Now, before we dive into the specifics, let’s be very clear: there is no one-size-fits-all advice when it comes to evaluating a job offer. You’re unique, and therefore you have your own unique perspective and objectives. Perhaps your new job comes with a higher salary or offers notable opportunities for growth and development. Maybe it’s located near your children’s school. Or maybe it permits you to work in a niche field that aligns perfectly with your interests. Only you can decide how much weight to give each aspect of a job offer, and in some cases, it may be worth accepting a few drawbacks in exchange for the things you truly value. 

Nonetheless, it’s important to make your decisions with your eyes wide open, so here are a few questions you might want to be asking before accepting that job offer.

Will you be bound by an arbitration agreement?

Employers use a variety of tools to protect their interests and safeguard the investment that they are making in you as an employee of their company. One such tool is the arbitration agreement.

Without an arbitration agreement, if you get into a legal dispute with your employer, you can likely file a lawsuit in court. This is often the best venue for an employee: court proceedings are public; the judge generally permits an employee to conduct broad discovery regarding their claims (and requires the employer to provide the employee with all relevant documentation); and a jury typically decides whether the employee is entitled to relief.

If your employer binds you to a valid arbitration agreement, however, you won’t be able to just publicly file your claims in court. Instead, arbitration is a private process, where a private arbitrator (rather than a judge or a jury) makes a binding decision to resolve a legal dispute. Oftentimes, in arbitration agreements, employers also give themselves the right to determine where the arbitration will take place and to limit the discovery an employee is permitted to conduct.

So, before accepting your job offer, you might want to determine whether your employer is going to require you to sign an arbitration agreement or otherwise bind you to an arbitration provision.

Will you be bound by a non-compete agreement?

Employers also try to protect their interests by having their employees sign noncompete agreements. 

A noncompete agreement is a binding contract that prevents workers from seeking employment with a competitor or starting their own competitive business. Under preexisting Ohio law, noncompete agreements are lawful and enforceable so long as they are reasonable in scope, which typically means they are limited in terms of: (1) time (often expiring within one to two years after the employee’s employment); and (2) geography (often applying only where the employer actually conducts business).

Before accepting a job, it’s important that you understand whether you’ll have any post-employment restrictions.  Maybe you’re a materials scientist, and you’ve spent your whole career developing coatings. When your employment ends, will you be able to find another job in your field? Or is your potential employer seeking a non-compete agreement that is so broad as to cause you concern?

What happens to your intellectual property?

When an employee joins a company, it’s not unusual for the employer to require the employee to sign an Intellectual Property (“IP”) Assignment Agreement.  By signing this agreement, the employee agrees to transfer ownership of IP (like inventions and creative works) to his/her employer.  This kind of agreement makes a lot of sense: if an employee is creating work-product on behalf of his/her employer, the employer is going to want to make sure that it owns the work-product.

However, before you execute an IP Assignment Agreement, there are a whole host of questions you might want to consider.  Do you currently own any patents? Have you developed any inventions? How about any creative works? When you start your job, do you plan to continue developing your own IP on your own time? 

If the answer to any of these questions is “yes,” you’ll want to take a very careful look at any IP Assignment Agreement that your employer asks you to sign. You’ll want to determine whether it is sufficiently narrow—i.e., whether it only applies to IP you develop (1) during your employment and (2) with your employer’s equipment. 

How much bargaining power do you really have as a prospective employee?

As a practical matter, whenever you’re thinking about negotiating the terms of employment, there’s another question you should ask yourself (not your employer). How much bargaining power do you really have?

The answer to this question depends on your individual situation. For example, perhaps you enjoy your current job.  You’re open to alternative employment, but you don’t have to find a job right away. You’re not desperate. If that’s the case, maybe you’ll feel comfortable making a lot of requests in response to a new job offer. If the offer falls through, you’re still employed.

By contrast, you might be experiencing a period of unemployment, and you need to find a job right away. In that circumstance, you might want to be very measured when communicating with your prospective employer: you don’t want job-related requests to place your offer at risk.

And, of course, discussions related to job offers are not a one-way street. The employer will have its own set of considerations. The employer might be desperate to hire a candidate and might be willing to make several favorable changes to the job offer. In other circumstances, an employer may have interviewed many highly qualified applicants for a single position. That employer may not feel the need to revisit the terms of its original offer.

At McCarthy Lebit, we help employees evaluate their employment agreements and offer letters. Whether you have questions regarding a proposed employment agreement or if you need assistance negotiating specific terms, our employment team is equipped to assess your situation and offer appropriate assistance.

For more information or to seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422. McCarthy Lebit would like to thank law clerk Douglas (DJ) Carter for his work in assisting with the preparation of this legal blog post for The More Report.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

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The Ordinance takes effect on October 27, 2025, and it applies to employers with 15 or more employees within city limits. The Ordinance makes it unlawful and discriminatory for an employer to:

• Ask about an applicant’s prior earning history.
• Screen an applicant based on past earning history or current earnings.
• Rely exclusively on an applicant’s earning history when negotiating an employment contract.
• Refuse to hire or otherwise retaliate against an applicant who refuses to disclose his/her earning history.

The Ordinance further requires employers to disclose the salary range in any job advertisement or formal posting that invites employment applications.

Pay Transparency Ordinance Enforcement & Penalties

When Cleveland’s Ordinance becomes effective in October, employers can face penalties for non-compliance. Employers can be fined up to $1,000 for a first offense, $2,500 for a second offense, and $5,000 for any additional offenses.

Key Provisions of the Ordinance

However, the Ordinance does acknowledge certain exceptions. For example, the Ordinance does not apply when: an applicant seeks a promotion with his/her current employer; an applicant voluntarily discloses his/her earning history to an employer; or the applicant is re-hired by an employer that already has access to information about the applicant’s earning history. Similarly, the Ordinance does not apply when a position’s salary is decided through collective bargaining.

According to the Ordinance, studies have shown that considering an applicant’s previous earnings can lead to discrimination and can expand a gender-based pay gap. The Ordinance also indicates that women, on average, earn approximately 83 cents for every dollar earned by men. Over the course of a 40-year career, this can result in a wage differential of more than $400,000. The wage gap is even more significant for women of color. Studies show that Black women make 66 cents for every dollar earned by men, while Latina women make 58 cents for every dollar earned by men. Without pay transparency laws, wage gaps can be perpetuated. If female employees historically earn less than male employees—and if employers rely upon employees’ historical earnings when setting wage rates—women may continuously receive lower salaries than their male counterparts. The City of Cleveland’s Ordinance is designed to break this cycle by prohibiting consideration of an applicant’s historical earnings.

Cleveland is not the first city in Ohio to pass a pay transparency ordinance. In fact, in recent years, Cincinnati, Columbus, and Toledo have all taken steps to reduce the wage gap by passing their own pay transparency ordinances. However, Cleveland’s Ordinance has been the most aggressive the state of Ohio has seen so far. As of now, Cleveland is the only city in the State of Ohio to require employers to disclose salary ranges on their job postings.

A Step Toward Pay Equity

Pay transparency laws have gained momentum across the United States, and there is reason to believe that these laws have effectively reduced the historical wage gap. According to the Women’s Foundation of Colorado, for example, Colorado’s wage gap has been reduced by seven cents since Colorado passed its 2021 Equal Pay for Equal Work Act, and female employees in Colorado are now making almost $3,000 more per year on average.  Washington and California have also successfully narrowed the gender-based pay gap since enacting state-wide pay transparency laws. Importantly, pay transparency laws are designed to increase salaries for women and people of color, without reducing salaries for others. Since the enactment of pay transparency laws, average salaries for men have not decreased.

For more information on Cleveland’s new Ordinance, or to seek counsel from our Employment practice group, please reach out to request a consultation or call us at 216-696-1422. McCarthy Lebit would like to thank law clerk Julia I. Crandall for her work in assisting with the preparation of this legal blog post for The More Report.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

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Accommodating Employees Generally

A “reasonable accommodation” is a modification to the way a job is performed that allows a person with a disability to complete his or her job. 

Under the Americans with Disabilities Act (the “ADA”), employers must provide reasonable accommodations to employees with disabilities.  Similarly, under the Pregnant Workers Fairness Act (the “PWFA”), employers are required to provide reasonable accommodations for employees with limitations related to pregnancy, childbirth, and related medical conditions.

However, employers are not required to make reasonable accommodations if doing so would create an “undue hardship” on the business.  Whether an undue hardship exists is determined on a case-by-case basis and can depend on the nature and cost of the accommodation in relation to the employer’s size and resources.  Courts generally look to several relevant factors in determining whether an accommodation would impose an undue hardship, including:

• The nature and cost of the accommodation;
• The employer’s financial resources;
• The number of persons employed in the workplace; and
• The accommodation’s effect on the employer’s expenses/resources.

Before simply denying an employee’s request for accommodation, though, employers must engage in an “interactive process.”  In other words, even if the employee’s requested accommodation is unreasonable—or even if it would present an undue hardship—the employer is required to engage in an open conversation with the employee to determine whether an alternative accommodation can be identified.

Service Animals in Restaurants

The ADA is broken into several parts. Title I of the ADA requires employers, as noted above, to make certain accommodations for their employees. Title III, on the other hand, requires places of public accommodation to be designed in compliance with accessibility standards. Title III of the ADA explicitly discusses the concept of service animals: it defines service animals as “dogs that are individually trained to do work or perform tasks for people with disabilities,” and members of the public who use a service animal are generally permitted to take their animal into areas of a business where the public is permitted to go.

Whether a disabled employee is entitled to an animal in the workplace, however, presents a more challenging issue.  Unlike Title III, Title I of the ADA (which deals with accommodations for employees) does not expressly discuss service animals.  Legal guidance on the issue is very limited, and the guidance that does exist does not present a one-size-fits-all solution.  It, instead, acknowledges that an employees’ entitlement to accommodation depends on fact-specific circumstances. The use of service animals by restaurant employees thus depends upon whether the request is reasonable and whether it presents an undue hardship on the employer.

In the restaurant setting, employers must be particularly concerned about the cleanliness of their business and the safety of their patrons and workers.  For these reasons, if one employee’s request for a service animal creates an allergy risk for others—and if an employer cannot modify the employee’s workspace to eliminate that risk—the employee might not be entitled to the accommodation.  Rather, the accommodation may be considered unreasonable and may impose an undue hardship on the employer.   

Obligations to New Mothers

Several laws offer protection to new/expecting mothers in the workplace. For example, Title VII of the Civil Rights Act of 1964 protects employees against discrimination and prejudice in the hiring and firing of employees on the basis of pregnancy; the ADA protects employees who suffer from pregnancy-related disabilities; and the PWFA builds on the ADA by protecting employees who have known limitations related to pregnancy and childbirth (which might include post-childbirth recovery, cesarean sections, changes in hormone levels, etc.).  Notably, the PUMP Act—which became law in December of last year—also requires employers to provide employees with an area (other than a bathroom) to express breast milk at work, which must be functional for pumping milk, shielded from view, free from intrusion, and available as needed.

The Ohio Department of Health (the “ODH”) has issued guidance specifically designed to help restaurant owners provide lactation accommodations to breastfeeding employees.  According to the ODH’s guidance, “[r]estaurants have found many creative solutions to accommodate breastfeeding employees,” and “[e]ven small restaurants and fast-food industries with limited space and rigid time schedules can make it work.”

Among other solutions, the ODH suggests that restaurants can effectively accommodate breastfeeding employees by creating a private space (with partitions/privacy screens) in an employee break area or by making an office area available (so long as the office is free from surveillance).

Balancing Employees’ Needs With Patrons’ Safety

While restaurant owners sometimes have obligations to accommodate disabled employees, they also have obligations to the public and to their patrons.  Sometimes, for example, an employee may have a health concern—like an infectious disease—that may prevent the employee from safely handling food and/or interacting with diners.

For this reason, restaurants should consider developing sick worker policies to help prevent the transmission of foodborne illness or communicable diseases. When employees are suffering from certain symptoms (e.g., diarrhea, vomiting, fever), an effective sick worker policy might require employees to self-report their illness to a supervisor and to stay home from work until the symptoms pass.

Although this article identifies a few legal issues that restaurant owners may encounter, it does not constitute legal advice, nor does it anticipate all legal questions that may arise in the workplace. Adequately accommodating employees requires careful compliance with state and federal laws, and employers are advised to seek legal counsel when they develop specific legal concerns.

To seek counsel from our Hospitality & Liquor Law practice group, please reach out to request a consultation or call us at 216-696-1422.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

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The National Labor Relations Act (the “NLRA”) gives certain employees the right to organize, join unions, collectively bargain, and generally communicate with each other and work together to improve their working conditions. In its McLaren Macomb decision published last week, the Board considered the following question: by offering severance agreements to furloughed employees—which imposed non-disparagement and confidentiality obligations—did the employer unlawfully interfere with the employees’ NLRA rights?

The Board specifically reviewed severance language that (1) prevented employees from disclosing the terms of the severance agreement “to any third person” and that (2) required employees “not to make any statements to [the employer’s] employees or to the general public which could disparage or harm the image” of the employer or any of its “affiliated entities.” The Board decided that these provisions violate the NLRA because they have the capacity to restrain employees wishing to exercise their rights under the NLRA.

In reaching this conclusion, the Board explained that the contractual language was problematically broad for several reasons: the confidentiality provision would prevent communications with both former employees and the public; the non-disparagement provision did not define the term “disparagement” or explain what kinds of communication were prohibited; the severance agreement not only prohibited an employee from disparaging the employer but also prohibited disparagement of related entities; and the provisions applied indefinitely (rather than for a limited period of time). The Board further explained that such broadly worded provisions are problematic because they could restrain employees who may otherwise exercise their rights to communicate with former coworkers about working conditions or to assist the Board in NLRA investigations.

Last week’s decision serves as a disruption to previously established norms. The Board previously permitted employers to include confidentiality and non-disparagement provisions in their severance agreements, and these provisions became customary terms in severance agreements. Last week’s decision expressly overturned prior precedent.

The Board’s decision has therefore left employers with several questions moving forward. For example, if broadly worded non-disparagement and confidentiality provisions are a problem, can an employer comply with the NLRA by drafting narrower provisions? What would an appropriately narrow provision look like? What are the consequences of a problematically broad non-disclosure agreement? Will the entire agreement be unenforceable? Will the employer face liability under the NLRA?

Although these questions have not been fully answered, there are some key takeaways that can be drawn from the Board’s decision.

• First, employers should carefully determine whether a separated worker even has rights under the NLRA. The NLRA gives many employees—including non-union employees—the right to communicate and work with their coworkers to achieve better working conditions, but it does not give these rights to all workers, including supervisory employees, management employees, and independent contractors. If a separated worker does not have NLRA rights, then an employer can still freely bind the worker to non-disparagement and non-disclosure obligations.
• Second, when offering a severance agreement to an employee, an employer should consider whether non-disclosure and non-disparagement provisions are absolutely necessary. If it is not vital to include these provisions, an employer could consider foregoing their inclusion in an agreement altogether (so as to avoid any risk of an unfair labor charge).
• Third, if a severance agreement will contain a non-disclosure or a non-disparagement provision, these provisions should be drafted as narrowly as possible. They should be limited in time; they should define important terms; and they should expressly state that an employee still has the right to participate in the Board’s investigations and to freely communicate with former coworkers about workplace conditions.

The Board is expected to release additional guidance on this issue in the coming months, and McCarthy Lebit will continue to review these matters as further information becomes available. For more information or to seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

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A noncompete agreement is a binding contract that prevents workers from seeking employment with a competitor or starting their own competitive business. Under preexisting Ohio law, noncompete agreements are lawful and enforceable so long as they are reasonable in scope, which typically means they are limited in terms of: (1) time (often expiring within one to two years after the employee’s employment); and (2) geography (often applying only where the employer actually conducts business).

However, the Federal Trade Commission intends to ban noncompete agreements altogether. The major provisions of the agency’s proposed rule can be summarized as follows:

• Under the proposed rule, it would be unlawful for an employer to enter into—or attempt to enter into—a noncompete with an employee or an independent contractor;
• Employers would be required to rescind any existing noncompete agreements and inform their workers that prior agreements no longer apply; and
• Employers would be prevented from even suggesting that a worker is bound by a noncompete agreement.

The FTC’s proposed rule would have a major impact on the U.S. economy. Aside from the fact that it would supersede existing state laws regarding the enforceability of noncompete agreements, it would also directly impact millions of workers. According to the FTC, approximately 30 million workers are currently bound by noncompete provisions.

This rule does not go into effect immediately. Instead, the public is provided a 60-day period to submit comments regarding the proposed rule. Thereafter, the FTC will publish a finalized rule, which would become effective 180 days after its publication. The FTC’s proposal will generate a large number of public comments, and if finalized, will likely face legal challenges regarding its legal validity.

Proponents of the rule point out that noncompete agreements are the product of unequal bargaining power between employers and employees and can be harmful to U.S. workers. As the FTC put it: “[b]ecause non-compete clauses prevent workers from leaving jobs and decrease competition for workers, they lower wages for both workers who are subject to them as well as workers who are not.” Opponents, on the other hand, argue that the FTC’s proposed rule exemplifies governmental overreach, that it undermines employers’ and workers’ rights to freely enter contracts, and that it needlessly eliminates existing state laws regarding noncompete clauses.

For now, the FTC’s proposal is just that—a proposal that is not yet legally effective. It is therefore important to note that, at least for the time being, employers and their workers remain bound by existing noncompete agreements.

For more information or to seek counsel from our employment law group, please reach out to request a consultation or call us at 216-696-1422.

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By removing humans from part of the hiring process, employers often hope that they are also removing human prejudices and discrimination from their decision-making as well. That may not always be the case. Just this month, the Equal Employment Opportunity Commission (“EEOC”) issued guidance, warning that the use of artificial intelligence in hiring decisions “may disadvantage job applicants and employees with disabilities.”

As the EEOC explained, the Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against employees on the basis of disability. It also generally requires employers to provide reasonable accommodations to permit an applicant with a disability to apply for a job.

The EEOC warned that overreliance on technology during the hiring process may result in unintended violations of the ADA. For example, if an employer uses an automated software that screens out all applicants who have had significant gaps in their employment history, the software could be inadvertently excluding employees who stopped working to undergo treatment for a disability. Similarly, an employer that uses video interviewing software to analyze applicants’ speech patterns may unintentionally place applicants with speech impediments at a disadvantage.

Notably, the EEOC further warned that employers may be liable for discriminatory results caused by automated software, even if the software was designed, implemented, and administered by an outside vendor.

The EEOC therefore provided guidance to employers who intend to use automated software when making employment decisions. According to the EEOC, employers should:

• Determine whether their automated software was designed with individuals with disabilities in mind, and if an employee is expected to interface with the software, make the interface accessible to individuals with disabilities or present alternative interfacing formats for those with disabilities;
• Provide all applicants information about the automated software—including information about the traits/characteristics that the software assesses—and provide all applicants with instructions for requesting reasonable accommodations;
• Ensure that the automated software only screens/assesses candidates based on the abilities and qualifications that are truly necessary for the job.

The EEOC’s guidance regarding the ADA comes just a few months after it launched an initiative in October 2021 designed to “ensure that artificial intelligence and…and other emerging tools used in hiring and other employment decisions comply with federal civil rights laws.” Employers can therefore expect that the EEOC will publish further guidance regarding artificial intelligence and other federal employment laws.

For more information about the EEOC’s guidance or to seek counsel from our employment law group, please reach out to request a consultation or call us at 216-696-1422.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

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How Did We Get Here?

OSHA published its ETS on November 4, 2021. Almost immediately thereafter, several states, employers, and nonprofit organizations challenged its enforceability, and the Fifth Circuit Court of Appeals initially issued a stay of enforcement and implementation of OSHA’s vaccination/testing mandates.

However, because many different parties challenged OSHA’s ETS in many different federal courts, a special judicial panel consolidated the cases and selected the Sixth Circuit Court of Appeals—via a lottery system—to hear them all. On December 17, 2021, the Sixth Circuit lifted the Fifth Circuit’s stay.

Multiple parties immediately challenged the Sixth Circuit’s decision by filing petitions with the Supreme Court. On January 13, 2022, the Supreme Court issued its decision staying implementation of the ETS until the Sixth Circuit reaches a final conclusion on the enforceability of OSHA’s ETS.

What Was the Supreme Court Rationale?

The Supreme Court’s majority opinion concluded that (1) the parties challenging OSHA’s ETS were likely to succeed on the merits and that (2) OSHA’s enforcement of the ETS must be placed on hold until the Sixth Circuit reached a final decision on the merits.

In coming to this conclusion, the Supreme Court noted that Congress created OSHA when it passed the Occupational Safety and Health Act of 1970 (the “Act”). Therefore, OSHA only has those powers that Congress expressly provided for in the Act.

According to the Supreme Court’s ruling, the Act only permits OSHA to regulate matters of workplace/occupational safety. Although COVD-19 impacts the workplace, it is not a workplace-specific risk. Instead, it is a disease that spreads everywhere including in schools, at sporting events, and any other place where people gather. In other words, COVID-19 is a general health risk—not just an occupational risk—and it reaches areas that fall outside OSHA’s area of expertise.

As the Supreme Court put it: “Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Justices John Roberts, Amy Coney Barrett, and Brett Kavanaugh issued the Supreme Court’s decision, and Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas authored a concurring opinion.

The liberal wing of the Supreme Court—consisting of Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan—dissented. The dissenting justices indicated that the Act demands OSHA to issue emergency temporary regulations when (1) “employees are exposed to grave danger…from new hazards” and (2) an “emergency standard is necessary to protect employees from such danger.”

Noting that COVID-19 constitutes a new hazard that poses a grave danger to millions of employees and noting that tests, face coverings, and vaccinations serve as proven methods to address that danger, the dissenting justices opined that the Act actually requires OSHA to issue regulations related to COVID-19 and the workplace.

What Comes Next?

The Supreme Court’s decision is not the final word on this matter. Instead, it merely stays implementation/enforcement of the ETS until the Sixth Circuit can fully review challenges to the ETS.

The Supreme Court did opine, however, that the parties challenging the ETS were likely to prevail. For this reason, OSHA may—in an effort to address the Supreme Court’s concerns about the extent of the agency’s powers—issue a more narrow/limited set of workplace COVID-19 regulations.

More Insight from McCarthy Lebit on the “Vaccine Mandate”

Ann-Marie Ahern & Jack Moran Discuss President Biden’s Vaccine Mandate

Listen to Employment Litigators Ann-Marie Ahern and Jack Moran from a recent episode of our podcast – The More Report, Podcast Edition – as they discuss the viability of the “vaccine mandate” in the face of probable legal challenges.

Sixth Circuit’s Reversal of Fifth Circuit’s Stay of OSHA ETS

Check out the previous legal advisory from Frank George, published on December 22, 2021, to read more about details, highlights, and updates on OSHA’s ETS.

OSHA Releases COVID-19 Vaccine Rules but U.S. 5th Circuit Blocks Them

Check out the previous legal advisory from Frank George, published on November 9, 2021, to read more about details, highlights, and updates on OSHA’s ETS.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

The post LEGAL ADVISORY: Supreme Court Blocks Enforcement of OSHA ETS appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.

Although enforcement of the ETS was briefly stayed/suspended, the Sixth Circuit Court of Appeals dissolved the stay on December 17, 2021, and OSHA has published a new compliance deadline of January 10, 2022.

A Brief Recap of Legal Challenges to the ETS

OSHA issued its ETS on November 4, 2021. Almost immediately thereafter, several states and employers challenged its enforceability, and by November 12, the Fifth Circuit Court of Appeals had issued a stay of enforcement and implementation of OSHA’s vaccination/testing mandates.

Because many different parties challenged OSHA’s ETS in many different federal courts, a special judicial panel consolidated the cases and selected one federal appellate court—via a lottery system—to hear them all. The Sixth Circuit Court of Appeals won this lottery on November 16, 2021.

Then, on November 23, 2021, OSHA filed a motion with the Sixth Circuit requesting that it dissolve the stay issued by the Fifth Circuit. And, last Friday, the Sixth Circuit found in OSHA’s favor.

In reaching this conclusion, the Sixth Circuit reasoned that OSHA has the authority to regulate viruses and infectious diseases that create risks in the workplace. It further reasoned that OSHA’s ETS was enforceable, given that the agency stated sufficient justifications to conclude that COVID-19 posed a grave danger to employees.

OSHA’s Newly Published Compliance Deadlines

After the Sixth Circuit’s decision, OSHA published new compliance deadlines on its website.

The ETS generally requires employers to either institute a mandatory vaccination policy or implement weekly COVID-19 testing for unvaccinated employees. As of now, employers who intend to mandate vaccines must comply with the ETS by January 10, 2022, while employers who opt to test unvaccinated employees must comply by February 9, 2022.

It must be noted, however, that multiple parties have already challenged the Sixth Circuit’s decision by filing petitions with the Supreme Court of the United States. It is widely expected that the Supreme Court will take action by January 10, 2022, so as to provide clarity before the ETS’ current compliance deadlines.

Businesses Should Take Action and Prepare to Comply with the ETS

The Supreme Court has not rendered a final decision with respect to the ETS’ enforceability. As it currently stands, though, businesses are required to take near immediate action to comply with OSHA’s vaccination/testing mandates.

Businesses should know that the ETS requires employers to implement a mandatory vaccination policy, unless employers instead enforce a mandatory weekly COVID-19 testing requirement for unvaccinated employees. The ETS also requires businesses to maintain proof of employees’ vaccination status, provide employees paid time to receive the vaccine, implement face-covering policies for unvaccinated workers, and distribute information regarding the ETS to employees.

If your business employs at least 100 employees, McCarthy Lebit encourages you to contact our office for advice and counsel regarding your compliance with these regulations.

Update (12/23/2021): SCOTUS Agrees to Fast Track Legal Challenges to OSHA ETA

The Supreme Court of the United States announced Wednesday evening that it will hear oral arguments in cases appealing the legality of OSHA’s ETS on January 7 — a surprise expedited process that could signal the Court’s intention to act quickly to resolve the legal challenges. For the moment, the OSHA rule (and the subsequent guidance on revised compliance deadlines) remains in effect, as SCOTUS has not made any move to stay the rule, pending its own judicial review. It is not clear whether the Justices will accept any motions to reinstate the Fifth Circuit’s stay of the rule, so employers would be wise to continue making plans for compliance ahead of the January 10 deadline.

More Insight from McCarthy Lebit on the “Vaccine Mandate”

Ann-Marie Ahern & Jack Moran Discuss President Biden’s Vaccine Mandate

Listen to Employment Litigators Ann-Marie Ahern and Jack Moran from a recent episode of our podcast – The More Report, Podcast Edition – as they discuss the viability of the “vaccine mandate” in the face of probable legal challenges.

LEGAL ADVISORY: OSHA Releases COVID-19 Vaccine Rules but U.S. 5th Circuit Blocks Them

Check out Frank George‘s previous legal advisory for more details, highlights, and updates on OSHA’s ETS.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

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On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS), which applies to most businesses with 100 or more employees and introduces COVID-19 rules. These newly issued federal regulations require many employers to maintain mandatory vaccination and/or testing policies.

OSHA’s ETS became effective immediately upon its issuance, but covered employers are afforded 30 days to develop a mandatory vaccination policy and 60 days to comply with testing requirements. If your business employs at least 100 employees, McCarthy Lebit encourages you to contact our office for advice and counsel regarding these regulations. Read the full text of the rules here.

Highlights from the OSHA COVID-19 ETS

• OSHA has determined that unvaccinated workers face serious danger, that vaccinations and/or regular COVID-19 tests are necessary measures to take in order to protect against this danger, and that employers with 100 or more employees have the administrative capacity to implement vaccination and/or testing policies.
• The ETS requires employers to implement a mandatory vaccination policy, unless employers instead enforce a mandatory weekly COVID-19 testing requirement for unvaccinated employees.
• Among other things, the ETS also requires businesses to:
  • Maintain proof of employees’ vaccination status;
  • Provide employees paid time to receive the vaccine and recover from any side effects;
  • Implement mandatory face-covering policies for unvaccinated workers; and
  • Distribute information regarding the ETS to employees.

Because businesses are expected take immediate action to comply with OSHA’s newly issued ETS, contact McCarthy Lebit as soon as possible for more information.

U.S. Fifth Circuit: Not So Fast!

It took just a day-and-a-half for OSHA’s ETS to be blocked by a federal appeals court. On Saturday, November 5, a 3-judge panel from the U.S. Court of Appeals for the Fifth Circuit granted an emergency stay of the OSHA requirement that workers be vaccinated by Jan. 4 or face mask requirements and weekly tests.

In response to the ETS, more than two dozen states, businesses, business groups and religious organizations have sued, calling the rule issued by the Occupational Health and Safety Administration an overreach of government authority, with most arguing that OSHA lacks the legal standing to issue a rule in response to a society-wide health concern, and even if reducing the risk of COVID-19 “remains a compelling interest,” it is not necessarily a “grave danger” as OSHA has declared it to be. The plaintiffs also questioned the timing of the rule, coming more than a year-and-a-half into the pandemic, when many employers have already implemented safety measures and COVID cases are falling.

In issuing a stay on Saturday, the 5th Circuit Court of Appeals, based in New Orleans, said the petitions “give cause to believe there are grave statutory and constitutional issues with the Mandate.”

Biden Administration Response Late Monday

In an expedited reply to the motion for a permanent injunction Monday, Biden administration officials warned that maintaining the stay “would endanger many thousands of people,” as the death toll from COVID continues to hover around 1,300 people per day nationally.

“With the reopening of workplaces and the emergence of the highly transmissible Delta variant, the threat to workers is ongoing and overwhelming,” the administration argued, while dismissing the legal objections that led to the stay as lacking merit. In fact, the White House is urging companies to ignore the stay and continue implementing rule compliance.

What’s Next For the Legal Challenges?

Because there are challenges to the OSHA rule in multiple circuit courts — including the 5th, 6th, 7th, 8th, 11th and D.C. Circuits, federal law dictates that the cases be consolidated and heard by one federal appeals court, chosen by lottery. That lottery could take place on or around Nov. 16, according to the U.S. Department of Justice. Ultimately, the case could end up at the Supreme Court. Meanwhile, petitioners in the Fifth Circuit Case have until 5pm Tuesday, November 9 to file a reply to the government’s response.

UPDATE (11/12/2021): Fifth Circuit Stays Biden Mandate

On Friday, November 12, the Fifth Circuit Court of Appeals agreed to issue a stay of enforcement and implementation of the OSHA’s ETS.  In their 22-page opinion and ruling, the Court made reference to several reasons why the ETS should be stayed pending additional review, including suggesting that the ETS was unconstitutional under the Commerce Clause and non-delegation doctrine. Even if the ETS could survive a constitutional challenge, the court went on to hold that COVID-19 was not the proper subject of emergency administrative action by OSHA. Pending further review, this ruling effectively invalidates the ETS, since OSHA is now barred from implementing or enforcing the standard.

UPDATE (11/16/2021):  Six Circuit Wins Lottery to Hear Consolidated Challenge to OSHA ETS

The U.S. Judicial Panel on Multidistrict Litigation held a lottery on November 16 that named the Sixth Circuit Court of Appeals, an overwhelmingly  conservative court (11 of 16 sitting Judges were appointed by Republicans), will take up the 34 lawsuits now consolidated into one case.  The Court has not yet scheduled oral arguments or assigned judges who will hear the cases, though at least one challenger has filed for en banc consideration by the Court – meaning the entire bench of 16 judges would hear the cases.

It is not immediately clear whether the transfer of the cases will override the injunction issued by the Fifth Circuit. Still, because the ETS is not scheduled to go into effect until January 4, 2022, there is no change to existing policy at this time.

Update (11/17/2021): OSHA Suspends Enforcement of ETS Pending Judicial Review 

In perhaps the first sign by the Biden administration that they may not emerge victorious from the mounting legal challenges to the ETS after the 6th Circuit Court of Appeals was awarded the consolidated legal challenges via a lottery of the courts conducted by the Department of Justice, OSHA has announced they are officially suspending enforcement of the ETS pending further judicial review.

What Can/Should You Do Next?

As with all things COVID, uncertainty is the only certainty today.  Employers should stay up to date on litigation developments and continue to prepare themselves for the possibility of the ETS going into effect in the near future. Essentially, employers should continue preparing final vaccination policies, compliance policies, communications plans, and a process to track and store confidential details about an employees’ vaccination status.

That said, federal contractors and healthcare employers should continue to comply with their separate federal COVID-19 requirements, which have not been stayed in the OSHA ETS litigation.  If you’re in doubt about where your business falls, please reach out to any of our employment law attorneys for a consultation.

More Insight from McCarthy Lebit on the “Vaccine Mandate”

Ann-Marie Ahern & Jack Moran Discuss President Biden’s Vaccine Mandate

Listen to Employment Litigators Ann-Marie Ahern and Jack Moran from a recent episode of our podcast – The More Report, Podcast Edition – as they discuss the viability of the “vaccine mandate” in the face of probable legal challenges.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

The post LEGAL ADVISORY: OSHA Releases COVID-19 Vaccine Rules but U.S. 5th Circuit Blocks Them appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.

Rather than paying tipped employees the federal minimum wage of $7.25 per hour, employers can lawfully count a portion of an employee’s tips toward the minimum wage.  This is referred to as taking a “tip credit,” and the Fair Labor Standards Act (FLSA) currently permits employers to take a maximum tip credit of $5.12 per hour—meaning they are only obligated to pay their tipped employees a direct hourly wage of $2.13.

What happens, though, when an employee serves more than one function?  What if, for example, a restaurant employee spends one part of his or her shift waiting tables and another part clearing and washing dishes?  Can an employer claim a tip credit even when the employee is performing work for which he or she does not typically receive customer gratuities?

The DOL’s proposed rule addresses these questions.

The proposed regulation permits an employer to take a tip credit for employees who perform some work that produces tips and some work that “directly supports the tip-producing work”—but only so long as the “supporting work is not performed for a substantial amount of time.”  The DOL further explains that an employee performs tip-supporting work for a substantial period of time when the work either exceeds 20 percent of the employee’s shift or is performed for a continuous period of time exceeding 30 minutes.

The DOL’s proposed rule is not without controversy.  In fact, it seeks to reverse employer-friendly regulations recently developed under the Trump administration, which permit employers to take a credit for tipped employees performing some non-tipped work (so long as the non-tipped duties were performed for a reasonable time immediately before or after the tipped duties).

Advocates of the DOL’s proposed rule note that it protects workers: it places clear limits on when an employer can take a tip credit and therefore prevents employers from shorting an employee’s wages by shifting a lot of non-tipped work to tipped employees.  Opponents point out, however, that the regulation imposes a substantial burden on companies and requires employers to track tipped employees’ job duties down to the minute.

The DOL’s proposed rule will not be finalized until sometime after August 23, 2021,when the period for public comment on the regulation comes to a close.  The DOL’s rulemaking can nonetheless serve as an immediate reminder to employers to review current FLSA requirements—which relate to minimum wage obligations, overtime premiums, and record-keeping requirements.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

The post Department of Labor Issues Proposed Rule Regarding Tipped Employees appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.