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.

Continue Reading Santa Clara County now requires employers to inquire about, and keep records regarding, employees’ vaccination status

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.

Continue Reading Masks must stay on for now in California and Los Angeles County

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

UPDATE:  On May 5th, 2021, Governor Cuomo signed the legislation into law.  The law will go into effect on June 4, 2021.

On April 21, 2021, both houses of the New York Legislature announced passage of the NY Hero Act, which will require employers to implement extensive new workplace health and safety protections in response to the COVID-19 pandemic. Governor Cuomo is expected to sign the Act into law in the coming weeks.

The NY Hero Act will go into effect 30 days after the Governor signs it into law. When it does, all New York employers, regardless of size, will need to take action to comply with the new obligations that this law will impose.

Continue Reading New York set to require new workplace health and safety protections

UPDATE: On April 21, 2021, we wrote the following blog post describing guidance from OSHA that required, in certain circumstances, that employers record adverse COVID-19 vaccine reactions in their OSHA logs. On May 21, 2021, OSHA updated its FAQs to reverse its guidance on when employers should record adverse COVID-19 vaccine reactions. Employers now do not need to record adverse reactions from COVID-19 vaccines on their OSHA logs through at least May 2022. Regardless of whether an employer requires or recommends employees to get the COVID-19 vaccine, OSHA will not consider adverse reactions recordable injuries or illnesses.

On April 20, 2021, the U.S. Occupational Safety and Health Administration (OSHA) updated its FAQs with guidance stating that employers who require their employees to get vaccinated as a condition of employment may need to record employees’ adverse reactions to the COVID-19 vaccine on OSHA work-related illness logs.

OSHA generally requires most employers to keep records of certain work-related injuries and illnesses in OSHA 300 and OSHA 300A forms. Employers must submit these logs to OSHA periodically and upon request.

The recent guidance on adverse vaccine reactions states that when employers require employers to be vaccinated, such adverse reactions are considered “work-related” for the purposes of OSHA recordkeeping requirements. Thus, employers who require employees to vaccinate must record any adverse vaccine reactions they learn the employee experienced if the reaction meets one of the standard criteria that triggers an obligation to record under 29 CFR 1904.7 (i.e., the employee: missed days away from work, required medical treatment beyond first aid, had his or her work restricted or was transferred to another job, experienced a loss of consciousness, or died).

Importantly, the guidance also clarifies that, at this time, OSHA is exercising its discretion not to require employers to record adverse vaccine reactions if the employer recommends but does not require vaccination. OSHA will consider the vaccine to be required if employees would suffer repercussions (such as affecting an employee’s performance rating or professional advancement) due to their choice to not receive the vaccine.

For more information about OSHA requirements or other issues relating to the COVID-19 vaccine, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.

*An author of this post, Heather McAdams, is a Law Clerk in the New York Office.

Last year, we discussed several major changes made to Virginia employment laws that provided new protections and rights to employees. Once again, another significant change will occur on July 1, 2021 when Virginia’s new Overtime Wage Act (HB 2063) takes effect. In large part, this new law follows the federal Fair Labor Standards Act (FLSA)’s overtime protections by requiring employers to pay time and half of the employee’s regular rate of pay to employees who work in excess of 40 hours in a workweek. However, in several key ways, the new Virginia law will expand Virginia employers’ potential exposure with respect to wage and hour claims. Continue Reading Virginia’s new Overtime Wage Act increases potential exposure to Virginia employers for wage and hour claims

If your company has even one employee in Colorado, as of January 1, 2021, Colorado’s Equal Pay for Equal Work Act (EPEW) requires employers to notify employees within Colorado of all job postings and promotional opportunities, including those outside of Colorado. In some circumstances, the EPEW requires employers to provide compensation information relating to those postings and promotional opportunities. The law also imposes other requirements that are outlined briefly below.

Continue Reading Colorado employers – are you providing required notices to your employees of all job postings and promotional opportunities?

On April 6, 2021, the U.S. Department of Labor Secretary Marty Walsh placed a “hold” on the implementation of a potential U.S. Occupational Safety and Health (OSHA) COVID-19 Emergency Temporary Standard (ETS), which would set a national COVID-19 safety standard for OSHA-covered employers throughout the United States. While President Biden’s inauguration day Executive Order directed OSHA to focus its enforcement on COVID-19 efforts and set a March 15 deadline for determining whether an ETS was necessary and issuing it, Secretary Walsh stated that any ETS needs to “reflect the latest scientific analysis of the state of the disease” and is delaying its implementation until such scientific review is completed. At this time there isn’t any more information regarding how long the review period will last, and we don’t yet know when (if?) an ETS will ultimately be issued. That said, Walsh ordered a “rapid update based on [CDC] analysis and latest information regarding the state of vaccinations and the variants” stating that it would hopefully be turned over to the “next level” (presumably the White House’s Office of Information and Regulatory Affairs for review) “very soon.”  We will keep you updated as more information becomes available.

For more information on the recent OSHA National Emphasis Program (NEP), and immediate actions that OSHA-covered employers should take in light of the NEP, see our recent blog post.