On May 14, 2024, New Jersey Attorney General Matthew J. Platkin and the New Jersey Division on Civil Rights (“DCR”) released Guidance on Discrimination and Out-of-State Remote Workers (“the Guidance”), explaining the New Jersey Law Against Discrimination’s (NJLAD) application to remote employees. Noting the rise of telework following the COVID-19 pandemic, the Guidance states that the NJLAD is not limited to protecting only New Jersey-based employees but takes the position that it protects aggrieved employees of New Jersey employers “regardless of their ...
On November 10, 2023, Texas Governor Greg Abbott signed into law Senate Bill 7, which prohibits private employers in Texas from imposing vaccine mandates that require employees and/or contractors to obtain a COVID-19 vaccine. The law, which takes effect on February 7, 2024, is similar, though not identical to Florida laws passed in 2021, and amended in 2023, also limiting employers from requiring vaccination against COVID-19, as a condition of employment.
Texas’ Ban on Employer-Mandated Vaccines
Texas’ new law will prohibit employers from adopting or enforcing a ...
When the pandemic abruptly shifted many employment relationships from offices and other physical workplaces to remote environments, many governmental and regulatory authorities responded by modifying existing protocols to accommodate new realities. Among those were temporary adaptations to long-standing federal requirements for inspecting identification and verifying employment eligibility, whereby employers were permitted to forego standard document inspection procedures while completing Form I-9.
When the COVID-19 pandemic began in 2020, employers found themselves in uncharted territory – a new virus, public health emergency declarations, and legislation. Against this onslaught of emerging circumstances, the Equal Employment Opportunity Commission (EEOC) published guidance on the application of existing federal equal employment opportunity laws to COVID-19 workplace issues. Since first releasing “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws” in March 2020, the agency has followed up with several revisions. The EEOC published its latest version of the guidance on May 15, 2023, just ten days after the World Health Organization declared an end to the COVID-19 global public health emergency and six days after the federal COVID-19 Public Health Emergency (PHE) technically concluded. Below, are the most significant updates in what the agency has called its “capstone” guidance (the “Revised Guidance”).
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:
On December 28, 2022, New York Governor Kathy Hochul signed into law Senate Bill 9450, which added new enforcement provisions to the New York Health And Essential Rights Act’s (NY HERO Act) workplace safety committee requirements. The new law went into effect immediately upon the Governor’s signature.
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.
As featured in #WorkforceWednesday: This week, we look at updates ranging from discrimination issues and COVID-19 guidance to local pay transparency law compliance.
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.
As featured in #WorkforceWednesday: This week, we bring you our special Spilling Secrets podcast series on the future of non-compete and trade secrets law.
As featured in #WorkforceWednesday: This week, we discuss updates on COVID-19 quarantine guidelines, what employers should know about monkeypox, and EEO-1 pay data reporting.
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.
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 featured in #WorkforceWednesday: This week, we look at the business, legal, and tax implications of making decisions on a trend that’s here to stay: remote work.
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 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 June 15, 2022, the U.S. Court of Appeals for the Fifth Circuit held that COVID-19 does not qualify as a “natural disaster” under the federal Workers’ Adjustment and Retraining Notification (“WARN”) Act, effectively foreclosing one important argument used by employers in defense of COVID-19-related WARN lawsuits. As this is the only appellate court to affirmatively interpret WARN’s “natural disaster” exception, barring a split by other circuits, this case sets an important precedent in ongoing COVID-19-related WARN litigation, as well as WARN suits related to future pandemics.
As featured in #WorkforceWednesday: This week, we look at a range of recent anti-harassment and gender equity updates from across the country.
As featured in #WorkforceWednesday: This week, we look at updated regulations in California and New York City and at the U.S. Department of Labor (DOL).
Where is the impact of alleged employment discrimination? That is the question when evaluating whether a remote worker can assert claims under the New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”), according to a recent decision by U.S. District Judge Edgardo Ramos. Relying on state law, Judge Ramos concluded that the basis for subject matter jurisdiction has not changed during the COVID-19 pandemic and remains grounded in New York’s “Impact Test,” meaning courts will look to where the impact of alleged discriminatory conduct was felt. Thus, regardless of whether an employer is located in New York, the anti-discrimination laws are intended to protect employees who live or work in New York.
As featured in #WorkforceWednesday: This week, we examine best practices for crafting flexible work arrangement policies. Requests to continue working remotely or with flexibility remain high as we emerge from the COVID-19 pandemic.
As featured in #WorkforceWednesday: This week, we’re breaking down recent local- and state-level developments impacting compliance for employers.
As featured in #WorkforceWednesday: This week, we look at compliance and enforcement developments at the federal level and in the specific jurisdictions of New York City and California.
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.”
New York employers seeking further relaxation of COVID-19 mitigation protocols after the recent lifting of a statewide mask mandate will have to wait. The designation of the virus as a “highly contagious communicable disease that presents a serious risk of harm to public health” that had been extended through February 15, 2022 was extended yet again. An order by the New York State Commissioner of Health continues the designation, made pursuant to the New York HERO Act, through March 17, 2022. This means that New York employers must continue to implement their safety plans ...
On February 9, 2022, New York Governor Kathy Hochul announced that she would let the New York mask mandate lapse on its Thursday, February 10, 2022 expiration date. The Governor’s lifting of the statewide rule, which required businesses to either require proof of vaccination or universal masking indoors, does not yet include an end to mandatory masking in schools, despite a slew of action to that effect in neighboring states, including New Jersey, Connecticut, and Massachusetts. California is also allowing statewide masking requirements for businesses and many other indoor public spaces to expire on February 15, 2022.
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.
In connection with the new Emergency Temporary Standards (ETS) that went into effect on January 14, 2022, the California Division of Occupational Health and Safety (Cal/OSHA) has released the following COVID-19-related resources for employers:
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.
The New York State Acting Commissioner 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 February 15, 2022. Accordingly, the airborne infectious disease exposure prevention plans required under Section 1 of the Act must be kept in place through that date, at which point the Commissioner will review whether the designation should be continued.
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.
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.
As we previously reported, in December New York Governor Kathy Hochul issued a mandate requiring that masks be worn in all indoor public places, unless the business or venue requires proof of vaccination for entry. As part of the state’s “Winter Surge Plan 2.0”, the mandate, which was initially set to expire on January 15, has now been extended for an additional two weeks, through February 1, 2022.
On December 22, 2021, the New York State Department of Labor (NY DOL) issued the long-awaited proposed rule (Proposed Rule) regarding the workplace safety committees that are required by the New York HERO Act (HERO Act). While there is no current effective date for the Proposed Rule (which is first subject to a public comment period and a February 9, 2022 hearing), employers should become familiar with, and consider taking actions to timely comply with the Proposed Rule should it be adopted as currently drafted.
The HERO Act
In May of 2021, New York responded to workplace safety and health issues presented by the COVID-19 pandemic by enacting the HERO Act. Since that time, the State has amended the HERO Act to allow the NY DOL additional time to create model safety standards for infectious disease exposure plans (“safety plans”) mandated by the HERO Act and to allow employers additional time for compliance.
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 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.
New York City’s private employer vaccine mandate became effective Monday. December 27, 2021 and, the City has updated its FAQs document and the Accommodations Guidance document (“Guidance”).
Guidance Updates: The Guidance was amended to reflect that the New York City Human Rights Law provides for accommodations for pregnancy and for victims of domestic violence, sex offenses, or stalking in addition to medical and religious reasons. The Guidance also clarifies that the examples for medical exemptions for vaccination were those that had been found worthy by the CDC and New York City Department of Health and Mental Hygiene. Further, the Guidance modifies some language on the religious accommodation checklist around the types of information needed to support religious accommodation requests. As we previously shared, the checklist the City recommends that employers maintain and complete in connection with each religious accommodation request does not alleviate an employer’s need to analyze such requests on a case-by-case basis.
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.
Our colleagues Update: CMS Interim Final Rule Stay Lifted Nationwide, Still in Effect in Twenty-Four Plaintiff States".
of Epstein Becker Green have a new post on the Health Employment and Labor blog that will be of interest to our readers: “The following is an excerpt:
As we previously reported, the Centers for Medicare & Medicaid Services’ (CMS’s) interim final rule (the “Rule”) requiring full COVID-19 vaccination for staff and others at Medicare- and Medicaid-certified ...
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.
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.
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
UPDATE: New York State issued FAQs confirming that the mask mandate applies to private businesses and their employees. Employers in office spaces must either require proof of vaccination or impose a mask mandate. Masks must be worn except “when eating, drinking, or alone in an enclosed room.”
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, 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
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 we previously reported, effective November 5, 2021, the Occupational Safety & Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to ensure that covered employees are fully vaccinated or provide a negative COVID-19 test at least weekly.
On November 6, 2021, just one day after the OSHA ETS became effective, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the regulation in a case captioned BST Holdings, LLC v. OSHA. Inasmuch as the OSHA rule’s first milestones are December 5, when most ...
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 ...
*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 ...
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 ...
On Monday, October 25, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued updates to its online technical assistance for employers, providing guidance for managing workplace issues arising from the ongoing COVID-19 pandemic in compliance with the panoply of federal anti-discrimination laws that it enforces.
The updated guidance now includes a new section “L” entitled Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates. The new material includes links to federal regulations regarding religious discrimination as ...
*UPDATE, Nov. 11, 2021: Deadline for Compliance Extended to January 18, 2022, and Federal Guidance Updated. Stay tuned!
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”) on September 24, 2021 ...
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 ...
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 ...
Since President Biden issued Executive Order 14042 (the “Order”), and the Safer Federal Workforce Task Force (the “Task Force”) issued companion Guidance interpreting the Order (our summary of which can be found here), there have been additional developments providing further clarity on the implementation of the required COVID-19 safety protocols for federal contractors.
On September 30, 2021, the Federal Acquisition Regulation (“FAR”) Council issued a Memorandum on Issuance of Agency Deviations to Implement Executive Order 14042. Since that date, a number of ...
As we previously reported, as of September 6, 2021, all New York HERO Act (“HERO Act”) airborne infectious disease exposure prevention plans (“Safety Plans”) must be implemented due to COVID-19 being designated as a serious public health risk under the HERO Act. This designation was recently extended until at least October 31, 2021, per the New York Commissioner of Health’s announcement.
To help employers comply with the HERO Act’s requirements, the New York State Department of Labor (“NYSDOL”) has published a variety of guidance materials, such as model Safety ...
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 ...
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 23, 2021, the New York State Department of Labor (“NYSDOL”) released an update to its general model airborne infectious disease exposure prevention plan (“model plan”) for employers’ use in complying with the NY HERO Act. Specifically, the model plan’s language regarding face coverings and physical distancing was modified by:
- distinguishing between workplaces where all individuals on the premises, including, but not limited to, employees, are fully vaccinated and those workplaces where not all individuals are vaccinated in terms of whether face ...
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).
Supreme Judicial Court Clarifies Breadth of COVID-19 Tolling Order
During the early days of the COVID-19 pandemic, the Supreme Judicial Court of Massachusetts (“SJC”) entered an order tolling the statutes of limitations applicable to civil claims. Although some practitioners interpreted the order as tolling only those statutes of limitations set to expire while the order was in effect, in Shaw’s Supermarkets, Inc. v. Melendez, SJC-13054 (Sept. 3, 2021), the SJC rejected such a narrow interpretation and held that its order tolled all statutes of limitations, regardless ...
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 ...
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 ...
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 ...
Counties across California are making a detour on the road to easing COVID-19 restrictions.
Los Angeles County
On July 16, 2021, Los Angeles County issued an Order of the Health Officer (“the Order”) that requires all persons to wear face masks while in all indoor public settings, venues, gatherings, and businesses (i.e., office workplaces, retail, restaurants, theaters, meetings), with limited exceptions. In indoor settings where there is close contact with unvaccinated individuals, the Order recommends that people consider wearing a higher level of protection, such as ...
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 ...
As we previously reported, on June 9, 2021, the California Occupational Safety and Health (“Cal/OSHA”) Standards Board (“the Board”) withdrew its prior proposed revisions to the Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (“ETS”), effectively returning to the original ETS approved in November 2020. A week later, however, on June 17, 2021, the Board approved revisions to the ETS (“Revised ETS”) which, among other things, align with current guidance from the California Department of Public 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.
As we previously reported, on May 5, 2021, New York Governor Andrew Cuomo signed the Health and Essential Rights Act (the “HERO Act” or “Act”) into law, permanently codifying COVID-19-related health and safety protocols. In a memorandum issued with the signing, Governor Cuomo announced that he had secured an agreement with the Legislature for amendments to the Act to address certain ambiguities and technicalities.
On May 14, 2021, State legislators introduced bills (S6768/A7477) (“Bills” or the “Amendments”) to address some of the Governor’s concerns. The ...
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 ...
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