End of Mandatory Arbitration of Sexual Harassment

March 18, 2022

Legislative Update: Ending Forced Arbitration of Sexual Assault and Sexual Harassment

On February 10, 2022, the US Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. On March 3, 2022, President Biden signed it into law. It prohibits the inclusion of mandatory sexual harassment and assault arbitration clauses in pre-dispute arbitration agreements. The bill also abolishes arbitration contract clauses restricting class-actions of these claims. The law specifically restrains employers but it covers mandatory arbitration agreements beyond the workplace.

Key Definitions

The following key terms are defined in the statute:

Pre-dispute arbitration agreement: clause in an employee’s contract that arbitrates a dispute that has not emerged at the time of the agreement.
Pre-dispute joint-action waiver: agreement, either part of a pre-dispute arbitration agreement or not, that restrict or waives the right of one of the parties involved in the agreement from class/joint actions in a judicial, administrative, or arbitral forum regarding a dispute that hasn’t taken place at the time of the agreement.
Sexual assault dispute: dispute involving a non-consensual sexual act or sexual contact as defined in section 2246 of title 18 or similar applicable Tribal or State law.
Sexual harassment dispute: dispute that involves conduct that constitutes sexual harassment under applicable Federal, Tribal, or State law, such as unwelcome sexual advances, unwanted sexual attention, unwanted sexual contact, and retaliation for rejecting unwanted sexual attention.

Implications of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 comes into effect immediately and covers arbitration agreements signed before its enactment. Furthermore, while the law may be new in US federal law, some states have passed similar bills since the beginning of the #MeToo movement. However, in cases that had to do with arbitration clauses, the US Supreme Court has often maintained that the Federal Arbitration Act (FAA) preempted any opposing state laws on arbitration. As a result, such cases were typically invalidated by US courts.

With the new law, even if an employee had signed a pre-dispute sexual harassment/assault arbitration contract, they can still file a lawsuit with a court. In other words, US employers can no longer forcefully demand that the parties involved in sexual harassment or assault claims settle such cases through arbitration. This scenario also applies to class/joint actions.

The law does not affect any arbitration agreements in disputes outside sexual harassment and assault cases. However, the law states that the court alone holds power to determine whether a particular dispute falls within the scope of the law.

Employers and employees can voluntarily arbitrate sexual harassment or assault dispute. But all in all, Employers would now need to review arbitration clauses in employee agreements and human resource (HR) manuals.

Dealing With a Pre-dispute Sexual Harassment Arbitration Agreement Claim? Get Legal Help

Sexual harassment cases are one of the most complex legal battles. At the Law Office of Sheri Oluyemi, LLC, our experience in arbitration will make the difference. Companies and corporate organizations across the US can also take advantage of our vast experience and legal insight in reviewing the arbitration clauses in their employee agreements to avoid needless litigation and class actions.

The Vaccine Mandate That Was Not: Courts Block Biden Administration’s Mandatory COVID-19 Vaccine Plans

December 12, 2021

When a vaccine for the coronavirus was developed, President Joe Biden expressed an intent to require employees across the country to become vaccinated in a bid to increase poor vaccination rates against the pandemic.

However, legal action across several states continues to challenge this vaccination mandate and block them from implementation. At least seven states, some companies, business associations and religious organizations have filed lawsuits against enforcing the different mandatory policies. This article looks at each of Biden’s three-part vaccine mandate’s current status and the why’s behind the legal actions.

Louisiana Federal Court Blocks CMS COVID-19 Vaccination Mandate

On November 5, 2021 and in response to a direct order from the President, the Centers for Medicaid and Medicare Services (CMS) announced a mandatory COVID-19 policy requiring all employees, volunteers, staff, students, and contractors under Medicare and Medicaid certified healthcare services to be fully vaccinated against the Coronavirus virus before January 4, 2022. The mandate also had a deadline of December 6, 2021 for religious and disability accommodation requests and the first dose of the vaccine.

However, 14 states across the US, including Louisiana, Mississippi, Idaho, Oklahoma, Indiana, Utah, Georgia, and South Carolina, filed a legal complaint in a Louisiana federal court against the mandate.

As a result, the court blocked the policy for all medical service providers across the US. According to the court ruling, and among other reasons stated by the court, the federal government did not follow the standard process for issuing such a regulation. Also, the CMS did not have constitutional powers to enact such a mandate; instead, the mandatory vaccine policy should have been a decision for the US Congress. The court also stated that the vaccine mandate violated several provisions in US law, such as the Tenth Amendment, the Spending Clause, and the Anti-commandeering Doctrine.

The CMS vaccine mandate is stayed until further notice.

Fifth Circuit and Sixth Circuit Federal Courts of Appeal Block OSHA COVID-19 Ets

Again, by order of the President, the Occupational Safety and Health Administration (OSHA) had issued an Emergency Temporary Standard (ETS) requiring businesses with 100 or more employees to request compulsory vaccination or weekly testing for their staff beginning on January 4, 2021.

This regulation would have affected over 84 million employees across America. It would also have significantly impacted the finances and operations of businesses across the country given the requirement to pay for certain things, including time taken off work to get vaccinated and recovery from any ensuing side-effects, among other costs.

However, a petition by the state of Texas and several other states across the US alongside companies and activist groups challenged the decision. As a result, the Fifth Circuit Court of Appeal sitting in Texas, blocked the mandatory COVID-19 vaccination policy and stayed the regulation on the grounds of “grave” statutory and constitutional issues. Given that several Circuit Courts around the country had received the same or similar petition, the Sixth Circuit Court of Appeals was randomly selected to hear the case on its merits. At that stage, the government asked the Court to overturn the stay. Currently, this petition to reconsider the stay has not been fully presented to the Court nor has a decision been rendered.

As such, the OSHA Covid-19 Vaccine-Testing ETS is also stayed until further notice.

Georgia Federal Judge Rules Against Mandatory COVID-19 Vaccination for Federal Contractors and Subcontractors.

The vaccine mandate for federal contractors would have been applicable to businesses nationwide that receive certain federal funding or generally do business with the federal government. It would also have been applicable to the subcontractors of those contractors many times removed.

However, here in the state of Georgia, Honorable Stan Baker, a US district judge, ruled against the COVID-19 mandatory vaccination regulation requiring employees of federal contractors to receive the total doses of the Coronavirus vaccine by January 18, 2021.

After a full briefing by the petitioners and intervenor, and a hearing on December 3, 2021 in Statesboro, GA., the Judge concluded that the federal government did not receive appropriate authorization from the US Congress to mandate compulsory vaccination.

So too, this vaccine mandate is also stayed until further notice.

Get Prepared

Given the stay of these vaccine mandates, many employers and employees want to know what to do other than to watch and wait for further court action. Right now, it is prudent for employers to assess the need for a mandatory vaccine policy of its own volition and the impact of the federally mandated vaccine on its workplace, should these policies (or some part of each) become permanent fixtures of our pandemic existence. Meanwhile, employees who believe they require, and qualify for, an exemption to any vaccine mandate should make those applications for exemption as soon as the employer is prepared to receive them.

With these scenarios in mind, you’ll need qualified and professional legal counsel to guide you on these policies. At the Law Office of Sheri Oluyemi, LLC, we have vast expertise in US employment law, such as COVID-19 mandatory vaccination regulations and accommodation requests. Contact our firm today, and let’s be your legal counsel.

How to Reduce Risk of Litigation: Mandatory Covid-19 Vaccine Religious Exemption

September 9, 2021

As we attempt to escape the dark days of the COVID-19 pandemic, thanks in no small part to the availability of a vaccine, new changes are still being made in offices across the United States and the world to make that exit a reality. In the US, several employers require staff members to take vaccinations to keep the office safe and free from health scares.

But one size does not fit all — several employees are requesting an exemption from compulsory vaccinations on various grounds, including religious reasons. But is this a conversation worth having? And what does US federal law say about the rights of individuals to exempt themselves from compulsory vaccinations on religious grounds? Let’s find out.

Understanding Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on religious beliefs or practices. In the case of the mandatory COVID-19 vaccinations, this law requires small business owners to accommodate a staff member’s request to be exempted from compulsory vaccinations because of sincerely-held religious beliefs.

Of course, this does not mean employers must accept an employee’s plea not to take the vaccine without question. Based on specific clauses in Title VII, company executives can look into religious objections made by employees to determine whether their requests are legitimate and fall in line with the requirements of the law.

Quickly, let’s look at some clauses in Title VII that may help small business owners handle issues surrounding religious exemptions from COVID-19 vaccinations.

Determining Whether the Employee’s Request is Based on Sincerely Held Religious Beliefs

While US laws require company executives to accommodate a staff member’s sincerely held religious beliefs, it can be tricky to recognize this belief, faith, or practice.

For clarity, Title VII does not recognize philosophical, political, and social ideologies under religious beliefs. As such, employees cannot use those factors as a basis to exempt themselves from vaccinations. Title VII also does not cover personal preferences.

That said, when an employer is not clear on the religious beliefs of a staff member, the employer can request additional information – either through documentary evidence of the tenants and dogma of the faith or one-on-one explanations – to clarify the situation. However, before casting doubt on an employee’s beliefs, the employer must ensure her reservations are objective and not coming from a place of discrimination. To be on the safe side, though, we would recommend companies consult legal help for complete clarity and guidance before making any move to question a team member’s religious objections.

Refusing Appeals for Religious Vaccination Exemptions Because of Undue Hardship

Under Title VII of the Civil Rights Act, employers may deny a staff member’s plea for exemption if granting the request would cause undue business hardship. For better understanding, approving a request for religious accommodation may cause undue hardship if:

● It will significantly decrease business efficiency and productivity

● It will infringe the rights and privileges of other members of the workforce

● It puts staff and customers at risk of workplace hazards

● It may require other members of the team to execute more than their quota of hazardous tasks

● The accommodation is too costly

Accommodations to Consider in the Event of Religious Exemptions from Mandatory COVID-19 Vaccinations

If an employer decides to grant an employees’ requests to be exempted from COVID-19 vaccinations, the employer may need to make some changes around the office to accommodate these individuals. Some of the steps an employer can take for exempted employees may include:

● Mandatory wearing of face masks

● Social distancing within office premises

● Remote working

● Isolation to a specific workplace

● Alterations to employee’s work schedule to limit interactions with clients and other members of the workforce

Before putting these measures in place, the employer will need to review company policies on religious accommodation with company executives and managers; discuss with employees the proposed accommodations to be put in place around the office; and, appoint a supervisor to process and respond to all requests for religious accommodations.

Get Legal Help

Employment laws in the US can be tricky, and when it comes to religious exemptions from COVID-19 vaccinations, small business owners may require the aid of a legal professional to navigate the muddy waters and avoid any potential litigation.

Therefore, if you are in need of an attorney to help you with issues relating to religious exemptions from COVID-19 vaccinations, consider contacting The Law Office of Sheri Oluyemi, LLC. We have an experienced team of professionals who specialize in employment law cases for small businesses, and we can provide your company with the legal counsel to respond to religious accommodations for COVID-19 vaccinations.

The Legality of an Employer-Mandated Covid Vaccine

March 28, 2021

Generally, Employers Can Make The Vaccine Mandatory

Since there are COVID-19 vaccines now available, are employers permitted by law to require employees to get vaccinated? The simplified answer is yes, in an employment at will state like Georgia, employers do have the right to mandate that their employees receive the vaccine. Employees who want to continue working at that employer will have to get a vaccine and can be fired, without legal recourse, if they do not.

Employment At-Will

Employment is often at-will, which means it is possible for either the employee to quit and walk away or for the employer to fire them at any time for no reason or for any reason. The employer will set the working conditions, and as long as those conditions meet federal law and guidelines, employees must abide by the employer’s standards, which will include health and safety guidelines and conditions. As we all know, the coronavirus pandemic is a major health and safety issue for every workplace.

A written fixed-term employment agreement, on the other hand, might not accommodate the unilateral inclusion of a mandatory vaccine requirement if this can be construed as a material term.

Civil Rights Legislation

According to guidance from the Equal Employment Opportunity Commission (“EEOC”) which is the federal agency that enforces various civil rights laws regarding discrimination in employment, generally barring specific exceptions, it is legal for employers to require their employees to be vaccinated against covid.

There was initially concern that requiring a vaccine could violate the Americans with Disabilities Act (“ADA”). However, that law prevents employers from conducting certain types of medical examinations, not including requiring vaccines that help to protect against COVID-19. By requiring the vaccine, the employer is not looking for any information about a person’s current health status or impairments, and as such, it does not constitute a medical examination. Therefore, per EEOC guidance at the time of publishing, it is not in violation of the ADA to mandate the vaccine and obtain employee certification of having been vaccinated.

Exemptions For A Mandatory Vaccine.

However, employers still must account for legal nuances. An employee with a disability and who has a medical reason to not get a vaccine will likely qualify for exemption for medical grounds under the ADA. Those who have a sincerely held religious belief that does not allow vaccines could get a religious exemption under Title VII of the Civil Rights Act of 1964 (“Title VII”). Those who fall into either or both of these categories and who cannot be vaccinated will want to seek an exemption based on those grounds.

Upon requesting an exemption, the employer must engage in an interactive conversation with all stakeholders to determine whether a reasonable accommodation exists. Some of these reasonable accommodations might include the use of personal protective equipment, working separately from others, or working from home, for example. As long as there are means to accommodate unvaccinated employees that are not unduly burdensome to the employer, it would be illegal to terminate such an employee.

Generally, Employers Can Decline To Make The Vaccine Mandatory

A common question addresses what would happen if an employer discovers that a worker cannot be vaccinated because of a disability or religion, but this creates a risk in the workplace. In these cases, employers are not allowed to exclude that employee from the job or take any other action unless they do not have any other means of providing reasonable accommodations that could help reduce the risk presented to themselves and that they present to other people.

But what about the employer’s general duty to maintain a safe workplace free from known hazards under the Occupational Health and Safety Act (“OSHA”)? There is no federal mandate that requires all employers to make their workers get vaccinated. They can decide on a case-by-case basis. Employers will have to determine what makes the most sense of them and their employees. The location and type of work that is being done will often factor into whether an employer should require vaccination. Those companies that are public-facing and have regular in-person interactions will be more likely to require vaccination from the employees. It provides added safety, and it is something that many of the customers and clients will expect. Those that do not necessarily have face-to-face encounters might not require vaccination.

Potential Pitfalls Requiring Other Vaccine Considerations

If an employer is requiring that employees receive vaccines, they may want to consider paying the employees for the time it takes to get the vaccine. Often, people have to take time out of their day to wait in line for the vaccine.

Federal law entitles employees to compensable work time for these waits if the employer requires it. If the employers do not provide payment for the time that it takes to get the vaccine, they would violate the law, which can carry heavy penalties. If there is a union involved, there could also be other collective bargaining agreements or further obligations the employer would have to meet.

Some employers might want to reduce the wait time by having a third party administer the vaccine at their workplace. They can schedule the appointments, and it could reduce the amount of time that it takes to get everyone vaccinated. However, they will want to determine if any supposed injuries from getting the vaccine might trigger their worker’s compensation insurance liability coverage. Employers should check with their insurance company prior to making a decision.

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As more places start to open, and as more people go back to in-person work with the vaccines readily available, employers should seek counsel about what they can do within the confines of the law in their unique workplace.

Tag: vaccine