federal judge in the case of Commonwealth of Kentucky v. Biden has decided President Joe Biden likely overstepped his authority with Executive Order 14042 in requiring federal contractors to mandate COVID-19 vaccinations for their employees.  Adding additional complexity and confusion to the already muddied landscape, the decision enjoins the Order for going into effect in Kentucky, Ohio and Tennessee -the three states that challenged the Executive Order in the lawsuit.  Federal contractors and subcontractors subject to EO 14042 and the implementing FAR Clause are relieved, at least temporarily, from implementing the requirements for employees in the three named states.  This injunction throws a curve ball for Tennessee employers in particular.

Those employers with employees in Tennessee should be mindful of the Tennessee law that, among other things, prohibits private employers from requiring employees to show proof of COVID-19 vaccination or taking adverse action against an employee who does not show proof of vaccination if they object for any reason.  Under that law If an employer would lose federal funds, the employer can file a petition for relief from the state controller, but with EO 14042 enjoined this option will not be available.

The case is Commonwealth of Kentucky et al. v. Biden et al., case number 3:21-cv-00055, in the U.S. District Court for the Eastern District of Kentucky.

Four separate groups of petitioners challenging the OSHA ETS, including a coalition of 27 states, have asked the court to hear the OSHA challenge en banc, arguing that the case involves a question of exceptional importance in that it is an “unprecedented mandate of COVID-19 vaccines based on a rarely used law of questionable applicability.” Bentkey Servs., LLC d/b/a The Daily Wire v. OSHA, U.S. Dep’t of Labor, Docket 21-4027, Docket Entry [32], p. 3 (6th Cir.).

Federal appellate cases are normally heard by a 3-judge panel selected at random.  Before appealing to the U.S. Supreme Court, the losing side may then petition for rehearing en banc, meaning that all of the active circuit judges would review the case and a majority of those could overturn or affirm the decision of the 3-judge panel.

Rule 35 of the Federal Rules of Appellate Procedure allows parties to request that the circuit bypass the normal 3-judge panel and have the case initially heard by all the active judges where the case “involves a question of exceptional importance.”  The petitioners argue that the OSHA ETS involves important constitutional questions about appropriate delegation of authority to OSHA, the Commerce Clause, and state versus federal powers under the 10th Amendment to the U.S. Constitution.  The answers to these questions will affect about 80 million people in this country and their right to make personal healthcare decisions.  Petitioners also argue that having the case heard en banc will promote judicial efficiency because the decision of the 3-judge panel would likely result in a request for a rehearing en banc anyway.  The OSHA ETS is hotly contested and politically charged, as evidenced by the various petitioners on both sides of the issue which have filed 34 petitions to review the ETS in 12 federal judicial circuits.

The government has until November 30, 2021 to file one consolidated response to all the petitions for the case to be heard en banc.

If you have questions about your compliance obligations under applicable federal or state laws, please reach out to a member of our Workplace Safety and Health Practice Group or COVID-19 Team.

The Administration has imposed new restrictions beginning November 29, 2021 at 12:01 a.m. ET on individuals travelling to the United States from Botswana, Eswatini, Lesotho, Malawai, Mozambique, Namibia, South Africa, and Zimbabwe (the “South African restrictions”) in response to the appearance of the COVID-19 Omicron variant. These restrictions go into effect just three weeks after the lifting of other geographic travel restrictions. Those on board a flight to the United States that departed prior to 12:01 a.m. ET will not be affected.

Like the prior geographic limitations, the South African restrictions apply to anyone who has been in one of the restricted countries anytime during the 14 days prior to travel. U.S citizens and permanent residents are not subject to this ban. Others who are exempted include: family members of U.S. citizens and permanent residents, crew members, diplomats, members of the U.S. armed forces, and those whose entry is in the national interest. National Interest Exceptions (NIEs) are expected to be in effect.

The U.S. Embassy in South Africa has announced that consulates in South Africa will continue to accept and process nonimmigrant visa applications while the restrictions are in place. This is a marked change from NIE processing previously, where consulates refused to accept nonimmigrant applications without an approved NIE waiver.

These new restrictions have been described as precautionary. The CDC will be introducing other measures. Those who are exempted from the ban must show proof of a negative COVID-19 test prior to travel. The “fully vaccinated” rules (and its exemptions) also will apply.

The restrictions will remain in effect until terminated by the President.

Jackson Lewis attorneys will provide updates as they become available.

Employers in the U.S. are facing regulatory upheaval on multiple fronts. The federal government has taken up a new interest in potentially limiting the applicability of restrictive covenants, such as non-compete agreements. Meanwhile, the Occupational Safety and Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS) (currently stayed by the Fifth Circuit) requiring employers with 100 or more employees to ensure all employees are either vaccinated or taking weekly COVID-19 tests.

These seemingly disparate legal trends are colliding in recent federal and state bills.

On November 3, 2021, nine Republican House Members sponsored a Federal bill that would void existing non-compete agreements for any employee who is fired for “not receiving a COVID-19 vaccine.” The bill would also require the Federal Trade Commission (FTC) to issue regulations prohibiting employers from enforcing non-compete agreements with such employees.

Similar bills have been introduced around the country. The trend began in Texas and Tennessee, then New Hampshire followed suit on November 16, 2021.

The Tennessee bill has even more “bite” than its federal and state companions. If a private employer requires the signing employee to receive a vaccine as a condition of employment, any non-compete, non-solicitation, non-disparagement, or confidentiality provision entered after the effective date of the proposed law would be void and unenforceable. Even if the employee gets the vaccine voluntarily and later resigns to work for a competitor, these provisions would be void simply by virtue of the employer having required the vaccine in the first place.  (Which, of course, may be mandatory under federal law.)

Whether any of these bills actually gains traction remains to be seen. We will continue to monitor this legislation and post updates once we know more. In the meantime, Jackson Lewis attorneys are available to assist employers navigate regulatory changes in these, and other, areas of law.

U.S. passport agencies maintained extremely limited operations as a consequence of the COVID-19 pandemic. There were significant delays, application status could not even be checked online and people were encouraged to wait to apply until normal operations resumed absent life or death emergencies. In June 2020, the agency started resuming regular operations with a backlog of 1.7 million applications in place. The Department of State recommends that individuals apply four to six months in advance of travel, but the published timelines are not quite that long. Those timelines suggest that regular processing should take two to three months and expedited processing (which is available now) takes five to seven weeks from the time the application is submitted.

Submission can be another hurdle. In-person application spots are limited and individuals must apply in person (not by mail) if any of the following apply:

  • First passport application;
  • Applicant is under 16 years of age;
  • Last passport was issued when the applicant was under 16 years of age;
  • Prior passport was lost, stolen, or damaged; or
  • Prior passport was issued more than 15 years ago.

Individuals applying for U.S. passports may receive the new Next Generation Passport. The new passport is modernized and designed to be smarter and safer than older passports. It has new security features including polycarbonate data page, laser engraved personalization, and updated artwork featuring images of U.S. architecture, history, culture, landscapes, and traditions. Prior versions of U.S. passports and cards continue to be valid until they expire. The Passport Agency also notes that even those who apply now may still receive the older style passport while it gradually replaces its passport printers.

Although most U.S. citizens receive passports with “regular blue” covers, some U.S. passports have different covers. Among others, there are:

  • Diplomatic Black Passports for foreign service officers and others with diplomatic status;
  • Official Brown Passports for employees of the U.S. government when travelling abroad on business; and
  • Service Gray Passports issued to third-party contractors travelling in support of the U.S. government.

When you travel abroad on a U.S. passport, you may be required to present a passport with at least six months’ validity beyond your proposed travel dates.

If you have any questions about applying for U.S. passports in the United States or abroad, Jackson Lewis attorneys are available to assist you.kim