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Employer Alert: OSHA Emergency Temporary Standard is Imminent

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By Angela M. Buchanan

Last June, OSHA adopted an emergency temporary standard (“ETS”)—29 C.F.R. Part 1910, Subpart U, 86 Fed. Reg. 32376 (June 21, 2021)—that set forth numerous requirements for healthcare employers aimed at combatting the spread of COVID-19. On September 9, 2021, as part of his COVID Action Plan, President Biden directed OSHA to issue a new and broader ETS requiring all private employers with 100 or more workers to mandate COVID-19 vaccination or a weekly test for all employees. Since that time, OSHA has been working towards meeting President Biden’s directive, and, on October 12, 2021, OSHA sent a draft ETS requiring either vaccination or weekly testing of workers for employers with 100 or more employees to the White House’s regulatory office for approval. The White House is expected to review and approve the new ETS quickly.

angela m buchanan portrait

Angela M. Buchanan is a litigator who primarily focuses her practice on complex commercial litigation and disputes.

According to Ann Rosenthal, Senior Advisor at OSHA, the ETS will be published “in the coming weeks.” If the new ETS is like the healthcare ETS in its implementation schedule, the new standard will take effect shortly after its publication in the Federal Register. By way of comparison, the healthcare ETS has some provisions that became mandatory 15 days after publication, while compliance with others was required a month after publication. 29 C.F.R. § 1910.502(s)(2). The ETS can remain in effect for six months.

Violations of the new ETS would likely be considered either “serious” or “willful.” The current maximum penalty for a “serious” violation is $13,653 per violation. The current maximum penalty for a “willful” violation is $136,532. 29 C.F.R. § 1903.15(d), 86 Fed. Reg. 2964 (Jan. 14, 2021).

Preemptively, Governor Abbott responded to the expected ETS on October 11, 2021 by issuing Executive Order GA-40, stating that no entity in Texas can “compel” any individual, including any employee or consumer, to receive a COVID-19 vaccination who objects “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”  The order establishes a maximum criminal penalty of $1,000.

Governor Abbot’s Order highlights the fact that the new ETS is likely to be challenged.  States, companies, and others will like challenge the ETS on the grounds that the required prerequisites for OSHA issuing an ETS are not met. Specifically, to make an ETS, OSHA must determine (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1). In the ten times OSHA has issued an ETS, the courts have fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case.

Whether or not the ETS is eventually challenged, Companies still need to prepare for the new ETS mandates by proactively reviewing and updating their COVID-19 vaccination policies.  Phillips Murrah’s Labor and Employment attorneys regularly advise employers on complex issues relating to COVID-19 vaccination polices and OSHA standards.


For more information about how the information in this article may impact your business, please call 469.485.7341 or email By Angela M. Buchanan.

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Is this the end of non-compete clauses in America?

Non-compete agreement document for filling and signing on desk stockBy Janet A. Hendrick and Angela M. Buchanan

Janet Hendrick and Angela Buchanan portraits

Janet A. Hendrick and Angela M. Buchanan

For decades, non-compete clauses and other restrictive covenants have protected American businesses from unfair competition by preventing departing employees from working for a direct competitor for a specified time and within a specified geographical area.  Today, non-competes are still a useful tool, but their effectiveness depends on whether the covenant is narrowly tailored to legitimate business interests and, because state law governs enforceability, whether the relevant jurisdiction allows employers to enforce the covenants.

Although most states allow enforcement of reasonable non-competes, the increasing trend is to limit or ban their use.  In California, North Dakota, the District of Columbia, and Oklahoma, non-competes are either entirely or largely unenforceable as against public policy. Other states, including Maine, Maryland, New Hampshire, Rhode Island, and Washington, have banned non-compete agreements for low-wage workers.

This year, non-compete agreements have faced new obstacles in several jurisdictions. In May, Oregon passed legislation to curtail the use of non-competes so that they may only be enforced if the employee earns more than $100,533/year, the restricted period does not exceed 12 months, and the employer agrees in writing to provide the greater of (i) 50% of the employee’s compensation at the time of termination or (ii) $100,533 annually during the restricted period.  Nevada passed Assembly Bill 47 in May, which significantly increases Nevada’s restrictions on non-compete agreements.  The new Nevada law, which is effective October 1, 2021, voids non-compete agreements for hourly employees. The Nevada law also prevents employers from restricting employees from working for a customer if the employee did not solicit the customers for the former employer, the customer voluntarily left the employer, and the employee generally complies with the non-compete agreement. To give the new law teeth, it allows an employee who successfully challenges a non-compete to recover attorneys’ fees and costs. Following on the heels of Oregon and Nevada, Illinois passed legislation in June that prohibits non-compete clauses for employees earning less than $75,000/year and bans non-solicitation agreements, which restrict which customers an employee can call on, for employees earning less than $45,000/year.  Both of these salary thresholds will increase annually. The governor of Illinois is expected to sign the new prohibitive legislation so that the law will go into effect on January 1, 2022.

Like these states, the federal government has also taken steps to limit the use of non-competes. In July, President Biden issued the Promoting Competition in the American Economy Order, which asks the Federal Trade Commission to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”  Although the Order does not change current law, it is a clear sign that non-competes will face extra scrutiny and may eventually be limited under federal law.

Considering the continuing wave of non-compete reform, employers, particularly those that operate in multiple states, should monitor developments in the relevant states and carefully consider choice of law and forum selection clauses for agreements. The Labor & Employment attorneys of Phillips Murrah have substantial experience in negotiating, drafting, and litigating issues relating to employment agreements and restrictive covenants.  If you would like additional information, please reach out to the firm.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients regarding new rules that affect employers.


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Janet Hendrick is a Shareholder and a member of the Firm’s Labor and Employment Practice Group.

For more information on this alert and its impact on your business, please call 214.615.6391 or email me.

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Angela Buchanan joins Phillips Murrah law firm’s Dallas legal team

Angela M. Buchanan

DALLAS (August 11, 2021) – Phillips Murrah P.C. is pleased to announce Angela M. Buchanan has joined the Firm in its Dallas office as an Of Counsel attorney. Her addition brings the number of Phillips Murrah attorneys serving the Texas market to 16.

Angela is a litigation attorney whose primary focus is on complex commercial litigation and disputes, bringing extensive experience in and out of the courtroom, as well as in handling complex multi-million dollar contracts, fraud, and premises liability matters for multi-national, national, regional, and local companies.

Angela also has specific experience in transportation law, contract disputes, products liability matters, toxic tort matters, and insurance litigation. Angela has had success at all stages of litigation, including discovery, summary judgment, mediation, and trial.

Prior to joining Phillips Murrah, Angela served as a senior litigation associate at one of the 50 largest law firms in the world.

Angela received her J.D. from the Baylor University School of Law. She is a member of the State Bar of Texas and is admitted to practice before all Texas courts.


CONTACT:

Phillips Murrah – Dallas Office:
3710 Rawlins Street, Suite 900
Dallas, Texas 75219

Main: (214) 434-1919
Fax: (214) 434-1370

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