Category Archives: Court Decisions & Legislation

SCOTUS Eases the Standard for Proving a Discriminatory Job Transfer under Title VII

By: Oyvind Wistrom

Earlier this week, the U.S. Supreme Court resolved a split in the circuits as to whether an employee is required to show a “significant” injury or harm in connection with a job transfer to meet the threshold for proving an adverse employment action under Title VII of the Civil Rights Act of 1964.  The Court rejected the “significant” injury standard, and adopted a new standard that only requires an employee who is involuntarily transferred from one position to another to show that he/she suffered some harm to satisfy the adverse employment action prong of his/her case.

The case was brought by Jatonya Muldrow, a police sergeant who claimed she was transferred from her job as a plainclothes police officer in the intelligence section of the St. Louis Police Department because she was a woman.  Muldrow worked in the Intelligence Division from 2008 until 2017, where she investigated public corruption and human trafficking cases.  She also oversaw the Gang Unit, served as head of the Gun Crimes Unit, and was assigned as a task force officer with the FBI.  Despite her high employment evaluations, a new unit commander transferred her out of the Intelligence Division, justifying the transfer, in part, by noting that the division’s work was “very dangerous.”  Over her objections, Muldrow was reassigned to a uniformed job in another district where she supervised the activities of neighborhood patrol officers — approving arrests, reviewing reports and handling other administrative matters.

Though her pay and rank remained the same, Muldrow sued the police department, asserting that she had been harmed by the transfer.  Because she was no longer in the Intelligence Division, she lost her FBI status and the car that came with it, and in the new job Muldrow often had to work nights and weekends, instead of the Monday-through-Friday workweek she had worked in the intelligence unit.

Although the district court and the court of appeals both granted summary judgment for the police department, the Supreme Court reversed and remanded the case noting that the words “discriminate against” contained in Title VII refer to “differences in treatment that injure” an employee.  In a typical transfer case, that worse treatment may involve a reduction in pay or benefits, but such economic or tangible effects are not necessarily required where the employee can show that the transfer resulted in some harm.  Writing for the Court, Justice Elena Kagan explained that as long as an employee can show some harm because of sex, race, religion or national origin, that is enough. “Had Congress wanted to limit the liability for job transfers to those causing a significant disadvantage, it could have done so,” wrote Kagan, adding that the court “does not get to make that judgment” by rewriting the statute.

This decision represents a sharp departure from the previous standard that had been followed by the Seventh Circuit Court of Appeals, which covers Wisconsin, Indiana and Illinois.  All employers covered by federal anti-discrimination laws must now be careful to ensure that employment transfers that could be shown to be motivated by the employee’s membership in a protected class do not result in any harm or diminution in responsibilities or status as to avoid liability under Title VII.


By Daniel Finerty

There are several changes to Illinois that that, regardless of when the laws were passed, go into effect or have recently gone into effect in 2023, and place additional obligations on Illinois employers.

Additional Paid Leave Obligations

 In addition to the Illinois Paid Leave for All Workers Act that goes into effect on January 1, 2024,  Illinois employers are now obligated to provide unpaid leave for absences resulting from a pregnancy loss, unsuccessful IVF treatment, a failed adoption or surrogacy, or a diagnosis that impacts pregnancy. In this way, this unpaid leave obligation may, after January 1, 2024, act as an additional or alternative leave obligation once paid leave has been exhausted.

In addition, Section 21 of the Employee Sick Leave Act was recently amended to provide that  “[t]he rights afforded under this Act serve as the minimum standard in a negotiated collective bargaining agreement.” That provision went into effect on January 1, 2023.

Mandatory Time-Off and Breaks

 Effective January 1, 2023, Illinois’s One Day Rest In Seven Act (ODRISA) requires employers to provide employees with at least 24 hours of rest in every consecutive 7-day period. Should an exception be sought or necessary for business reasons, ODRISA allows an employer to secure permits from the Illinois Department of Labor (IDOL) for employees to work on the 7th day provided the employee seeking work on that day has voluntarily agreed to work and, in cases where the employee will be working over 40 hours, is paid at the applicable overtime rate. According to the IDOL FAQ, any such exemption should be sought in advance and, if IDOL grants an exemption, the employer’s statement must demonstrate that all employees have volunteered to work the seventh days in a row. The IDOL application for a permit can be submitted online.

Employees are also entitled to a mandatory meal period of at least 20 minutes for every 7.5-hour shift. The 20-minute break must begin no later than 5 hours after the start of the shift. An additional 20-minute meal period must also be provided if the employee works a shift that is 12 hours or longer. Reasonable restroom breaks, in addition to the meal break must be provided.

For union employers, the day off and meal break obligations do not apply if days off and meal periods are governed by their collective bargaining agreement. However, if a collective bargaining agreement does not specify days off and meal periods, the ODRISA provisions may apply.

Effective January 1, 2023, employers that currently file EEO-1 reports are required to submit similar reports to the state of Illinois, and includes new pay data reporting and certification requirements, among other obligations.

Equal Pay Certification Requirement

 The Equal Pay Act of 2003, 820 ILCS 112 et seq., was recently amended to require that all private employers with 100 or more employees in Illinois submit demographic and wage data to IDOL, along with a filed Annual Employer Information Report EEO-1 and an Equal Pay Compliance Statement certifying that, among other things, the average compensation for its female and minority employees is not consistently below the average compensation for its male and non-minority employees. These legislative changes are intended to promote pay transparency and ensure that all Illinoisans, regardless of their background, receive equal pay for substantially similar work they do on behalf of an employer.

The filing deadlines required for 2023 were suspended; however, for most businesses, IDOL will provide A 120-day advanced notice of an Initial certification deadline, according to the IDOL FAQ page. Generally, businesses with 99 or fewer employees and businesses that are not required to file an Annual Employer Information Report EEO-1 with the Equal Employment Opportunity Commission are exempt from this obligation.

Illinois businesses should note that this reporting is in addition to that which has been in place since July 1, 2020, has continued and is continuing each July 1 thereafter, which requires an employer to disclose annually to the Illinois Department of Human Rights “an adverse judgment or administrative ruling against it in the preceding calendar year […] the following information: the total number of adverse judgments or administrative rulings during the preceding year; whether any equitable relief was ordered; and the number of adverse judgments or administrative rulings entered against the employer within specific categories outlined in Section 2-108(B) of the Illinois Human Rights Act.” Resources for this reporting can be found on the Illinois Department of Human Rights website.

Minimum Wage Increase

 On January 1, 2023, due to amendments to 820 ILCS 105/4(a)(1), the Illinois Minimum Wage increased from $12.00 per hour to $13.00 per hour. This rate will increase each year with another change on January 1, 2024 to $14.00 per hour and a final increase slated to occur on January 1, 2025 when the minimum hourly rate increases to $15.00 per hour. There are additional changes to employer obligations regarding tipped employees, paying a training wage to tipped employees, and for youth workers. A description of those changes can be found on the IDOL FAQ page and another IDOL resource that provides the minimum wage chart by year.

Hairstyle Discrimination

 The amended Illinois Human Rights Act (IHRA) prohibits employers from engaging in discrimination based on an expanded definition of “race” to include traits associated with race, including but not limited to hair texture and protective hairstyles such as braids, locks, and twists.

The Illinois Paid Leave for All Workers Act provides employees with paid leave from work for any reason and without any documentation

By Daniel Finerty

Effective January 1, 2024, the Illinois Paid Leave for All Workers Act (Act) will grant most Illinois employees the right to earn up to 40 hours of paid leave annually, setting a minimum paid leave standard for all Illinois employers. According to Governor Pritzker’s press release, the Act will provide about 1.5 million employees with the right to earn paid time off starting in 2024. We previously discussed the new Act here.

Minimum Leave

Under the Act, covered employees, defined to include part-time and temporary employees, are entitled to earn up to 40 hours of paid leave in a 12-month period. Paid leave is earned at a rate of one hour of leave per 40 hours worked. While exempt employees are deemed to work 40 hours per week, both hourly and salaried employees who work less hours are entitled to proration. While an employer may set a reasonable minimum increment for an employee’s use of paid leave not to exceed 2 hours per day, it is the employee who “shall determine” how much paid leave is necessary. While the obligations under the Act explicitly cover domestic workers, independent contractors are not included.

Advanced Access

As opposed to ongoing accrual as an employee works, an employer can elect to provide employees with the minimum number of hours of paid leave on the first day of employment or the first day of the 12-month period. As an incentive, employers that choose this method are not required to carryover paid leave from one 12-month period to the next and may require employees to “use it or lose it” by the end of the year. Regardless of method, employees are entitled to begin using paid leave 90 days following commencement of employment or 90 days following the effective date of this Act, whichever is later. As applicable here, an employee that begins accrual under the Act on January 2, 2024, the first workday of the year, will not be able to access paid leave until April 1, 2024.

Designation of “Year”

Provided it does so at the time of hire in writing, an employer may designate any 12-month period it chooses. Should an employer wish to modify the 12-month period, notice must be given to employees in writing prior to the change. That said, an employer’s modification of the 12-month period may not reduce the eligible accrual rate or reduce the paid leave available, like a transition between the calendar method and the rolling method under the Family and Medical Leave Act (FMLA). Advanced, written notice must be provided to employees and implementation must not reduce eligible accrual rates or each employee’s available paid leave.

Differences from FMLA

Outside of the administrative basics, the Act may also create some operational challenges. First, an employee may take leave under this Act for any reason of the employee’s choosing, which broadens the reasons for which leave may be requested or taken well beyond the FMLA. Second, an employee is not required to provide the employer with a reason for the leave. Third, an employer may not require an employee to provide documentation or certification as proof of the need for the leave or in support of the leave. Fourth, while most employees must be compensated at their regular hourly rates for paid leave, employees engaged in gratuity- or commission-based employment must be paid at least the full minimum wage in the jurisdiction in which they are employed when paid leave is taken.

Similarity to FMLA

Like other acts under state or federal law, nothing in the Act precludes an employer from providing greater leave than that required by the Act. Likewise, nothing in this Act shall be construed to waive or otherwise limit an employee’s right to final compensation for any type of leave promised to be paid under a contract of employment or employment policy and earned by the employee.


The Act requires an employer to provide paid leave upon an employee’s oral or written request in accordance with the employer’s reasonable paid leave policy notification requirements which may contain certain requirements. First, where paid leave is foreseeable, an employer may require the employee to provide seven (7) calendar days’ notice before the date the leave is to set to begin. Second, where paid leave is not foreseeable, the employee can be required to provide such notice as soon as is practicable after the employee is aware that leave is necessary provided the employer has a written policy that contains a notice procedure applicable to requiring leave that is not foreseeable. Third, regarding any employer policy detailing the Act’s paid leave obligation, an employer must provide at least five (5) days’ notice of any policy change(s). Notices regarding the Act must also be posted in the employer’s workplace.


Like similar Illinois provisions, the Act provides that it is “unlawful for any employer to threaten to take or to take any adverse action against an employee because the employee (1) exercises rights or attempts to exercise rights under this Act, (2) opposes practices which the employee believes to be in violation of this Act, or (3) supports the exercise of rights of another under this Act.” Violations, such as where an employer considers an employee’s use of paid leave as a negative factor in any employment action that involves evaluating, promoting, disciplining, or counting paid leave under a no-fault attendance policy, are filed with the Illinois Department of Labor, and may subject an employer to civil penalties as outlined in the Act as well as “all legal and equitable relief as may be appropriate.” One noted example of interference would be requiring an employee to find a replacement for his or her shift during which leave under the Act is requested.


Employers that will be required to provide leave must plan in advance of January 1, 2024, to prepared for the impact of the Act upon operations to ensure that all aspects of the Act, including administration, policy development, providing leave and all other aspects, can be addressed prior to implementation and that existing leave policies can be modified accordingly. The Illinois Department of Labor has created a Frequently Asked Questions page with additional helpful information.


By Sally A. Piefer

Under Wisconsin law, an employee is disqualified from receiving benefits if the employee engages in misconduct or substantial fault. In 2013, the Wisconsin legislature changed the definition of misconduct. With the change, Wisconsin law explicitly recognized that an employee’s absenteeism/tardiness can constitute misconduct, and therefore disqualified an employee from receiving unemployment compensation benefits:

Absenteeism by an employee on more than 2 occasions within the 120-day period before the date of the employee’s termination, unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature, or excessive tardiness by an employee in violation of a policy of the employer that has been communicated to the employee, if the employee does not provide to his or her employer both notice and one or more valid reasons for the absenteeism or tardiness.

This particular provision was challenged Wis. Dep’t of Workforce Dev. v. Wis. Labor & Indus. Review Comm’n, 2017 WI App 29, ¶ 4, 375 Wis. 2d 183, 895 N.W.2d 77 (“Beres”). The employee in Beres worked for an employer whose written attendance policy stated that it could discharge an employee during the probationary period if the employee failed to call in at least two hours prior to the employee’s scheduled shift. The employee – Beres – was absent due to an illness and failed to comply with the employer’s 2-hour call in procedure during her probationary period. She was terminated for failing to follow the procedure.

When Beres applied for unemployment benefits, DWD concluded she was disqualified from receiving benefits because she violated her employer’s attendance policy. The Department of Workforce Development (DWD) determined the employer could enact a stricter attendance policy than the one outlined in the statute, and that Beres was not entitled to unemployment benefits because she violated her employer’s stricter requirement. When Beres appealed, the Commission reversed DWD’s decision and awarded unemployment benefits, concluding that an employee could not be denied benefits on the basis of an employer’s attendance policy that was stricter than the absenteeism policy in the statute. DWD appealed this decision, and the Circuit Court agreed with DWD’s interpretation of the law. The Wisconsin Court of Appeals then reversed the Circuit Court’s opinion and adopted the Commission’s position. The case went to the Wisconsin Supreme Court.

The sole issue before the Wisconsin Supreme Court was as follows:

Does Wis. Stat. § 108.04(5)(e) allow an employer to adopt an attendance or absenteeism policy that differs from that set forth in § 108.04(5)(e) such that termination of an employee for violating the employer’s policy results in disqualification for unemployment compensation benefits even if the employer’s policy is more restrictive on the employee?

The Court answered the question in the affirmative, finding that:

[T]he plain language of Wis. Stat. § 108.04(5)(e) allows an employer to adopt its own absenteeism policy that differs from the policy set forth if § 108.04(5)(e), and that termination for the violation of the employer’s absenteeism policy will result in disqualification from receiving unemployment compensation benefits even if the employer’s policy is more restrictive than the absenteeism policy set forth in the statute.

Because Beres was terminated for not complying with her employer’s absenteeism policy, she was not entitled to unemployment benefits. The Court explicitly stated that its interpretation of Wis. Stat. § 108.04(5)(e) “makes clear that an employer can opt out of the statutory definition of ‘misconduct’ and set its own absenteeism policy, the violation of which will constitute statutory ‘misconduct.’” The Court concluded that “an employee will be considered to have been terminated for ‘misconduct,’ and thus disqualified from obtaining unemployment compensation benefits, if the employee violates the statutory definition of absenteeism, except if the employee adheres to the employer’s absenteeism policy specified in the employment manual of which the employee acknowledged receipt” through a signature.

Immediately following the Beres decision, the Labor & Industry Review Commission (LIRC) repeatedly interpreted unemployment compensation law in accordance with Beres. Beginning in 2019, shortly after Tony Evers, a Democrat, took office, LIRC began to backtrack on this position. Initially, LIRC concluded that an employee who was terminated for violating an employer’s attendance policy was not discharge for misconduct, but instead was terminated for substantial fault.

In July 2022, LIRC issued a decision in which it found that an employee who was terminated for violating his employer’s attendance policy did not constitute either misconduct or substantial fault. On appeal, the Circuit Court in Waukesha County issued a decision reversing LIRC’s decision. The employer had its own attendance policy, which was published in the employee handbook. The employee had notice of the policy. Under the policy, the employee received points for certain attendance violations. Employees who exceed a certain number of points are subject to termination. The employee at issue had a history of attendance violations, and was eventually terminated after exceeding the threshold number of points for a second time.

The Circuit Court concluded that the statutory provision which discusses misconduct in connection with an employer’s own attendance policy was not ambiguous, and that the Wisconsin Supreme Court’s decision in Beres was controlling. In addition, the Court stated that Beres was decided in June of 2018, and that if the legislature believed Beres was wrongly decided, it had nearly five years to signal the decision was incorrect. The Circuit Court concluded the employee was terminated for misconduct and therefore ineligible for benefits. Stay tuned for further developments on this front—both LIRC and DWD have filed appeals and the case will now be decided by the Wisconsin Court of Appeals.


February 27, 2023

By: Sally Piefer and Alexandra (Sasha) Chepov

On January 10, 2023, both houses of the Illinois legislature passed the Paid Leave for All Workers Act (the “Act”), which requires private employers to provide a minimum of 40 hours of paid leave for employees to use for any reason. Governor Pritzker has indicated that he will pass the Act. Therefore, Illinois employers should take all necessary actions to ensure that their policies and practices are compliant with the requirements imposed by the new law prior to the Act’s effective date, January 1, 2024.

Covered Employees:

The Act applies to all employees who work in the State of Illinois. However, the Act does not apply to employees who are covered by a collective bargaining agreement and work in the construction industry or for an employer that provides services nationally and internationally of delivery, pickup, and transportation of parcels, documents and freight.

Covered Employers:

Any employer who employs at least one employee in the State of Illinois is subject to the requirements of the Act. However, the Act does not apply to any employer that is covered by a municipal or county ordinance, which is in effect on the effective date of the Act, that requires employers to give any form of paid leave to their employees, including paid sick leave or other paid leave. Employers in municipalities or counties that enact or amend a local ordinance that provides paid leave, including paid sick leave, after the effective date of this Act must only comply with the local ordinance or other ordinance as long as the benefits, rights and remedies are greater than or equal to that afforded under the Act.

Paid Leave:

The Act requires all employers to provide and allow their employees to use and take a minimum of 40 hours of paid leave during a 12-month period. The 12-month period may be any consecutive 12-month period designated by the employer in writing at the time of an employee’s hire or the time the employer implements a policy consistent with the Act’s requirements.

The Act provides two methods by which an employer can offer its employees paid leave. If an employer accrues leave under the Act, the leave accrues at a rate of 1 hour of paid leave for every 40 hours worked up to a minimum of 40 hours. Employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act are deemed to have worked 40 hours each workweek for purposes of paid leave accrual. An employee who earns paid leave under the Act on an accrual basis begins to accrue leave at the commencement of their employment or on the effective date of this Act, January 1, 2024, whichever is later.

Employers also have the option of offering their employees a minimum of 40 hours of paid leave at an employee’s time of hire or the first day of the 12-month period.

An employee may take paid leave under the Act for any reason of the employee’s choosing and is not required to provide their employer with a reason for leave. Paid leave under the Act must be provided upon on the oral or written request of an employee in accordance with the employer’s reasonable paid leave policy notification requirements which may include the following:

  • When use of paid leave is foreseeable, employers may require the employee to provide 7 calendar days’ notice before the date the leave is expected to begin.
  • When use of paid leave is not foreseeable, the employee is required to provide such notice as soon as is practicable after the employee is aware of the necessity of leave.

The Act provides that employers who require notice of paid leave under the Act when the leave is not foreseeable must provide a written policy that contains procedures for employees to provide notice. Employers are prohibited from denying the use of leave to an employee because of noncompliance with an employer’s leave notification policies, unless the employer has provided a written copy of its notification policy to the employee. The Act further provides that an employee may not be required to provide documentation or certification as proof or in support of the leave. An employee may also choose whether to use paid leave provided under this Act prior to using any other leave provided by the employer or state law.  Employees may not be required to search for or find a replacement worker to cover the hours which the employee takes paid leave.

Unlawful Retaliation:

Under the Act, it is unlawful for any employer to threaten or take any adverse action against an employee because the employee:

  • Exercises rights or attempts to exercise rights under the Act,
  • Opposes practices which the employee believes to be in violation of the Act, or
  • Supports the exercise of rights of another under the Act.

Further, the Act provides that it is unlawful for employers to consider the use of paid leave by an employee as a negative factor in any employment action that involves evaluating, promoting, disciplining or counting paid leave under a no-fault attendance policy.

Employees who believe that they have been unlawfully retaliated against are entitled to file a claim with the Department and may recover all legal and equitable relief as may be deemed appropriate.


Many employers already have leave policies. Paid leave under this Act is not intended to be charged or otherwise credited to an employee’s paid time off bank or employee account unless the employer’s policy permits such a credit. However, employers should be cautious if they do so, because this could inadvertently result in having to pay any unused paid leave to an employee upon their separation to the same extent as vacation time under existing Illinois law must be paid.

The extent to which employers subject to the Act’s requirements must modify their existing policy will undoubtedly vary. Employers should ensure that management is informed and appropriately trained on the Act’s requirements, and should ensure that their policies and procedures are compliant with the Act’s provision prior to January 1, 2024.

If you have questions about this material or require assistance in reviewing and updating your policies, please contact Sally Piefer by email at or Alexandra (Sasha) Chepov by email at, or any other attorney you have been working with here at Lindner & Marsack, S.C.


January 9, 2023

By: Samantha J. Wood

On December 29, 2022, President Biden signed into law an omnibus appropriations bill, which expands protections for pregnant and nursing employees under The Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act.

The Pregnant Workers Fairness Act

 The PWFA, which goes into effect in June 2023, extends the protections for pregnant workers in the same manner as is available under the Americans with Disabilities Act (ADA).  Specifically, the new law requires employers with 15 or more employees to provide reasonable accommodations for pregnant employees and prohibits employment practices that discriminate against qualified employees affected by pregnancy, childbirth, or related medical conditions.  The Act makes it unlawful to take any of the following adverse actions:

  • Refuse to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee, unless such accommodation would impose an undue hardship on the operation of the business;
  • Require a qualified employee to accept an accommodation other than a reasonable accommodation arrived at through an interactive process;
  • Deny employment opportunities to the employee if such denial is based on the need to make reasonable accommodations;
  • Require the employee to take paid or unpaid leave if another reasonable accommodation can be provided that would enable the employee to continue working; or
  • Take an adverse employment action against the employee because the employee requested or used a reasonable accommodation.

Although pregnancy accommodation requirements have been recognized since 2015 pursuant to the U.S. Supreme Court’s decision in Young v. UPS, 575 U.S. 206 (2015), that decision only required employers to accommodate pregnant workers in the same manner as it accommodated other similarly situated non-pregnant employees.  Therefore, if an employer did not accommodate employees with temporary conditions, it did not have to accommodate pregnancy-related limitations under federal law.  The PWFA takes this decision one step further by requiring employers to accommodate pregnant employees irrespective of what the employer does for employees affected by other temporary conditions.  Under the PWFA, pregnant workers will be entitled to accommodations regardless of whether similarly situated non-pregnant workers were given accommodations.

Further, the PWFA provides that employees may seek enforcement and relief under this Act in the same manner as pregnancy discrimination claims under Title VII of the Civil Rights Act.  In the coming months, the Equal Employment Opportunity Commission (EEOC) is expected to adopt rules providing examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth and related medical conditions.

Providing Urgent Maternal Protections for Nursing Mothers Act

 The PUMP Act, which went into effect on December 29, 2022, expands workplace protections for employees who need to express breast milk following the birth of a child.  Since 2010, federal law has required that employers provide non-exempt employees with reasonable break time and a private location (other than a bathroom) to express milk for one year following the birth of a child.  Employers with less than 50 employees are exempt from this requirement if it would impose an undue hardship on their business.

The PUMP Act expands the 2010 requirements by requiring that employers provide reasonable break time and a private place (other than a bathroom) to express breast milk to both exempt and non-exempt employees.  The break time may remain unpaid, unless the employee is not completely relieved from duty during the entirety of the break.

The PUMP Act further provides that before commencing an action against an employer, the employee must notify the employer of its non-compliance.  The employer then has up to ten (10) days to come into compliance with the required accommodations.

Employers should ensure management is notified and appropriately trained on these changes, and should also ensure that their policies and procedures are updated and in compliance with these new laws. We will continue to monitor the EEOC’s issuance of rules relating to the PWFA and will provide updates when those rules have been made available.

If you have questions about this material, please contact Samantha J. Wood by email at, or any other attorney you have been working with here at Lindner & Marsack, S.C.


By Sally A. Piefer

As you know, in early November, OSHA announced an emergency temporary standard (“ETS”) which affects employers with 100 or more employees. The ETS directs these covered employers to develop, implement, and enforce a written mandatory COVID-19 vaccination policy—or to adopt a written policy requiring employees to either choose to be vaccinated or to be tested regularly and wear a face covering at work.

The ETS was immediately challenged, and within a few days, the ETS was halted nation-wide by the 5th Circuit Court of Appeals. Additional lawsuits were filed across the country in an effort to gain an advantage over which federal Circuit Court would ultimately determine the ETS’ validity. The 6th Circuit Court of Appeals was selected in the lottery, and many believed the ETS might not survive the legal challenges, because the 6th Circuit was largely made up of Republican-appointees.

In mid-December, the 6th Circuit decided to lift the 5th Circuit’s Order preventing the ETS from taking effect. The Court’s decision resulted in an immediate appeal to the U.S. Supreme Court. OSHA pressed forward and adjusted its enforcement dates, saying that it would not issue citations for noncompliance with any documentation requirements before January 10, 2022 and would not issue citations for noncompliance with the testing requirements before February 9, 2022.

This morning, the U.S. Supreme Court heard oral argument on whether the ETS should be stayed pending resolution of the legality of the rule by the 6th Circuit. This morning’s hearing has not resulted in a decision, and ongoing questions loom on whether the ETS will take effect on Monday. A number of the Justices appeared to be in favor of a short stay until a decision could be made by the high court. Several historically conservative Justices appeared to be in favor of the ETS and appeared not likely to favor a long-term stay. The Justices gave no indication when they would issue a decision, but the decision will likely signal the high court’s view of the underlying merits of the case.

Our impression is that this will be a close call. We anticipate that Justices Thomas, Kagan, Breyer and Sotomayor will not be inclined to favor a stay, and these justices focused a number of their comments and questions on the widespread nature of the Omicron variant. Justices Roberts, Barret and Gorsuch appeared to question OSHA’s authority and seemed inclined to favor of a stay. It is unclear how Justices Cavanaugh and Alito will side, based on their comments and questions this morning.

We encourage employers to continue to prepare as if the ETS will become effective on Monday, January 10, 2022. This means you need to continue to take the following steps:

  • Create a policy on vaccination or testing with mask wearing
  • If you will offer employees the option of weekly testing, decide who will bear the cost for testing, and provide employees with paid time off to get vaccinated and to recover from the side effects of the vaccine
  • Ascertain the vaccination status of each employee and obtain acceptable written proof of vaccination
  • Maintain records of the vaccination status for each employee
  • Provide materials encouraging vaccination to your employees and provide information about the ETS
  • Ensure that all employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes—and enforce this requirement
  • Require employees to immediately provide notice of a positive COVID-19 test or diagnosis and ensure that any employee with a positive test is removed from the workplace pursuant to CDC guidelines
  • Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related in-patient hospitalizations within 24 hours
  • Employers must be prepared to provide documentation of its written policy and the aggregate number of employees vaccinated within 4 business hours of a request by OSHA, and all other records requested by OSHA must be produced by the end of the business day following the request.

If you have questions or need assistance with policy development, please contact the Lindner & Marsack attorney with whom you regularly work. We will continue proving updates as we learn more about new directives, rules, or guidance.

Update on OSHA’s Mandatory Vaccine Rule: What Should Employers Do?

By Sally A. Piefer

November 23, 2021

As we previously reported, on November 4th, OSHA released its emergency temporary standard (“ETS”) which requires employers with 100 or more employees to develop, implement, and enforce a written mandatory COVID-19 vaccination policy. Alternatively, covered employers may adopt a written policy requiring employees to either choose to be vaccinated or undergo regular testing and wear a face covering at work.

The ETS gave employers until December 5, 2021 to do the following:

  • Develop a written vaccination and/or testing policy.
  • Determine which employees are vaccinated and collect documentation from employees who are vaccinated.
  • Develop educational materials to provide to employees covering (i) requirements of the ETS and its workplace policies; (ii) a copy of the CDC’s Key Things to Know About COVID-19 Vaccines; (iii) information prohibiting retaliation and discrimination; and (iv) information discussing criminal penalties for intentionally providing false information or documentation.

The testing and masking requirements were set to be implemented on January 4, 2022.

Almost immediately, a number of lawsuits were filed by employer groups across the nation seeking to invalidate the ETS, and shortly thereafter a number of labor unions and employee groups began filing similar lawsuits in employee friendly jurisdictions. All of those petitions have been consolidated in and will be decided by the Sixth Circuit Court of Appeals. Before the Sixth Circuit assumed jurisdiction of the cases, the Fifth Circuit Court of Appeals, a notably employer-friendly jurisdiction (or court), granted a Motion to Stay Enforcement of the ETS, finding the ETS overbroad. Several days later, OSHA posted on its website that it was suspending enforcement of the ETS “pending further developments in the litigation.”

This morning, the Biden Administration filed an Emergency Motion asking the Sixth Circuit to Dissolve the Stay issued by the Fifth Circuit. While it is still too soon to speculate how the Sixth Circuit will rule in response to the current Motion, many clients are asking what they should do since the ETS appears to be in legal limbo.

What should employers do while the ETS is in limbo? Even though the ETS has presently been paused, employers are encouraged to continue with their efforts to implement the ETS in the event the Sixth Circuit lifts the Stay. In such event, it is presently unclear how quickly OSHA may try to enforce the December 5 deadline. In addition, it would be wise for employers to keep employees informed about the process so that if the ETS is enforced, an employer can quickly move to get into compliance.

Employers should also be aware that the current proceedings in the Sixth Circuit do not impact the Executive Order 14042 mandating vaccines for certain covered government contractors and subcontractors, the vaccine mandate from the Centers for Medicare & Medicaid Services (CMS) for healthcare employers, or any state or local vaccination mandate or testing requirements.

If you have questions about this new development or about your obligations under any vaccine mandate or testing requirements, please contact Attorney Sally Piefer or the Lindner & Marsack attorney with whom you regularly work. We will continue proving updates as we learn more about new developments and how they will impact your business.





By: Samantha J. Wood and Sally A. Piefer

On Wednesday, the Wisconsin Supreme Court struck down Wisconsin’s statewide mask mandate, holding that Governor Evers exceeded his legal authority by issuing multiple emergency orders under Wis. Stat. § 323.10.   The court emphasized that the question was “not whether the Governor acted wisely; it [was] whether he acted lawfully.”  Section 323.10 specifies that no state of emergency may last longer than 60 days unless “the state of emergency is extended by joint resolution of the legislature.”  Absent legislative approval, the Governor is precluded from proclaiming repeated states of emergency.  Because Governor Evers extended the orders declaring a state of emergency on several occasions without legislative approval, his extensions were and are invalid.

Although Wisconsin’s statewide mask mandate has been struck down by virtue of the Supreme Court’s decision, employers must keep several other laws in mind in determining their next steps:

  1. Several municipalities have issued their own mask mandates, including Dane County, Milwaukee County, the City of Milwaukee, Wauwatosa and various other townships and villages. These mandates are enforceable if enacted by the municipality’s governing body. Employers should check with their local municipality and county before eliminating a mask requirement.
  1. Employers still maintain responsibilities under OSHA’s “General Duty” clause. OSHA’s General Duty clause requires an employer to furnish to its employees employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm.  Employers can be cited for a violation of the General Duty clause if a recognized hazard exists in the workplace and the employer does not take reasonable steps to prevent or abate the hazard. OSHA prepared guidance in March 2021 that encourages employers to require face coverings. That guidance can be found here.
  1. Employees may be eligible to receive worker’s compensation benefits as a result of contracting COVID-19 in the workplace if the employee can establish that the employee contracted the virus while performing services growing out of and incidental to that employment.

In determining whether to lift an employment mask requirement or policy, employers should consider the above-referenced legal considerations, as well as analyze the risks in their workplace, other sanitization or safety procedures in place, and whether, if a mask requirement will remain in place, the employer will consistently enforce a mask policy and issue corrective action to employees who violate the policy.


By Sally Piefer

Yesterday we reported that, despite repeated requests from the Wisconsin Manufacturers & Commerce (WMC), Wisconsin’s Governor Evers was set to release to the public the names of Wisconsin businesses who have had at least 2 employees test positive for COVID. The release of business names was scheduled for Friday, October 2, 2020.

Yesterday, the WMC, along with two other local Chambers of Commerce, filed a lawsuit in Waukesha County Court on the issue. The WMC and the Chambers also sought a temporary restraining order (TRO), asking the Court to immediately prevent the Governor’s office from taking the proposed action.

The Waukesha County judge granted the TRO request late on Thursday afternoon. The Order reads:

Upon the motion of Plaintiffs Wisconsin Manufacturers and Commerce, Muskego Area Chamber of Commerce, and New Berlin Chamber of Commerce and Visitors Bureau, pursuant to Wis. Stat. § 813.025 and for good cause shown;

It is hereby Ordered that Defendants Tony Evers, Andrea Palm, and Joel Brennan, and their officers, agents, and employees (collectively referred to as “Defendants”), are temporarily restrained from releasing any information relating to businesses whose employees have tested positive for COVID-19 or who contract tracing has shown close connections.

This Order shall remain in effect for 5 days unless extended after notice and hearing.

The Court will likely be scheduling a hearing on the request for a preliminary injunction either next week or the week after. Typically, TRO’s can be in effect for up to 5 days, unless extended by agreement of the parties. We will continue to keep you abreast of further developments on this issue. Should you have any questions, please feel free to contact Sally Piefer or your normal contact at Lindner & Marsack.