The COVID-19 pandemic is creating a host of legal and operational challenges for every workplace. To help our clients better understand their legal options as they address these issues, our Labor & Employment Group has prepared an ongoing series of S&C Memos, Podcasts and Webinars that outline and explain important employment and labor considerations unique to the COVID-19 crisis. This includes coverage of the emergency legislation enacted by Congress in response to COVID-19, including the new Families First Coronavirus Response Act; the evolving guidance being issued by various federal agencies, including the Department of Labor, EEOC, and OSHA; legal considerations for workforce restructurings caused by the pandemic; and guidance for employers who are maintaining an in person workforce and/or returning personnel to the workplace. To receive a notification whenever a new resource is added, sign up for our Legal Developments Affecting the Workplace blog. The situation is rapidly changing and we will be providing timely updates to support our clients.
Partner Contacts: Nicolas Bourtin, Catherine M. Clarkin, Jared M. Fishman, Julia M. Jordan, Marc Treviño and Benjamin H. Weiner
RECENT CLIENT GUIDANCE
Certain State and Local Governments Are Currently Reevaluating Their Guidance in Light of the CDC’s New COVID-19 Mask Guidance for Fully Vaccinated IndividualsAugust 4, 2021 Update – On August 2, 2021, the Centers for Disease Control and Prevention (“CDC”) revised its testing guidance, recommending that “[f]ully vaccinated people who have a known exposure to someone with suspected or confirmed COVID-19 should get tested 3–5 days after exposure and are to wear a mask in public indoor settings for 14 days or until they receive a negative test result . . . , unless they live in an area of high transmission.” For areas with “substantial or high transmission” of COVID-19, the CDC’s July 27, 2021 mask guidance (discussed below) recommends that vaccinated individuals wear masks in public indoor settings regardless of whether the individual has been exposed to someone with suspected or confirmed COVID-19. This new guidance changes the guidance that had been issued by the CDC on or about March 2, 2021, which stated that “[f]ully vaccinated people with no COVID-like symptoms do not need to quarantine or be tested following an exposure to someone with suspected or confirmed COVID-19.”
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New York HERO Act Requires Employers to Implement New Infectious Disease PlanJuly 13, 2021 Update – On June 14, 2021, New York amended the Health and Essential Rights Act (“HERO Act”) to, among other things, provide additional time for the New York Department of Labor (“DOL”) to establish model safety standards to govern employers’ airborne infectious disease exposure plans and to provide employers with additional time to comply with those standards once published. The amendments also made other changes to the law, including limiting the scope of the private right of action created by the HERO Act.
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COVID-19: New York Office Reopening GuidanceJune 15, 2021 Update – The New York office reopening guidance became optional, because 70 percent of New Yorkers aged 18 or older have received the first dose of their COVID-19 vaccination series.
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New York Imposes Employer Obligations to Provide Leave for COVID-19 VaccinationsJune 2, 2021 Update – The New York State Department of Labor recently issued guidance on the use of paid sick leave for COVID-19 vaccine recovery time. According to this guidance, employees may use accrued sick leave available to them under the New York State Sick Leave law (“NYSSL”) for the recovery of any side effects of the COVID-19 vaccination and employers are obligated to permit employees to do so. The NYSSL is in addition to New York State COVID-19 emergency paid sick time and COVID-19 vaccination leave protections.
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OSHA Issues Revised Enforcement Guidance on Reporting COVID-19 CasesMay 20, 2021 Update – On or around May 19, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) updated its COVID-19 Frequently Asked Questions webpage to provide guidance on when employers are required to record an employee’s adverse reaction to a COVID-19 vaccine. This additional guidance has been incorporated into this updated post.
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U.S. Department of Labor Launches the Essential Workers, Essential Protections Initiative During the COVID-19 PandemicMay 6, 2021 – On April 26, 2021, the U.S. Department of Labor’s Wage and Hour Division (“DOL”) announced the Essential Workers, Essential Protections initiative (the “Initiative”) to provide workers who have been deemed “essential” during the COVID-19 pandemic additional information about applicable wage and hour laws that protect them and resources for contacting the DOL. Specifically, the Initiative is designed to educate workers on the Fair Labor Standards Act and the Family and Medical Leave Act.
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U.S. Department of Labor Issues New COVID-19 Guidance on FLSA, FMLA, and FFCRA LeaveMay 6, 2021 Update – On April 26, 2021, the U.S. Department of Labor (“DOL”) announced the Essential Workers, Essential Protections initiative (the “Initiative”) to provide workers who have been deemed “essential” during the COVID-19 pandemic additional information about applicable wage and hour laws that protect them and resources for contacting the DOL. Specifically, the Initiative is designed to educate workers on the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”).
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OSHA Issues Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace
February 3, 2021 Update – On January 29, 2021, the Occupational Safety and Health Administration (“OSHA”) issued guidance to employers and workers in most workplace settings (excluding healthcare) to help them (1) identify risks of being exposed to and/or contracting COVID-19 at work, and (2) determine appropriate control measures to implement (the “Guidance”). The Guidance, titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” has been issued for “planning purposes” and “is not a standard or regulation, and it creates no new legal obligations.” The Guidance contains recommendations and descriptions of existing mandatory safety and health standards. The recommendations are advisory in nature, and are intended to assist employers in providing and abating hazards (potentially including workers that may have COVID-19) likely to cause death or serious physical harm as part of their obligation to provide a safe and healthy workplace.
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OSHA Issues General Guidance on Returning to WorkFebruary 3, 2021 Update – On February 1, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) published advisory Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. Our blog post on this new guidance is available here.
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New York Imposes Employer Obligations to Provide Leave Related to Quarantines During COVID-19 Pandemic
February 2, 2021 Update – On January 20, 2021, the New York State Department of Labor issued supplemental guidance on the application of New York’s COVID-19 leave law (the “Act”). This guidance addresses situations in which employees may be eligible for additional sick leave under the Act, and has been incorporated into this updated post.
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COVID-19 Phase IV Stimulus Package—Key Employer TakeawaysDecember 31, 2020 – The Consolidated Appropriations Act, 2021 (“CAA”), signed into law on December 27, 2020, contains several provisions that may be of interest to employers. Among other things, the CAA extends and modifies the following employment-related provisions of the Coronavirus Aid, Relief, and Economic Security Act: (a) several key unemployment compensation programs; (b) the refundable Employee Retention Tax Credit; and (c) the period for repayment of deferred payroll taxes through December 31, 2021.
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COVID-19 Vaccine Policies—What Employers Should Know
December 18, 2020 – On December 16, 2020, the Equal Employment Opportunity Commission updated its guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws, to include answers to questions that specifically address COVID-19 employee vaccine policies. In short, the guidance states that employers may implement mandatory COVID-19 vaccine policies for employees as a condition to returning to, or remaining in, the workplace subject to certain exceptions. In this memorandum, we discuss the EEOC’s new COVID-19 vaccination guidance as well as certain other legal considerations for employers as they develop their workplace policies in anticipation of widespread distributions of COVID-19 vaccines in 2021.
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California’s OSHA Adopts Temporary, Emergency COVID-19 Regulations
Updated December 17, 2020 – On December 14, 2020, Governor Newsom issued an executive order that suspends the employee exclusion period under the Cal/OSHA emergency COVID-19 regulations if they exceed guidelines from the California Department of Public Health or local health officers. The updated memorandum summarizes the important aspects of the executive order.
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Updated: California Mandates COVID-19 Supplemental Paid Sick Leave Through the End of 2020 For Employers with 500 or More Employees In the United StatesSeptember 23, 2020 Update – The California Labor Commissioner’s Office published responses to frequently asked questions regarding the COVID-19 supplemental paid sick leave available to California workers at companies with 500 or more employees nationwide. The below post has been updated to reflect this guidance.
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California Expands COVID-19 Worker ProtectionsSeptember 23, 2020 – On September 17, 2020, California Governor Gavin Newsom signed two new bills as part of his worker protection package. The first, SB 1159, expands the presumption of workers’ compensation liability for COVID-19 claims. The second, AB 685, ensures timely notification to employees and local and state public health officials of COVID-19 cases at workplaces. These bills are covered in more detail below.
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Update: U.S. Department of Labor’s Wage and Hour Division Guidance on Leave Provisions of the Families First Coronavirus Response Act
Updated September 17, 2020 – On September 16, 2020, the U.S. Department of Labor (“DOL”) published revisions and clarifications to its Temporary Rule (“Rule”) implementing the provisions of the Families First Coronavirus Response Act (“FFCRA”). Additionally, on September 11, 2020, the DOL updated its FFCRA Questions and Answers document to reflect these changes. These revisions are in response to the United States District Court for the Southern District of New York’s August ruling which vacated certain provisions of the DOL’s initial temporary rule.
Read Our Updates: Part 1, Part 2, Part 3 and Part 4
U.S. Department of Labor Issues Regulations Implementing the Families First Coronavirus Response Act’s Leave Provisions
Updated September 17, 2020 – On September 16, 2020, the U.S. Department of Labor (“DOL”) published revisions and clarifications to its Temporary Rule (“Rule”) implementing the provisions of the Families First Coronavirus Response Act (“FFCRA”). Additionally, on September 11, 2020, the DOL updated its FFCRA Questions and Answers document to reflect these changes. These revisions are in response to the United States District Court for the Southern District of New York’s August ruling which vacated certain provisions of the DOL’s initial temporary rule.
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San Francisco Enacts Ordinance Protecting Workers and Applicants from COVID-19-Related Adverse Actions and Discrimination.September 16, 2020 – On September 11, 2020, San Francisco enacted the COVID-Related Employment Protections Ordinance (the “Ordinance”) to temporarily protect workers from adverse action and applicants from discrimination if they test positive for COVID-19, are isolating or quarantining, or have previously isolated or quarantined, due to COVID-19 symptoms or exposure. The Ordinance will remain in effect for 60 days, until November 10, 2020, unless it is reenacted by the San Francisco Board of Supervisors.
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California Mandates COVID-19 Supplemental Paid Sick Leave Through the End of 2020 For Employers with 500 or More Employees In the United States
September 15, 2020 – On September 9, 2020, Governor Newsom signed into law Assembly Bill No. 1867, which, among other things, provides COVID-19 supplemental paid sick leave to certain employees that are not covered by the Families First Coronavirus Response Act (the “FFCRA”). The law goes into effect immediately and requires covered employers to provide COVID-19 supplemental paid sick leave no later than September 19, 2020. The requirement will remain in effect until the latter of December 31, 2020, or the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA.
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EEOC Releases Updated Guidance to Employers Regarding ADA-Compliant Practices During the COVID-19 CrisisSeptember 10, 2020 – On September 8, 2020, the Equal Employment Opportunity Commission (“EEOC”) released additional updates to its technical assistance bulletin entitled, “What You Should Know About COVID 19 and the ADA, the Rehab