With COVID-19 infection rates and hospitalizations decreasing, states are slowly loosening restrictions on businesses. For example, Connecticut, New York, and New Jersey announced plans to fully reopen by May 19th  with some constraints remaining in place, including mandatory wearing of masks and social distancing.  All three states have announced significant capacity rollbacks for indoor and outdoor activities.  The capacity rollbacks in these states will affect many businesses as operational needs will increase in the coming months.

What operational challenges should employers anticipate as they fully reopen?

Employers, particularly those who have allowed their employees to work remotely for the duration of the pandemic, can expect to face some resistance from employees as they begin to require those employees to return to the office. Some employees may be protected by local, state, or federal law, depending on the reason for their refusal to return, and others may be entitled to leave and/or certain accommodations.

As such, employers need to be strategic in their application of their reversion to ‘pre-pandemic’ operations.  In addition to ensuring that the workplace is compliant with CDC and OSHA guidelines,  employers may need to utilize the interactive process and analyze each situation on a case by case basis to ensure that they meet compliance obligations. Employers should coordinate their operational approach in such a way to ensure continuity of business while mitigating the risk of potential operational issues.

Jackson Lewis attorneys are available to guide businesses as they transition to pre-pandemic operations or their new normal.

Employee question of the day for HR: “I need time off because I’m donating a kidney.”  You’re probably wondering: “How do I respond to this request? Is this incredibly generous employee entitled to protected leave?”

Whether organ donation qualifies for federal Family Medical Leave Act (“FMLA”) leave is typically dependent on whether there is continuing treatment or an overnight stay in the hospital.  But effective on or about June 26, 2021, if you are a covered employer under the FMLA, the employee is eligible for FMLA, and the employee works in Pennsylvania, then the answer is yes! Last week, Pennsylvania Governor Tom Wolf signed the Living Donor Protection Act (“LDPA”) into law, adding Pennsylvania to a growing list of states providing statutory leave to employees who donate all or part of an organ or tissue.

Specifically, the LDPA requires FMLA employers to afford FMLA-eligible employees who are living organ donors with FMLA leave and protections so they can take time off work to undergo preparation for and donation of an organ or tissue, and to recover from the surgery.  The LDPA also requires employers to provide similar leave for an eligible employee to care for a spouse, child, or parent with a serious medical condition for the preparation and recovery necessary for surgery related to organ or tissue donation, or if the spouse, child, or parent is the donor.

For questions regarding this new form of leave in Pennsylvania, please contact your JL attorney or a member of the DLHM practice group.

Last week, President Biden encouraged employers to pay employees for time off to get vaccinated against COVID-19 and highlighted the tax credits available for employers with less than 500 employees. The American Rescue Plan Act of 2021 (ARPA) signed by the President on March 11, 2021 continued the tax credits available under the Families First Coronavirus Response Act (FFCRA) for covered employers who voluntarily decide to provide “qualified” paid sick leave or paid family leave wages to their employees through September 30, 2021.  As discussed in our March article, employers can receive the tax credit for providing leave for certain qualifying reasons.  Those reasons include, among other COVID-related reasons: (1) obtaining a COVID-19 immunization and (2) recovering from an injury, disability, illness or condition related to COVID-19 immunization.

On the same day as President Biden’s statement, the IRS issued this Fact Sheet providing further details about the tax credits available under the ARPA including information about how employers may claim the credit for paid leave if they choose to provide it for the reasons covered under the ARPA including for employees to obtain or recover from COVID-19 vaccinations.

While paid time off under the federal ARPA is optional for employers, some states including New York, require employers to provide employees with paid time off for COVID-19 vaccinations. Last week, Chicago joined the list of jurisdictions legislating vaccination pay requirements. Chicago’s ordinance includes pay obligations for employers who mandate vaccinations and requires other employers to allow employees to use accrued paid time off to obtain vaccinations. Employers considering pay obligations for time off from work for COVID-19 vaccination should also consider state and local paid sick leave laws which may cover time off for preventative care that would include vaccinations.  Finally, state and federal wage and hour laws may impact whether pay is required for time spent receiving a vaccine depending on the employee’s exempt/non-exempt status, the timing of the vaccination, and whether the vaccine is required for the employee’s job.

Jackson Lewis attorneys are closely monitoring updates and guidance in this area and are available to assist employers in preparing policies and procedures related to COVID-19 paid time off.

 

The COVID-19 Supplemental Paid Sick Leave statute was signed into law a month ago and, despite a FAQ issued by the California Labor Commissioner, employers were faced with uncertainty as to whether their employees’ leave requests qualified under the statute.  Fortunately, the Labor Commissioner has updated its FAQs to provide further clarity to employers. Read more here.

The Washington State Legislature has temporarily amended the state’s Paid Family and Medical Leave (PFML) Act to create pandemic leave assistance grants for certain employees and employers. Employees and employers cannot apply for these grants until August 1, 2021. This amendment expires on June 30, 2023. Read more about these grants.

The new year brought several important changes to the California Family Rights Act (CFRA). One key change that employers should be aware of is the expansion of the scope of individuals who qualify as “family members” under the law.

The CFRA allows eligible employees to take up to twelve weeks of protected leave for reasons that include caring for a family member with a serious health condition.  Until this year, the only family members for whom an employee could take CFRA leave were a spouse, registered domestic partner, parent, and minor or dependent adult child.

Read the full article at Jackson Lewis California Workplace Law Blog.

The Biden administration has called for all people at least 18 to be eligible for the COVID-19 vaccine by April 19, 2021. Most states have already done so.

BenefitsPro article cites a 2017 survey from the Society for Human Resource Management (SHRM) that found almost 60 percent of employers offer on-site flu vaccinations. Naturally, with expanding availability of COVID-19 vaccination doses and widespread eligibility, organizations are asking whether setting up an on-site COVID-19 vaccination program is more involved than one offering flu shots. The short answer is yes.

The country continues to operate under a national emergency due to a pandemic, not present during a typical flu season. Accordingly, concerns about safety and minimizing spread are significantly amplified. Individuals tend to be familiar with flu vaccines, not so with the current COVID-19 vaccines. Concerns over the emergency use authorization status of the COVID-19 vaccine, privacy, individual rights, school openings and childcare, effects on continued employment, liability, and so on are apparently not as prominent when getting an annual flu shot.

Taking those and other concerns into account, organizations considering setting up an on-site COVID-19 vaccination program have several issues to consider. Below is a nonexhaustive list of a few of those issues. Additionally, the Centers for Disease Control and Prevention has provided some guidance for organizations establishing a workplace vaccination program, as has the National Institute of Health.

Getting Organized

Whether an organization will set up a program for one or multiple locations, it is critical to have a plan in place and responsibility assigned to carry out that plan. Many organizations will rely on a local health department (LHD) or a third-party health care provider (TPHCP) to administer the vaccine. But it is unlikely that either will just show up and start putting needles in arms. The organization will need to address a range of action items, and that will include outlining who will be responsible for what.

Vaccine Administration and Reporting

A big question is who is going to order, receive, and store the vaccine doses, administer them to patients, satisfy federal and state reporting requirements, and carry out other health-related duties and obligations. Unless the organization has an existing on-site occupational health clinic, staffed with persons who are adequately trained, it will typically look to an LHD or TPHCP who will marshal, store, dispense, and, if needed, dispose of unused vaccine doses. Additionally, that entity generally will be responsible for reporting mandates and related activities.

When partnering with an LHD or TPHCP to administer vaccines, a careful review of the services or other agreement is warranted to clearly set out which services are being provided and which are not being provided, among other issues.

Facility Suitability and Preparedness

Even as the pace of vaccinations continues to increase, the threat of contracting COVID-19 remains. Thus, federal and state health authorities recommend continuing health and safety measures: screening, social distancing, mask wearing, and so on. Thus, planning for on-site COVID-19 vaccine administration should include a review of how the facility can best accommodate the personnel needed to deliver the vaccine, as well as those receiving it. This should include evaluating the space and traffic flow and designating separate places for registration, vaccine administration, and recovery to ensure appropriate social distancing.

Preparing a chart of the space can help organizers maintain the applicable safety measures, as well as better plan for contingencies and adequate communication.

Liability

Whether setting up a health fair or an on-site vaccination clinic, concerns about potential liability will certainly arise, such as from an adverse reaction to the health service rendered. This is no less true for the COVID-19 vaccine. However, healthcare providers and employers may qualify for a level of immunity under the Public Readiness and Emergency Preparedness Act (PREP Act), provided the requirements of the PREP Act are satisfied. The Prep Act protects “covered persons,” such as:

  • Program planners: individuals and entities involved in planning, administering, or supervising programs for distribution of a countermeasure (e.g., state or local governments, Indian tribes, or private sector employers or community groups that establish requirements or provide guidance, technical or scientific advice or assistance, or provide a facility); and
  • Qualified persons: persons who prescribe, administer, or dispense countermeasures such as healthcare and other providers or other categories of persons named in a declaration, that engage in countermeasures covered by the Health and Human Services Secretary’s declaration, as amended, such as “products that are approved, cleared, or licensed by FDA; authorized for investigational use, i.e. an Investigational New Drug [] or Investigational Device Exemption [], by FDA, authorized under an EUA by FDA, or otherwise permitted to be held or used for emergency use in accordance with Federal law” in a manner consistent with the requirements of the declaration, provided they have not engaged in willful misconduct.

Organizations should review the scope of this immunity with legal counsel, along with other steps for mitigating potential exposures not covered by the PREP Act, such as insurance and contract negotiation.

Communications

There are several areas of communication that must be considered, including what needs to be communicated, who is responsible for communicating, and when to communicate. For example, it is important to ensure those eligible to get the vaccine have been provided sufficient information to make an informed decision about getting vaccinated. Often the LHD or TPHCP will provide employers information that will need to be shared with employees prior to the on-site vaccination day. Further, questions may arise in the process from employees, the third-party provider, or even the media concerning the organization’s vaccination program. Anticipating and planning response strategies to these inquiries will help avoid potentially damaging miscommunications while building confidence in the program.

Employment Issues

Bringing COVID-19 vaccinations on-site for employees will raise several employment issues that organizations should be thinking about, such as:

  • Whether vaccination should be mandatory or voluntary. This is a difficult decision for many organizations that requires careful examination of several factors, including employee morale and applicable federal and state law. For employers moving forward with an on-site COVID-19 vaccination program, additional considerations exist if they intend to mandate the vaccine. Since pre-screening questions required as part of the on-site administration will include medical inquiries, whether an employer can mandate that employees receive the vaccine will be limited. Generally, employers who administer or contract with an administrator to come on-site to vaccinate employees can only mandate if the pre-vaccination screening questions do not include inquiries about genetic information and vaccination is job-related and consistent with business necessity.
  • COVID-19 vaccine incentives. As an alternative to mandating vaccinations, employers who wish to strongly encourage vaccinations, may choose to offer employees an incentive to get the vaccine. Depending on the incentive, employers, will need to be prepared to provide reasonable accommodations for persons with disabilities and religious objections, and to assess the appropriateness of the incentive.
  • Informed consent. Employers holding on-site COVID-19 vaccination programs may wish to have employees sign an informed consent as a condition of receiving the vaccine on-site. An informed consent should contain appropriate disclosures about the vaccine and the vaccination process, a statement that the employee understands the process as well as an acknowledgment that receipt of the vaccination was the employee’s free choice.
  • Employee benefit. An arrangement sponsored by an employer to provide vaccines for employees may be structured to be part of or itself an employee welfare benefit plan under the Employee Retirement Income Security Act of 1974 (ERISA). Employers should seek legal counsel on whether ERISA applies, as well as other laws regulating benefit plans, such as HIPAA and the Affordable Care Act.
  • Eligibility. Organizations may want to consider whether persons other than common law employees based at the administration site will be eligible to get the vaccination on-site. Other categories of individuals to consider might include employees working and living in other states, non-U.S. employees, family members, contractors, and contingent workers.
  • Scheduling, leave management. Offering a COVID-19 vaccination program on-site could raise logistical challenges regarding scheduling – when to schedule the first and second doses, the amount of lead time needed to maximize participation, how to stagger scheduling to avoid business interruption, providing time for employees who may experience adverse effects, and the like. Working ahead of time to address these issues could go a long way to maximizing vaccination rate and minimizing business interruption and dissatisfied employees.
  • Labor relations. Offering a COVID-19 vaccine to employees represented by a labor union may require negotiations with that union.

Data Privacy and Security

The ongoing debate over privacy and “vaccine passports” illustrates the sensitivity about information relating to a person’s vaccination status. Accordingly, an organization’s plan for on-site delivery of COVID-19 vaccines to employees should carefully consider how information about vaccination status will be shared. Some sharing of information in such an environment may be unavoidable (“Hey, I saw you getting a vaccination, how did it go?”). Organizations should be doing what they can to minimize unnecessary and unauthorized access and acquisition of such information. This includes coordinating with third-party vendors where applicable and ensuring appropriate privacy and security safeguards are in place. If an employer requires proof of vaccination from employees, such information should be treated as confidential medical information.

There is quite a bit to think about when setting up a COVID-19 vaccination program. While flu vaccination programs likely differ, prior experience with health fairs and flu vaccination offerings can be helpful reference points. Having a good team in place, careful planning, and the support and collaboration of an LHD or TPHCP, among other things, will help lead to a successful program.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.

Effective July 1, 2021, Virginia joins the District of Columbia and many other states with paid leave for designated workers (Virginia’s Paid Sick Leave Law), home health workers in this case. Paid sick leave is compensated at the same hourly rate and with the same benefits, including healthcare benefits, as an employee normally earns during hours worked.  The law provides home health workers averaging at least 20 hours per week or 90 hours per month with paid sick leave. Read our full article for analysis of the new law and next steps for employers.

Effective July 1, 2021, Virginia further expands the scope of the Virginia Human Rights Act (VHRA) to prohibit discrimination on the basis of disability. The state also enacted protections and benefits for domestic workers. Read more about the  expanded law and next steps for employers here.