As we previously discussed, on May 5, 2021, Governor Cuomo signed the NY Hero Act (the Act) into law, codifying health and safety protocols in response to the COVID-19 pandemic. On June 7, 2021, the New York State Legislature passed amendments (the Amendments) to the Act to address certain ambiguities, in particular regarding the logistics of complying with the Act’s terms. If the Amendments are signed by Governor Cuomo, as is expected, they will push back the effective date of the majority of provisions of the Act from June 4 to July 5, 2021, with the exception of the workplace safety committee provision, which will take effect November 1, 2021.
On June 10, 2021, the U.S. Occupational Safety and Health Administration (OSHA) released the first nationwide emergency workplace safety rule per President Joe Biden’s January executive order directing the agency to pursue an emergency temporary standard for COVID-19. The newly published emergency temporary standard (ETS) applies only to employers in the healthcare industry, and requires such employers to protect their workers against on-the-job COVID-19 infections. Other employers should consult OSHA’s separately published guidance applicable to workers not covered by the ETS, also published on June 10 and covered in our separate blog post.
On June 10, 2021, the same day that it released its long-anticipated COVID-19 emergency temporary standard (ETS) for healthcare settings (which we discuss here), the U.S. Occupational Safety and Health Administration (OSHA) also issued updated COVID-19 guidance for non-healthcare workplaces (Guidance). The Guidance provides that, with limited exceptions, employers generally need not implement any COVID-19 safety measures for fully vaccinated workers but should continue to take a multi-pronged approach to protecting unvaccinated workers and those who are “otherwise at-risk” due to compromised immunity. Unlike the healthcare ETS, the Guidance for non-healthcare settings is advisory and not legally binding.
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On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its “What you should know about COVID-19” Frequently Asked Questions (the FAQs), answering questions many employers have had regarding COVID-19 vaccinations and addressing additional considerations relevant to returning employees to the worksite. The FAQs include long-awaited guidance on how employers may provide incentives for employees to obtain vaccines, and also discuss employer inquiries about employee vaccination status and mandatory vaccine policies, among other issues.
Below are key takeaways from the EEOC’s May 28 guidance. Continue Reading EEOC releases guidance on permissible vaccine incentives and other COVID-19 vaccine issues
On May 18, 2021, Santa Clara County, California, issued a health order imposing new and significant obligations on employers in light of the increasing number of individuals that are being vaccinated against COVID-19.
The most significant requirement under the new health order, which went into effect on May 19, 2021, is that employers must inquire into, and continue to keep track of, the vaccination status of all personnel. The Santa Clara health order does not, however, require employers to request or record proof of vaccination. This requirement applies to Santa Clara employers regardless of whether they have a mandatory or voluntary vaccination program.
As we recently discussed, last week the Centers for Disease Control and Prevention (CDC) announced guidance that loosened its COVID-19 rules for facial coverings and social distancing for fully vaccinated individuals. However, the CDC guidance was not intended to override, and explicitly made such guidance subject to, federal, state, or local rules.
In what should not be a surprise to employers in the Golden State, California had already announced that it will be maintaining its current masking guidance until at least June 15. Los Angeles County, despite boasting low and stable metrics, has announced that it will do the same in light of continued COVID-19 transmission.
On April 16, 2021 Governor Newsom signed into law Senate Bill 93, which requires employers in certain industries to offer laid-off employees due to COVID-19 all job positions that become available for which the employee is qualified. Employees included in the act are those who had (1) been employed for at least six months in the twelve months preceding January 1, 2021; (2) worked two hours or more per week for a covered employer; and (3) were most recently separated from employment due to the COVID-19 pandemic (i.e. due to a public health directive, shutdown order, lack of business, reduction of force, etc.).
Employers covered by the new law include hotels, private clubs, airport hospitality operations, airport service providers, and those who provide janitorial, building maintenance or security services to offices, retail establishments or other commercial buildings. Continue Reading California requires employers in certain industries to rehire employees laid-off due to COVID-19
On May 13, 2021, the CDC updated its guidance for fully vaccinated individuals (Vaccination Guidance), stating that fully vaccinated people (fully vaccinated means two weeks after receiving a second dose of the Moderna or Pfizer vaccines or two weeks after a first dose of the Johnson & Johnson vaccine) can:
- Resume indoor and outdoor activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance
- Resume domestic travel and refrain from testing before or after travel or self-quarantine after travel
- Refrain from COVID-19 testing before leaving the United States for international travel (unless required by the destination) and refrain from self-quarantine after arriving back in the United States
- Refrain from COVID-19 testing or quarantine following an exposure to a COVID-19 positive individual, if the fully-vaccinated individual is asymptomatic, with some exceptions for specific settings
- Refrain from routine screening testing for COVID-19, if feasible
This significant development raises the question: what does this mean for the workplace? The CDC’s Vaccination Guidance does not green-light immediate relaxation of safety requirements in the workplace, however, employers should watch closely for new guidance out of the CDC, OSHA, and states and localities to see whether workplace-specific guidance and requirements changes. (As a reminder, employers are required to follow the state and local requirements that apply to them, regardless of the CDC’s guidance. For example, several jurisdictions continue to impose capacity limits on the workplace, and many jurisdictions have imposed safety requirements through regulation, executive order, or otherwise, including requirements pertaining to masks and social distancing. That said, state and local requirements are heavily influenced by CDC guidance and sometimes adopt it by reference.)
Although the CDC and OSHA have not yet updated their workplace-specific guidance, the CDC’s Vaccination Guidance suggests that workplace-specific updates are likely to follow soon. OSHA’s prior guidance stated that vaccinated individuals must still wear face coverings and distance from others because, according to the CDC, it was not known how vaccination affects transmissibility. The recent CDC Vaccination Guidance states, however, that “a growing body of evidence suggests that fully vaccinated people are less likely to . . . transmit SARS-CoV-2 to others.” Given that the CDC has changed its view of transmissibility, OSHA may too decide to change its view.
How the CDC, OSHA, and state/local guidance will change is uncertain at this time but it seems likely that requirements such as masks, social distancing, screening and testing, quarantine, and travel restrictions may relax for fully-vaccinated individuals.
While this news is a welcome sign for employers seeking to return to the office, employers will need to navigate a host of legal issues in implementing relaxed safety requirements for fully vaccinated individuals, if these relaxations become available for employers in their respective jurisdictions. Employers should consider, for example:
- Should the employer implement a mandatory vaccination policy and, if so, what are the benefits and drawback of doing so?
- If an employer mandates vaccinations, how should an employer handle requests for accommodation?
- Will unvaccinated individuals in the office have to comply with different safety requirements in the office and if so, how can these differential requirements be implemented in a lawful way that respects employee confidentiality and avoids disruption? (It is possible that the U.S. Equal Employment Opportunity Commission (EEOC) will weigh in with guidance on this point.)
- How should an employer handle a request from a vaccinated employee not to work with unvaccinated employees?
For questions on how this Vaccination Guidance affects your business please contact an author of this post or the Hogan Lovells lawyer with whom you usually work.
*An author of this post, Shannon Finnegan, is a Law Clerk in the New York Office.
On April 27, 2021, President Biden issued an executive order (EO) that will, beginning in early 2022, raise the minimum hourly wage from $10.95 to $15.00 for workers working on or in connection with covered federal contracts and subcontracts. More information about the EO is available on the Administration’s fact sheet. This minimum wage will increase in subsequent years based on inflation. The EO makes good on the Administration’s announcement in January that the President would increase the minimum wage requirements for federal contractors in his first 100 days in office. Continue Reading Biden ups minimum wage to $15 for federal contractor workforce