Workforce Bulletin

On July 12, 2022, the U.S. Equal Employment Opportunity Commission (“EEOC”) yet again updated its COVID-19 FAQs, revising earlier guidance about worksite screening through viral testing for COVID-19, modifying some Q&As, and making various generally non-substantive editorial changes throughout. According to the EEOC, it revised the guidance in light of the evolving circumstances of the pandemic. Here’s a run-down of the substantive changes in this latest iteration of “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

On December 27, 2021, the Centers for Disease Control and Prevention (CDC) announced an update to its isolation and quarantine guidance. Although the CDC’s update shortens both the isolation and quarantine periods, as described more fully below, the changes largely affect only asymptomatic individuals. Moreover, because local guidance may differ from the CDC’s recommendations, employers should keep in mind all applicable state and local requirements when deciding whether to amend their own rules.

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.

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.

Important guidance regarding COVID-19 testing in the workplace was recently issued by the Centers for Medicare & Medicaid Services (“CMS”) in the form of Frequently Asked Questions regarding Over the Counter (“OTC”) Home Testing and CLIA Applicability.

CMS regulates clinical laboratory testing pursuant to the federal Clinical Laboratory Improvement Act (“CLIA”). Generally, a laboratory or clinical setting (such as a physician’s office) must obtain CLIA certification to perform laboratory testing. Some OTC tests, however, are approved by the Food and Drug Administration (“FDA”) for home use and the new FAQs address the use of OTC home tests in the workplace.

On August 6, 2021, New Jersey Governor Philip Murphy signed Executive Order 252 (“Order 252”) requiring health care and high-risk congregate settings to maintain a policy requiring workers to either provide adequate proof of vaccination or submit to weekly COVID-19 testing. Although Governor Murphy declared an end to the state’s Public Health Emergency in June, he retained the authority to issue orders related to vaccine distribution, administration, and management as well as COVID-19 testing and data collection. Following the CDC’s vaccine guidance, Order 252 ...

Part 6 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

Simple in theory. Challenging in practice.

While we all intuitively know that we should stay home when we are feeling unwell, a fall 2019 survey suggests just the opposite—that approximately 90% of workers generally “push through” and come to work anyway. The reality is that employees come to work when they are sick for a myriad of reasons: to stay atop long to-do lists, meet production goals, because they think the business would crumble without them, or that somehow taking a sick day and ...

Part 5 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

By now, those who have been following this series know the basics. You’ve formulated (or are in the process of formulating) a “return to work” plan, which includes, among other things, implementing policies and guidelines consistent with CDC recommendations (wear masks), as well as other best practices that most of us learned, or should have learned, by the time we were potty-trained (wash your hands), if not by the time we were in elementary school (no touching).

But once businesses ...

As we previously reported, the COVID-19 pandemic has significantly altered the global workplace and international employer-employee relations.  Over the past several months, many countries have enacted nationwide orders requiring billions of people to stay at home in an effort to reduce transmission of COVID-19.  While some countries remain locked down, others, have recently initiated progressive measures to re-open businesses and return employees to the workplace, with varying degrees of success:

• Germany: On April 27 Germany began allowing shops as large as 8,600 square ...

As we explained in an earlier post, the Colorado Department of Labor and Employment (“DLE”) has issued new Health Emergency Leave with Pay (“HELP”) Rules in response to the coronavirus. Effective March 11, 2020, the HELP Rules mandate employers provide four (4) days of paid sick leave for employees in certain industries who have flu-like symptoms to receive COVID-19 testing. The DLE has since released FAQs to clarify some ambiguities in the HELP Rules.

Four Calendar Days of Paid Sick Time

Per the FAQs, the four days of paid sick leave are measured in calendar days. This ...

On March 10, 2020, Colorado Governor Jared Polis issued an executive order directing he Colorado Department of Labor and Employment (“DLE”) to create emergency rules to “ensure workers in food handling, hospitality, child care, health care, and education can get paid sick leave to miss work if they exhibit flu-like symptoms and have to miss work awaiting testing results for COVID-19.”

The DLE issued the Colorado Health Emergency Leave with Pay (“HELP”) Rules, which mandates four days of paid sick leave for employees in certain industries who have flu-like symptoms to ...