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Home > Employment Law Update November 2021

Employment Law Update November 2021

OSHA’s authority to impose vaccination standard on private employers fell under heavy scrutiny in November 2021.  This, and other updates, below: 

OSHA Suspends Vax or Test  ETS Pending Court Challenges

Earlier this month, the Occupational Safety and Health Administration (OSHA) announced that it is suspending all implementation and enforcement efforts related to the emergency temporary standard (ETS) on mandatory COVID-19 vaccination and testing in the workplace.  The ETS required all private employers with 100 or more workers to ensure all employees are either fully vaccinated for COVID-19, or provide a weekly negative test and wear a face covering while working.  

The announcement follows the November 12, 2021, order from the Fifth Circuit Court of Appeals staying enforcement of the ETS pending a final ruling on its legality.  The Fifth Circuit did not pull any punches in its opinion on the ETS: 

“[t]he Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address”.  

Also this month, the Sixth Circuit Court of Appeals was selected as the venue where all legal challenges to the ETS will be consolidated and ruled upon. Historically, OSHA’s standards have not done well when challenged in the courts, with five of six standards being struck down.

Pennsylvania federal judge rules Tyson food’s Pennsylvania subsidiary immune from COVID-19 death suit under state workers’ compensation law 

A U.S. District Judge in the Eastern District of Pennsylvania ruled this month that Tyson Foods’ Pennsylvania unit, Original Philly Holdings Inc., which operates the Philadelphia meatpacking facility where worker Brian Barker contracted COVID-19 and later died, is immune to the suit because workers’ claims against employers need to be handled via the state workers’ compensation system.  Per the Court’s Order, the Pennsylvania Supreme Court’s 1987 decision in Kiehl v. Action Manufacturing Co. provides that a parent and its subsidiary “must be regarded as separate entities” when applying the PWCA, and “a parent is not an employer because it indirectly benefits from the work of a subsidiary’s employee.”  “The facts alleged by plaintiff herself confirm that Holdings was Mr. Barker’s employer and so is immune from suit under the PWCA,” the Court concluded. 

Pennsylvania Supreme Court rules worker still on the job at after-work event and could be eligible for workers compensation

The Pennsylvania Supreme Court ruled this month that a traveling salesman for a Pennsylvania company was still furthering his employer’s interests when he attended a work-sponsored, after-hours gathering, and could still be eligible for workers’ compensation when he got into a crash on the way home.  In Peters v. WCAB (Cintas Corp.), the Court held that Pennsylvania’s “traveling employee doctrine” gave the claimant the presumption that he was on the job unless his employer could prove he wasn’t. Though a Cintas-sponsored happy hour was voluntary and work was not discussed, it was enough of a work event that attending it did not constitute “abandonment” of the claimant’s job, the unanimous opinion stated.  The opinion serves as a reminder of the broad scope of employment in the context of workers compensation claims generally, and that the scope is even broader for traveling employees.

The case is case number 1 MAP 2020 in the Supreme 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, 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.