January 25, 2022

Volume XII, Number 25

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January 24, 2022

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New Bills Seek to Void Restrictive Covenants for Employers with Vaccine Mandates

Employers in the U.S. are facing regulatory upheaval on multiple fronts. The federal government has taken up a new interest in potentially limiting the applicability of restrictive covenants, such as non-compete agreements. Meanwhile, the Occupational Safety and Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS) (currently stayed by the Fifth Circuit) requiring employers with 100 or more employees to ensure all employees are either vaccinated or taking weekly COVID-19 tests.

These seemingly disparate legal trends are colliding in recent federal and state bills.

On November 3, 2021, nine Republican House Members sponsored a Federal bill that would void existing non-compete agreements for any employee who is fired for “not receiving a COVID-19 vaccine.” The bill would also require the Federal Trade Commission (FTC) to issue regulations prohibiting employers from enforcing non-compete agreements with such employees.

Similar bills have been introduced around the country. The trend began in Texas and Tennessee, then New Hampshire followed suit on November 16, 2021.

The Tennessee bill has even more “bite” than its federal and state companions. If a private employer requires the signing employee to receive a vaccine as a condition of employment, any non-compete, non-solicitation, non-disparagement, or confidentiality provision entered after the effective date of the proposed law would be void and unenforceable. Even if the employee gets the vaccine voluntarily and later resigns to work for a competitor, these provisions would be void simply by virtue of the employer having required the vaccine in the first place.  (Which, of course, may be mandatory under federal law.)

Logan Collier Adams contributed to this article.

Jackson Lewis P.C. © 2022National Law Review, Volume XI, Number 322
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About this Author

Victor N. Corpuz Employment Litigation Attorney Jackson Lewis Dallas, TX
Principal

Victor Navasca Corpuz is a Principal in the Dallas, Texas, office of Jackson Lewis P.C. Since joining the firm in June 2000, he has handled workers’ compensation retaliation cases, all claims of discrimination under Title VII, FMLA, ADA, and ADEA and their state law equivalents and cases under the FLSA.

After law school, Mr. Corpuz practiced for eleven years in insurance defense, handling medical malpractice cases, wrongful death cases, and employment law litigation. Mr. Corpuz is a frequent writer and speaker on employment-related topics.

Mr...

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