As featured in #WorkforceWednesday: This week, we turn our focus to the conclusion of the COVID-19 Public Health Emergency (PHE) on May 11, 2023:
What does the end of the COVID-19 PHE mean for employers? Epstein Becker Green attorneys Brianna Richardson and Eric I. Emanuelson Jr. describe the challenges employers may encounter as they navigate crucial decisions regarding policies, procedures, and benefits during the ongoing transition process.
As featured in #WorkforceWednesday: This week, we examine the decision of a Texas district court to strike down an Affordable Care Act (ACA) mandate on preventive medical services and look at the U.S. Department of Justice’s (DOJ’s) third trial loss in prosecuting wage-fixing and no-poach agreements. We also discuss the recent termination of the COVID-19 national emergency and the upcoming end of emergency benefits for employers on May 11, 2023.
The California Office of Administrative Law has approved the California Division of Occupational Health and Safety’s (Cal/OSHA) COVID-19 Prevention Non-Emergency Regulations (Non-Emergency Regulations). As a result, on February 3, 2023, Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards (ETS) expired, and the Non-Emergency Regulations went into effect.
Although extending many of the ETS requirements, as we previously reported, the Non-Emergency Regulations contain some notable changes. A redline comparing the Non-Emergency Regulations to the ETS is available here. Some important changes include:
In June 2022, the California Division of Occupational Health and Safety (“Cal/OSHA”) proposed initial non-emergency standards for COVID-19 prevention in the workplace that were intended to replace the current COVID Emergency Temporary Standards (“ETS”) set to expire on December 31, 2022. Following oral and written comments received from the public, the Cal/OSHA Standards Board (the “Board”) made further updates to the proposed non-emergency standard as of December 2, 2022 (the “Anticipated New Regulation”). It is expected that the Board will vote on the Anticipated New Regulation, with no further modifications, at its upcoming meeting on December 15, 2022. The Anticipated New Regulation would then become effective from January 1, 2023 through December 31, 2024.
For more than two and a half years, employers across the country have navigated a nuanced web of legal requirements and guidance to safely operate during the global COVID-19 pandemic. Recent updates to the legal landscape at the federal, state, and local level, however, have left many employers asking: is the COVID-19 pandemic finally over? For now, the answer remains “no.” This post discusses three key reasons why employers should continue to operate with the pandemic in mind.
On September 20, 2022, Mayor Eric Adams announced that New York City’s COVID-19 vaccine mandate for private employers is ending. The City’s mandate for municipal employees, however, will remain in effect.
After two and a half years of promoting protocols aimed at reducing transmission of coronavirus, on August 11, 2022, the CDC eliminated its recommendation that people quarantine after exposure to COVID-19 and updated other recommendations. In recognition of how vaccination, boosters, and improved treatments have the reduced risk of severe illness, hospitalization, and death, the CDC has “streamlined” its guidance regarding what actions people should take to protect themselves and others if they are exposed to COVID-19, become sick, or test positive for the virus. The CDC now recommends that instead of needing to quarantine, someone who has been exposed to COVID-19 only needs to wear a high-quality mask for 10 days. During the 10-day masking period, individuals (regardless of vaccination status) should monitor their symptoms and get tested after five days, regardless of symptoms.
As featured in #WorkforceWednesday: This week, we update you on new COVID-19 guidance and union organizing and non-compete trends at the federal and local levels.
On March 14, 2022, the EEOC issued a technical assistance document, The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws, which provides guidance as to ways equal employment opportunity laws enforced by the EEOC (“EEO laws”) may apply to caregivers. In conjunction with this, the EEOC added a Section I (“Caregivers/Family Responsibilities”) to “What You Should Know About COVID-19…,” its primary COVID-19 related guidance document. Enforcement guidance issued by the EEOC in 2007, previously addressed circumstances in which discrimination against caregivers might constitute unlawful disparate treatment. The EEOC has issued this new guidance in response to how the COVID-19 pandemic has particularly affected employees with caregiver responsibilities.
The New York HERO Act website was quietly updated on the afternoon of March 18, 2022 to confirm that the designation of COVID-19 as an airborne infectious disease that presents a serious risk of harm to the public health has ended. This means the “activation” of HERO Act safety plans is over.
On March 17, 2022, the designation of COVID-19 as an airborne infectious disease that presents a serious risk of harm to the public health under the HERO Act ended. Private sector employers are no longer required to implement their workforce safety plans.
While the fate of two COVID-19 vaccination rules by federal agencies were decided in January by the Supreme Court of the United States, millions of employees working for the federal government, whether directly or as a contractor, have been waiting for clarity in the wake of court orders halting Presidential efforts to promote vaccination. Here is a brief update on the status of litigation challenging the extent of the President’s authority to command the Executive Branch.
The first state to implement workplace health and safety standards for COVID-19 is poised to roll back those requirements. Virginia’s Permanent COVID-19 Employee Health and Safety Requirements (the “Permanent Standard”) established requirements for employers to control, prevent, and mitigate the spread of COVID-19. However, with the Omicron wave receding, Virginia Governor Glenn Youngkin says the Permanent Standard presents “a significant burden on businesses” and should be reconsidered.
Pursuant to Governor Youngkin’s Executive Order issued on January 15, 2022, the Virginia Safety and Health Codes Board (the “Board”) convened on February 16, 2022, to determine whether the Permanent Standard is still necessary. Adopting the Virginia Department of Labor and Industry’s (“DOLI”) recommendation, the Board agreed that there is no continued need for the Permanent Standard because the virus, “based on emerging scientific and medical evidence, . . . no longer constitute[s] a grave danger to employees in the workplace.”
On January 26, 2022, the City and County of San Francisco released an updated Health Order No. C19-07y (the “Updated Health Order”), which addresses a number of rules issued in an effort to combat continued spread of COVID-19, including changes in exemptions to the universal indoor mask mandate. Specifically, effective February 1, 2022, the Updated Health Order renews a previously-suspended masking exemption for vaccinated workplaces, with a few significant changes.
First, under the revised mask exemption, only employees who are “Up to Date” on vaccination (see below for definition) may go unmasked in the workplace, assuming the other conditions for the exemption are met. Other individuals must wear masks at all times, subject to limited exceptions (e.g., alone, while eating). Further, consistent with the Cal/OSHA definition of an outbreak, this exemption only applies if there have been no outbreaks (currently defined as three or more COVID-19 cases in an “exposed group” within a 14-day period) in the past 30 days.
As featured in #WorkforceWednesday: This week, we look at how state and local COVID-19 requirements and new COVID-19 benefits are shifting employers’ policies once again.
As we have previously explained, pursuant to Section 1 of the NY HERO Act, employers were required to prepare an airborne infectious disease exposure plan, and implement such plans when the New York State Commissioner of Health has made a designation that a highly contagious communicable disease presents a serious risk of harm to public health. Currently, such a designation is in effect until February 15, 2022. The New York State Department of Labor (“NYSDOL”) prepared model plans based on their published Airborne Infectious Disease Exposure Prevention Standard (“Standard”). On August 25, 2021, the NYSDOL published a set of emergency regulations, identical to the Standard, in the New York State Register. Although they had not been formally adopted, most businesses have been following the Standard.
As featured in #WorkforceWednesday: This week, we’re breaking down what last week’s U.S. Supreme Court decision on two of the federal vaccine mandate rules will mean for employers.
As featured in #WorkforceWednesday: This week, we look at the latest federal rules and guidance on vaccination policies, quarantine periods, and masking.
Ready for the “new normal”? Starting January 15, 2022, Boston’s “B-Together” Vaccine Mandate (“the mandate”) will require certain indoor establishments to require proof of COVID-19 vaccination for entry from employees, contractors, and customers.
- The mandate applies only to indoor portions of certain commercial food services, gym and fitness settings, and entertainment/recreation facilities in Boston
“Indoor food services” means indoor portions of food service establishments offering food and drink including restaurants, bars, and nightclubs. Fully enclosed “outdoor” areas are considered “indoor” under the policy. The mandate does not apply to open-air, outdoor areas, food service establishments offering food and/or drink exclusively for off-premises or outdoor consumption, or to food service establishments providing charitable food services, such as soup kitchens.
On the evening of Wednesday, December 22, 2021, the Supreme Court of the United States announced that it will hold a special session on January 7, 2022, to hear oral argument in cases concerning whether two Biden administration vaccine mandates should be stayed. One is an interim final rule promulgated by the Centers for Medicare and Medicaid Services (“CMS”); the other is an Emergency Temporary Standard (“ETS”) issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”). The CMS interim final rule, presently stayed in 24 states, would require COVID-19 vaccination for staff employed at Medicare and Medicaid certified providers and suppliers. The OSHA ETS, which requires businesses with 100 or more employees to ensure that workers are vaccinated against the coronavirus or otherwise to undergo weekly COVID-19 testing, was allowed to take effect when a divided panel of the United States Court of Appeals for the Sixth Circuit, to which the consolidated challenges had been assigned by the Judicial Panel on Multidistrict Litigation, issued a ruling on December 17, 2021, lifting a stay that had been previously entered by the Fifth Circuit. Multiple private sector litigants and states immediately challenged the decision.
On Monday, December 20, District of Columbia Mayor Muriel Bowser announced a “situational update,” declaring a state of emergency due to the “Winter 2022 Surge” in COVID-19 cases driven by the Delta and Omicron variants. The District will combat the current rise in COVID-19 cases with a six-pronged approach outlined in an action plan (the “Plan”) published by the Mayor’s Office and implemented under Mayor’s Order 2021-147 (the “Order”). The Plan includes expanding free testing programs, a new indoor mask mandate, and a vaccine mandate for city employees and contractors.
Expanded Testing
The District has been operating a program called “Test Yourself DC,” which provides free PCR testing kits for use at home. On December 20, 2021, nine new pick-up/drop-off sites were added to the program, making a total of 36 locations available. The Test Yourself locations are in addition to the eight public testing sites staffed by health professionals administering free PCR COVID-19 tests. Further, the program will be expanded to include “Test Yourself Express,” which will offer free at-home rapid antigen COVID-19 testing kits at eight DC public libraries. District residents who provide proof of residency will be permitted to get two free rapid tests per day and must report their results via an online portal.
As featured in #WorkforceWednesday: This week, we’re recapping some of the biggest changes that impacted employers in 2021. We also look ahead to what’s in store in the new year.
On December 13, 2021, the California Department of Public Health (“CDPH”) announced new Guidance for the Use of Face Coverings (“CDPH Guidance”), implementing a mandatory mask mandate for individuals (employees and patrons) in all indoor public settings, irrespective of vaccination status, beginning on December 15, 2021 through at least January 15, 2022. The CDPH Guidance requires that masks be worn by all individuals over the age of two, unless exempt for disability-related or medical condition-based reasons, and recommends the use of surgical masks or higher-level respirators.
FAQs issued by the CDPH specify that the CDPH Guidance applies to workplaces, and clarify that local public health regulations remain in effect for localities that have previously adopted face covering measures prior to issuance of the CDPH Guidance that apply regardless of vaccination status. That is, the CDPH Guidance only applies to local health jurisdictions that do not have existing indoor masking requirements. Notably, the San Francisco Department of Public Health (“SFDPH”) has taken the position, in its updated Order and FAQs, that its own masking rules remain in place—including exemptions for “stable cohorts” with 100% vaccination rates, among other criteria. Marin County and Contra Costa County have taken similar positions regarding the applicability of local health order mask exceptions. It remains unclear whether local mask exceptions apply given the CDPH Guidance masking rules.
On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” Technical Assistance Questions & Answers (the “Guidance”). The most significant change is the addition of a long-awaited discussion of “long COVID,” which other federal agencies had identified as a disability in joint guidance issued back in July.
The Guidance now contains a new Section N, which addresses when COVID-19 can be considered a disability under each of the three standards of the Americans with Disabilities Act (ADA), i.e., “actual disability,” “record of disability,” or “regarded as an individual with a disability.” Regardless of which definition may apply, the Guidance stresses the usual ADA rubric—that employers must conduct a fact intensive, case-by-case analysis to determine if an applicant or employee with COVID-19 or “long COVID” has a covered disability under the ADA.
The Commissioner of the New York Department of Health has extended the designation of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health under the NY HERO Act until January 15, 2022, at which point the designation will be reviewed. Accordingly, the airborne infectious disease exposure prevention plans required under Section 1 of the Act must be kept in place through that date.
Although the New York State Department of Labor has published guidance stating that it would provide additional guidance by November 1, 2021 on Section 2 of ...
As featured in #WorkforceWednesday: This week, we look at the status of the federal government’s COVID-19 vaccine rules for employers and the COVID-19 vaccine mandates in New York State and City.
Governor Ron DeSantis recently signed HB 1-B, Ch. 2021-272, Laws of Fla. (the “Vaccination Exemption Law”), which prohibits every private employer from issuing COVID-19 vaccination mandates for its Florida employees without allowing employees to opt out for five specific exemptions: (i) medical reasons, including pregnancy or expectation of pregnancy, as determined by a physician, advanced practice registered nurse, or physician assistant; (ii) religious reasons, based on a sincerely held belief; (iii) COVID-19 immunity, based on prior COVID-19 infection, as documented by a lab test; (iv) periodic testing, agreed to by the employee and at no cost to the employee; or (v) based on compliant use of employer-provided personal protective equipment (“PPE”), agreed to by the employee. Employers that receive a “completed exemption statement” must allow the requesting employee to “opt out” of the employer’s vaccination requirements.[1] Employers will be found to have violated the Vaccination Exemption Law by failing to provide for exemptions in their COVID-19 vaccination mandate and terminating the employee—which includes “the functional equivalent of termination,” as defined below.
On December 2, 2021, the Florida Department of Legal Affairs issued a Notice of Emergency Rule (the “Rule”), further defining key provisions of the Vaccination Exemption Law. Moreover, this Department (headed by the Attorney General) has issued guidance in the form of FAQs (the “Guidance”), outlining the employee complaint procedure for potential employer violations of the Vaccination Exemption Law.
The Rule
As featured in #WorkforceWednesday: This week, we look at complying with the rules that require employers to keep employee COVID-19 vaccination and testing information confidential.
As we previously reported, the Centers for Medicare and Medicaid Services’ (CMS) interim final rule (“the Rule”) requiring full COVID-19 vaccination for staff and others at Medicare- and Medicaid-certified providers and suppliers (i.e., the “vaccine mandate”) has been challenged in the U.S. District Courts for the Eastern District of Missouri (“the Missouri Court”) and the Western District of Louisiana, Monroe Division (“the Louisiana Court”). As of the date of this writing, both Courts have granted preliminary injunctions placing the Rule on hold.
On November 29, 2021, the Missouri Court granted a preliminary injunction of the Rule, which applies to the coalition of ten states [1] that filed the challenge there. The following day, the Louisiana Court entered a similar injunction, which applies to the remaining forty states.
The Decisions
As featured in #WorkforceWednesday: This week, the Occupational Safety and Health Administration’s (OSHA’s) vaccine emergency temporary standard (ETS) is currently in the hands of the Sixth Circuit, while New York employers have several updates to look out for in 2022.
As featured in #WorkforceWednesday: The Centers for Medicare & Medicaid Services (CMS) issued an interim final rule outlining vaccine requirements for staff at Medicare- and Medicaid-certified providers and suppliers.
Attorney Frank Morris discusses the next steps for health care providers. In addition, covered employers should continue to monitor the recent litigation filed in the Eastern District of Missouri and the Western District of Louisiana seeking to permanently enjoin the CMS interim final rule.
See below for the video and podcast links. Visit ...
As featured in #WorkforceWednesday: This week, we look at the next steps large employers and health care providers need to take to comply with vaccine mandate rules applicable to their organizations.
As featured in #WorkforceWednesday: This week, the Biden administration has finally released the COVID-19 vaccine mandate rules for employers with 100 or more employees, and the challenges started right away.
Employers Face December, January Vaccine ETS Deadlines
On November 4, the Occupational Safety and Health Administration (OSHA) released its much-anticipated Emergency Temporary Standard (ETS). The ETS covers COVID-19 vaccine, testing, and related requirements for most employers with at least 100 employees. Attorneys Bob O’Hara and Nancy Popper discuss how ...
As featured in #WorkforceWednesday: This week, government agencies at both the federal and state level are preparing for the Occupational Safety and Health Administration’s (OSHA’s) vaccine emergency temporary standard (ETS).
Employer Anticipation Builds for OSHA ETS
All eyes are on DC as the wait continues for OSHA’s COVID-19 Vaccination and Testing ETS, for employers with 100 or more employees. Last week, the Office of Information and Regulatory Affairs (OIRA) held more than 100 meetings with stakeholders to aid in its review of OSHA’s proposed ETS. OIRA completed ...
As featured in #WorkforceWednesday: This week, we focus on the uptick in requests for remote work as a reasonable accommodation during COVID-19 and what employers should consider when addressing them.
Remote Work and Reasonable Accommodations
A recent Equal Employment Opportunity Commission (EEOC) disability discrimination lawsuit shows the agency is closely watching and is interested in litigating cases where an employer fails to provide employees with reasonable accommodations in connection with requests for remote work during the pandemic. As these requests continue ...
As featured in #WorkforceWednesday: This week, we review the status of the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS) requiring employers to mandate vaccines.
Employers Await White House Decision on OSHA ETS
Last week, OSHA sent to the White House its draft emergency temporary standard, which will require employers with 100 or more employees to ensure that their employees are vaccinated or provide a negative COVID test at least weekly. The Office of Information and Regulatory Affairs will now review OSHA’s ETS, holding ...
As featured in #WorkforceWednesday: This week, we look at the COVID-19 vaccination requirements for federal contractors and how the National Labor Relations Board (NLRB) is creating a more expansive view of the employment relationship.
Employers Prepare for Biden’s Expansive Vaccine Mandate
The full impact of President Biden’s COVID-19 action plan is sinking in for employers. The Safer Federal Workforce Task Force released guidance for federal contractors and subcontractors requiring vaccinations for most employees of federal contractors by December 8.
Vaccine ...
On July 13, 2021, Connecticut Governor Ned Lamont signed into law Public Act 21-189, An Act Requiring Employers to Recall Certain Laid-Off Workers in Order of Seniority (the “Act”), which requires hotels, lodging houses, food service contractors, and building service enterprises with at least 15 employees to notify qualified laid off employees, whose lay-offs were due to lack of business, or a reduction or furlough of the employer’s workforce, due to the COVID-19 pandemic, about available positions. This obligation applies to those laid off employees (i) who were employed ...
As featured in #WorkforceWednesday: This week, we update you on recent guidance for and challenges to President Biden’s requirement that employers with 100 or more employees, federal employers and contractors, and health care employers mandate COVID-19 vaccination.
Presidential Vaccine Mandate: Challenges and Guidance
President Biden’s COVID-19 action plan set off a flurry of new guidelines for employers as well as challenges to the plan. Last week, new challenges were introduced in the courts, and the Safer Federal Workplace Task Force released guidance for federal ...
On September 24, 2021, in response to the Path Out of the Pandemic: COVID-19 Action Plan announced by President Biden on September 9, and Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “Order”), signed by the President the same day, the Safer Federal Workforce Task Force (“Task Force”) issued “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” (“Guidance”). The Guidance, which the Director of the Office of Management and Budget approved, is intended to ensure that COVID-19 ...
As featured in #WorkforceWednesday: This week, we look at significant developments for employers from across the federal government, including at the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and the Securities and Exchange Commission (SEC).
As featured in #WorkforceWednesday: This week, we focus on Biden’s six-pronged action plan towards combating COVID-19, which requires mandatory vaccination programs for a majority of employers.
Biden Announces Employer Vaccine Mandates
On September 9, President Biden announced that all federal agencies and contractors and employers with 100 or more employees in the private sector must mandate COVID-19 vaccination through a new Occupational Safety and Health Administration-enforced emergency temporary standard. The plan is estimated to impact two-thirds of the ...
On September 9, 2021, President Biden announced that his Administration is implementing a six-pronged, comprehensive national strategy to ensure that all available tools are being used to combat COVID-19. The plan addresses: (1) vaccinating the unvaccinated; (2) further protecting the vaccinated; (3) keeping schools safely open; (4) increasing testing and requiring masking; (5) protecting the economic recovery; and (6) improving care for those with COVID-19. The first strategy is germane to employers.
Vaccinating the Unvaccinated – To accomplish this, the U.S ...
As featured in #WorkforceWednesday: This week, we look at the renewed focus on mandatory vaccination policies and how those policies may need to shift in light of COVID-19 booster shots.
President Biden Calls on Employers to Mandate Vaccines
Shortly after the U.S. Food and Drug Administration granted full approval of the Pfizer vaccine for those 16 and older, President Biden encouraged private employers to “step up” their vaccination requirements.
COVID-19 Booster Shots Raise Employment Issues
Employers with mandatory vaccine policies must now decide whether they will ...
As featured in #WorkforceWednesday: This week, we look at new federal guidance recommending all employees wear masks in the workplace and unique vaccination considerations for unionized workplaces.
OSHA Updates COVID-19 Mask, Vaccination Guidance
The Occupational Safety and Health Administration (OSHA) recently updated its COVID-19 guidance, now recommending that all employees wear masks in the workplace, even if they’re vaccinated. Meanwhile, employers with unionized workforces face unique considerations with regard to vaccination polices. Attorneys Bob ...
As featured in #WorkforceWednesday: This week, we look at how the COVID-19 Delta variant is shifting employer vaccination policies and how that shift is conflicting with regulations in some states.
The Shift to Mandatory Vaccinations
The Delta variant of COVID-19 is fueling another new chapter of the pandemic: mandates. Recent federal and state action is driving a trend toward employers mandating vaccines. Read more about state action in California and New Jersey.
States Hold Firm with Passport and Mandate Bans
While the trend is shifting back toward greater caution ...
As featured in #WorkforceWednesday: This week, we look at how COVID-19 restrictions are tightening to curb the spread of the Delta variant, how NYC is ramping up enforcement of its ban-the-box law, and how Biden’s budget could impact employers.
COVID-19 Restrictions Tighten
The rapid spread of the COVID-19 Delta variant has many in the United States talking about the potential of a second lockdown. The Biden administration is now mandating vaccines or strict testing for federal workers, and the Centers for Disease Control and Prevention is recommending that vaccinated people in ...
As featured in #WorkforceWednesday: This week, we focus on President Biden’s recent push to limit non-compete agreements and finalize key labor and employment appointments.
Biden Executive Order Seeks to Boost Competition
President Biden has issued an expansive executive order, which aims to boost competition across the U.S. economy, lower prices for consumers, and increase pay for workers. The order encourages federal action to ban or limit non-compete agreements, reigniting a policy debate which raged at the end of the Obama administration over when and how non-competes ...
As featured in #WorkforceWednesday: This week, we look at the increase in mandatory vaccination policies, a new rule for tipped workers, and a Supreme Court decision against organized labor.
Employers Implement Mandatory Vaccination Policies
Mandatory vaccine policies are on the rise. A month after the Equal Employment Opportunity Commission released updated guidance on mandatory vaccination policies, an increasing number of employers have started introducing these mandates. Courts are also weighing in—a Texas District Court recently affirmed a hospital’s ...
As featured in #WorkforceWednesday: This week, we focus on evolving pandemic regulations at both the federal and state levels.
The Evolution of Workplace Pandemic Regulations
Federal agencies and states across the country are adjusting or removing COVID-19-specific rules, while releasing new regulations that have a longer-term horizon meant to be a blueprint for the next phase of COVID-19 and future pandemics. Examples of this phenomenon include the Occupational Safety and Health Administration’s release of its emergency temporary standard for health ...
On June 15, 2021, New York State celebrated reaching 70 percent of its adult population having received at least one vaccination dose. As a result, the State lifted most of its New York Forward industry-specific COVID-19 guidelines—including social gathering limits, capacity restrictions, cleaning and disinfection, health screening, and gathering contact information for tracing—making them optional for most employers. The State has archived its industry-specific reopening guidance, which employers may, but are not required to, continue to follow[1].
What ...
As featured in #WorkforceWednesday: This week, we look at the ways in which states are relaxing COVID-19 restrictions and discuss the much-anticipated Occupational Safety and Health Administration (“OSHA”) emergency temporary standard.
States Adjust COVID-19 Regulations to Align with CDC Guidance
States are relaxing or lifting COVID-19 regulations in different ways to align with the latest guidance from the Centers for Disease Control and Prevention (“CDC”), causing confusion for many employers. The CDC’s guidance does not provide a recommended mechanism ...
On June 11, 2021, Illinois and the City of Chicago entered Phase 5 of its five-stage reopening plans. As part of the transition, Illinois released Executive Order 2021-12 (the “Phase 5 Reopening Order”) and new Phase 5 Guidance. Chicago also issued Phase 5 Recommendations and provided a helpful graphic that provides additional recommendations, which apply to all businesses. For Illinois and Chicago businesses, Phase 5 means a lifting of many COVID-19 restrictions across industries. Although businesses can start operating closer to normal, Phase 5 is a new normal that ...
It has been an active week in California with the release of new statewide face covering guidance, the alignment of Los Angeles County and San Francisco with this guidance, and the withdrawal of the revised Cal/OSHA Prevention Emergency Temporary Standards by the California Division of Occupational Safety and Health Standards Board (the “Board”).
Of most importance, covered employers and workplaces must continue to comply with the more restrictive original Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS) that have been in place since November 2020, not
As featured in #WorkforceWednesday: This week, we look at new Equal Employment Opportunity Commission (EEOC) COVID-19 vaccine guidance as well as vaccination protocols for multinational workforces.
Employers Adjust to New EEOC Guidance on COVID-19 Vaccines
The EEOC recently updated and expanded its guidance on COVID-19 vaccines and the workplace to cover incentives, accommodations, and mandatory vaccination policies. Attorneys Avi Bernstein and Lauri F. Rasnick explain how the new EEOC guidance impacts employers’ vaccination policies. Read more.
On May 21, 2021, consistent with Governor Newsom's intention to fully reopen California by June 15, the California Department of Public Health (“CDPH”) released “Beyond the Blueprint for Industry and Business Sectors” (“Beyond the Blueprint”), outlining the state’s latest reopening guidelines and restrictions. Importantly, as reflected in the CDPH’s announcement, most employers (as discussed below) must still follow the more restrictive Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS) (“ETS Standards”) (which we wrote about ...
As featured in #WorkforceWednesday: This week, we look at the fallout from the Centers for Disease Control and Prevention's (CDC's) change in guidance for fully vaccinated individuals.
CDC Guidance Causes Uncertainty
In the wake of the CDC guidance removing mask and distancing recommendations for fully vaccinated people, agencies, states, and employers have adjusted in different ways. Many states, including New York, New Jersey, Connecticut, and Illinois, have updated their guidance to reflect the CDC’s recent pronouncement. But restrictions and mandates still differ ...
As featured in #WorkforceWednesday: This week, we focus on the Centers for Disease Control and Prevention's (CDC's) new guidance for vaccinated individuals and what it means for accommodations.
Employers Navigate New CDC Guidance for Fully Vaccinated Individuals
Last week, the CDC updated its guidelines to state that it is safe for fully vaccinated people to resume normal activities without masks or social distancing "except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance ...
As featured in #WorkforceWednesday: This week, we look at the return to Obama-era employment and labor policies, with a key difference: unionization.
The City of Chicago recently enacted the Chicago COVID-19 Vaccine Anti-Retaliation Ordinance.
The Vaccine Anti-Retaliation Ordinance allows workers in Chicago – including independent contractors -- to get vaccinated during a scheduled “shift,” requires pay for hours taken to get vaccinated (if an employer mandates the vaccine), and prohibits retaliation for getting vaccinated during a scheduled shift.
Specifically, the Chicago Vaccine Anti-Retaliation Ordinance provides as follows:
- An employer may not require that a worker only be vaccinated during ...
As featured in #WorkforceWednesday: While the Equal Employment Opportunity Commission says that employers can institute mandatory vaccination policies, there are many legal considerations that come with those policies, especially as more employees return to work. And employers that do not mandate vaccines are wondering what workplace rules they can implement without legal risk. Attorneys Jennifer Barna and Nathaniel Glasser tell us more. You can also read more about the legal considerations of mandating vaccination.
On May 3, 2021, New York Governor Andrew Cuomo and New Jersey Governor Phil Murphy announced a significant easing of COVID-19-related capacity restrictions on businesses in their respective states. Governor Ned Lamont of Connecticut, who joined the other two governors in the announcement, had previously ordered a comparable lifting of capacity restrictions in his state.
Specifically, effective May 19, New Jersey and New York will remove most capacity limitations on businesses, which are currently based on a percentage of maximum capacity, and replace them with limitations ...
As featured in #WorkforceWednesday: This week, several COVID-19 vaccine news developments and updates were announced for employers.
Paid Leave Tax Credit for Employers
President Biden recently announced employers that offer full pay to workers for vaccinations and recovery may be entitled to a paid leave tax credit.
EEOC Promises Guidance on COVID-19 Vaccine Incentive Programs
EEOC acting legal counsel Carol Miaskoff said recently that the agency will release guidance on vaccine incentive programs.
OSHA Offers Guidance on Vaccine Reaction Reporting
Guidance from OSHA ...
As featured in #WorkforceWednesday: This week, employers continue waiting on OSHA's COVID-19 emergency temporary standard as retaliation claims rise.
As featured in #WorkforceWednesday: This week, some practical updates on posting requirements, reporting deadlines, and new COVID-19 leave in California.
As we recently reported, as of March 12, 2021, all private employers in New York must provide their employees with up to four hours of paid leave to get each COVID-19 vaccination shot. The State has now released guidance on the new law (“Law”) in the form of Frequently Asked Questions (“FAQs”). Most importantly, the FAQs clarify that the Law does not create any retroactive benefit rights to paid vaccination leave. Accordingly, while an employer is free to apply the law retroactively if it wishes, the Law mandates that “only employees receiving vaccinations on or after March ...
As featured in #WorkforceWednesday: This week, COVID-19 recovery and safety are top of mind as new stimulus funding, an Occupational Safety and Health Administration (“OSHA”) directive, and paid leave requirements are put in place.
The Illinois Department of Labor (IDOL) has issued March 2021 guidance for employers on “Compensation, Paid Leave and the COVID-19 Vaccine,” advising employers on providing employees with time off and flexibility in order to get the first (and as necessary, the second dose) of the COVID-19 vaccine.
Mandatory Vaccination Programs
The IDOL guidance states that pursuant to the Illinois Minimum Wage Law and the federal Fair Labor Standards Act, if an employer requires employees to get vaccinated, then the time the employee spends getting the vaccine “is likely compensable,” ...
The New York City Council is planning to evaluate how effectively both the City, as an employer, and private employers disseminated and implemented COVID-19 workplace guidance over the past year with the goal of strengthening how the public and private sectors manage future public health emergencies. On February 28, 2021, the Council enacted Int. 2161-2020 (the “Law”), which establishes a board to review the workplace health and safety guidance that agencies and private employers issued to their respective employees during the COVID-19 pandemic. The newly formed board will ...
As featured in #WorkforceWednesday: This week, we look at updated safety and mask guidance and the top workplace regulations the Biden administration has rolled back.
The COVID-19 pandemic has changed dining habits across the world, as governments have shut down and restricted indoor and outdoor dining. Even where restrictions have eased, many avoid sit-down dining out of concern for COVID-19 exposure and rely on take-away for their restaurant meals. Clearly, the COVID-19 pandemic has limited dining options.
France, however, has decided to provide workers with a new, previously forbidden, dining option, although it remains to be seen how palatable it will be to French employees. The Labor Ministry has decreed that to contain the spread of ...
On January 29, 2021, the Occupational Safety and Health Administration (OSHA) published revised COVID-19 guidance to help employers identify risks and determine appropriate control measures to protect workers from COVID-19 exposure. The guidance entitled, "Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace" “(the “Guidance”) is not mandatory, but it is likely a precursor to enforcement standards that are also under review by OSHA.
On his first full day in office, President Biden directed OSHA to issue this revised ...
As featured in #WorkforceWednesday: In early January, the Equal Employment Opportunity Commission (EEOC) issued proposed rules on using incentives to encourage employee participation in wellness programs. While we don’t know exactly how President Biden’s EEOC will adjust the proposed rules, attorney Frank Morris explains why employers should keep the rules in mind when offering incentives to employees for COVID-19 vaccination. Read more.
As featured in #WorkforceWednesday: This week, President Biden takes office, making combatting COVID-19 his top priority. Employers are also planning ways to incentivize employee vaccination.
On January 14, 2021, President-elect Joe Biden released his $1.9 trillion emergency stimulus plan, designed primarily to guide the country through the next medical and economic stages of the COVID-19 pandemic. The American Rescue Plan (“ARP”) also includes non-COVID-19 related proposals, such as a mandatory $15 per hour minimum wage and funding to improve cybersecurity.
The following is a non-comprehensive overview of the ARP, which will require Congressional legislative passage.
On December 27, 2020, President Donald Trump signed into law a $900 billion pandemic relief bill that provides extended relief for qualified student loan borrowers. Known as the “Heroes Act,” the stimulus package is a win for borrowers seeking student loan repayment from their employers.
The initial $2.2 trillion stimulus package that Congress passed in March 2020 – the “Cares Act” –temporarily expanded Section 127 of the Internal Revenue Code (the “IRC”) to permit employers to make tax-free payments of up to $5,250 during calendar year 2020 towards employees’ ...
As many employers approach their one-year anniversary of working from home, it is obvious that the COVID-19 pandemic has permanently changed both how and where we work. By 2025, an estimated 36.2 million Americans will be working remotely—a staggering 87% increase from pre-pandemic levels. Moreover, surveys reveal that company leaders plan to permit employees to work from home at least part of the time upon reopening their offices. However, a remote workforce poses a challenge for employers that must display certain notices and posters in their workplaces to advise employees of ...
As featured in #WorkforceWednesday: The past year tested our resilience, and COVID-19 forced everyone to think creatively and adapt quickly. Nowhere was that seen more clearly than in the workplace. See our video featuring attorneys Brian Cesaratto, Denise Dadika, Nathaniel Glasser, RyAnn McKay Hooper, Shawndra Jones, Cassandra Labbees, Robert O'Hara, and George Carroll Whipple.
The Families First Coronavirus Response Act (“FFCRA” or the “Act”) paid leave mandates are set to expire on December 31, 2020. As explained in our March 20, 2020 Act Now Advisory, the FFCRA requires employers with fewer than 500 employees to provide up to 80 hours of Emergency Paid Sick Leave and up to 12 weeks of Public Health Emergency Leave due to COVID-19-related reasons. The FFRCA also provides employers with a payroll tax credit equal to 100 percent of the cost of the paid leave taken by employees in accordance with the Act.
With COVID-19 continuing to surge across the ...
As featured in #WorkforceWednesday: This week, Congress finally passes a COVID-19 relief bill as employers make longer-term plans for vaccination programs and return to work.
As featured in #WorkforceWednesday: Employers considering mandatory COVID-19 vaccination programs need to address challenges. For example, how will your company handle reasonable accommodations or the potential risk of liability for health problems caused by employer-mandated vaccines? Read more.
As the first wave of COVID-19 vaccinations are being administered across the United States, employers are considering whether to mandate and/or administer the COVID-19 vaccine to employees. On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) released updates to “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” its Technical Assistance Questions and Answers publication, addressing potential concerns with vaccine administration and anti-discrimination laws the EEOC ...
As we have noted previously, many countries have introduced creative new approaches to address the economic realities of the COVID-19 pandemic. Because employees continue to work from home and employers reconsider whether employees must return to the workplace at all, jurisdictions have implemented – and now are extending – measures to accommodate the needs and interests of both employers and employees in this ever-changing and evolving employment environment.
As we have highlighted, Luxembourg is an example of a country that has sought to develop solutions with its ...
The first COVID-19 vaccines have started being shipped across the U.S. with the expectation that millions of doses will be administered over the next few weeks, with many times more over the coming months. This is unequivocally good news and reason for optimism. Meanwhile, however, the pandemic continues to spread nationwide and the numbers are rising rapidly.
The unabated second wave spike of COVID-19 infections arriving with the holiday season and our traditional time for gatherings has led governors, mayors and health departments across the country to tighten restrictions on ...
As featured in #WorkforceWednesday: This week, we look at a new COVID-19 quarantine timeline and stricter workplace safety regulations in California.
With New Jersey experiencing a second wave spike of COVID-19 infections and with holiday season gatherings upon us, on November 30, 2020 Governor Phil Murphy issued Executive Order 204 (“EO 204” or the “Order”) tightening restrictions on outdoor gatherings and pausing indoor practices and competitions for youth and adult sports.
Indoor Youth and Adult Sports
With limited exception, EO 204 prohibits youth and adult indoor sports practices, competitions, and other organized sporting activities from December 5, 2020 until January 2, 2012. The prohibition will not affect ...
As featured in #WorkforceWednesday: News that a potential COVID-19 vaccine could be imminent brings employers to their next challenge: workplace vaccine policies and procedures. Attorneys Jennifer Barna and Nathaniel M. Glasser tell us more. You can also read about the issues in Business Insider (subscription required).
The rising number of COVID-19 cases in New Jersey has prompted Governor Phil Murphy to issue two new Executive Orders aimed at tightening restrictions on businesses and activities, with a goal of slowing the spread of the virus: (1) Executive Order 194 (“EO 194”) sets limits on indoor operations for bars/restaurants, prohibits indoor interstate youth sports competitions, and clarifies occupancy limits for personal care services; and (2) Executive Order 196 (“EO 196”) tightens prior restrictions on indoor and outdoor gatherings.
EO 194
Indoor/Outdoor Dining
EO 194 ...
As featured in #WorkforceWednesday: This episode looks at how workplace guidance is changing as COVID-19 surges and the executive orders most likely to be reversed by the new administration.
Michigan recently announced two COVID-19 developments that will impact employers and their workplaces. Most recently, the Michigan Department of Health and Human Services (MDHHS) issued new restrictions for business operations in the state that are set to take effect on November 18 and last through December 8, 2020 (the “Three Week Pause Order”). The Three Week Pause Order followed an announcement late last week by the Michigan Occupational Safety and Health Administration (MIOSHA) of a State Emphasis Program (SEP) focused on in-door activities and venues, including ...
As COVID-19 cases once again surge across the country, Washington, D.C. employers must remember to provide both paid and unpaid leave under the new District of Columbia Coronavirus Support Temporary Amendment Act of 2020 (D.C. Law 23-130) (the “Act”). Although passed in July 2020, the Act formally became effective on October 9, 2020 and will remain in effect through the end of the declared COVID-19 public health emergency—currently December 31, 2021. The law repeals the emergency laws that we previously blogged about, but carries over the additional obligations to provide ...
As the pandemic continues into 2021, many employers are contending with their workers’ significantly increased caregiving responsibilities. Parents – many without viable day care or other childcare options – must try to balance work with the challenges of caring for their children and overseeing their education (and entertainment). Other employees find themselves at the forefront of caregiving for sick family members and for family members at high risk for serious illness, if they become infected by COVID-19.
Recent data has revealed the disproportionate impact that ...
October has brought a weekly flurry of changes to Michigan’s COVID-19 legal landscape. [1] On Thursday October 22, 2020, Governor Whitmer added to this recent activity by signing three bills into law that provide employers with significant liability protection and employees with job protections related to COVID-19.
Employer Protections: Liability Shield
Titled the “COVID-19 Response and Reopening Liability Assurance Act,” HB 6030 provides employers with immunity from liability for a “COVID-19 claim” as long as the employer acted in compliance with all federal ...
At the onset of the COVID-19 pandemic, Governor Ned Lamont declared a public health and civil preparedness emergency in Connecticut. In connection with this declaration, Governor Lamont has issued numerous Executive Orders throughout the pandemic. The Executive Orders were set to expire on September 9, 2020, if they were not terminated earlier.
On September 1, 2020, Governor Lamont extended the existing public health and civil preparedness emergency until February 9, 2021. In addition, on September 8, 2020, Governor Lamont issued Executive Order 9A, which reissues and extends ...
On September 8, 2020, the Equal Employment Opportunity Commission (“EEOC”) released updates to its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws Technical Assistance Questions and Answers (“FAQs”), addressing questions largely focused on return-to-work questions and concerns such as permissible and impermissible inquiries, reasonable accommodation and confidentiality of employee health information.
Notable additions to the FAQs include clarification regarding the types of questions employers may ask as employees ...
As has been true for so many issues arising from the COVID-19 pandemic, growing concerns about safely voting in the 2020 elections are beginning to permeate the workplace, prompting employers nationwide to create or revise policies to address employee apprehensions about voting amidst a pandemic. Time to Vote, a self-described “business-led, nonpartisan coalition that aims to increase voter participation in the U.S. elections,” founded by numerous major companies, reports that, as of August 27, 2020, more than 700 companies, representing about two million workers, have ...
Prompted by the many new telework or remote work arrangements that have arisen in response to COVID-19, on August 24, 2020, the Wage and Hour Division of the U.S. Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2020-5 (“Bulletin”) to provide guidance regarding employers’ obligation “to exercise reasonable diligence in tracking teleworking employees’ hours of work.” The guidance, which includes citations to the Fair Labor Standards Act (“FLSA”), the DOL’s interpretive regulations, and federal case law, does not break new ground; ...
Part 1 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
As Labor Day approaches, with schools reopening (in some form or fashion), and as we approach the end of our collective bandwidth for Zoom meetings, much time and attention has been spent discussing how and when to finally “return to work.”
But in thinking about that seemingly innocuous phrase - “return to work” - employers would be remiss not to take a moment to pause and re-think what that phrase actually means in a post-COVID-world. Is work somewhere that you go? Or is work something ...
On July 24, 2020, Connecticut Governor Lamont issued Executive Order JJJ (“E.O. JJJ”), which creates a presumption that employees who contracted COVID-19 in the early days of the pandemic contracted it at work and are eligible for workers’ compensation benefits.
Pursuant to E.O. JJJ, there shall be a “rebuttable presumption” that an employee, who makes a claim for benefits under the Workers’ Compensation Act, and who missed one or more days of work between March 10, 2020 and May 20, 2020, inclusive, due to a diagnosis of COVID-19 or symptoms that were diagnosed as ...
On July 27, 2020, due to the COVID-19 pandemic, Chile enacted legislation for parents on parental leave and for parents and caregivers of children born in or after 2013 (i.e., seven years of age or younger). Specifically, the law (i) provides parents with an extension of up to 90 days of additional parental leave benefits and (ii) allows eligible parents and caregivers to suspend their employment contract with employers in order to provide childcare and receive unemployment benefits.
Parental Leave Extension Due to COVID-19
Benefit Duration and Eligibility: The law allows ...
Philadelphia is making sure employers err on the side of caution when it comes to COVID-19. As of June 26, 2020, Philadelphia-based employees have additional protections from retaliation through the unanimously passed the Essential Workers Protection Act (“EWPA” or “Act”), which prohibits retaliation against any employee who speaks out about, or refuses to work due to, the employer’s non-compliance with Pennsylvania and Philadelphia COVID-19 public health orders. The EWPA applies to all Philadelphia employers, regardless of their size.
Anti-Retaliation
The ...
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