As the year 2022 was ending and 2023 got underway, New York Governor Hochul kept busy reviewing bills that were passed throughout the year but delivered to her for signature only after the November elections. Both houses of the New York State Legislature approved a total of 1,007 bills during the regular 2022 Legislative Session, a “modern-day record,” according to this December 20, 2022 interim report from the New York State Association of Counties. The Governor approved much of this legislation, but rejected a few measure.
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.
Back in March 2021, when it wasn’t easy for many people to get an appointment for an inoculation against COVID-19, New York State created an incentive for employees to get vaccinated. A new provision was added to the Labor Law, requiring employers to provide paid leave time to employees to obtain each dose. As we previously noted, this statute was intended to sunset on December 31, 2022. However, as this year’s busy legislative session wound down, a bill extending the provision was delivered to Governor Kathy Hochul, who signed off on a 12-month extension of the law’s effective date, through December 31, 2023. Thus, New York employers will be required to provide their employees up to four hours of paid time off for each COVID-19 shot through (at least) the end of next year.
As explained in greater detail by our colleague Stuart M. Gerson, the Supreme Court of the United States handed down two major, and quickly decided, rulings on January 13, 2022. After hearing oral arguments only six days earlier, the Court issued two unsigned decisions per curiam. A 5-4 decision in Biden v. Missouri dissolved a preliminary injunction against enforcement of an interim final rule (“Rule”) promulgated by the Centers for Medicare & Medicaid Services (CMS), requiring recipients of federal Medicare and Medicaid funding to ensure that their employees are vaccinated against COVID-19.
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 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.
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 we previously reported, President Biden issued Executive Order 14042 (the Order), which mandated that employees of contractors and subcontractors performing work on federal contracts be fully vaccinated against COVID-19 by January 18, 2022. Challengers from seven states—Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia (the Plaintiff States)—and various state agencies, filed suit against President Biden and his Administration, seeking injunctive relief against enforcement of the Order. On December 7, 2021, the United States District Court for the Southern District of Georgia granted the motion and issued a nationwide preliminary injunction against the enforcement of the vaccine mandate.
The Court’s Decision
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
*UPDATE, Nov. 11, 2021: Deadline for Compliance Extended to January 18, 2022, and Federal Guidance Updated. Stay tuned!
On November 1, 2021, the Safer Federal Workforce Task Force (“Task Force”) issued new FAQs for federal contractors and subcontractors (“covered contractors”) that are subject to Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “Order”), and its “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” (“Guidance”). The Guidance is intended to ensure that COVID-19 ...
On Monday, October 11, 2021, Texas Governor Greg Abbott issued Executive Order GA-40 (the “Order”) prohibiting vaccine mandates by any entity. The Order, which was effective upon issuance, states: “No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” It provides for a maximum fine of up to $1,000 per violation for any failure to comply with the order ...
On September 17, 2021, Los Angeles County Department of Public Health (LACDPH) announced a public health order (“the Order”) requiring proof of COVID-19 vaccination for all on-site employees and visitors at indoor bars, breweries, wineries, distilleries, nightclubs, and lounges throughout the county. Effective Thursday, October 7, 2021 at 11:59 P.M., proof of vaccination will be required to enter these establishments, and will be strongly recommended, although not required, for restaurants with indoor dining. Patrons who do not provide proof of vaccination may still be ...
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 ...
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 ...
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 ...
In the wake of last week’s updated guidance from the Centers for Disease Control and Prevention (CDC) easing social distancing and mask requirements for fully vaccinated people, on May 19, 2021, New York State issued its own guidance that, effective immediately, mostly adopts those new recommendations. As of May 19, most New York employers may allow individuals who have been fully vaccinated to stop wearing a mask and social distancing in their workplace.
Importantly, every business also has the discretion to continue requiring consistent rules regarding social distancing and ...
During a May 10, 2021 press conference, Governor Andrew Cuomo announced his intention to propose legislation aimed at stopping discrimination against those who choose to get vaccinated against the COVID-19 virus. Unlike many states that are introducing legislation to prevent discrimination against those who are unvaccinated, this bill would protect those who are vaccinated. The Governor referenced a report that certain summer camps are not allowing campers to attend or staff members to work at the camp if they have received the vaccine. Audio of his remarks is available here.
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 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 ...
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,” ...
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