Schlesinger Labor and Employment Law blog, attorney Stanley A. Camhi discusses New York’s recent amendment to the New York Civil Rights Law.

On November 8, 2021, New York Governor Hochul signed into law an amendment to the New York Civil Rights Law creating a new section (§52-c) that took effect on May 7, 2022. The new law requires that employers with a place of business in New York State who engage in electronic monitoring of phone calls, e-mails, and internet use must now provide notice to their employees of such monitoring.

The New York law requires written notice (either paper or electronic) to be provided upon hire to all new employees if the business monitors and/or plans to monitor its employees, the receipt of which must be acknowledged by the employee in writing.  For current employees, the employer must post the notice “in a conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.”

The notice advising employees of the employer’s monitoring shall inform them that “any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.”

However, the amendment does not apply to processes that: (1) are designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage”; (2) “are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual, and”; (3) “are performed solely for the purpose of computer system maintenance and/or protection.”

The Attorney General is authorized to enforce the provision.  Any employer who is found to be in violation of the new amendment is subject to a fine up to $500 for the first offense, $1,000 dollars for the second, and $3,000 for the third and each subsequent offense.

For further information or guidance on how this law may affect your business, or for assistance in revising your policies and procedures in accordance with this law, please contact Stanley A. Camhi at scamhi@jaspanllp.com.

According to the United States Census Bureau, women make up nearly half of the United States work force.[i] Notwithstanding, as of 2019, women make up only 27% of workers in the fields of science, technology, engineering and mathematics (“STEM”).[ii]  “Women employed full-time, year-round in STEM occupations earned more than their non-STEM counterparts but the gender earnings gap persisted within STEM occupations.”[iii] Men also outnumber women majoring in most STEM fields in college. [iv] “The gender gaps are particularly high in some of the fastest-growing and highest-paid jobs of the future, like computer science and engineering.”[v]

“Women and minorities are severely underrepresented in STEM, often because they were not encouraged to early on. In a 2010 survey by the Bayer Corporation of female and minority chemists and chemical engineers, 77 percent said significant numbers of women and minorities are missing from the U.S. STEM work force because ‘they were not identified, encouraged or nurtured to pursue STEM studies early on.”’[vi]

In an attempt to address this issue, on December 22, 2021, Governor Hochul signed a Bill[vii] “directing the urban development corporation to conduct a study regarding the assistance needed to encourage women and minorities to pursue technology careers in science, technology, engineering and mathematics (STEM)”. It is hopeful that: “[t]his bill will help identify the types of assistance necessary to encourage more women and minorities to enter STEM fields.”[viii]

According to Senator Anna M. Kaplan, “[s]o many employers in today’s high-tech, global economy consistently struggle to find enough qualified individuals to fill the high-skill, high-paying jobs they create, and the workforce has never been truly reflective of the diversity of our community. It’s time we helped more young women and people of color to pursue careers in the fields of science, technology, engineering, and math, and by encouraging these underrepresented groups to pursue STEM studies, we can provide greater opportunities for more young people in our community, and fill a critical need for workers skilled in the areas of demand in today’s economy.”[ix]

According to Assemblymember Linda B. Rosenthal, “[t]his new law will help increase the numbers of women and minorities who pursue technology-based careers. While some of the fastest-growing and highest-paying jobs are in the STEM field, the number of women and people of color employed in these fields continues to lag behind. A better understanding of the availability of grants designed to encourage underrepresented people to pursue careers in STEM is vital to help level the playing field and ensure access to well-paying and intellectually stimulating jobs.”[x]

For further information, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Samantha M. Guido at sguido@jaspanllp.com.

[i] https://www.census.gov/library/stories/2021/01/women-making-gains-in-stem-occupations-but-still-underrepresented.html (men make up 52% of the workforce).

[ii] Id.

[iii] Id.

[iv] https://www.aauw.org/resources/research/the-stem-gap/

[v] Id.

[vi] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[vii] https://www.nysenate.gov/legislation/bills/2021/s531/amendment/b

[viii] Id.

[ix] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[x] Id.

On December 22, 2021, Governor Hochul signed a Bill[i] directing “the department of financial services, in consultation with the department of health to prepare a report with recommendations on their review of covered benefits related to childbirth offered by all health insurance providers in New York state.”[ii]  The purpose of the Bill is: “[t]o uncover hidden costs related to childbirth, shine a light on disparities in rates negotiated by insurers covering the birth, and determine if Statewide standards should be adopted.”[iii]

Pursuant to the Bill, the Department of Financial Services, in cooperation with the Department of Health, is to conduct a review of the benefits related to childbirth and “must include an examination of length of stay periods, costs incurred by patients and reimbursed to providers, and additional benefits offered, or not.”[iv]

Senator Julia Salazar in addressing this Bill stated that: “People expecting a child face many unknowns, which often cause anxiety and uncertainty. One of these is the difficulty many face in ascertaining the costs they will incur for labor and delivery. This bill alleviates that concern by requiring the Department of Financial Services to study and report on the coverage actually provided by insurance companies in New York for these services.”[v]

Assemblymember Chantel Jackson in discussing the Bill stated that:  Maternal Health has been of critical importance across the nation and here in New York State, as more needs to be done to close the gap in maternal mortality among women of color.  Race, poverty and discrimination still play a role in the maternal care and delivery options available and afforded to women of color.  This legislation will focus on creating a study that will shed a light and better understanding on the current insurance benefits and coverage related to childbirth. This legislation will help identify and address the areas where insurance coverage standards must be revised to better serve the maternal health needs of expectant mothers before, during and after delivery.”

The report and recommendations will be used to “determine if state-wide standards should be adopted in addition to taking measure of how the State already fulfills requirements set by the Federal ACA [Affordable Care Act].”[vi]

For further information, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Samantha M. Guido at sguido@jaspanllp.com.

[i] https://www.nysenate.gov/legislation/bills/2021/s4827

[ii] Id.

[iii] Id.

[iv] Id.

[v] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[vi] https://www.nysenate.gov/legislation/bills/2021/s4827

One of the many unspoken issues facing homeless women is access to feminine hygiene products.  Governor Hochul, recognizing this issue, signed legislation on December 22, 2021, amending Social Services Law by adding a new section 152-c[i], which requires that feminine hygiene products be provided at no cost to menstruating individuals in homeless shelters.  The products include, but not limited to, sanitary napkins, tampons and panty liners.”[ii]  “This bill will provide feminine hygiene products at no cost to adults and children in shelters throughout New York State.”[iii] “Menstrual products can be unaffordable for those already struggling. This bill provides these products free of charge so those living in homeless shelters do not have to resort to using unsafe alternatives that can result in serious infection.”[iv] Senator Michelle Hinchey, who sponsored Senate Bill S6572, stated: “Access to menstrual supplies is a fundamental health necessity, and yet in almost every community across our state, there are people who cannot afford period products – a dilemma that no one should ever have to face.”[v] Assemblymember Linda B. Rosenthal echoed this sentiment and stated that woman should not be forced between deciding whether to buy food or menstrual products.[vi] This legislation is a small step in ensuring that women are treated fairly.

It is important that issues specific to women are brought to light and that women are treated equally and fairly. For further information, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Samantha M. Guido at sguido@jaspanllp.com.

[i] Senate Bill S6572/A.529-A.

[ii] Id. at “Summary”.

[iii] Id. at “Purpose”.

[iv]https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[v] Id.

[vi] Id.

Jaspan Schlesinger is proud to celebrate Women’s History Month. March is designated Women’s History Month by Presidential proclamation.[i] “Every March, Women’s History Month provides an opportunity to honor the generations of trailblazing women and girls who have built our Nation, shaped our progress, and strengthened our character as a people.”[ii]

“Women’s History Month had its origins as a national celebration in 1981 when Congress passed Pub. L. 97-28 which authorized and requested the President to proclaim the week beginning March 7, 1982 as ‘Women’s History Week.”’[iii]   In 1987, “Congress passed Pub. L. 100-9 which designated the month of March 1987 as ‘Women’s History Month.’ Between 1988 and 1994, Congress passed additional resolutions requesting and authorizing the President to proclaim March of each year as Women’s History Month.”[iv]  These proclamations celebrate the contributions women have made to the United States and recognize the specific achievements women have made over the course of American history in a variety of fields.[v]

President Biden, in issuing this year’s Proclamation, stated that: “[t]his Women’s History Month, as we reflect on the achievements of women and girls across the centuries and pay tribute to the pioneers who paved the way, let us recommit to the fight and help realize the deeply American vision of a more equal society where every person has a shot at pursuing the American dream.  In doing so, we will advance economic growth, our health and safety, and the security of our Nation and the world.”[vi]

Governor Hochul in signing legislature addressing women’s issues stated: “New York must continue to break down barriers for women and fight inequality throughout our state.”[vii] “These laws will address a variety of important issues, supporting STEM [ Science, Technology, Engineering, and Mathematics fields] careers and helping to ensure equity and access in women’s health.”[viii]

Despite progress being made, women still face obstacles in many endeavors and further progress is needed to ensure that women have the same opportunities as men and are treated equally. Jaspan Schlesinger proudly joins the Nation in recognizing March as Women’s History Month.  As we recognize Women’s History Month, we will be updating our blog with relevant and timely information and resources regarding laws which address and highlight women’s issues.

[i] Pub. L. 100-9.

[ii] https://www.whitehouse.gov/briefing-room/presidential-actions/2022/02/28/a-proclamation-on-womens-history-month-2022/#:~:text=NOW%2C%20THEREFORE%2C%20I%2C%20JOSEPH,2022%20as%20Women’s%20History%20Month.

[iii] https://womenshistorymonth.gov/about/

[iv] Id.

[v] Id.

[vi] https://www.whitehouse.gov/briefing-room/presidential-actions/2022/02/28/a-proclamation-on-womens-history-month-2022/#:~:text=NOW%2C%20THEREFORE%2C%20I%2C%20JOSEPH,2022%20as%20Women’s%20History%20Month.

[vii] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[viii] Id.

“Salary commensurate with experience.” It’s a phrase known well to online job hunters and a useful tool for employers seeking to entice the most qualified job applicants without committing to a specific pay range. At least, it was. Effective May 15, 2022, some New York employers can no longer rely on vague salary descriptions and will instead be required to disclose a specific salary range in their job listings.

The change was made in December 2021 by the New York City Council, which amended the New York City Human Rights Law (“NYCHRL”) to include Section 8-107(32) (the “Amendment”). Per the Amendment, employers have to determine a minimum and maximum salary range for a given position and include that information in the job posting – whether it is an external posting, or an internal advertisement for a promotion or a transfer opportunity.

A December 2021 report from the City Council delves into gender and race wage gaps, some of the factors driving those gaps, and how this amendment is part of a larger push for pay transparency. It compares this initiative to prior ones, such as New York’s existing prohibition on asking workers for salary history (effective 10/31/17). The new disclosure requirement, the Report says, is intended to facilitate fairer salary negotiations for women, who are known (from studies past) to ask for lower salaries in comparison to their male counterparts.

As Councilmember Helen Rosenthal stated during the December 14, 2021 virtual hearing,

Lack of upfront pay range disclosure necessitates a salary negotiation in which the employer always has the upper hand. This often results in lower wages for women, people who are black and brown, and those with disabilities– upholding decades of systemic inequities and bias in hiring.

As of now, the requirement applies to employers with four or more employees. It also applies to employment agencies, though not to temporary staffing agencies when advertising for temporary positions (since those agencies already provide this information after interview in compliance with the NY State Wage Theft Prevention Act).

However, it isn’t yet clear whether the new requirement applies to all jobs advertised in New York City or only postings for jobs physically located in New York City. Further, it is unclear whether it applies to employers who are physically located outside of New York City.

Importantly, the law does not set forth any specific requirements for the salary range, leaving wiggle room for employers who don’t want to commit to a specific number. However, it does require that employers determine the range “in good faith.”

Moreover, since the requirement is part of the NYCHRL, it follows that a failure abide would amount to an unlawful discriminatory act. With what penalties? Well, that remains to be seen. Per the Amendment, the New York City Commission on Human Rights (the “Commission”) will be the enforcing body and, generally speaking, the Commission can impose civil penalties of up to $250,000 if a violation is deemed willful, wanton, or malicious. Additionally, employers may face lawsuits from aggrieved individuals.

New York employers would do well to reassess their own internal policies with respect to both salaries and job postings, and to keep an eye out for further guidance from the Commission.

For more information on how to prepare for the new requirement, contact the author, Jaspan Schlesinger Associate Rachel Morgenstern, at rmorgenstern@jaspanllp.com

New York state now requires all health care workers to receive a COVID-19 booster shot within two weeks of becoming eligible. An individual is considered eligible for the booster five months after receiving the second shot in a two-dose regime (either the Moderna or Pfizer vaccine) or two months after receiving the J&J single dose vaccine.  Governor Hochul announced this mandate on January 7, and the New York Public Health and Health Planning Council formally adopted the mandate on January 11, citing the importance of the booster to controlling the spread of COVID-19 in healthcare facilities and to limiting staffing shortages in healthcare facilities due to sick and quarantined employees.

The mandate went into effect immediately following its adoption and impacts all personnel working in hospitals, nursing homes, adult care, and other congregate settings as defined in the original regulation. Covered personnel is broadly defined and includes “all persons employed or affiliated with a covered entity, whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers, who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients, or residents to the disease.” (10 NYCRR § 2.61.)

The booster mandate allows for some medical exemptions, but, like the state’s initial healthcare worker vaccine mandate announced in August 2021, does not permit religious exemptions. The original healthcare worker vaccine mandate was challenged in federal court based on the religious exemption issue. But on November 4, 2021, the United States Court of Appeals for the Second Circuit upheld the original vaccine mandate, stating that the failure to provide a religious exemption did not violate the employees’ religious freedoms. In its opinion, the Second Circuit clarified that, despite lacking a religious exemption, the original mandate did not violate employees’ rights as it did not preclude an employer from providing a reasonable accommodation for employees with sincerely held religious beliefs if doing so would not impose an undue burden on the employer and would allow the objecting employee to continue working in a capacity consistent with the mandate, that is, without coming into contact with patients or other employees. The Second Circuit’s findings were upheld by the Supreme Court on December 13, 2021, when it rejected the plaintiffs’ request for a stay of the regulations. The same findings will apply to the booster mandate, making it difficult for employees to mount additional legal challenges. Also as with the original vaccine mandate, the booster mandate does not provide any option for testing-out.

While it has not been met with the same level of resistance as the original healthcare worker vaccine mandate, some groups are already pushing back against the booster requirement. One day after the council adopted the booster mandate, 11 counties published a letter urging Governor Hochul to reconsider the new rule. In the letter, they cited severe staffing shortages and the fear that the new mandate would exacerbate what is already a tenuous situation. However, it is unlikely that these objections will gain traction, and the rule is expected to remain in effect for the foreseeable future.

New York was the first state to mandate the COVID-19 booster shot in any manner, but others are quickly following suit.  On Wednesday, January 20, New Jersey adopted a similar booster mandate requiring employees of New Jersey hospitals, nursing homes, prisons and jails to receive the booster. California has also adopted a booster mandate for healthcare workers that will go into effect on February 1.

If you have questions on this topic, please contact Jillian McNeil at jmcneil@jaspanllp.com or Jessica Baquet at jbaquet@jaspanllp.com.

With the recent spread of the Omicron variant, public focus has turned to the question of whether and how quickly an employee can return to work after testing positive for COVID-19. But for some, including those who became ill before a vaccine was available, testing positive is just the beginning, as symptoms can persist for months on end and can affect the ability to partake in certain of life’s activities.

Recently, the Equal Employment Opportunity Commission (“EEOC”) updated its guidelines with respect to these “long-haulers.” Those who experience ongoing health problems four or more weeks after being infected with COVID-19 are said to be suffering from “long COVID” (also known as “chronic COVID” or “post-acute COVID”) and may be protected under Section 1 of the Americans with Disabilities Act (“ADA”), which is the section that sets forth requirements for nondiscrimination and reasonable accommodations in the employment context.

This latest update follows President Joe Biden’s July 2021 announcement that “long COVID” may be considered a disability under the ADA. Following suit, the EEOC’s new guidelines explicitly discuss “long COVID” and reemphasize the factors taken into consideration in determining whether and to what extent ADA protection exists. It makes clear that, while COVID-19 is not automatically considered a disability, it may cause impairments that themselves are disabilities under the ADA, regardless of whether the initial case of COVID-19 was an actual disability. Further, while any determination must be made on a case-by-case basis, those who are either asymptomatic or have mild COVID symptoms that resolve in a few weeks are not likely to be considered disabled under the ADA, since their symptoms typically do not “substantially limit” a major life activity.

What is “Long COVID”?

Long COVID is marked by ongoing health problems four or more weeks after initial infection. Sufferers of long COVID include those whose original symptoms persist and those who have new or recurring symptoms down the road, provided the individual’s doctor attributes those symptoms to COVID-19.

Explicitly recognized health problems associated with COVID in this context include:

  • limitations in neurological and brain function, such that a person experiences “intermittent multiple-day headaches, dizziness, or brain fog” and, as a result, has difficulty thinking or concentrating;
  • limitations in respiratory function, such that a person initially received supplemental oxygen for breathing difficulties but nonetheless experiences shortness of breath, associated fatigue, and other virus-related sequelae;
  • limitations in cardiovascular and circulatory function, such that a person experiences heart palpitations, chest pain, shortness of breath; or
  • limitations in gastrointestinal function, such that a person experiences intestinal pain, vomiting, and nausea.

What Constitutes a Major Life Activity?

EEOC guidance specifies that people with COVID-19, including those suffering from “long COVID,” will only be considered disabled when their symptoms substantially limit a major life activity. In this sense, the ADA treats COVID-19 no differently than it does other medical conditions.

“Major life activities” is a broad term encompassing a wide range of functions such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working.

Moreover, as with other medical conditions, there is no blanket rule. Instead, to determine whether either COVID-19 or “long COVID” substantially limits a major life activity as defined under the ADA, one must conduct an assessment tailored to the individual at issue. In other words, not all who contract COVID-19 will be protected under the ADA, even where symptoms persist for four weeks or longer.

What Does it Mean to “Substantially Limit” a Life Activity?

The term “substantially limits” is construed broadly under the ADA and should not demand extensive analysis. Further, it is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Moreover, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when occur.

To be clear, when dealing with COVID-19 under the ADA, the limitations at issue do not necessarily have to last any particular length of time to be substantially limiting. Rather, the length of the symptoms at issue is simply determinative of whether someone suffers from “long-COVID.” Whether that individual has a covered disability requires an individual assessment, as it would with any other medical condition.

What Types of Accommodations Might Be Used for Long Covid?

Given the fluidity of the law and lack of precedent in this area, employers should be flexible in the types of accommodations they offer to employees suffering from long COVID. According to a blog from the U.S. Department of Labor, accommodations for those disabled by long COVID may include:

  • providing or modifying equipment or devices
  • part-time or modified work schedules
  • reassignment to a vacant position
  • adjusting or modifying examinations, training materials or policies

An employer is not, however, required to:

  • remove essential job functions
  • lower production standards
  • provide personal need items such as hearing aids and wheelchairs
  • provide any accommodation that creates an undue hardship
  • provide an employee’s preferred accommodation as long as the employer provides an effective accommodation

In sum, this most recent update from the EEOC highlights the fact that employers should be ready to see claims from those suffering the symptoms of COVID-19 well into the future. If you have questions on this topic, please contact Rachel Morgenstern at rmorgenstern@jaspanllp.com or Jessica Baquet at jbaquet@jaspanllp.com.

We previously blogged about the issuance of an emergency temporary standard (ETS) by the Occupational Safety and Health Administration (OSHA) obligating large employers to require their employees to become vaccinated against COVID-19 or submit to weekly testing for the disease. Since the ETS was published in November 2021, lawsuits challenging the mandate have proceeded on a tortured procedural path through our federal courts. At one point, the Fifth Circuit Court of Appeals stayed the ETS from taking effect. Later, after the various cases were consolidated before the Sixth Circuit, the stay was vacated and the Biden administration told employers it was full steam ahead. The majority of the ETS’ provisions took effect on January 10, 2022, while the date for compliance with the weekly testing requirement was scheduled to take effect in February.

Supreme Court Ruling

Most recently, the ETS’ challengers applied to the United States Supreme Court (SCOTUS) for an order barring the ETS from taking effect while the lower courts consider whether OSHA exceeded its authority in issuing the rule. This application for emergency relief–which appeared on what some call the court’s “shadow docket”– was orally argued (and broadcast online) before SCOTUS on January 7th. Based on comments made by the justices, particularly those by Justice Roberts, many commentators anticipated that the stay would be granted.

Today, those predictions were proven correct when six of the nine justices ruled in favor of staying the ETS from taking effect and/or being enforced. As a practical matter, this means that employers with one hundred or more employees who were preparing to comply (or already started doing so) are no longer required to do so for the time being. Of course, this does not change anything for companies that are subject to state or local mandatory vaccination requirements.

Future of the ETS

Many employers are wondering whether the stay will ultimately be lifted and it will become necessary to comply with the ETS. Based on SCOTUS’ ruling, it is unlikely that the ETS, in its current form, will ever take effect.

Although the distinction may not matter to some, the reality is that SCOTUS did not permanently strike down the ETS. It stopped the ETS from taking effect while leaving it to the trial courts to decide whether the ETS should be upheld at the end of the day. However, SCOTUS’ decision foreshadows how the court would view the underlying question of the ETS’ validity if it ever came before the justices on an appeal. That is because one of the primary considerations in whether to grant a stay is whether the party seeking the stay is “likely to succeed on the merits” of the underlying lawsuit.

The majority of the justices agreed that OSHA does not have the authority to issue a sweeping mandate like the ETS, which would have covered approximately 84 million people and regulated a risk that exists both in and outside of the workplace.  According to the majority opinion, if Congress had intended for OSHA to have such broad powers, the law would have said so clearly, but it does not. Since SCOTUS held, in the context of the stay application, that OSHA does not have the authority to issue such a rule, it is very unlikely that the majority would reach a contrary conclusion on a later appeal.

It remains to be seen whether OSHA will attempt to implement a narrower temporary rule, or individual states will pass legislation imposing obligations similar to those in the ETS. Employers that have taken steps to comply with the ETS can still choose to require vaccination or testing of their employees, so long as they properly entertain requests for reasonable accommodations for medical or religious reasons. Otherwise, employers can shelf their vaccination or testing plans for now–and possibly forever.

If you have any questions about the ETS or mandatory vaccination policies, please contact Jessica Baquet at jbaquet@jaspanllp.com.