COVID-19 Labor & Employment

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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

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?

UPDATE: December 17, 2021

In a move that comes as no surprise, the EEOC has updated its COVID-19 technical assistance to provide guidance on when COVID-19 may be considered a “disability” under the ADA, making specific reference to the DOJ/HHS guidance discussed in the original blog below. The EEOC’s technical assistance focuses “more broadly on COVID-19” beyond just “long COVID,” and does so “in the context of Title I of the ADA and section 501 of the Rehabilitation Act, which cover employment.” However, the EEOC’s guidance clearly echoes the DOH/HHS guidance and states that long COVID or sustained symptoms of COVID may be a “disability” under the law.

In many states, long COVID could also qualify as a disability under state laws. So, employers should be ready for more claims into the future, even when the pandemic (finally) ends – from employees who suffer symptoms of COVID as a chronic illness.

THE GUIDANCE

What is Long COVID and when is it a disability?

The EEOC has reemphasized that determining whether COVID may be considered a “disability” under the law is a fact-intensive question, requiring an analysis of the extent to which COVID’s symptoms, its long-term effects, or the manner in which it exacerbated the symptoms of another condition “substantially limit a major life activity,” as discussed in the original blog below. This means that an individual suffering, even intermittently, from certain symptoms relating to long COVID can be considered to be “disabled” under the law.

The EEOC provides several examples of these impairments, including: “brain fog” and difficulty remembering or concentrating; substantially limited respiratory function; chest pains; or intestinal pain.

Importantly, the EEOC distinguishes these “substantially limiting” conditions from less-serious symptoms, such as “congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks,” which would not create a “disability.” But make no mistake: even these relatively insignificant symptoms may constitute a disability if they last or are expected to last for a significant period of time (i.e. more than six months).…

Continue Reading COVID CONSIDERATIONS: Long COVID Now a Disability

Sending a clear message to employers and employees alike on the prickly subject of mandatory vaccination programs, Texas federal Judge Lynn N. Hughes just dismissed outright a lawsuit brought by 117 employees of a Houston hospital, challenging their terminations for refusal to be vaccinated. The court rejected the employees’ wrongful termination claims under Texas state law as well as their arguments that the Hospital’s policy violated federal law.

It’s also not just the result, but the strong language of the decision, which should give employers comfort that a mandatory vaccination program is lawful.

Background

On April 1, 2021, the Houston Methodist Hospital announced a policy requiring all employees be vaccinated against COVID-19 at the Hospital’s expense by June 7, 2021. As that date approached, Plaintiff Jennifer Bridges and 116 other Hospital employees who had refused that vaccine, filed suit in the Southern District of Texas to block the Hospital’s vaccination requirement and their terminations, arguing that the Hospital’s mandatory vaccination program was unlawful.

Plaintiffs argued that the vaccination program constituted wrongful termination under Texas law and that the injection requirement also violated public policy. The Court rejected these arguments because the Plaintiffs did not establish the essential elements of the wrongful termination claim and because Texas does not recognize a public policy exception to an at-will employment relationship. Among the more absurd arguments advanced by the plaintiffs were that under the Hospital employees were being treated as participants in a human trial in violation of the Nuremburg Code. …
Continue Reading Judge Holds that a Hospital can Fire Employees Who Refuse the Vaccine

Original post on June 1, 2021 (“Making the Workplace a Safer Place: A Job for New York’s HERO Act”)

Key takeaways for New York employers from the NY HERO Act, as amended:

  • The NYS DOL must publish a model safety standard by July 5, 2021.
  • 30 days thereafter, New York employers must either adopt the model standard or create their own health and safety plan to prevent occupational exposure to airborne infectious diseases, which meets or exceeds the minimum requirements established by the NYS DOL.
  • Every employer must provide its prevention plan to its employees, within 30 days after adoption of the plan, within 15 days after reopening after a period of closure due to airborne infectious disease, and to any newly hired employee, upon hiring the new employee.
  • Employers must permit employees to establish joint employer-employee workplace safety committees, beginning on November 1, 2021.

…
Continue Reading New York Gives Employers More Time to Be a HERO

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

Employers have been waiting for some definitive guidance from the EEOC on the issue of vaccines in the workplace – and here it is!

On May 28, the EEOC updated its Technical Assistance Guidance and has now stated with certainty that employers CAN indeed require employees to be vaccinated before coming in to the office or workplace. The updated guidance also addresses accommodations for the vaccinated, vaccine incentives, and vaccines for pregnant employees, among other questions. However, since this was drafted before the CDC came out with its latest guidance, it does not specifically address all issues related to the handling of unvaccinated and vaccinated employees in the workplace.

Below are some key points of the new guidance:

Mandatory Vaccination is Lawful, But Accommodations Must Be Offered

Even though many employers have opted against mandatory vaccination for their employees, the EEOC made clear that they can, in fact, mandate vaccinations for those who want to report to work. The key for employers, however, is they must engage in the interactive process and provide reasonable accommodations under the ADA and Title VII, for eligible employees seeking an exception to the mandate.

The EEOC offers some examples of possible accommodations, most of which are no surprise, such as allowing unvaccinated employee to wear a face mask, maintaining social distance from others, working a modified shift, periodic COVID-19 testing, being allowed to telework or, as a last resort, reassignment to another position.
Continue Reading The EEOC’s Latest Guidance on COVID Vaccine

As employees who have worked remotely for months begin to slowly return to their offices, more guidance is emerging as to what their employers can and should do to keep them safe. Just this weekend, the EEOC came out with long-awaited guidance stating that employers may require those who come to the workplace to be vaccinated, which we will cover in a separate post.

States are also issuing their own new rules. As an example, in early May, New York Governor Cuomo signed into law the New York Health and Essential Rights Act (HERO Act), which requires all employers, of any size, to establish a health and safety plan to prevent occupational exposure to airborne infectious diseases. The HERO Act also permits employees, later in 2021, to establish joint employer-employee safety committees.

Below is a summary of the HERO Act’s requirements for New York employers.
Continue Reading Making the Workplace a Safer Place: A Job for New York’s HERO Act

President Biden announced that his administration had reached its goal of 200 million vaccine shots administered during his first 100 days in office. Not stopping there, the President also made a special call to employers across the United States to use their unique resources to help their employees and others get vaccinated.

To encourage more…

Paid sick and family leave is expanding. The ongoing COVID-19 pandemic, and the special pressures it has placed on parents and families, has renewed the push for mandated paid sick and family leave. Congress’ decision not to expand the Families First Coronavirus Response Act (FFCRA) in the latest relief package, has spurred state and local governments to renew their efforts to provide COVID-19 paid sick leave and, in some cases, permanent paid sick leave.

Also, is it safe to assume the federal government is not planning to pass a paid sick leave mandate? After all, the Federal Employee Paid Leave Act, which passed in 2019, was just expanded in October 2020. The answer is no, because all signs indicate that a paid federal leave mandate for private employers will be on the horizon during the Biden administration. But until that time comes, employers with a national or multi-state presence will need to comply with a hodgepodge of state and local laws.
Continue Reading Paid Sick Leave Trends: States and Localities Step In Where Federal Law Falls Short