Hello and Welcome to MacElree Harvey

Centreville, DE
Centreville, DE

5721 Kennett Pike
Wilmington, DE 19807

Hockessin, DE
Hockessin, DE

724 Yorklyn Rd #100
Hockessin, DE 19707

Kennett Square, PA
Kennett Square, PA

209 East State Street
Kennett Square, PA 19348

West Chester, PA
West Chester, PA

17 West Miner Street
West Chester, PA 19382

8:00am - 5:30pm
Opening hours Monday - Friday
Call Us Today
MacElree Harvey Offices
Home > Employment Law Update January 2022

Employment Law Update January 2022

The New Year started off with a bang with major shake-ups surrounding employer-mandated COVID-19 vaccination policies, and several notable Pennsylvania lawsuits in the employment world:

Supreme Court blocks OSHA Vaccine or Test Rule for Private Businesses, allows Healthcare Mandate

Earlier this month, the U.S. Supreme Court blocked the Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) implementing a vaccine-or-testing rule for private businesses with at least 100 employees.  The Supreme Court’s ruling did not technically “kill” the ETS, but meant that OSHA couldn’t enforce the ETS while the 6th U.S. Circuit Court of Appeals considered the merits of lawsuits against the mandate.

Subsequent to the Supreme Court’s ruling, OSHA officially ended the litigation by withdrawing the ETS, effective Jan. 26.  However, employers should note that the ETS also acted as a proposal for a permanent standard, which is separate from this litigation.  A permanent standard requires the agency to undergo a formal rulemaking process with a notice-and-comment period.  OSHA has explicitly stated that this portion of the ETS remains pending: “OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule,” according to the agency’s announcement.  To that end, employers are likely to see some sort of regular COVID-19 standard proposed in 2022, though it is safe to say this standard will have some substantial changes from the ETS that was already struck down.

In a separate opinion, the Court permitted the federal Centers for Medicare & Medicaid Services (CMS) to require COVID-19 vaccination for health care workers at Medicare- and Medicaid-certified providers and suppliers.  For employers covered by the CMS mandate, workers were supposed to have received their first COVID-19 vaccine dose by Jan. 27, and required to be fully vaccinated by Feb. 28.  Additionally, those employers are required to track employees’ vaccination statuses and develop vaccination policies that include medical and religious exemptions and accommodations.

Pennsylvania Superior Court rules Benefits Plan Description Is ‘Contract’

An employer’s short-term disability benefits program for its employees created an enforceable contract under Pennsylvania law, the Pennsylvania Superior Court has ruled.  The three-judge panel held that the “summary plan description” that Capital Blue Cross gave an employee laid out the terms and conditions under which the company would pay short-term disability benefits, so the employee could sue the company for breach of contract when she claimed it unfairly terminated those benefits, notwithstanding that the individual’s employment was “at-will”.  The employee’s benefits were terminated before the 26-week maximum by an administrator that claimed she was capable of working elsewhere and eventually said she would also be ineligible for long-term disability.  The case is Evans v. Capital Blue Cross, case number 410 MDA 2021, in the Superior Court of Pennsylvania.

Pennsylvania Employee files Suit for Discrimination over Medical Marijuana Use

A Mifflintown, Pennsylvania patient under Pennsylvania’s Medical Marijuana Program has filed suit in federal court, alleging he was wrongfully terminated after his status as a medical marijuana cardholder was revealed.  The employee was employed for three years as a shift supervisor.  He alleges that he was approached by company management “out of the blue” in November 2020 and was asked if he ever used marijuana, allegedly based on information relayed to management by another employee about his participation in the Program.  After the employee showed management his medical marijuana card, management abruptly terminated his employment, allegedly citing a blanket policy against medical marijuana usage.

The employee is suing the company under the Americans with Disabilities Act, the Pennsylvania Medical Marijuana Act and Pennsylvania common law. The employee says he was fired due to his disabilities and status as a medical marijuana patient.  Notably, the Pennsylvania Medical Marijuana Act expressly prohibits discrimination against an individual based upon their participation in the Program, though the Act does permit employers to impose restrictions around certain dangerous work duties.

The case is Berrier v. Valley Proteins Inc., case number 1:22-cv-00131, in the U.S. District Court for the Middle District of Pennsylvania.

Attorney’s Fees potentially on the table for Pennsylvania Teachers Challenging Union “fair Share Fees”

A Lancaster County Court must determine whether two nonunion teachers challenging the collection of “fair share fees” were prevailing parties and entitled to attorney fees after the 2018 U.S. Supreme Court ruling in Janus v. AFSCME, which held that fair share fees are unconstitutional.  The teachers filed suit in 2014, challenging the constitutionality of Pennsylvania’s Fair Share Law, however the case remained in limbo while Janus was being decided.  The Lancaster lawsuit was previously dismissed as moot, however a Pennsylvania appellate court has now ruled that the matter was not completely moot because the plaintiffs had also sought to make the unions pay the teachers’ legal bills, and this claim constituted a “live controversy”.  The case is Ladley et al. v. PSEA, case number 158 CD 2019, in the Commonwealth Court of Pennsylvania.



Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.