2021 has been another roller coaster in the world of employment law. See where things stand at the end of the year, both nationally and in our region:
Supreme Court to hear challenges to COVID-19 Vaccine mandates in early January
Arguments in the lawsuits seeking to block the Biden administration’s vaccine mandate for private employers will be heard by the U.S. Supreme Court on January 7, 2022. At issue is the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) requiring businesses with at least 100 employees to ensure workers are vaccinated against the coronavirus or to wear masks and undergo weekly COVID-19 testing. A federal appeals court had temporarily blocked the rule, but the 6th Circuit Court of Appeals lifted the stay on Dec. 17 in a consolidated action. Consequently, employers will have to comply with the ETS unless the Supreme Court rules otherwise. The start date for the testing requirement has been extended to Feb. 9, but other components of the ETS take effect on Jan. 10, including the requirement for employers to determine the vaccination status of each employee and develop a written policy.
Another mandate being ruled upon comes from the Centers for Medicare & Medicaid Services (CMS), which requires COVID-19 vaccination for staff employed at Medicare- and Medicaid-certified providers and suppliers. Through various legal challenges, this requirement remains blocked in 25 states. The U.S. Department of Justice (DOJ) has asked the Supreme Court to reinstate the rule nationwide.
2 Key employment cases in the 3rd Circuit in 2021
PA Union Defeats Post-Janus Challenge to Membership Dues
Early in 2021, the 3rd Circuit Court of Appeals (which encompasses Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands) made a key pro-union ruling in the wake of the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME. In Janus, the U.S. Supreme Court ruled that public workers who decline to join unions can’t be forced to pay the unions fees. In the 3rd Circuit case, an employee who works for a Scranton, PA Public Library resigned from the union post-Janus, and attempted to assert a class action for a refund of the “compulsory” dues she paid before Janus. The 3rd Circuit rejected the challenged, finding the employee’s “claimed injury of economic loss occurred not because of the union’s actions toward nonmembers but because of her decision to join the union”. Thus, the 3rd Circuit decision should insulate unions from future challenges seeking recovery of fees from members who withdraw following Janus. Non-union members who were forced to pay union-related fees may theoretically still a viable cause of action.
3rd Circuit tosses pro-business ruling in Fight Over Pennsylvania’s COVID-19 Mandate
In 2020, a Pennsylvania U.S. District Judge ruled that Governor Tom Wolf’s pandemic stay-at-home orders, limits on crowd size, and business closures, were overreaching and arbitrary and violated citizens’ constitutional rights. In August, 2021, the 3rd Circuit dismissed a judge’s ruling, saying the case became moot because the statewide mitigation measures expired and because Pennsylvania voters had since constrained a governor’s emergency powers through amendments to the state constitution. While the 3rd Circuit’s decision effectively erases a pro-business precedent, the challenge continues. The businesses are seeking review from the U.S. Supreme Court, which their legal counsel has explained: “We think it is crucial that the Supreme Court take this case because the issue of unfettered executive authority during a pandemic remains very much an ongoing issue”.
Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment. Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.
