Vaccine Litigation Heads Towards the Supreme Court

Petitions seeking review of different circuit court decisions challenging vaccine requirements issued by the Biden Administration have been filed with the United States Supreme Court. The Equal Employment Opportunity Commission (EEOC) continues to provide COVID-19 guidance, with its most recent release focusing on when COVID-19 constitutes a disability. The Labor Department finalized its regulations concerning the minimum wage for federal contractors and announced that it intends to revise the FLSA salary basis test. Three federal agencies will be working together on a joint initiative to raise awareness about retaliation issues when workers exercise their protected labor rights.

Sixth Circuit Reinstates OSHA’s Emergency Temporary Standard – The United States Court of Appeals for the Sixth Circuit dissolved the stay issued by the United States Court of Appeals for the Fifth Circuit in a case challenging the emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). The ETS would require employees working for organizations with at least 100 employees either to be vaccinated or wear masks and be tested weekly. The Sixth Circuit was chosen by lottery to review the multiple cases that were filed in different judicial circuits.

The Sixth Circuit stated that “the costs of delaying implementation of the ETS are comparatively high. Fundamentally, the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs. In a conservative estimate, OSHA finds that the ETS will save over 6,500 worker lives and prevent over 250,000 hospitalizations in just six months.” Petitions have been filed with the US Supreme Court seeking to reinstate the stay against implementation of the ETS. Following the Sixth Circuit’s ruling the Labor Department announced that it was delaying implementation of the ETS until February 9th.

The United States Court of Appeals for the Fifth Circuit ruled that the nationwide temporary injunction that a US District Court put in place in a case challenging the Biden Administration’s requirement that health care workers be vaccinated against the coronavirus if they work at facilities participating in Medicare and Medicaid was too broad. It reduced the temporary injunction to the fourteen states that joined the lawsuit. Another US District Court had issued a temporary injunction that applies in an additional ten states. The Biden administration petitioned the US Supreme Court seeking a lifting of the temporary injunction. The US Supreme Court will hold oral argument on January 7th on both the OSHA ETS and the healthcare workers vaccine requirement cases.

EEOC Issues Guidance on When COVID-19 Constitutes a Disability – The Equal Employment Opportunity Commission (EEOC) has updated its guidance by adding a new section N designed to provide information on when COVID-19 would be a disability under the Americans with Disabilities Act (ADA) and other laws.  According to EEOC Chair Charlotte A. Burrows, “Like effects from other diseases, effects from COVID-19 can lead to a disability protected under the laws the EEOC enforces. Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible for reasonable accommodations.”

The EEOC notes that any of the following three ways would be sufficient for a person to be considered having a disability:

  • Having an actual disability that substantially limits a major life activity,
  • Having a history or record of an actual disability, or
  • Being regarded as an individual with a disability.

Whether COVID-19 constitutes a disability requires an individualized consideration as to whether the effect of the virus substantially limits a major life activity. The guidance states that “A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks – with no other consequences – will not have an actual disability within the meaning of the ADA.”

The EEOC cited examples of impairments resulting from COVID-19 that substantially limits major life activities including:

  • Ongoing but intermittent headaches, dizziness, brain fog, and difficulty remembering or concentrating,
  • Shortness of breath, heart palpitations, chest pains and other virus-related effects that last for several months, and
  • Intestinal pain and nausea that last for several months.

COVID-19 also could cause impairments such as heart inflammation, strokes, or diabetes that are considered disabilities under the ADA since they limit major life activities. The EEOC advised that “An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious, and therefore medically able to return without posing a direct threat to others.” The EEOC indicated that the Department of Justice and the Department of Health and Human Services have issued guidance on long COVID as a disability.

Labor Department Finalizes Contractor Minimum Wage Rule – The Department of Labor has finalized the rule implementing an Executive Order increasing the minimum wage for workers on federal contracts to $15 per hour effective January 30, 2022. In future years, the minimum wage will be adjusted based on inflation. The rule will eliminate the tipped minimum wage for federal contract workers by 2024.

A lawsuit has been filed in the United States District Court for the District of Colorado seeking a preliminary injunction and to invalidate the rule entirely. The plaintiffs are companies that hire outfitters and guides that provide services such as rafting trips on federal lands through special use permits.

Labor Department Plans to Revise FLSA Salary Basis Test – The Labor Department announced in its most recent regulatory agenda that it intends to review and update the salary basis test included in the Fair Labor Standards Act (FLSA) regulations. According to the Labor Department, “One of the primary goals of this rulemaking would be to update the salary level requirement of the section 13(a)(1) exemption.” This section of the FLSA provides an exemption from overtime pay for executive, administrative, and professional employees. The salary basis test was increased effective January 1, 2020, to at least $684 per week or $35,568 per year.

The Labor Department has established April 2022 as the tentative date for the issuance of proposed regulations.

Three Agencies Announce Joint Initiative – The U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) announced a joint initiative to raise awareness about retaliation issues when workers exercise their protected labor rights. The initiative will include collaboration among these agencies to protect workers from unlawful retaliatory conduct, educate the public and engage with employers, business organizations, labor organizations and civil rights groups. Through this initiative, the three agencies seek to ensure they cooperate effectively and efficiently to enforce related laws and protect workers’ rights. EEOC Chair Charlotte Burrows stated, “Charges alleging retaliation have increased as a percentage of the total number of charges filed with the EEOC every year for the last 20 years. Together, working with our interagency partners and with employers, we must tackle this urgent problem and help ensure that employers have effective strategies for taking immediate action to stop retaliation.”

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at