In fulfillment of President Biden’s promise to make at-home COVID tests more available for all of us, two significant action steps have now occurred:

  1. Every U.S. household has access to free at-home COVID-19 tests. As of January 18, 2022, any individual with a residence in the United States may request up to four (4) at-home COVID test kits.  There is no cost to register or for the kits themselves.
  1. At-home COVID-19 testing is available at no cost without a prescription under an employer’s group health plan. On January 10, 2022, the Department of Labor (DOL) released updated guidance and an FAQ that, as of January 15, 2022, now extends an employer’s obligation to cover all types of COVID-19 tests, between those performed or prescribed by a physician or other health care provider,  and for in-home COVID-19 tests provided without a doctor’s order.

Read more about these developments.

In a 5-4 decision, the U.S. Supreme Court has ruled in favor of the government, allowing the Centers for Medicare and Medicaid Services (CMS) COVID-19 vaccine mandate to continue. Biden, et al. v. Missouri, et al., No. 21A240; and Becerra, et al. v. Louisiana, et al., No. 21A240 (Jan. 13, 2022).

Accordingly, CMS can enforce in all states and U.S. territories its interim final rule requiring many Medicare and Medicaid providers to ensure their covered staff are vaccinated against COVID-19.

Read our full article here.

In a 6-3 ruling, the U.S. Supreme Court has granted a temporary stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS).

The Court described the standard as a “blunt instrument” demanding most employers to require two-thirds of the American workforce to receive COVID-19 vaccinations or otherwise undergo weekly testing. The justices tipped their hands in the January 13 decision on how they might ultimately rule on the merits, stating that petitioners challenging the standard are likely to succeed in their arguments that OSHA exceeded its authority in promulgating the standard. Read more here>

Have any employees in Connecticut? Then you are covered by the Connecticut Family and Medical Leave Act (Connecticut FMLA).

All employers with at least one employee in Connecticut are covered by the Connecticut FMLA as of January 1, 2022.

Read more about Connecticut FMLA obligations for employers with any employees in Connecticut and other leave obligations in Connecticut.

The U.S. Supreme Court heard oral arguments today in the OSHA ETS case.  Of course one never knows how the Court will rule, but if the Justices’ questions are any indication, there could be a 6-3 split in favor of a stay, with Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett voting in favor and Justice Breyer, Justice Kagan, and Justice Sotomayor dissenting.

All parties made very short opening remarks and then invited the Justices’ questions.  The common theme on which Justice after Justice questioned the parties was not whether vaccinations are helpful in the fight against COVID-19 or whether mandates are lawful generally, but who gets to decide these public health questions?  Much of the questioning and arguments focused on the major question doctrine, what factors determine when to invoke that doctrine, and whether Congress specifically delegated authority to OSHA to legislate the ETS at issue.  As the petitioners challenging the ETS argued, the OSHA ETS is a wide-sweeping workplace rule, not tailored to any particular industry and issued without consideration of specific levels of risk in different work environments.  They argued that the extraordinary power of an emergency rule requires that the rule have more precision, based on an industry-by-industry analysis.  The Solicitor General argued that Congress lawfully delegated the authority to OSHA to issue the ETS when it enacted the Occupational Safety and Health Act of 1970 (the “OSH Act”), the ETS is necessary to protect unvaccinated workers from grave danger due to COVID-19, and that given the ongoing pandemic OSHA considered and properly balanced the various competing interests.  The current surge in COVID-19 cases created a backdrop against which the Solicitor General and several of the Justices expressed concern over issuing a stay.

During the arguments, Chief Justice Roberts questioned the Solicitor General on whether the government was “working across the waterfront” with multiple federal agencies and executive branch actions to legislate #covid19 workplace rules—noting the Center of Medicare and Medicaid Services (CMS) and federal contractor executive order vaccine mandates—without giving Congress a say or acknowledging states’ police powers.  He also expressed doubt that Congress envisioned OSHA having this much power or anticipated the likes of a COVID-19 pandemic when granting OSHA authority under the OSH Act more than 50 years ago.

Justice Alito suggested that with the ETS, the government was trying to “squeeze an elephant through a mousehole,” questioned the Solicitor General about people’s personal medical decisions about vaccination, and questioned whether regular COVID-19 testing was even a viable option at this point.

Justice Breyer expressed concern about the growing number of daily cases, noting that yesterday the nation had around 750,000 new cases.  Petitioners argued however, citing Alabama Assoc. of Realtors, et al. v. HHS, 594 U.S. _____ (2021) (CDC eviction moratorium decided by the High Court August 26, 2021), that while combatting the spread of COVID-19 is a noble goal, no matter how well-intentioned, the ends cannot justify the means when those means are unlawful.

Whatever the outcome, it needs to come fast because employers need clarity.

If you have questions or need assistance on the OSHA ETS, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Workplace Safety and Health Practice Group or our OSHA ETS Team.

The CDC announced today that it is updating its quarantine and isolation guidance. For people with COVID-19, the isolation period was reduced from ten days to five days as long as the individual has no symptoms or their symptoms are resolving after five days. Importantly, the revised isolation guidance does not recommend an individual have a negative COVID-19 test before ending their isolation period after day 5.

For people who have been exposed through close contact with someone infected with COVID-19, whether an individual is recommended to quarantine is no longer dependent on vaccination status alone.  Rather, whether quarantine is recommended now also depends on whether an individual has received a booster and how long it has been since an individual completed their vaccination series.  For people who are unvaccinated or received their second mRNA dose (Pfizer or Moderna) more than 6 months ago or the J&J vaccine more than 2 months ago, and have not received a booster shot, the CDC now recommends quarantine for 5 days, followed by 5 days of masking. For people who have received their booster shot or who have recently completed their primary vaccine series, the CDC does not recommend such individuals quarantine following an exposure, but the CDC does recommend they wear a mask around others for 10 days.

The CDC also recommends that everyone who has been exposed to COVID-19, regardless of vaccination status, be tested on day 5 following the exposure if possible. Finally, everyone who either has COVID-19 or was exposed to someone with COVID-19 should wear a well-fitted mask for a full 10 days.

Employers should review their COVID-19 policies and protocols, communicate any changes to their employees and be prepared to answer employees’ questions. Employers are reminded to consider states and local health authorities which may have different guidelines.

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

As we speed closer to January 1, the date when payments will begin under Connecticut’s Paid Family and Medical Leave Act and the effective date of changes to Connecticut’s Family and Medical Leave Act (CT FMLA), below are some updates and considerations for employers.

Paid Leave Applications

On December 1, the applications process opened for Connecticut Paid Leave (CPL) benefits related to leave dates on or after January 1, 2022.  If an employee submits a CPL benefits claim, the employee is responsible for providing an Employment Verification form to the employer.  The employer then must complete and return the form within 10 days by email or fax to the Paid Leave Authority’s claims administrator, Aflac.  Once employees have submitted all required documentation, they will be notified within 5 days of the disposition of their claim. It is anticipated that employers will be notified at the same time by the method selected on the Employment Verification form (email or U.S. mail).

Connecticut FMLA Changes

Effective January 1, the existing CT FMLA will change dramatically.  Many employers who previously were not covered by the law will now be diving into leave administration.  The Connecticut Department of Labor regulations regarding these changes are pending.  Once released, they will be subject to a 30-day comment period before becoming final. Per the amended CT FMLA statute, the regulations are due to be adopted by January 1, 2022.

Things to Consider Now 

  • As soon as possible, finalize any remaining decisions about how employer-paid benefits will interact with Connecticut Paid Leave benefits. Communicate these decisions to employees, including any requirement that an employee apply for Paid Leave in order to access company-provided paid benefits for a covered reason.
  • Consider waiting to roll out new or updated CT FMLA policies and forms until the CT DOL regulations are finalized.  In the interim, employers should communicate changes to the law, explain leave entitlements to employees seeking leave after January 1, and make modifications as needed to current forms and communications.
  • Consider any steps needed to appropriately track CT FMLA and Federal FMLA (if applicable).  For now, we recommend tracking the two “extra” weeks available under CT FMLA for an incapacity during a pregnancy separately from the general 12-week CT FMLA entitlement. Employers are not required to track Paid Leave usage, but may wish to do so.
  • Identify the individual to whom employees must direct Employment Verification forms and advise when they have applied for leave and been approved for benefits.
  • Employers will need to carefully consider how to handle current continuous CT FMLA leaves that run from 2021 into 2022.

Jackson Lewis attorneys will continue to track developments and provide updates. If you have any questions, contact the Jackson Lewis attorney with whom you regularly work.

The U.S. Court of Appeals for the Sixth Circuit has lifted the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing for employers with at least 100 employees. In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, Nos. 21-7000, et al. (6th Cir. Dec. 17, 2021).

Multiple parties, including 27 states, have filed emergency motions with the U.S. Supreme Court to block the ETS.

Read more on this important development.