November 15, 2021

Utah’s New Law on Employer Vaccination Policies: What Employers Need to Know

Bryan Benard

On November 16, 2021, Governor Spencer Cox signed into law SB2004 “Workplace COVID-19 Amendments,” a bill passed during a special session of the Utah Legislature. While the bill was introduced in response to vaccine mandates contained in the Executive Orders of President Biden and the special rule or ETS from the Occupational Health and Safety Administration (“OSHA”) (which has now been stayed by the federal courts), this new law nonetheless carries significant legal requirements for Utah employers. The bill became immediately effective yesterday upon the Governor’s signature without giving employers any lead time to prepare or change policies/processes. This law does not apply to any “person” that is regulated by the Centers for Medicare or Medicaid Services related to COVID-19 (unless a state entity) or that is a federal contractor.

Kody Condos

At a high level, the bill:

(1) requires that any employer vaccination mandate include exemptions for a) health reasons; b) sincerely held religious beliefs; and c) “sincerely held personal beliefs”;

(2) prohibits employers from taking any adverse action against an employee or potential employee who is not vaccinated or asks for an exemption;

(3) requires employers to pay for any COVID testing requirements; and

(4) prohibits employers from retaining a copy of any vaccination documents but allows employers to keep a record of whether an employee is vaccinated. Read more >>

November 10, 2021

The Disappearing Future of Non-Compete Agreements

By Jeremy Ben Merkelson, Tyson Horrocks, S. Jordan Walsh, Shaun Kennedy, and Brit (Brittany) Merrill

ERE Recruiting Intelligence

Republished with permission ERE Media, Inc. Originally appeared in the November 10, 2021 online edition of ERE.net

For the last two decades, with the principal exception of California and a handful of other jurisdictions, non-competition covenants have been a standard component of the defense architecture for U.S. companies to protect valuable confidential information and trade secrets from falling into the hands of a competitor. Over time, though, this tool has been dramatically curtailed.

Hostility to non-competition agreements is growing. In July, President Biden deputized the Federal Trade Commission (FTC) to explore nationwide restrictions on their use. Additionally, in the last five years, state-law restrictions on entering into non-competition agreements with low-wage earners have been adopted in Illinois, Maine, Maryland, New Hampshire, New York, Rhode Island, Virginia, and Washington (and the District of Columbia will see new restrictions take effect in April 2022). Read more >>

November 5, 2021

New OSHA and CMS COVID-19 Vaccination & Testing Mandates: What Employers Need to Know

By Mickell Jimenez, Robert Ayers, Tyson Horrocks, Kody Condos, and Curtis Greenwood

Today, the Department of Occupational Safety and Health Administration (OSHA) issued its Covid-19 Vaccination and Testing Emergency Temporary Standard (ETS) and the Centers for Medicare & Medicaid Services (CMS) issued its Interim Final Rule (the “Interim Rule”), nearly two months after 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. While there is some overlap between the standards, we will address the ETS and Interim Rule separately. We recommend that you contact your employment and healthcare attorneys for additional guidance. Read more >>

November 5, 2021

NLRB Landscape Shifting (Again) for Nonsolicitation, Other Workplace Policies

by Steven Gutierrez

Steven Gutierrez

It should come as no surprise that President Joe Biden’s appointment of Jennifer Abruzzo as General Counsel (GC) of the National Labor Relations Board (NLRB) would effectively shift the NLRB to a prounion majority. Ever since the new Board took control, we’ve advised employers to brace for widespread rollbacks of gains they saw in the traditional labor area under the Trump administration (see “Changing of the guard: NLRB precedent under Biden administration”). In that regard, Abruzzo expressly warned employers she intends to return to the prounion agenda seen during the Obama years.

NLRB analysis of employer handbooks

One of the more controversial shifts by President Barack Obama’s NLRB was its attack on employers’ facially neutral workplace rules. For example, in Chipotle Services LLC, the Board used its 2004 precedent in Lutheran Heritage to invalidate employer rules directing employees to delete social media posts about their wages or other terms or conditions of employment. Read more >>

November 3, 2021

Making Room for Vaccinated, Unvaccinated Employees Under Same Roof

by Steven Gutierrez

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 23, 2021

California Employers in Limbo Again on Mandatory Arbitration

Ninth Circuit Upholds AB 51, More Litigation Anticipated

By Dora Lane

Dora Lane

For years, California has looked for ways to preclude employers from requiring that employment disputes be resolved through arbitration and/or placed obstacles to the enforcement of arbitration agreements. In yet another effort to do so, in 2019 the California Legislature enacted AB 51, which makes it unlawful for employers to require that, as a condition of employment, continued employment, or receipt of an employment-related benefit, any applicant or an employee waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act or the California Labor Code, “including the right to file and pursue a civil action or a complaint with, or otherwise notify, any state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity of any alleged violation.” AB 51 also makes it unlawful to threaten, retaliate, terminate, or discriminate against an applicant or employee because they refuse to consent to such a waiver. Prevailing plaintiffs can obtain injunctive relief, other remedies, and attorney’s fees. 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