COVID-19/Novel coronavirus

On August 26, 2021, the Virginia Department of Labor and Industry’s (DOLI’s) Safety and Health Codes Board (Board) voted 8 to 5 to update and continue its COVID-19 permanent workplace safety standard. That vote came despite the fact that the bulk of COVID-19 business requirements issued by Virginia Governor Ralph Northam ended on May

On Thursday, September 9, 2021, President Biden issued a memorandum, “Path Out of the Pandemic” (the Memo), announcing a six-pronged national strategy to combat COVID-19. Among other things, President Biden has ordered the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop and issue an Emergency Temporary Standard (ETS) to require

In addition to the issue of mandated COVID-19 vaccine policies, employers must also manage the related privacy risks. Below are some of the frequently asked questions surrounding the issues of employee privacy as it relates to the COVID-19 vaccine. We also have a downloadable version of our privacy FAQs.

Question: Does it matter what type of information the company asks employees to provide to confirm their vaccine status?

Answer: Absolutely. Asking employees to confirm yes/no information seeks different information than, for example, requesting a copy of the employee’s vaccination card or more detailed records (such as lab results confirming presence of antibodies from a medical provider). Companies should be mindful of what information they are requesting because the inquiry might trigger heightened data-privacy and document-retention requirements. Companies should request only the information they require to confirm the vaccination status of the employee and should not collect any other information that is not necessary for that purpose. Companies should also be mindful of the privacy, security and other legal requirements involved in communicating with employees about any requested exception to a mandatory vaccine program based on a medical condition. The interactive process would likely include asking employees disability-related questions—and potentially questions implicating genetic nondiscrimination and health-data privacy laws (such as GINA or HIPAA).

Question: Our company plans to require employees to provide proof of their vaccine status by emailing human resources a copy of their vaccine card. Does this present any data-privacy concerns?

Answer: There are several issues to consider. How secure is your company’s email system? Can employees access their work email on their phones? If so, are there password and other security measures in place to prevent unauthorized access to that information? What does HR plan to do with the information once it receives it? Will it be printed out and stored in a paper file? Does the company plan to insert that information into the employee’s personnel file and/or HR database? Who would have access to that information? If the company plans on storing the data electronically, does the company have sole possession, custody and control of the servers where the data will be stored? If so, the company may want to confirm where those servers are physically located, and whether any state or local laws of that jurisdiction impose additional data-privacy, data-security and breach-notification requirements.

It’s worth noting here that HIPAA does not typically apply to the relationship between an employer and its employees. That being said, employers should still follow best practices and remain sensitive to the fact that they requesting and maintaining potentially sensitive employee health data. Additionally, if an employer performs services that are regulated under HIPAA, employees could be due additional protections. In this set of circumstances, an employer could be maintaining different data sets about an employee – of which one is regulated under HIPAA, and the other is not.
Continue Reading FAQs on US employee privacy issues related to the COVID-19 vaccine

As we have previously reported, several months ago, New York enacted the HERO Act, a sweeping overhaul of the state’s workplace health and safety laws.  On September 6, 2021, the New York State Commissioner of Health designated COVID-19 as an airborne infectious disease under the HERO Act. As such, all New York employers are

On July 15, 2021, we released an article discussing the Texas liability shield for businesses against COVID-19 related claims.  Texas, however, is not the only state to enact such a shield. We have drafted a brief summary of the 19 states that have enacted COVID-19 liability shields to date.  For simplicity, we have summarized the

Late last year, the U.S. Food and Drug Administration (the FDA) issued the first approvals for a COVID-19 vaccine. Shortly thereafter, the U.S. Equal Employment Opportunity Commission (the EEOC) issued guidance on the interplay between federal anti-discrimination law and vaccine-related issues, including the permissibility of mandatory employer vaccination policies. The below FAQs address some of the more salient questions surrounding such policies and their implementation, as well as other workplace issues triggered by the vaccine. There are undeniably more questions than answers at present with respect to vaccine-related workplace issues. Before taking any material workplace action with respect to the vaccine, therefore, please consult with a Reed Smith employment lawyer. We also have a downloadable version of our FAQs.

Q: Can employers adopt a mandatory employee vaccination policy?

A: Generally speaking, yes. In guidance issued in late May 2021, the EEOC took the position that mandatory vaccination policies are generally permissible under federal anti-discrimination laws. Just a few weeks later, in June 2021, a federal court – in the first ruling on this issue – echoed this sentiment in concluding that such policies are generally permissible. The following month, the U.S. Department of Justice issued a detailed memo reaching the same conclusion.

The two primary exceptions to the general permissibility of employer-mandated vaccination policies are for employees with disabilities and for those with a sincerely held religious belief, practice, or custom. If an employee refuses to be vaccinated and objects to a mandatory vaccination policy on one of these grounds, the employer must engage in the so-called interactive process with the employee and, subject to the “undue hardship” standards discussed below, provide the employee with a reasonable accommodation in line with applicable law.

In addition to legally required accommodations, the EEOC also cautions employers to be cognizant of any potential disparate impact created by a vaccine mandate.

Q: Are there state or local laws that address mandatory COVID-19 vaccination policies?

A: Employers must pay attention to state laws in the jurisdiction(s) where they operate. Several states have introduced legislation attempting to limit private employers’ ability to mandate COVID-19 vaccines. To date, such efforts have been without success other than in Montana.

Q: If an employer adopts a mandatory employee vaccination policy, how should it respond to an employee who indicates that they are unable to receive a COVID-19 vaccination because of a disability or a sincerely held religious belief, practice, or custom?

A: As noted, the employer must engage in an interactive process with the employee. When an employee objects to vaccination, they are requesting an accommodation under Title VII of the Civil Rights Act of 1964 (Title VII) (for a sincerely held religious belief, practice, or custom) or the Americans with Disabilities Act (ADA) (for a disability). The employer must provide a reasonable accommodation unless the accommodation would pose an undue hardship. Undue hardship is defined under Title VII as an accommodation that poses a “more than de minimis” cost or burden. For the ADA, undue hardship is more onerous to establish and is defined as creating significant difficulty or expense for the employer.
Continue Reading To mandate or not? FAQs on mandatory vaccine programs for employers

On August 11, 2021, Dallas County Judge Clay Jenkins issued an order requiring masks in Dallas County businesses, schools, and county buildings. Judge Jenkins’ order comes on the heels of a Dallas County state court issuing a temporary restraining order of Texas Governor Greg Abbott’s July 29, 2021 order barring mask mandates by local governmental

On July 26, 2021, President Biden announced that individuals with long COVID (referred to as COVID long-haulers) could be protected under several federal civil rights laws, including the Americans With Disabilities Act (ADA).

While some individuals fully recover from COVID, others experience debilitating symptoms that last long after first developing COVID-19 (long COVID), including extreme

On July 27, 2021, the Centers for Disease Control and Prevention (CDC) updated its COVID-19 guidance. The revised guidance, which has significant implications in the employment context, recommends that fully-vaccinated individuals wear masks in “public indoor settings in areas of substantial or high transmission.” The guidance further recommends that vaccinated persons be tested after a known or suspected COVID-19 exposure. The CDC’s guidance reverses its May 2021 guidance, which advised that fully-vaccinated individuals could generally stop wearing masks and cease social distancing. The CDC’s new guidance comes amidst a recent uptick in COVID-19 cases stemming from the highly-infectious Delta variant and is already complicating employers’ COVID-19 policies and return to work plans.

Updated masking recommendation

The CDC’s revised guidance acknowledges that fully vaccinated individuals can become infected with COVID-19 despite being vaccinated in a “breakthrough” infection. The CDC further acknowledges that, while breakthrough infections “happen in only a small proportion of the people who are fully vaccinated,” individuals with breakthrough infections can spread COVID-19. As a result of these concerns, while not referencing the workplace specifically, the CDC now recommends that all individuals, regardless of vaccination status, wear masks in public indoor settings in areas of substantial or high transmission.Continue Reading CDC releases new guidance for fully vaccinated individuals as COVID-19 rates continue to climb nationwide

Texas recently enacted the Pandemic Liability Protection Act (PLPA) joining a number of other states that have passed statutory liability protections for businesses against claims arising during a pandemic including the ongoing COVID-19 pandemic. The new law, which has been signed into effect by Governor Abbott, grants retroactive liability protections for both small and large businesses. Under the PLPA, businesses of all sizes are protected from nearly all claims of injury or death from exposure to a pandemic disease regardless of whether the person injured was an employee.

The PLPA does not, however, provide Texas businesses an absolute shield from liability. Under limited circumstances a claim may still be brought for a pandemic-related injury or death:

  1. Where the business knowingly failed to warn the individual of, or fix, a condition within the business’ control, despite having a reasonable opportunity to do so, with the knowledge that the individual was more likely than not to come into contact with or be exposed to the pandemic disease, and the failure to warn or fix the condition was the cause in fact of the individual contracting the disease; or
  2. Where the business knowingly failed to implement, refused to comply with, or acted in flagrant disregard of the standards, guidance, or protocols put forth by the government that are intended to lower the likelihood of exposure to the pandemic disease, despite having a reasonable opportunity to do so, and this failure or refusal to comply was the cause in fact of the individual contracting the pandemic disease.

Continue Reading Texas employers now shielded from most COVID-19 liability