By Rachel K. Lozosky

Most large employers are now aware of the federal vaccine mandate applicable to private employers with 100 or more employees, which was originally scheduled to take effect December 4, 2021. An “employee” in this context includes a part-time employee and a temporary employee who is employed at any time that the mandate is in effect.  

As a result of a petition for a permanent injunction filed earlier this month in the Fifth Circuit Court of Appeals, that Court issued an order on November 12 temporarily enjoining OSHA from enforcing the mandate.  OSHA has since published a statement on its website advising that it has suspended activities related to the implementation and enforcement of the mandate pending further court action.

The next step in litigation will be consideration by the Sixth Circuit Court of Appeals of the multiple challenges to the vaccine mandate that have been filed in all other federal appellate courts.  On November 16, all of these challenges, including the petition for injunction filed in the Fifth Circuit, were consolidated to be heard by the Sixth Circuit.  While this is a somewhat unusual procedural step, our interpretation is that when the Sixth Circuit issues a decision regarding whether to allow the mandate to stand, that decision will be binding nationwide on private employers with at least 100 employees, unless and until that decision is reversed, either temporarily or permanently, upon any appeal that may be filed to the United States Supreme Court.

Given our understanding of the leanings of the Sixth Circuit, and the persuasive value that the Fifth Circuit’s anti-mandate opinion may have, we believe it is likely that the Sixth Circuit will not uphold the mandate.  We have no knowledge at this time as to when the Sixth Circuit will issue a decision.  Given the stay that is currently in place and the uncertainty as to whether any change in enforceability of the mandate will occur before the December 4 compliance deadline, some employers will decide not to incur the time and expense involved with preparing a mandatory vaccine policy at this juncture.  There is some practical wisdom in this approach, given all of the above.

However, the safest approach from a compliance standpoint is to prepare a policy now, in case the mandate becomes enforceable on December 4 or shortly thereafter.  The policy that is required by the vaccine mandate will take some time to prepare and implement, and the financial penalties for non-compliance are very significant.  The policy must exceed simply telling employees that they must be vaccinated, although this is one major requirement.  Certain exemptions will apply, including those for religious or disability related reasons.  (Note that religious and disability exemptions will also apply to any vaccine mandates that employers may voluntarily establish, independent of any legal mandate.) The policy also must address issues of paid and unpaid leave and a possible requirement of testing in lieu of vaccine; both of these issues require employers to exercise their discretion among several optional approaches, and therefore require some forethought and planning.  Other issues addressed by the mandate include specific requirements for validation and recordkeeping of testing results, as well as quarantine requirements.  The mandate does allow employers an implementation grace period up to January 4 for putting a testing program in place.  

Each employer will need to decide whether moving forward with preparing a policy at this time is the best course of action for its business.  Peacock Keller’s employment attorneys are available to provide counsel and assistance in making this decision, preparing a policy to satisfy the mandate, or addressing other COVID-related issues of concern.

By Blake J. Birchmeier

In today’s increasingly digital world, almost all of us have acquired a new form of property interest called digital assets.  Digital assets, which are separate from our physical possessions, consists of digital information or communications, i.e. – email accounts, social media accounts, cloud-based storage accounts, digital photos, bank or other financial accounts, and cryptocurrencies, such as Bitcoin, that are stored as data on a computer server and accessed via the internet.  Until now, however, Pennsylvania law provided zero guidance for individuals who wished to transfer their so-called “digital assets” or how these digital assets were able to be accessed by their personal representatives upon their death.  Rather, access and control of these digital assets for Pennsylvanians have been largely governed by the terms-of-service agreement existing between the individual and various private companies.  Those agreements are commonly referred to as “click-through” agreements and are the legal terms of service that almost everyone blindly agrees to by clicking the applicable boxes in order to create an online account or to utilize the online services of a company.  These terms-of-service agreements can create problems for Pennsylvania account holders when they die or become disabled and their personal representative needs to gain access to those accounts on their behalf.

            Fortunately, Pennsylvania recently passed Act 72 of 2020 to provide guidance to Pennsylvanians with respect to the ability to access or transfer their various digital assets.  The Act is formally called the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) and was signed into law by Governor Tom Wolf on July 23, 2020, and took effect in January of 2021.  RUFADAA is designed to work in tandem with Pennsylvania’s existing laws concerning probate, estates, personal representatives, powers of attorney, and trusts.  In fact, RUFADAA now provides a framework within Pennsylvania law whereby you have a direct say and control over access to and the transfer of your digital assets. 

This new framework, under RUFADAA, is strikingly similar to assets that you already own and manage, which can either be controlled by the express provisions of your Will or Trust or through the designation of specified beneficiaries.  In that sense, it is important for you to know that many of these private online companies, such as Google, Apple, Facebook, Yahoo, etc., actually provide what is called an “online tool” so that you can instruct these companies, as custodians of your accounts, exactly who can gain access or control of your account and all or what information in your account those persons have access to.  Therefore, much like a beneficiary designation on your life insurance or retirement account, you have the ability to expressly direct these companies as to the manner of control or access your personal representative has to your information, either upon your death or disability. 

            Of course, there are providers of online accounts that do not provide these sort of user-directed instructions through an online tool, which is where the framework of RUFADAA concerns the various estate planning documents that our clients currently have in effect for the transfer or control of their physical possessions and estate.  In those cases where there are not online tools or designated successors to users online accounts, RUFADDA expressly grants users the power set forth their instructions for their digital assets in their Wills, Trust, or Powers of Attorney, which will override the provisions of the terms-of-service agreement in effect between you and these private companies.  This is critically important, especially if you wish to have your digital assets transferred or accessed in the same or similar manner as your other assets that you have designated and provided instructions related thereto in your Will, Trust, or Powers of Attorney.

Pennsylvanians who fail to properly plan for the management or disposition of their digital assets, whether during life or at death, may not be able to override the express provisions of the terms-of-service agreements in effect between themselves and these private companies.  While RUFADAA provides that the same personal representative appointed to manage a person’s physical possessions will also have the ability to manage that person’s digital assets, in the absence of an online tool or direction in the person’s estate planning documents, access to certain information is limited and can be obtained only through a legal process involving a court. 

It’s a digital world after all and if your digital assets are just as important as the other assets you are passing on to your loved ones, it is important that you contact our Estates and Trusts Attorneys to consider an update to your estate planning documents, so that the provisions and protections of RUFADAA are properly incorporated into your estate plan.

By Susan T. Roberts

Social media postings are fraught with risk for both employers and employees. Rulings issued by the National Labor Relations Board in the last few years have left employers wondering whether they have any rights at all to regulate, monitor and discipline employees for what they post on Facebook and other social media without running afoul of the protected activities provisions of the National Labor Relations Act ("NLRA"). Employees may wonder how far they can go in their social media postings as they run the risk of what they say online will draw their employer's attention.

The NLRA provides protections for both union and non-union workers who take part in "concerted activity" (talking about their employer or work situation or wages) with their co-workers. If an employee's activity on social media can be perceived as protected concerted activity, the employer may violate the NLRA if the employer disciplines the employee for the conduct.

There are limits, however, as to how far an employee can go with their social media posts if the posts are likely to harm the employer's reputation. This month, the Third Circuit Court of Appeals upheld a ruling by a judge of the United States District Court for the Western District of Pennsylvania that held that BNY Mellon did not violate Title VII of the Civil Rights Act of 1964 when it fired a Mt. Lebanon woman because of a social media posting.

The Plaintiff, a senior control analyst for BNY Mellon, was fired after she posted a comment on a news article on Facebook about a man who faced criminal charges for driving his car into a crowd of protestors protesting the death of Antwon Rose, Jr., who was killed by an East Pittsburgh police officer. In response, the Plaintiff posted, "Total BS. Too bad he didn't have a bus to plow through." Her personal Facebook account privacy settings were set to "public" so her comments could be seen by anyone. Her Facebook account also identified her as "VP at Bank of New York Mellon."

BNY Mellon fired the Plaintiff upon discovering her comment and she sued. The Plaintiff, who is white, claimed race discrimination under Title VII. The Plaintiff said that the bank's decision to retain two Black employees who also made controversial posts was evidence of discrimination. The Third Circuit Court found that the Plaintiff's co-workers did not say anything as extreme as the Plaintiff did in their social media posts. "What matters most is that [the Plaintiff's] social media post was far more egregious – and far more likely to harm BNY Mellon's reputation," wrote Judge Cheryl Ann Krause. "Neither post [of the co-workers] encouraged mass violence against protestors, as [the Plaintiff's] did."

The bottom line: when employees use platforms such as Facebook and Twitter, they may legally engage in protected concerted activity. If, however, an employee's postings cross the line and fall outside of concerted activity, careless use of social media can be a legal basis for termination.