Over the last few months, manufacturers have been paying close attention to two COVID-19 vaccination mandates issued by the federal government pertaining to employers.  First, on September 9, 2021, President Biden issued an Executive Order which imposed several COVID-19 safety standards and protocols, including mandatory vaccination, upon certain federal contractors and subcontractors.  Second, at the direction of the White House, the Occupational Safety and Health Administration (OSHA), on November 5, 2021, published an emergency temporary standard (ETS), to minimize the risk of COVID-19 transmission in the workplace which included a mandatory vaccination or COVID-19 testing protocol for employers with 100 or more employees.  What is the current status of these mandates and what, if anything, should employers be doing to prepare for, and comply with, them?

With regard to the Executive Order pertaining to federal contractors and subcontractors, covered contractor employees must be “fully vaccinated” by January 18, 2022, according to guidance issued by the White House’s Safer Federal Workforce Task Force.  Therefore, by that date, such employees must be fully vaccinated and have submitted appropriate documentation to their employer, or requested and been granted a medical or religious exemption from such vaccination. Covered federal contractors and subcontractors must also ensure that all employees and visitors comply with the Centers for Disease Control and Prevention’s guidance on physical distancing and masking while in the workplace, among other measures.  This mandate is currently in effect and the relevant federal agencies have been in contact with a number of covered contractors and subcontractors as it relates to their federal contracts.  Therefore, covered employers should consider implementing policies and procedures to meet these compliance requirements including a process for gathering requests for medical and religious exemptions from vaccination, collecting appropriate vaccination documentation, implementing additional safety measures for unvaccinated employees, among other actions.  It is important to note that under this mandate, there is no COVID-19 testing alternative to mandatory vaccination although testing may be used as an additional safety measure for employees who are granted a medical or religious exemption from vaccination.  Additionally, workplaces that are covered by this mandate are exempted from the OSHA ETS.

With regard to the OSHA ETS impacting employers with 100 or more employees, which required covered employers to mandate COVID-19 vaccination or weekly testing of their employees, that standard faced a number of legal challenges after it was issued.  Following the initial challenges, the U.S. Court of Appeals for the Fifth Circuit issued an order to stay implementation and enforcement of the standard on November 12, 2021; after the Court’s order, OSHA suspended any activities related to implementation and enforcement of this standard.  Petitions for review of the OSHA ETS were filed across the country and these petitions were consolidated and will be heard by the Sixth Circuit.  At this time, this standard is not in effect.  At this time, employers with 100 or more employees are not required to comply with this order but should consider collecting documentation of vaccination from employees, even if they choose not to require vaccination, in order to prepare in the event that the OSHA ETS survives the various legal challenges; such employers may also wish to determine how they will comply if this standard survives and the timing and actions that will be required in order to do so.

This issue is changing weekly, if not daily, so covered employers should remain vigilant in following developments, legal changes and guidance, and court decisions that may impact their compliance efforts.  Employers that have questions about the status of the two mandates and their applicability should seek legal counsel.

Thank you to Jonathan Schaefer for his contributions to this post. Jon focuses his practice on environmental compliance counseling, occupational health and safety, permitting, site remediation, and litigation related to federal and state regulatory programs.

Unless you’ve been living under a rock, you know that OSHA issued its long-anticipated COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) at the end of last week. The ETS requires covered employers to either (1) develop, implement, and enforce a mandatory vaccination policy or (2) allow unvaccinated employees to test regularly and be subject to a mask policy. The ETS also contains COVID-specific recordkeeping, reporting, and training requirements. Most requirements in the ETS were set to go into effect by December 5. But by the time we finished reading the 154-page rule, the Fifth Circuit had stayed its implementation.

There is no doubt the legal landscape surrounding the ETS will have changed by the time you read this post. But regardless of what is happening in the courts, it is important for manufacturers to understand the scope and applicability of the rule. It could be back in effect as quickly as it was stayed, and the compliance timelines, at least in the originally published rule, were tight.

General Applicability

Generally, the ETS applies to all private employers with a total of 100 or more employees at any time the ETS is in effect. There are several exemptions and nuances to this applicability. For starters, any employer already subject to one of the following requirements, is not covered by the ETS:

In counting to 100, it is important to note that all employees are counted across all of the company’s locations in the United States. This includes part-time, seasonal, and work from home employees; those that do not report to a workplace; and those that work exclusively outdoors.

Mandatory Vaccination Policy or Testing/Masking Requirement

As promised, the ETS requires covered employers to either (1) require employees to be vaccinated, or (2) develop a testing program for unvaccinated employees that includes wearing face coverings. Employers choosing the mandatory vaccination option must allow employees to claim exemptions for disabilities, sincerely held religious beliefs, and medical necessity. Employers that opt for the testing/face covering option will be required to track the status of unvaccinated employees and their testing results, monitor face covering compliance, and determine whether the employer is responsible under other laws, regulations, or collective bargaining agreements to pay for the testing.

OSHA’s COVID-19 Vaccination and Testing ETS website has sample templates for both a mandatory vaccination policy and a vaccination or testing and face covering policy.

Regardless of the type of policy put in place, covered employers will be required to determine the vaccination status of each covered employee. Unlike the rules for determining whether you have 100 or more employees, for the vaccination determination requirement, covered employees do not include those that work from home, remotely, or exclusively outdoors.

Employers must provide accommodations for previously unvaccinated employees to get vaccinated, including up to 4 hours paid time, including travel time, at the employee’s regular rate of pay, as well as reasonable time and paid sick leave to recover from any side effects associated with the vaccinations.

Employers that choose mandatory vaccination will likely have a number of employees that qualify for one of the exemptions described above. In those instances, OSHA encourages the employer to find the safest work option, such as remote work. However, OSHA also assumes that many of these employees will be subject to testing to allow their employers to comply with the ETS. If so, an employer that chooses mandatory vaccination to avoid the logistical issues associated with testing might find themselves in that position anyway.

Information Requirements

Covered employers must provide each covered employee with information, in a language and at a literacy level that the employee understands, regarding:

  • the requirements of the ETS;
  • workplace policies and procedures established to implement the ETS;
  • vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”);
  • OSHA’s protections against retaliation and discrimination; and
  • laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Recordkeeping and Reporting

The ETS will also impose specific reporting obligations for COVID-19 fatalities and hospitalizations upon covered employers. These reporting obligations largely track employers’ existing reporting obligations found in 29 C.F.R. § 1904.39, except that, with regard to COVID-19 fatalities and hospitalizations, OSHA has eliminated the requirement that, to be reportable, the fatality must have occurred within 30 days and the hospitalization must have occurred within 24 hours of the work-related incident. Because COVID symptoms can be delayed, OSHA did not feel a temporal reporting restriction was appropriate.

While the timeline to comply with the ETS is in flux, it is important to stay on top of developments to ensure that you have sufficient time to react and be in compliance when and if the ETS takes effect.

This week’s post was co-authored by Robinson+Cole Labor and Employment Group lawyer Emily A. Zaklukiewicz.

As 2021 comes to an end, many employers are preparing to meet record and reporting obligations. For employers with 100 or more employees who are required to file the EEO-1 Component 1 Report (EEO-1 Report) annually, this may involve ensuring that the relevant personnel information is accurate. While the annual deadline for submitting the EEO-1 Report is typically March 31 (subject to change and extension), employers must generally choose a “snapshot” period for their EEO-1 Report by selecting one pay period in the fourth quarter of the relevant survey year (i.e., the year prior to submission). One issue related to reporting obligations that has arisen in recent years is how to properly report employee with non-binary genders on the EEO-1 Report. Continue Reading Reminder to Employers Regarding EEO-1 Reporting Obligations

All manufacturers are generally tired of hearing about supply chain problems. These days companies are looking for ways to mitigate shipping delays (i.e., can we ship to a port other than Long Beach?) and the increased cost for raw materials.

Interestingly, I am starting to see consumer product companies and business-to-business manufacturers use similar language to address these issues.

Consumer Product Example for Shipping Delays:

“We are currently experiencing a high volume of orders and shipping may be delayed as a result.”

B2B Manufacturer Example for Shipping Delays:

“All existing valid quotations may be subject to additional lead time.”

B2B manufacturers are also dealing with the volatility in the cost and availability of raw materials. As a result, some companies are adding language like this to their contracts and terms and conditions of sale:

“Due to the volatility in the price and availability of raw materials, Manufacturer reserves the right to pass along subsequent price increases and surcharges from our vendors without further notification.” 

Our Reaction:

As manufacturing industry lawyers, we understand the objective of adding such language. If you are considering adding such language, you should keep two things in mind:  (1) consider whether the additions are actually in line with basic tenets of contract law (i.e., are you adding additional terms after the contract was accepted by the customer?); (2) consider the optics of telling all your customers in standard language that you may be late. For these reasons, manufacturers should consider managing these issues on a case-by-case basis – with assistance from legal counsel, as needed.

Last week, a shareholder of Danimer Scientific, Inc., filed a derivative suit against the company’s executives and board members, alleging that overstated sustainability claims led to millions of dollars in market capitalization losses.

Danimer manufactures polymers, resins, and plastic alternatives that are used in a number of plastic products. The complaint alleges that the company repeatedly touted the biodegradability of these products, as well as their ability to reduce plastic use and pollution. For one product in particular, Nodax, Danimer claimed that it was fully degradable within 12 to 18 weeks after being discarded. According to a Danimer press release, Nodax is a “100% biodegradable, renewable, and sustainable plastic . . . certified as marine degradable, the highest standard of biodegradability, which verifies the material will fully degrade in ocean water without leaving behind harmful microplastics.” The company made similar representations in an SEC Form S-1 registration statement.

Shortly after these statements went public, The Wall Street Journal published a detailed article refuting Danimer’s biodegradation claims. The article cited experts that were skeptical of whether Danimer’s products could really degrade as quickly as advertised under real-world conditions. The article noted that things like ocean temperature, microorganism variation, and plastic shape and size, will all impact biodegradability and may result in significantly longer timelines for degradation.

The next trading day, Danimer’s stock price dropped by almost 13 percent.

After The Wall Street Journal article was published, Spruce Point published additional reports further supporting the notion that Danimer’s biodegradability claims were too good to be true. The company’s stock price further dropped in the wake of these reports.

Plaintiff, a Danimer stockholder, filed the derivative suit against the company’s CEO and Chairman of the Board, CFO, and a number of the company’s directors. Plaintiff claims that these officers and directors breached their fiduciary duties to the company by intentionally or recklessly allowing these misstatements to occur, which resulted in significant losses. Plaintiff also sued the officers and directors for unjust enrichment, waste of corporate assets, and breaches of the Exchange Act.

While we have yet to see where this litigation will go, the suit itself is another example of how ESG principles are having real consequences on market capitalization—and are finding their way into America’s courtrooms.

The case is Perri v. Croskrey, et al., D. Del., Case No. 1:21-cv-01423.

This week’s post was co-authored by Robinson+Cole Labor and Employment Group lawyer Emily A. Zaklukiewicz.

Last month, President Biden issued an Executive Order which effectively imposes several COVID-19 safety standards and protocols, including mandatory vaccination, upon certain federal contractors and subcontractors. Specifically, the Executive Order directs federal agencies to incorporate a clause into all covered federal contracts which will require federal contractors or subcontractors to comply with guidance published by the White House’s Safer Federal Workforce Task Force (Guidance), and which was released on September 24, 2021.  Under the Executive Order and Guidance, certain manufacturers and other companies doing business with the federal government will soon be required to mandate vaccination for their workforces and ensure compliance with masking and social distancing requirements, among other requirements. Continue Reading Mandatory Vaccination and Safety Protocols for Federal Contractors

Below is an excerpt of an article authored by Robinson+Cole Immigration Group lawyer Jennifer L. Shanley published in Industry Week on September 15, 2021. 

With U.S. manufacturers facing more than 800,000 vacant jobs, companies are re-focusing their efforts on building their workforce. Foreign nationals can help fill the workforce gap.

Manufacturers can sponsor foreign nationals in a variety of different work-authorized status categories, each with its own requirements and limitations. Here is a rundown on the most common classifications. Read the article.

This week’s post was co-authored by Robinson+Cole Labor and Employment Group lawyer Emily A. Zaklukiewicz.

While employers in healthcare and education have mandated, or considered mandating, vaccination of employees during the COVID-19 pandemic, recently employers in many other industries are considering doing so. Manufacturers are now grappling with how best to evaluate the risks associated with such policies, implementation and administration of a mandatory vaccination policy, and the handling of requests for exemption, which may follow. Under federal and many state laws, employers requiring vaccination must provide employees (and applicants with job offers) with the opportunity to request an exemption from vaccination as a reasonable accommodation, based on a disability (or medical condition) or sincerely held religious belief. Employers are required to engage in an interactive process with employees to understand the request and determine whether to approve or deny it. Therefore, it is critical that employers maintain clear policies and procedures for evaluating such requests and understand their legal obligations in doing so. Of particular note, general vaccine hesitancies and personal philosophies are generally not protected by law and employers are not required to consider such exemption requests unless a state or local law provides otherwise. Continue Reading Navigating Requests for Exemption from Mandatory Workplace Vaccination Policies

This week’s post was co-authored by Robinson+Cole Insurance + Reinsurance Group lawyer Denis J. O’Malley.

When a domestic company starts a relationship with an international partner, choosing the jurisdiction in which any dispute must be litigated in the event of a contract breach may not be top of mind. But a recent decision by the Connecticut Supreme Court illustrates the vital importance of including a forum selection clause in any contract with a foreign company in order to avoid the risk of having to litigate overseas. Continue Reading Manufacturing Alert: New Court Decision Underscores Importance of Forum Selection Clauses in Contracts

It wouldn’t be a change in Presidential administration without a change to the all-important definition of “Waters of the United States” (“WOTUS”) under the Clean Water Act. Last year, we updated you on Clean Water Act developments, including the then-new Trump administration WOTUS rule. The WOTUS rule defines which waters are subject to Clean Water Act jurisdiction—and which are not—so it has a meaningful impact on the reach of the Act. The Trump administration WOTUS rule, enacted in 2020, limited the waters that are considered WOTUS to include only territorial seas, traditionally navigable waters, certain surface waters that contribute surface flow to traditionally navigable waters, and wetlands that physically touch other jurisdictional waters. On August 30, 2021, a federal court in Arizona struck down the Trump WOTUS rule, citing the serious errors in enacting the rule, as well as the serious environmental harm that it has caused.

According to the Court, between June 22, 2020 and April 15, 2021, 76 percent of the 40,211 jurisdictional determinations of aquatic resources or water features made by the Army Corps of Engineers under the Trump WOTUS rule found the waters to be non-jurisdictional. The reduction was particularly significant in arid states, with nearly every stream assessed under the Trump WOTUS rule in New Mexico and Arizona falling outside Clean Water Act jurisdiction. The Court also cited concerns that the Trump WOTUS rule “disregards established science . . . .” The Court directed the Army Corps and the Environmental Protection Agency, the two agencies responsible for the WOTUS rule, to reconsider the rule (something the Biden administration had already prioritized), but it also vacated the Trump WOTUS rule, so it is no longer in effect.

So what are we left with? The Obama administration had enacted its own WOTUS rule, which was broader than the Trump WOTUS rule. However, the Obama WOTUS rule was repealed by the Trump administration, so unless that repeal is challenged, the Obama WOTUS rule will remain a thing of the past. Instead, the current definition of WOTUS will revert to a 1986 rule, which has been interpreted and re-interpreted by the courts, most notably by the Supreme Court in Rapanos v. United States, 547 U.S. 715 (2009). What does that mean? We could write a book about that, much less a blog post, but, at least temporarily, we will return to a regulatory definition that has been refined over the years by court decisions that essentially fall into some combination of the Trump WOTUS rule and the Obama WOTUS rule. Murky waters, indeed.