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.

A 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.

Beginning on July 1, 2022, New Mexico will join 15 other states (and Washington, D.C.) in requiring private employers to provide paid sick leave to their employees. On April 8, 2021, New Mexico Governor Michelle Lujan Grisham signed House Bill 20, thereby enacting the Healthy Workplaces Act (HWA). Generally, the HWA entitles employees to up to 64 hours of paid sick leave each year. Read a full analysis of the New Mexico legislation here.

A website is not a “place of public accommodation” and an inaccessible website is not necessarily equal to the denial of goods or services, a federal appeals court has held in a groundbreaking decision on disability discrimination under Title III of the Americans with Disabilities Act (ADA). Gil v. Winn-Dixie Stores, Inc., No. 17-13467 (11th Cir. Apr. 7, 2021). Read more about this case and the implications for businesses here.

Philadelphia has joined a growing list of localities to require employers to provide employees paid COVID-19-related sick leave.

When the federal Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020, many employees lost guaranteed paid COVID-19-related leave. As of March 29, 2021, employers with employees working in Philadelphia must provide them paid COVID-19-related sick leave.

The new 2021 Public Health Emergency Leave (PHEL) amends and expands Philadelphia’s previous COVID-19 paid leave ordinance that had expired on December 31, 2020. The amended PHEL ordinance is similar to the FFCRA, minus the tax credits, and expands existing paid sick leave requirements by mandating Philadelphia businesses with at least 50 employees provide additional paid time off to employees who have worked for the business at least 90 days.

Read more about Philadelphia’s COVID-19 Paid Sick Leave.

The country begins the second year of the COVID-19 pandemic with optimism because of three Emergency Use Authorization vaccines and President Joe Biden’s direction that all states make all adults eligible for vaccination by May 1, 2021. As more workers return to work in person, there are key considerations for employers in the coming months.

Evolving Legal Landscape
While the Centers for Disease Control and Prevention (CDC) issued guidance and best practices throughout the last year, the decision as to whether to adopt, enforce, or exceed those guidelines was left exclusively to the states. What resulted was a patchwork of laws at the state, county, city, and local health department levels, and confusion as to which rules to follow and when.

The Biden administration has expressed a willingness to take more measures at the federal level and has increased uniformity in terms of approaches for vaccination, isolation and quarantine, and safety measures.

However, uniformity may not translate to a less fluid environment. The CDC, Department of Labor, and new administration continue to issue updates regularly, making it challenging for many employers to keep up.

OSHA Guidance for Employers
Although states are starting to lift or ease restrictions, employers can expect increased enforcement from the Occupational Safety and Health Administration (OSHA). On March 12, 2021, OSHA announced a National Emphasis Program (NEP) related to COVID-19, targeting “specific high-hazard industries or activities where this hazard is prevalent” and adding a focus on anti-retaliation efforts. The NEP covers certain healthcare industries (e.g., hospitals, home health, and skilled nursing facilities, among many others) and non-healthcare industries that have experienced high rates of COVID-19 infection (i.e., meat and poultry processing) or are public facing (i.e., restaurants, supermarkets, and grocery stores) and critical infrastructure. OSHA also will use calendar year 2020 Form 300A data to identify establishments with elevated rates of illness. With respect to anti-retaliation efforts, OSHA will increase efforts to ensure workers are aware of retaliation protections. (For a more detailed summary of the NEP, see OSHA Publishes New National Emphasis Program Targeting COVID-19 Enforcement.)

OSHA has not issued COVID-19-specific standards to date. In limited circumstances, OSHA has applied existing standards to situations involving COVID-19 (e.g., respiratory protection for healthcare employers). OSHA has otherwise been left to rely on the General Duty Clause in the Occupational Safety and Health Act to hold employers accountable for protecting workers against COVID-19 in the workplace. The General Duty Clause requires employers to provide a safe and healthy workplace that is free from recognized hazards likely to cause death or serious physical harm. OSHA has also issued COVID-19 guidance for several industries, as well as general guidance for all employers. The guidance does not carry the weight of the law, but may be useful to OSHA’s enforcement efforts.

Recently, OSHA is under additional pressure following a report from the Office of the Inspector General (OIG) that criticized the agency for not conducting enough onsite inspections or issuing COVID-19 standards sooner. Prior to the OIG’s report, President Biden had directed OSHA to consider whether emergency temporary standards were necessary, and to issue any such standards by March 15, 2021. The emergency temporary standards appear to be delayed, but are anticipated to be issued imminently.

Employers in some states, like California, Michigan, Oregon, and Virginia, are already subject to COVID-19 rules under occupational safety and health state plans. Employers should continue to consult state and local law for safety guidelines in the coming months.

EEOC Guidance for Employers
In March 2020, the U.S. Equal Employment Opportunity Commission (EEOC) published technical assistance for employers entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. The agency has provided periodic updates, most recently on December 16, 2020.

The technical assistance covers a wide range of topics that will continue to be important for employers in 2021, including:

  1. Disability-Related Inquiries and Medical Exams;
  2. Confidentiality of Medical Information;
  3. Hiring and Onboarding;
  4. Reasonable Accommodation;
  5. Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics;
  6. Furloughs and Layoffs;
  7. Return to Work;
  8. Age;
  9. Caregivers/Family Responsibilities;
  10. Pregnancy; and
  11. Vaccinations.

As employees begin returning to workplaces in greater numbers, employers should consider the EEOC’s guidance, especially regarding reasonable accommodations, as they establish their policies and practices and respond to requests for continued remote work and other flexible work arrangements.

The EEOC’s latest updates to its technical assistance addresses COVID-19 vaccinations and questions about the applicability of federal equal employment opportunity laws including the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act, Title VII of the Civil Rights Act, and the Pregnancy Discrimination Act. As employers develop policies and employee communications in connection with the vaccines, employers should review section K of the EEOC’s technical assistance. That section provides important insights on the EEOC’s view on important questions facing employers.

COVID-19 Vaccines and the Workplace
As of this writing, 24.5 percent of the U.S. population have received at least one dose of the vaccine. Employers are faced with how to handle vaccination and the return to work in person, and what role, if any, they should play in encouraging and enabling employees to safely become vaccinated.

In its January 2021 guidance, OSHA encouraged employers to make COVID-19 vaccines available to all eligible employees at no cost and to provide information and training on the benefits and safety of vaccinations.

While many employers are thinking through creative ways to incentivize vaccines, a number of states are considering measures that would prevent employers from mandating vaccinations for return to work or otherwise influence an employer’s approach to vaccinations. On the other end of the spectrum, New York has adopted legislation that requires employers to provide employees with up to four hours of paid time off for each COVID-19 vaccination. Jackson Lewis is tracking pending legislation related to vaccines and the workplace, including more than 100 bills being considered by state legislatures around the country.

In the CDC’s Guidance for Fully Vaccinated People, the CDC pointed to evidence suggesting that fully vaccinated individuals are “less likely to have asymptomatic infection and potentially less likely to transmit” the virus to others, but the CDC is continuing to learn more about individuals’ abilities to continue the spread of COVID-19 despite being vaccinated. As discussed below, the CDC guidance supports relaxed quarantine requirements for individuals who have been fully vaccinated. Therefore, employers may have a greater interest in vaccination programs, or at least knowing employees’ vaccination status. However, the CDC and OSHA recommend vaccinated individuals continue to wear masks, practice physical distancing in public, and take other steps to mitigate the spread of COVID-19.

The CDC has explained that it is still studying the duration of protection provided by the vaccine, and experts are continuing to evaluate at what point the country can achieve herd immunity, or community immunity (when a sufficient portion of the population of an area is immune to a specific disease to make its spread from person to person unlikely). There have been many positive developments and the outlook on the horizon looks promising, but at the moment, many aspects of the work environment are left unchanged. For now, employers should continue to follow state and local orders and guidance and may choose to consider ways in which they can enable employees to become vaccinated and provide information and training for those who are eligible, as consistent with applicable law. Employers who want to educate their workforce about the COVID-19 vaccines can use materials published by the CDC and state agencies.

Latest Guidance on Isolation, Quarantine
The CDC’s guidance on recommended isolation and quarantine periods has evolved as both the number of people vaccinated has recently grown, and the number of people in the United States who have recovered from COVID-19 and likely have some protection from the virus has increased.

For individuals who have tested positive for COVID-19 or are symptomatic, the CDC’s Discontinuation of Isolation for Persons with COVID-19 Not in Healthcare Settings sets a framework for when to discontinue isolation. However, not all states have adopted the CDC’s guidelines. Indeed, state and local requirements may not coincide with the CDC’s guidance on length of isolation.

With respect to quarantine, on March 12, 2021, the CDC issued revised guidance stating that individuals who have had COVID-19 within the past three months do not need to quarantine if exposed once more to someone positive, as long as they do not develop new symptoms. Similarly, the CDC’s recommendations for fully vaccinated people states that people who have been fully vaccinated do not need to quarantine after an exposure, as long as they experience no symptoms. Previously, the CDC limited this exclusion to quarantine only to individuals who had been fully vaccinated within 90 days. Now, the CDC appears to take a broader approach. Some states, including states with occupational safety and health state plans, may have specific rules regarding quarantine that differ from the CDC guidance regardless of vaccination status.

With the increasing number of Americans becoming vaccinated each day, time will tell as to which states will adopt the CDC’s recommendations. For now, state and local law must be consulted when evaluating the need and duration of quarantine for employees.

All employers, even those in states where quarantine may not be required for fully vaccinated employees, should exercise caution in handling communications regarding employees’ vaccination status when assessing return to work considerations. According to the EEOC’s guidance, asking whether a worker has been vaccinated is not a disability-related inquiry; however, the information may be protected by state or local privacy laws. Employers should be specific about what information should and should not be provided by employees to prevent unsolicited disclosure of medical or genetic information. There are other considerations and best practices for employers when it comes to employees’ vaccination status.

On the Horizon in 2021
While the future looks bright, employers can expect to see a lasting impact from COVID-19.

Continued Spotlight on Paid Sick, Family Leave

The pandemic unquestionably shined a light on employer paid leave policies. Pre-pandemic, many states and cities (such as Arizona, California, Nevada, New York, and others) already passed paid sick leave laws. There has been a push at the federal level for employers to provide paid sick leave. The Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020. The FFCRA required employers with fewer than 500 employees to provide paid sick and family leave for certain COVID-19-related reasons. To encourage employers to continue offering paid leave, the Consolidated Appropriations Act of 2021 gave employers who were covered under the FFCRA the option to voluntarily provide “qualified” paid sick leave or paid family leave wages to their employees and continue to receive a tax credit for such wages until March 31, 2021.

Under the American Rescue Plan Act signed by President Biden on March 11, the tax credits will again be extended, to September 30, 2021. However, Congress made significant changes to the FFCRA and the qualifying reasons for leave. Importantly, employee paid sick leave allotments will reset on April 1, 2021, the reasons for leave have been expanded to address testing and vaccination issues, and the paid family leave can be used for reasons other than childcare issues. (For more details of how the American Rescue Plan Act modifies the FFCRA, see The American Rescue Plan Extends FFCRA Tax Credit, But Not the Mandate.)

Remember that the FFCRA is voluntary and does not have any impact on employers with more than 500 employees. As a result, ongoing efforts for federal or state and local paid sick and family leave laws are expected. California, for example, has resurrected the statewide COVID-19 Supplemental Paid Sick Leave that expired at the end of 2020.

Return to Work

For the past year, employers have been encouraged, or required in some cases, to offer remote work to the extent possible. Technology companies have tried to keep up with demand. For example, according to the BBC, the use of Zoom increased 30 fold in April 2020.

Employers eager to return to in-person operations should be prepared for potential resistance from employees who have grown accustomed to working from home, as well as potential accommodation requests related to leave or continued remote work from those who cannot return to work due to medical issues. The EEOC guidance referenced above explains how the pandemic may impact the analysis of whether a requested accommodation poses “significant difficulty” or “significant expense” under the ADA. For example, the EEOC recognizes that the business losses associated with the pandemic are a relevant consideration and that “an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.” On the other hand, the EEOC also warns against excluding certain workers from the workplace involuntarily based on an employee’s higher risk for severe COVID-19 illness. Employers will need to balance the desire to return to “normal” with their obligations under the ADA and other federal and state laws.

Litigation for Years to Come

Jackson Lewis has developed COVID-19 Employment LitWatch to help employers track litigation trends related to COVID-19. Since the start of the pandemic, over 1,800 complaints have been filed in federal and state courts that allege related labor and employment law violations. More than 55 percent of the complaints allege violations related to disability, leave and accommodation, or discrimination or harassment. California has the most COVID-19 employment lawsuits in the country. (It allows employees to immediately request a right to sue notice from the California Department of Fair Employment and Housing.) Under federal and many state employment discrimination laws, employees often are required to wait months before requesting a right to sue notice. The waiting period frequently creates a delay between a challenged employment action and a lawsuit. Thus, employers may be seeing COVID-19 litigation well into 2022 and beyond.

To reduce the risk of litigation, employers should continue to monitor the ever-changing landscape of federal and state COVID-19 rules and orders. Employers can use Jackson Lewis’ COVID-19 Advisor to stay up-to-date on COVID-19 issues in all 50 states, including health and safety protocols, paid sick leave guidance, paid family leave and mini-Family and Medical Leave Act guidance, and business opening rules, among many other topics.

Jackson Lewis attorneys are closely monitoring the evolving demands on employers, including agency guidance, regulations, and best practices and are available to assist employers in preparing policies and procedures related to COVID-19 and other workplace matters.