Since March 2020, COVID-19 rules have been confusing at best.  On August 11, 2022, in an effort to streamline the guidance and reflect the current state of the pandemic, the CDC once again issued updated guidance.  The new guidance focuses on individual responsibility and is designed to help the public better understand how to protect themselves and others if they are sick or exposed.

The most recent CDC COVID-19 recommendations include the following:

  • Vaccination. The CDC continues to promote the importance of being up to date with vaccination to protect people against serious illness, hospitalization, and death.  However, while the CDC continues to recommend vaccination, its guidance no longer differentiates between vaccinated and unvaccinated.
  • Quarantine.  The CDC no longer recommends quarantining following COVID-19 exposure, regardless of vaccination status.  Instead of quarantine, the CDC recommends anyone exposed to COVID-19 wear a high-quality mask for 10 days and get tested on day 6.  Previously, the CDC recommended a 5-day quarantine for anyone who was not up to date with vaccinations.
  • Isolation.  The CDC continues to recommend that regardless of vaccination status, individuals should isolate from others if they are sick and suspect that they have COVID-19 or have tested positive for COVID-19.
    • The CDC recommends that individuals with COVID-19 stay home for at least 5 days. After 5 days, if the individual is fever-free for 24 hours without the use of medication, and their symptoms are improving (or they never had symptoms) they can end isolation.
    • However, the CDC now recommends that individuals who had moderate illness (experienced shortness of breath or had difficulty breathing) or severe illness (were hospitalized) due to COVID-19 or have a weakened immune system, should isolate through at least day 10 and those who had severe illness or have a weakened immune system should consult with their healthcare provider before ending isolation.
    • The CDC also recommends that someone who has ended isolation should avoid being around anyone who is at high risk for a serious case of COVID-19 until at least day 11.
    • Finally, the CDC recommends that if an individual’s COVID-19 symptoms worsen, they should restart their isolation at day 0.
  • Testing.  The CDC no longer recommends screening testing of asymptomatic people without known exposures in most community settings.
  • Physical Distance. The CDC emphasizes that physical distance is just one component of how individuals can protect themselves and others.  The CDC recommends considering the risk in a particular setting, including local COVID-19 Community Levels and the important role of ventilation, when assessing the need to maintain physical distance.

The CDC’s focus on individual responsibility, the removal of distinctions between vaccinated and unvaccinated, the removal of quarantine recommendations and the discussion of mask wearing as an individual responsibility are good news for employers who are considering relaxing COVID-19 workplace requirements.

This likely will not be the last we hear from the CDC on this topic.  Indeed, the CDC stated that it intends to issue more specific guidance for settings such as healthcare, congregate living, and travel.

 

California’s Healthy Workplace, Healthy Family Act (the Act) requiring most employers to provide paid sick leave for covered employees went into effect in 2015. However, in 2017 and 2021, two separate California federal district courts concluded that the Act was not applicable to rail workers due to preemption by the federal Railroad Unemployment Insurance Act (RUIA). The RUIA is a federal law that provides the exclusive source of unemployment and sickness benefits to railroad employees.

Read more here.

A provision in the enacted state budget for fiscal year 2023 would have amended the Massachusetts Paid Family and Medical Leave Act (PFMLA) to provide employers and employees more flexibility to use other accrued benefits to supplement paid benefits received from the state. The governor initially returned the legislation to the legislature with a recommendation, rather than accepting the change. The legislature then passed the bill again and returned it to the governor.  The governor has not acted on the returned bill.  The bill, therefore, as of this date, has not been amended.

Read more here.

On July 19, 2022, the Michigan Court of Claims held that, in 2018, the state legislature violated the Michigan Constitution when it enacted, and within the same legislative session amended, two ballot initiatives, one to raise the minimum wage and the other to require employers to provide paid sick leave. Now, citing public concerns over the ability of employers and the relevant state agencies to immediately implement the changes required by its decision, the court has granted a stay of its order until February 20, 2023.

Read more here.

Citing legislative “sleight of hand,” the Michigan Court of Claims has held that the Michigan legislature violated the state’s Constitution when, in 2018, it adopted and then immediately amended ballot initiatives to increase the state’s minimum wage and to require employer-paid sick leave. Mothering Justice v. Nessel, No. 21-000095-MM (July 19, 2022). Therefore, the court held, the current versions of the Improved Workforce Opportunity Wage Act (IWOWA) (the minimum wage law) and the Paid Medical Leave Act are void. As a result, Michigan’s minimum wage immediately may increase to $12.00 per hour (from its current $9.87 per hour) and the state’s paid sick leave law may expand substantially.

Read more here.

As the pandemic continues to evolve, so does the EEOC’s guidance. On July 12, 2022, the EEOC once again updated its COVID-19 guidance: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to reflect the pandemic’s changing state. The updated guidance follows CDC’s June 10, 2022 statements regarding the current state of the COVID-19 pandemic.

Read more here.

In June, San Francisco voters passed Proposition G, a new Public Health Emergency Leave Ordinance. The ordinance requires private employers to provide paid leave to employees for “public health emergencies.” The leave ordinance will be in addition to employer-provided paid leave, such as paid sick leave.

The leave ordinance will become operative on October 1, 2022.

Read more here.

On June 2, 2022, the Second Circuit issued a decision in Calcano, et al. v. Swarovski North America Ltd., et al., affirming dismissal of five consolidated cases brought by visually impaired plaintiffs who alleged various retail defendants must provide braille gift cards under the Americans with Disabilities Act (ADA).  The five lawsuits consolidated on appeal were filed between 2019 and 2020, when the Southern and Eastern Districts of New York were flooded with hundreds of similar complaints.  Many of these complaints (including the five consolidated appeals) were dismissed by the district courts based on the plaintiffs’ lack of standing and/or their failure to state a claim under the ADA.  Those that remained unresolved at the time of the consolidated appeals were stayed pending the outcome at the Second Circuit Court of Appeals.  The Calcano decision therefore has been highly anticipated by plaintiffs and defendants alike.

The Second Circuit’s majority opinion affirmed dismissal based on lack of standing only and did not reach the issue of whether the plaintiffs adequately plead that defendants failed to accommodate them under the ADA because defendants did not provide braille gift cards.  In a concurring opinion, however, Judge Lohier, opined that dismissal on the merits was appropriate.

In reaching its decision, the majority noted each plaintiff’s identical assertions that he resides “in close proximity to” defendants’ businesses; has been a “customer at Defendant’s [location] on prior occasions” and “intends to immediately purchase at least one gift card from the Defendant as soon as the Defendant sells store gift cards that are accessible to the blind” were insufficient to establish standing.  The majority found the plaintiffs did not allege they suffered an injury in fact because their “conclusory allegations of intent to return and proximity” were too vague to establish that they faced “a material risk of future harm” that is “sufficiently imminent and substantial.”  The majority also identified the plaintiffs’ assertions as parroted from language in a prior ADA Title III decision that addressed standing, and therefore found their assertions to be nothing more than “legal conclusion[s] … couched as factual allegation[s].”

The concurring opinion by Judge Lohier assessed plaintiffs’ standing less stringently and with less of a focus on plaintiffs’ “intent to return” to the defendants’ businesses.  The concurrence found all but one plaintiff established standing and went on to address the merits of the claims.  The concurring opinion did not dispute plaintiffs’ claim that gift cards must be accessible.  Indeed, the concurrence concluded a gift card is a “good” and “means of access to goods and services” under Title III of the ADA and that places of public accommodation therefore must provide “adequate auxiliary aids and services to ensure that blind customers can make meaningful use of gift cards.”  The concurrence did, however, dispute plaintiffs’ claim that defendants failed to provide an adequate auxiliary aid because they failed to provide braille gift cards.  The concurrence found plaintiffs’ conclusory allegation that “[the defendants] do not offer auxiliary aids with respect to gift cards” failed to state cause of action.  In support of this conclusion, the concurrence noted plaintiffs failed to plausibly allege (1) why other types of auxiliary aids – such as a store clerk’s assistance – would not permit them to enjoy the benefits of the gift cards; and (2) that defendants did not offer other aids that might enable them to use gift cards.

Calcano is a welcome decision for businesses who have seen an unrelenting onslaught of public accommodation lawsuits. The decision is an example of the opportunities businesses have to successfully defend these public accommodation lawsuits and the potential to eliminate or significantly reduce the number of lawsuits by serial plaintiffs.  Calcano demonstrates the vulnerability plaintiffs encounter to establish a real and imminent threat of harm to have standing to sue under the ADA where the plaintiffs file hundreds of complaints with nearly identical boilerplate allegations. While the Second Circuit affirmed the district court’s dismissal of these lawsuits on the more limited basis that plaintiffs lacked standing, the concurring opinion by Judge Lohier provides an insightful analysis into why the plaintiffs did not state an ADA claim as a matter of law.  In the fullness of time, we hope to see whether district courts when deciding a dispositive motion adopt Judge Lohier’s analysis concerning a business’s long-held prerogative to choose among effective, appropriate auxiliary aids and service to make its goods and services available to disabled individuals.  The complaints filed in these cases essentially allege that the businesses did not provide braille gift cards, an auxiliary aid the plaintiffs allegedly wanted even though they did not request it.  Based on Department of Justice (DOJ) regulations and guidance, Judge Lohier disagreed that a Braille gift card was the sole appropriate auxiliary aid in the circumstances alleged in the complaints.

What also remains to be seen is whether district courts apply the reasoning of the Second Circuit, including Judge Lohier’s concurring opinion, to website accessibility lawsuits, another type of public accommodation claim that has maligned businesses for the past decade.  Website accessibility lawsuits share many of the same deficiencies as the gift card lawsuit and are filed by the same plaintiffs (and their attorneys).