Jul 9, 2021

President Biden Signs Executive Order to Promote Competition in the American Economy

executive order photo

On July 9, 2021, President Joe Biden signed Executive Order 14036 providing direction to promote competition in the American economy.  The Executive Order contains directives for federal agencies addressing issues in the Healthcare, Transportation, Agriculture, Internet Service, Technology, and Banking and Consumer Finance industries. Most important, the Executive Order contains provisions addressing the labor market.  Specifically, President Biden encouraged the Federal Trade Commission (“FTC”) to ban or limit non-compete agreements and to ban unnecessary occupational licensing restrictions that impede economic mobility.  President Biden also directed the FTC and the Department of Justice (“DOJ”) to strengthen antitrust guidance to prevent employers… Read more

Jun 24, 2021

12-Month Extension of Temporary Relief from the Physical Presence Requirement

The IRS announced today, June 24, 2021, in Notice 2021-40, that it was extending, through June 30, 2022, the temporary relief from the physical presence requirement that is usually necessary for participant elections to be considered witnessed by a plan representative or notary public. The relief from the physical presence requirement was first extended in Notice 2021-3. The relief extension was provided in response to the continuing Coronavirus Disease 2019 (COVID-19) pandemic and to provide a comment period on whether relief from the physical presence requirement should be made permanent. Comments are due by September 30, 2021. You should review your policies… Read more

Jun 22, 2021

U.S. v. Arthrex Case Creates a New Path to Challenge IPR Decisions

As a result of yesterday’s Supreme Court’s decision in U.S. v. Arthrex, any party dissatisfied with the result of an Inter Partes Review (IPR) can now seek review by the Director of the Patent and Trademark Office (PTO). Previously, and as codified by the America Invents Act (AIA), IPR decisions were appealed directly to the U.S. Court of Appeals for the Federal Circuit, with no possible review at the PTO.  Yet to be determined will be the details of how this extra appeal step is to be implemented.   And will, for example, the Director really have time, resources and responsibility for reviewing… Read more

Jun 21, 2021

California Falls into Line on Workplace COVID-19 Restrictions

On June 17, 2021, Cal OSHA’s board voted to adopt revised COVID-19 workplace standards that more closely align with what is being done across the country. The Governor issued an executive order that allowed the revised standard to become effective immediately. Cal OSHA’s statement regarding the revised standards can be found here. FAQs regarding the revised standards can be found here. The new rules can be found here. Most notably, the revised standards eliminate indoor mask requirements for all vaccinated employees and also eliminate social distancing requirements regardless of vaccination status.  Unvaccinated employees still are required to wear masks while… Read more

Jun 17, 2021

U.S. Supreme Court Rejects Challenge to the Affordable Care Act

Today (June 17, 2021), the U.S. Supreme Court rejected a challenge to the Affordable Care Act (“ACA”) on procedural grounds, ducking the larger constitutionality question and leaving in place the broad provisions of the law, including the employer mandate requirements. In CALIFORNIA ET AL. v. TEXAS ET AL., Texas and other Republican-led states sought to strike down the ACA because the tax penalty for individuals who fail to have health insurance was reduced to zero. In the 7-2 decision, Justice Stephen Breyer held that the plaintiffs did not suffer any injury from the zeroing out of the penalty and thus… Read more

Jun 15, 2021

Illinois Passes Sweeping Non-Compete and Non-Solicitation Changes

Non-Compete Agreements

The Illinois legislature passed Senate Bill 672 (“SB 672”) significantly changing non-compete and non-solicitation law in Illinois.  The bill is expected to be signed into law by Governor JB Pritzker and go into effect on January 1, 2022. Under SB 672 a covenant not to compete or solicit is illegal and void unless: (1) the employee receives adequate consideration; (2) the covenant is ancillary to a valid employment relationship; (3) the covenant is no greater than is required for the protection of a legitimate business interest of the employer; (4) the covenant does not impose undue hardship on the employee;… Read more

Jun 14, 2021

Judge Dismisses Texas Lawsuit on Vaccine Mandate

Employment Law

In the first lawsuit against a private employer on its mandatory vaccine policy, Houston Methodist Hospital won dismissal of the case brought by a group of unvaccinated employees.  The Honorable Lynn N. Hughes issued a five-page opinion dismissing the Plaintiffs’ two-count Complaint.  As mentioned in our previous Alert, the Plaintiffs alleged that the Hospital wrongfully discharged them from employment under a public policy exception to the employment-at-will doctrine under Texas law and a violation of federal law regarding the use of products approved under the “emergency use authorization.”  See 21 U.S.C. § 360bbb-3. In this very narrow opinion, the Court… Read more

Jun 10, 2021

OSHA Issues COVID-19 Workplace Safety Rule


In one of his first executive orders upon taking office in January, President Joe Biden ordered the Labor Department to consider issuing an emergency temporary standard, or ETS, for businesses to follow during the COVID-19 pandemic. Today (6/10/2021), the Labor Department’s Occupational Safety and Health Administration (OSHA) issued a highly anticipated ETS that sets workplace safety parameters which employers in the health care sector must meet to protect health care workers from COVID-19 for the duration of the pandemic. (See https://www.osha.gov/coronavirus/ets.)  The rule takes effect on the date it is published in the Federal Register, although the exact date hasn’t… Read more

Jun 8, 2021

Updated EEOC Guidance and New COVID-19 Litigation

COVID update

The EEOC issued updated guidance stating that federal equal employment opportunity laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to some exceptions.  An employer must permit accommodations for disabilities and sincerely held religious beliefs under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and Title VII of the Civil Rights Act of 1964 (“Title VII”).  Our prior article regarding the EEOC’s Guidance on COVID-19 Vaccinations outlines these exceptions. With COVID-19 vaccines now widely available, lawsuits over vaccine mandates are beginning to emerge.  Most of these lawsuits target… Read more

May 25, 2021

New York Passes New Workplace Safety Requirements

On May 5, 2021, New York Governor Andrew Cuomo signed into law the New York Health and Essential Rights Act (“HERO Act”) providing new workplace safety requirements on all employers in New York.  The HERO Act goes into effect on June 4, 2021. The HERO Act requires the New York State Department of Labor to adopt industry-specific model airborne infectious disease exposure prevention standards (“Model Plan”) for all employers across the state.  This Model Plan will address exposure prevention of airborne infectious diseases and require, among other things: health screenings; appropriate social distancing measures and enforcement of isolation and quarantine… Read more