November 11, 2021

Labor and Employment Newsletter

6 min


Shot or Not? OSHA Standard Sets Requirements for Large Employers

It is finally here: the Occupational Safety and Health Administration (OSHA) has released its long-awaited emergency temporary standard (ETS) mandating vaccinations or testing for employees of large employers (those that employ 100 or more employees). While many employers have voluntarily established mandatory vaccination policies, the lack of consistent applicable laws and guidance has made them difficult to administer. Recognizing the need for universal standards and considering the continued high transmissibility of COVID-19 in the workplace, OSHA’s ETS is the federal government’s attempt to stem the tide of infections among workforces. The ETS is scheduled to be published in the Federal Register on November 5, 2021 and will take effect immediately upon its publication. OSHA has also published helpful supplemental documents, including fact sheets, an ETS summary, and frequently asked questions. Below is a high-level overview of some of the key provisions for employers based on the ETS and these supplemental documents.

Department of Labor Issues Final Rule on Tip Regulations Under the Fair Labor Standards Act. What Should Employers Do Now?

Since November 2018, the Department of Labor has toggled back and forth on its guidance for tipped employees and when an employer can claim the tip credit. However, as of October 29, 2021, there is a new final rule, which goes into effect on December 28, 2021. The new rule maintains the 80/20 limit on non-tipped duties from the past but changes some key definitions and adds a new "30 Minute Rule." Click below to read what you need to know to make sure that you're in compliance.

Second Circuit Gives the Green Light on New York's Vaccine Mandate Banning Religious Exemptions for Healthcare Workers

As we previously reported, on October 12, 2021, the Northern District of New York granted a group of healthcare workers' request for a preliminary injunction temporarily enjoining the State of New York from enforcing its COVID-19 vaccine mandate to the extent that it denies healthcare workers a religious exemption to receiving the vaccine. On October 29, 2021, the United States Court of Appeals for the Second Circuit vacated the District Court's decision and upheld the vaccine mandate's exclusion of a religious exemption to receiving the vaccine. The appellate court's ruling has immediate implications for healthcare employers in New York with employees refusing the vaccine for religious purposes.

COVID-19 Vaccinations Now Mandatory for Millions of Healthcare Workers

On November 5, 2021, the Centers for Medicare & Medicaid Services (CMS) issued an emergency regulation, the Omnibus COVID-19 Health Care Staff Vaccination Rule (the Rule). The Rule requires that eligible staff working at Medicare- or Medicaid-certified providers or suppliers be fully vaccinated against COVID-19. Eligible staff must receive a first dose of the vaccine by December 5, 2021 and any required second dose by January 4, 2022. Covered providers and suppliers must adopt policies and procedures that address a variety of topics to ensure that the vaccination requirement is met.

New York State Department of Labor Provides Guidance for Employee Cannabis Use

On March 31, 2021, New York State enacted the Marijuana Regulation and Taxation Act (MRTA), which legalizes adult cannabis use in New York. While the MRTA is generally known for legalizing the use of cannabis in a private dwelling or at a state-licensed consumption site, it also has provisions affecting the workplace. The MRTA amended Section 201-D of the New York Labor Law to prohibit employers from discriminating against employees engaging in certain activities. Because of this amendment, on October 21, 2021, the New York State Department of Labor (NY DOL) issued guidance for employers regarding recreational adult cannabis use by employees, both in and outside the workplace.

2022 Dollar Limits on Compensation and Benefits

The Internal Revenue Service (IRS) has announced 2022 dollar limits on benefits, contributions, and compensation. The Internal Revenue Code (Code) affords tax benefits for employers that sponsor qualified plans and for employees who participate in such plans. In exchange for these tax benefits, the Code places limits on the contribution and benefit amounts. The IRS makes annual cost-of-living adjustments to these limits.


To Be or Not to Be? OSHA’s Mandatory Vax ETS: What Employers Need to Know Now

On November 5, 2021, the Occupational Safety and Health Administration (OSHA) released its long-awaited emergency temporary standard (ETS) mandating vaccinations or testing for employees of large employers (those that employ 100 or more employees). The rule was immediately challenged and preliminarily stayed by the U.S. Court of Appeals for the Fifth Circuit. In our presentation on November 10, 2021, we discussed:

  • The landscape leading to the ETS and OSHA’s explanation for its need
  • The provisions of the ETS: Requirements for employers and employees
  • Questions raised and answered regarding the ETS’s interaction with other federal and state laws
  • The state of legal challenges to the ETS and what they may mean for employers’ compliance

Missed the webinar? Register using the link below, and you'll receive the recording and slides following the presentation.

Handling Post-Pandemic Harassment and Discrimination Claims

Wednesday, December 8, 2021 | 12:30 p.m. - 1:30 p.m. ET

As the era of remote work ends for many businesses, nonprofit employers may need a refresher on the way they handle employee and third-party claims of workplace harassment and discrimination. During the pandemic, some employees developed informalities in the way they interact with co-workers and others over Zoom. Some experienced mental health struggles or lost their edge in social interaction skills. Some developed divisive political views that they wear on their sleeve. Some thirst for the attention they lost during this long period of isolation. These and other evolutions can create a risk of workplace friction and employer liability for harassment and discrimination. As employees start rolling in, keep in mind that, although your employees have changed, the laws that govern workplace behavior and interactions have not. During this presentation Todd Horn and Karel Mazanec will explore best practices – and landmines – in handling employee and third-party claims of harassment and discrimination.

Attorney Spotlight

Hayley DegnanHayley Degnan: I was drawn to the practice of labor and employment law because it is uniquely human and ever changing. Every person has interacted with or been impacted by employment laws and regulations. And as society changes, so must the workplace and the laws and regulations that govern it. Working as a labor and employment attorney at Venable, I often help our clients face new and emerging issues and implement strategies to avoid disputes before they arise. The dynamic nature of this practice challenges me to continuously learn, grow, and evolve to find practical solutions that meet our clients’ business and organizational needs.

About the Labor and Employment Group

The bicoastal, 40-person Labor and Employment team at Venable provides guidance and support across the full spectrum of workplace dynamics – helping employers control costs, avoid disputes, and defend themselves when litigation arises. As co-editors of this newsletter, Michael Volpe and Doreen Martin invite you to share the content with your colleagues and reach out with any questions.