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
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California Reenacts COVID-19 Supplemental Paid Sick LeaveFebruary 9, 2022 – On February 9, 2022, Governor Newsom signed into law Assembly Bill No. 84, which provides COVID-19 supplemental paid sick leave to certain employees. California previously enacted COVID-19 supplemental paid sick leave in September 2020 to fill gaps left by the Families First Coronavirus Response Act. After this leave requirement expired on December 31, 2020, California reenacted COVID-19 supplemental paid sick leave and broadened the circumstances under which an employer was required to provide leave. This law expired on September 30, 2021, since which time California employees have been left without access to COVID-19 supplemental paid sick leave unless otherwise provided for under local regulations.
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OSHA COVID-19 ETS – Legal ChallengesUpdated January 14, 2022 – On January 13, 2022, the Supreme Court of the United States stayed implementation of the Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to comply with mandatory vaccination or weekly testing requirements. In a 6-3 decision finding that the parties opposing the ETS “are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate,” the Court explained that although Congress has given the Occupational Safety and Health Administration (“OSHA”) the authority to regulate occupational dangers “it has not given that agency the power to regulate public health more broadly.” The stay of the ETS will remain in effect pending the Sixth Circuit’s review of the merits.
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented. Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, wrote a concurring opinion.
New York City Releases Guidance on COVID-19 Vaccination Mandate
December 17, 2021 – On December 13, 2021, New York City issued an order, effective December 27, 2021, requiring workers in New York City who perform in-person work or interact with the public in the course of business to show proof they have received at least one dose of a COVID-19 vaccine before entering the workplace. Workers will then have 45 days to show proof of their second dose (for two-dose vaccines). The order further requires businesses to maintain records of worker vaccination status, to file a certificate of affirmation, and to post that certificate in the workplace. On December 15, 2021, New York City released guidance, frequently asked questions, and an information flyer for businesses. This guidance is discussed in additional detail below.
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The EEOC Updates Guidance Clarifying Mandatory COVID-19 Vaccinations Are Permitted Under Federal Law, Subject to “Reasonable Accommodations” and “Direct Threat” Assessments, and Allowing Employers to Provide Employees with Incentives for Vaccinations
Updated December 17, 2021– On December 14, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (the “guidance”) to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (“ADA”). The updated guidance has been incorporated into the below post.
OSHA COVID-19 ETS – Sixth Circuit December 3, 2021 Order Confirming Briefing Schedule and Resolving Procedural Motions
December 6, 2021– On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released an Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to implement mandatory COVID-19 vaccination or weekly testing requirements. Our blog post on the ETS is here. As discussed below, the U.S. Court of Appeals for the Sixth Circuit recently issued an order resolving various procedural motions and clarifying its scheduling order regarding the legal challenges to the ETS, which requires all briefing to be complete on December 10, 2021
Supreme Court Considers Emotional Distress Damages Under Title VI and Related Statutes in Cummings v. Premier Rehab
December 1, 2021– On November 30, 2021, the Supreme Court heard oral arguments in Cummings v. Premier Rehab Keller, P.L.L.C., U.S., No. 20-219, which raises the question of whether emotional distress damages are available under Title VI and federal statutes incorporating its remedies including the Rehabilitation Act and the Affordable Care Act (“ACA”). The Justice Department filed a brief as amicus curiae in support of Petitioner, and Assistant to the Solicitor General Colleen Sinzdak participated in the oral argument. A summary of the parties’ arguments and possible implications follows.
Updated: New York Imposes Employer Obligations to Provide Leave for COVID-19 Vaccinations
December 1, 2021– The New York State Department of Labor (“NYSDOL”) recently updated its Frequently Asked Questions guidance on New York’s COVID-19 Vaccine Leave Law to clarify that the law applies to any COVID-19 vaccination, including booster shots. This new guidance has been incorporated into this updated post.
OSHA COVID-19 ETS – Requiring Vaccine or Weekly Testing
November 4, 2021 – On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released an Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to implement mandatory COVID-19 vaccination or weekly testing requirements. OSHA’s ETS was issued in response to President Biden’s COVID-19 Action Plan directing OSHA to develop an ETS “requir[ing] all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.” The text of the rule was released on November 4, 2021 and will become effective upon being published in the Federal Register, which is anticipated as early as November 5, 2021.
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CDC Issues COVID-19 Workplace Vaccination Program Guidance
October 20, 2021 Update – On October 15, 2021, the CDC updated its guidance on workplace vaccination programs. The most significant updates are included below. The CDC updated its guidance on vaccine mandates to state that “[a]n employer may require that their employees be vaccinated,” and that “employers . . . may ask an employee about vaccination status without violating the Health Insurance Portability and Accountability Act.”
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New York HERO Act Requires Employers to Implement New Infectious Disease Plan
October 5, 2021 – The Commissioner of Health issued a revised designation that extends the designation of COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under the HERO Act until October 31, 2021, at which time the Commissioner of Health will determine whether to continue this designation. This revised designation requires employers to continue to implement their airborne infectious disease exposure prevention plans under the HERO Act through October 31, 2021.
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President Biden Announces COVID-19 Vaccine MandateRead our Post
August 13, 2021 Update – On August 13, 2021, the Occupational Safety and Health Administration (“OSHA”) updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”). Among other things, the updated Guidance reflects the Centers for Disease Control and Prevention’s (“CDC”) Interim Recommendations for Fully Vaccinated People, which recommends that fully vaccinated people wear a mask in public indoor settings if they are in an area of substantial or high transmission. Our blog post on the CDC Recommendations for Fully Vaccinated People can be found here. A detailed discussion of the Guidance follows.
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OSHA Updates Guidance on Mitigating and Preventing the Spread of COVID-19 in the WorkplaceAugust 13, 2021 Update – On August 13, 2021, the Occupational Safety and Health Administration (“OSHA”) updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”). Among other things, the updated Guidance reflects the Centers for Disease Control and Prevention (“CDC”) recommendation that fully vaccinated people wear a mask in public indoor settings if they are in an area of substantial or high transmission. Our blog post on the updated Guidance is available here.
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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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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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