COVID-19 Federal Government Response

Do you have 100 or more employees? Are you a federal government contractor? A healthcare provider? A large entertainment venue? If the answer to any of these questions is yes—and as you’ve already probably heard—President Biden has instructed the Occupational Health and Safety Administration (OSHA) to exercise its rulemaking authority to require all such employers to either mandate COVID-19 vaccination or to require weekly COVID-19 testing. You should review your current COVID-19 policies and President Biden’s COVID-19 Action Plan, particularly the new executive orders and mandates announced this past week, which cover about 100 million Americans, or two-thirds of the U.S. workforce.

For the moment, covered employers have to sit tight: Biden’s announcement last week was simply that OSHA will issue the new vaccination rule “in the coming weeks.” We will continue to update this blog on the many complicated issues arising from the anticipated OSHA rules, including how to comply with the rule when various Republican state governors and right-leaning interest groups have already promised litigation to challenge the rule from the moment the rule is implemented.

For now, however, here are the key takeaways for employers:

  • Employers (100+ Employees): OSHA is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or to require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Given the practical challenges with implementing weekly testing, many employers may simply mandate vaccination to comply with this new rule—and many already have. What happens if they don’t? This requirement is to carry substantial fines to be enforced by OSHA. In addition to the mandate, OSHA is developing a rule that will require employers with 100+ employees to provide PTO for the time it takes workers to get vaccinated and to recover.  
  • Federal Workers & Contractors: The President also signed an Executive Order (EO) to require all federal executive branch workers and contractors that do business with the federal government to be vaccinated. This EO eliminates the exception to the July vaccination mandate for federal employees and contractors that allowed them to opt out if they wore masks, socially distanced, and were tested for COVID-19 at least weekly. 


Continue Reading Vaccinating the Unvaccinated: Employers Take Heed

What to expect from the projected increase in vaccine requirements, restrictions, and lawsuits in the months ahead.

With the highly transmissible Delta variant surging, and vaccination rates stagnating, employers are facing new pressures to reinstate mask mandates for everyone, regardless of vaccination status, and encourage COVID-19 vaccines through workplace mandates.

On August 23, 2021, the Food and Drug Administration (FDA) fully approved the Pfizer-BioNTech COVID-19 vaccine for use in those age 16 and older. This upgrade to full approval from “emergency use” status is predicted to lead to a rise in vaccine requirements from employers, schools, and local governments. Health officials are also hopeful that the approval will lead to higher vaccination rates. Note that the Pfizer vaccine is only one of  three COVID-19 vaccines to receive full approval. The Moderna and Johnson & Johnson vaccines remain in emergency use status only.

Even under the FDA’s prior emergency use approval, major companies – including Google, Facebook, BlackRock, and Morgan Stanley – initiated policies insisting that workers get vaccinated before returning to the office. Meanwhile, California and New York City became the first state and major city, respectively, to require public workers to be vaccinated. Illinois very recently joined the returning wave of COVID-19 related restrictions by enacting another statewide mask mandate and requiring all teachers and healthcare workers be vaccinated or subject to weekly testing. The Biden administration also requires all federal workers to attest to being vaccinated or face strict testing protocols.
Continue Reading The New Employee Status: Vaccinated or Unvaccinated

Wednesday, September 22nd at 12:30pm ET

President Biden promised a 2021 “Summer of Joy” as the ongoing COVID-19 pandemic is brought under control. Instead, employers face continuing unpredictability in the face of a pandemic—and CDC guidance—that just keeps changing. With a pandemic that is not nearly behind us, what should an employer do now? Mandate

U.S. employers have known for a while that they can require their employees to get an FDA-approved Covid-19 vaccine. As recently as a couple of months ago, however, most employers weren’t doing that, with a few exceptions in healthcare and on Wall Street that were either celebrated or notorious, depending on your view.

The balance has clearly shifted now.

One survey in February 2021 found that almost 80% of employers chose not to mandate vaccination because their employees were personally opposed to it. As one of our clients put it: “If we mandated, half our workforce would quit.” So the initial stance taken by most employers was essentially an employee relations choice, and employers “strongly encouraged,” but didn’t require, vaccination.

It looks like months of “strong encouragement” didn’t move the needle one way or the other. Our unscientific guess (but one generated by endless discussions with our clients) is that employees who were personally inclined to get vaccinated with or without a mandate got vaccinated, and those who were opposed didn’t—which is to say that, arguably, few were “encouraged” to do anything they weren’t going to do anyway. Result: only about 50% of the US population has been fully vaccinated, according to the CDC.
Continue Reading Vaccination: To Mandate or Not to Mandate?

On January 21, 2021, President Biden enacted the Executive Order “Protecting Worker Health and Safety” which tasked OSHA with developing safety measures to help protect workers as the nation continued its post-pandemic reopening. On June 10, 2021, in response to that direction, OSHA issued an emergency temporary standard (“ETS”) focused on healthcare settings where workers are most likely to have contact with individuals infected by the virus.

Below are some of the salient points of the ETS:
Continue Reading OSHA’s Emergency Temporary Standard for Healthcare

As described in our client advisories of May 6, 2020 and February 11, 2021, the Department of Labor (the “DOL”) temporarily suspended the deadlines for employee benefit plan participants to exercise HIPAA special enrollment rights, elect and pay premiums for COBRA continuation coverage, file claims for benefits and appeal benefit claim denials (each, a “Qualifying Event”).

Under this relief, plan administrators were directed to disregard the period from March 1, 2020 until 60 days after the end of the federally declared national emergency for COVID-19 (the “Outbreak Period”) in determining such deadlines.  Because the statutes authorizing this relief impose a one-year limit on the period that may be disregarded in determining these deadlines, as described in our client advisory of February 11, 2021, the Outbreak Period was generally expected to end on February 28, 2021, absent further action from the DOL.

In a last-minute change of course, the DOL is now requiring the relief period instead to be the one-year period beginning on the normally applicable deadline, or 60 days after the end of the federally declared national emergency for COVID-19, if sooner.  As of this writing, the federally declared national emergency is still in place and the government has given no sign of when that declaration might end.  In other words, the relief period is to be measured on an event-by-event basis with respect to each participant and beneficiary instead of an overall deadline that applies to the plan as a whole.

This means that a participant who became eligible for COBRA on January 30, 2021, and who normally would have had until March 31, 2021 to elect COBRA, will have until March 31, 2022 to do so (assuming the national emergency does not end before January 30, 2022).  More significantly, a participant who experiences a Qualifying Event on or after March 1, 2021 (i.e., more than a year after the start of the Outbreak Period) will also be eligible for the relief.

In apparent recognition of its strained interpretation of its own original guidance regarding extension of certain plan deadlines, the DOL observed that plan disclosures issued during the pandemic may need to be reissued or amended if such disclosures did not accurately inform participants and beneficiaries of when actions are required.

Finally, the DOL observed that plan fiduciaries should make reasonable accommodations to prevent the loss or undue delay in payment of benefits and minimize the possibility of individuals losing benefits because of a failure to comply with pre-established time frames.  Specific examples of accommodations in the DOL guidance include affirmatively sending the affected participant or beneficiary a notice regarding the end of the relief period and, in the case of a group health plan, informing the affected participant or beneficiary of other coverage options, including through the Health Insurance Marketplace in the participant’s state.  It is unclear from this guidance whether the DOL expects plan fiduciaries to make other types of accommodations, such as extending deadlines beyond the statutory limits as facts and circumstances may warrant.

Based on the DOL’s latest guidance, plan administrators should be prepared to continue contending with the uncertainty and administrative difficulties created by the Outbreak Period relief until the President declares an end to the national emergency for COVID-19.

If you have any questions about the DOL’s latest interpretation of the Outbreak Period relief, or if you would like assistance in reviewing, preparing or revising communications to plan participants about the relief, please contact a member of our Employee Benefits Group.


Continue Reading DOL Issues New Guidance on the Duration of its COVID-19 Outbreak Period Relief

As described in our client advisory of May 6, 2020, the Department of Labor (the “DOL”) temporarily suspended the deadlines for employee benefit plan participants to exercise HIPAA special enrollment rights, elect and pay premiums for COBRA continuation coverage, file claims for benefits and appeal benefit claim denials.  This relief began on March 1, 2020 and, unless further extended by the DOL, will end on February 28, 2021 (the “Outbreak Period”).

If the Outbreak Period is not extended, then, effective March 1, 2021, the clock will begin ticking on deadlines that were suspended during the Outbreak Period.  For example, if a participant became eligible for COBRA continuation coverage on February 1, 2020, the 60-day period for electing such coverage, which in any other year would have ended on March 31, 2020, will now end on March 31, 2021 (i.e., the last day of the 60-day period which began on February 1, 2020 and includes (i) 29 days before the start of the Outbreak Period and (ii) 31 days after the end of the Outbreak Period).
Continue Reading DOL Outbreak Period Relief for Employee Benefit Plan Participants Scheduled to End Soon

Tuesday, March 2nd at 12:30pm ET

Employee Leave Laws: Managing the Intersection of FMLA, ADA, and COVID Leave

Many issues can arise when coordinating employee leaves of absence, especially when employee requests are related to medications (opioids or medical marijuana), mental health impairments, remote work, and the pandemic. We are talking about the nuanced problems

On the heels of the FDA’s approval of the Pfizer and Moderna COVID-19 vaccines, the EEOC updated its Technical Assistance Q & A to help employers navigate the latest pandemic related challenges. The EEOC guidance can be found here.

Below are highlights of the EEOC’s guidance, and our practical advice for employers who are considering rolling out a mandatory vaccination program for their employees.

Before jumping on the mandatory vaccination bandwagon, employers should consider these important questions:

  • Does your company need a mandatory vaccination program? Should you leave it to your employees to make their own decisions?
  • If you decide to implement a mandatory vaccination program, how will you announce it, how will you roll it out, and what is the timing? Have you factored in that vaccines may not be available to all employees at the same time?
  • If you decide to implement a mandatory vaccination program, how will you handle requests for exemptions? What will you do with employees who refuse to be vaccinated?
  • What are the pitfalls of a mandatory vaccination program?

Let’s break this down further.

Can employers mandate that employees receive a COVID-19 vaccine?

The answer is yes.

The EEOC’s updated guidance now addresses issues regarding “mandatory vaccinations” and makes clear that employers can mandate that employees get the COVID-19 vaccination. The justification for mandating vaccination, especially during the pandemic, is based on the premise that unvaccinated employees present a “direct threat” to others in the workplace. (K.5.).

Many employers are already stating that once the vaccine is widely available they may mandate a vaccine before employees can return to the office. However, as will be discussed below, even if a mandatory policy is enacted, employees may nonetheless be entitled to exemptions on the basis of disability or religious accommodation.

Do employers need a mandatory program?

The answer depends on your business.

If you run a business where your employees can safely work remotely or socially distance, you may not need it right away. On the other hand, if you run a retail business, school, a restaurant, or any similar business where employees circulate among each other or deal with the public, a mandatory vaccination program may beneficial to your operation. Many retail and customer facing industries believe that it will be a good advertisement if they can say that their employees are all vaccinated.

Whatever the approach, employers should not jump in without weighing the costs and benefits. Things to consider include administrative costs, challenges to implementing a mandatory program, such as training and legal compliance.

How will you roll it out and when?

Here again, messaging and timing must be carefully considered.  Right now, vaccines are only available to frontline healthcare workers. Thus, if your business does not fall into that category, you will need to wait until vaccines are available to your workforce to institute a mandatory program. Even then, you may have to allow for a vaccine rollout over time, and only make the mandate applicable to those employees who are eligible to receive a vaccine.

In the early months of 2021, practical questions about fairness may arise. For example, if an employee wishes to comply but a vaccine is not available to them, should they be excluded from the workplace? Employers adopting a mandatory program will likely face, and should be prepared to handle a number of similar questions.

Next let’s look at the issues surrounding employees receiving the vaccination.
Continue Reading The EEOC Confirms You CAN Mandate a Vaccine, But SHOULD You?

On January 20, 2021, Vice President Joseph R. Biden Jr. will be sworn in as the 46th president of the United States. Whichever side of the political spectrum you fall on, there can be no question that this is going to signal changes – and not all of them positive – for employers. For all