Author Archives: admin

November 3, 2021

Making Room for Vaccinated, Unvaccinated Employees Under Same Roof

Steve Gutierrez

Question: We aren’t sure we want to permit someone who isn’t vaccinated to work closely with us and are particularly concerned because the unvaccinated employee is sitting next to an enclosed area with a fully vaccinated individual who has an immunocompromised infant. How do we protect the vaccinated employee and her infant when we cannot say who is/is not vaccinated because of the Health Insurance Portability and Accountability Act (HIPAA)?

Answer: These are good questions to ask and should be part of the interactive process with the unvaccinated employee to see if there’s a reasonable accommodation that doesn’t pose an undue hardship. Additionally, under the present circumstances, the unvaccinated employee may be considered a “direct threat” that cannot be eliminated or reduced by reasonable accommodation. Read more >>

November 2, 2021

Federal Contractors Offered Some Flexibility to Implement COVID-19 Vaccine Mandate

by Shaun C. Kennedy and Ryan K. Lundquist

Shaun Kennedy

The implementation of President Biden’s Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO”) continues to evolve and will likely be refined and updated over the coming weeks and months. In a prior alert, we covered guidance issued by the Safer Federal Workforce Task Force’s (the “Task Force”) on September 24, 2021 detailing requirements for implementation of the EO.

On November 1, 2021, the Task Force released additional FAQs to clarify its prior guidance. We highlight below some of the key takeaways from the recently released FAQs:

Ryan Lundquist

1. Is a 100% vaccination rate required by December 8, 2021?

In what will likely be welcome relief, the FAQs introduced a certain degree of flexibility for covered contractors to comply with the EO’s vaccination requirements.

The FAQs instructed agencies to assess the degree to which a covered contractor is taking good faith steps to comply with the EO. When a covered contractor is working in good faith toward enforcing compliance with the EO and workplace safety protocols, the agency “should work with them to address the challenges.” However, where the agency determines a contractor is not “taking steps” to comply, the contracting officer should take “significant actions, such as termination of the contract.” Read more >>

September 10, 2021

Vaccine Mandates Q&A

By Mickell Jimenez, Tyson Horrocks, and other Co-Authors

On September 9, 2021, President Biden issued two executive orders in conjunction with the Path out of the Pandemic, President Biden’s COVID-19 Action Plan (collectively, the “President’s Action Plan”), providing new COVID-19 vaccination requirements, which may affect you and your business. Since the President’s announcement, we have received numerous questions from employers across the spectrum. This article unpacks the White House’s latest efforts as employers continue to navigate the ever-changing COVID and vaccination landscape. Read more >>

September 7, 2021

Employers Consider Raising Premiums for Unvaccinated Workers

by Beth Nedrow

Beth Nedrow

Employers are impacted in many ways by the COVID-19 pandemic, not the least of which are employee health and safety. For the last several months, employers have used mostly soft-sell approaches to encourage their employees to get vaccinated. With the FDA’s approval, employers are showing a willingness to move beyond incentives like gift cards. One of the more notable examples in the headlines lately is Delta Airlines’ decision to implement a premium surcharge on unvaccinated workers. Employees who don’t get the jab will have to pay more in premiums under the Airlines’ medical plan. Read more >>

September 2, 2021

26 Holland & Hart Lawyers Recognized by 2022 Best Lawyers in America and Best Lawyers: Ones to Watch

The Labor & Employment team at Holland & Hart LLP is proud to announce that three of the group’s lawyers were named 2022 Best Lawyers® “Lawyer of the Year”:

Bryan Benard named the Best Lawyers 2022 Labor Law – Management “Lawyer of the Year” in Salt Lake City
Brian Mumaugh named the Best Lawyers 2022 Labor Law – Management “Lawyer of the Year” in Denver
Dean Bennett named the Best Lawyers 2022 Employment Law – Management “Lawyer of the Year” in Boise

August 4, 2021

Denver’s New Vaccine Mandate For Some Private-Sector Employers: Are you prepared?

by Laurie Rogers

Laurie Rogers

Colorado employers already grappling with mandatory paid sick leave and complex job posting requirements may now be obligated to implement mandatory vaccination policies for their employees.

On Monday, August 2, 2021, Denver Mayor Michael Hancock announced a mandatory vaccination requirement for the City’s 10,000-plus workers and certain private-sector workers in high-risk settings. Denver is the first major U.S. city to mandate COVID-19 vaccinations for private-sector employees. The City’s Department of Public Health & Environment (“DDPHE”) claims that, as the accredited public health agency for the City and County of Denver, it has the authority to mandate vaccinations to protect the public from immediate and imminent risk to its health and safety. See City of Denver FAQs.

July 29, 2021

You Likely Don’t Have to Reimburse Remote Workers for Furniture Expenses

By Mark Wiletsky

Mark Wiletsky

Question: For employees working from home, we currently don’t provide reimbursement for furniture without a doctor’s note stating a need for an ergonomic chair or desk. If we require someone to work from home more than half the time, do we have to purchase an ergonomic chair other than for Americans with Disabilities Act (ADA) purposes?

Answer: Probably not. You’re correct that the provision of specialized equipment (including, potentially, an ergonomic chair or special desk) can be considered a reasonable accommodation under the ADA, but you likely have no obligation to provide such equipment to employees unless they are disabled within the meaning of the Act and you determine through the interactive process the equipment requested may reasonably accommodate their disabilities by allowing them to
perform the essential job functions.

June 25, 2021

Pay Up: Colorado Supreme Court Clarifies Vacation Payout Obligations

By Steve Gutierrez

Steven Gutierrez

Colorado law has long been unsettled as to whether employers must pay out accrued but unused vacation time at separation of employment where the employer’s vacation policy recites that vacation time need not be paid out at separation (e.g., because certain conditions, like voluntary separation, or the employee’s provision of two weeks’ notice, are not satisfied). But no longer. The Colorado Supreme Court decided a case on June 14, 2021, addressing this issue head-on, and held that “all earned and determinable vacation pay must be paid upon separation and that any agreement purporting to forfeit earned vacation is void.” The Supreme Court’s decision also appears to invalidate “use-it-or-lose-it” vacation policies in Colorado going forward.

Background on Nieto v. Clark’s Market

The Supreme Court’s decision arose from the case of Nieto v. Clark’s Market, in which an employer declined to pay an employee’s accrued but unused vacation time at separation of employment because the employee had been discharged, and the employer’s vacation policy provided that, “[i]f you are discharged for any reason or do not give proper notice, you will forfeit all earned vacation pay benefits.” The employer argued that the terms of this vacation policy controlled whether accrued but unused vacation time must be paid out at separation of employment, and the employee argued that, under the Colorado Wage Claim Act (“CWCA”), vacation time which is earned and determinable must always be paid out at separation – regardless of what the employer’s vacation policy says about such payout. Read more >>

June 23, 2021

How to Legally Focus on Diversity, Equity and Inclusion in the Workplace

By Bryan Benard

June brings the confluence of Pride Month as well as the newly minted federal holiday, Juneteenth. Over the last few years, as social justice issues have been at the forefront, many companies have published statements or made pledges committing support to such important topics and issues.

The struggle for employers has always been turning words into action, in a fair, supportive, helpful, and legal way. There are potential pitfalls for employers as they look to increase diversity and inclusion in the workplace, and try to iron out potential equity issues with respect to pay, promotions, and benefits. Employees are also increasingly looking for ways to voice their opinions—and employers are required to balance the broad spectrum of such opinions.

June 21, 2021

Unpacking OSHA’s Historic Emergency Temporary Standard and Updated COVID-19 Guidance

By Robert Ayers

On June 10, OSHA announced two significant developments in the ongoing saga of COVID-19 restrictions in the workplace. First, OSHA issued an emergency temporary standard (ETS) applicable to healthcare settings. Second, OSHA updated its COVID-19 guidance for all other non-healthcare settings.

Healthcare ETS

The ETS represents the first set of requirements issued by federal OSHA in response to COVID-19. Prior to the ETS, OSHA had only issued non-binding guidance. While the ETS has been expected for months, what is surprising is its scope. Instead of applying to all industries or select high-risk industries, the ETS only applies to “settings where any employee provides healthcare services or healthcare support services.”