COVID-19 / Novel coronavirus

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As we previously reported, earlier this year New York lawmakers passed a law requiring that all Empire State employers provide their employees with up to four hours of paid time off to receive the COVID-19 vaccine. Shortly thereafter, the New York State Department of Labor (NYSDOL) published guidance on the measure, clarifying that: (i)…

It’s that time of the year again! The deadline for California Governor Gavin Newsom to sign, approve without signing, or veto bills on his desk was October 10, 2021. Now that the dust has settled, we have compiled a comprehensive list of bills signed by the governor that will impact employers. We also highlight bills…

On September 24, 2021, the Safer Federal Workforce Task Force issued guidance for federal contractors and subcontractors concerning various safety protocols (the Guidance) as required by President Biden’s Path Out of the Pandemic and Executive Order 14042 (the Order). The stated purpose of the safeguards set forth in the Guidance are to decrease the spread of COVID-19, which will decrease worker absences, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal Government.

As a threshold matter, the Order does not apply to all federal contractors. Specifically, the Order applies to contracts for services, construction, or leasehold interest in property; services covered by the Service Contract Labor Standards; concessions; and work relating to federal property lands and related to offering services for federal employees, their dependents, or the general public. The Order specifically excludes grants, contracts or contract-like instruments with Indian Tribes, contracts with a value equal to or less than the FAR simplified acquisition threshold (currently $250,000), employees performing work outside the United States, and subcontracts solely for the provision of products. However, the Guidance also strongly encourages agencies to incorporate clauses requiring compliance with the Order into contractors that are not covered or directly addressed by the Order.

Further, the requirements apply only to a covered contract, which is defined as one that includes a provision that the contractor will “comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.” Stated differently, simply being a federal contractor does not mean all employees must be vaccinated by the deadline.  Instead, the requirements apply to any new solicitations issued on or after October 15, 2021, the option to extend an existing contract on or after October 15, 2021, and new federal contracts awarded on or after November 15, 2021. However, agencies are again strongly encouraged to incorporate a clause requiring compliance with the Order into existing contracts and contract-like instruments prior to the date upon which the Order requires inclusion of the clause.Continue Reading Federal contractors and subcontractors receive guidance on President Biden’s vaccine mandate, including December 8, 2021 compliance date

In France, a health pass[1] must be presented in certain places or events where there is a high risk of COVID-19 being contracted (e.g. concert halls/cinemas, sports events, bars and restaurants, long-distance transport, shopping centres over 20,000 m², etc.) as listed by the Law no. 2021-1040 dated 5 August 2021.

Since 30 August 2021, employees working within these places are also required to present a health pass in order to continue their job role, unless this takes place in a space that is not accessible to the public or takes place outside of public opening hours.

If the employee does not have a health pass or refuses to present it, they will no longer be able to work. The employee may take rest days or paid leave in agreement with the employer. However, if an agreement is not met, the employer is required to suspend the employee’s employment contract without pay until the employee is able to present a health pass. The Law states that, after the third day of the suspension of the contract, the employer must conduct an interview with the employee during which they will discuss ways to rectify the situation. For example, this could include a temporary assignment to a position not subject to the above-mentioned obligations if the needs and organisation of the company allow it or teleworking if the employee is eligible. If they fail to come to an agreement, the Law states that “ordinary law procedures” concerning employment contracts may be applied. The text no longer states that the employee may be dismissed if they fail to present a health pass for an extended period.
Continue Reading Employees in France who fail to present a health pass risk having their employment contract suspended

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

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 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