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Pennsylvania House of Representatives members have proposed House Bill 2318, which proposes that employers must provide a “natural immunity” exemption to employees under any employer COVID-19 vaccine mandate policy. The bill defines “natural immunity” as possessing immunity to the COVID-19 virus as a result of previous infection caused by the virus. Thus, if the proposed…

Next up in our Real Time Video Chat series, David Ashmore, Carl De Cicco and Alison Heaton explore the latest trends and issues regarding workplace vaccination policies in the UK. The group discusses the current statutory position on mandatory COVID-19 vaccinations, sick pay policies affecting the unvaccinated and what the term “fully vaccinated” means…

As we previously reported, effective today, masks must be worn in New York State in “all indoor public places unless businesses or venues implement a vaccine requirement.” On Friday, December 10, 2021, the State issued guidance on the measure, clarifying the following key points:

  • Definition of indoor public place – An indoor public place

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Whether employers can require evidence of vaccination as a condition of employment or attendance in the workplace has been a hot topic in recent months, with many employers (having weighed up various legal obligations and risks) introducing a policy featuring vaccination status to some extent. Yet vaccination status is not stable and the dilemma now facing these employers in the UK is whether to revisit their policy requirements due to the rollout of booster jabs. Put simply, should employers with a vaccine policy now require vaccinated individuals to have the booster?

Full vaccination is currently seen as having completed the full course of an approved vaccine (i.e., being ‘double jabbed’, unless in receipt of an approved one-dose vaccine). At the moment there is no mention of the booster on the NHS Covid pass, receipt of the booster is not a pre-requisite for activities such as travel or attendance at venues, nor is it a requirement of deployment for care home staff (where there is a legal requirement for full vaccination, unless exempt, in England). On this basis, employers may be minded to maintain the same stance and ignore the boosters for any workplace policies too.

It will certainly be appealing to employers to maintain the status quo from a practical perspective. The administration of assessing whether staff eligible for a booster have had it is likely to be a particular challenge, both keeping track of who is eligible when (as although all UK adults have been offered the full course of an approved vaccine, the booster is only currently available to vulnerable groups and to those aged over 40, six months after their final jab), and what ‘evidence’ an individual has of a booster (as until this appears on the NHS Covid pass the individual will have little by way of proof that they have received it). Further, employers are likely to want to avoid having to update and communicate a change in policy so soon after introducing it, and dealing with any engagement issues or disputes arising from a change in approach.
Continue Reading What does the booster jab mean for vaccine policies in the UK?

Reed Smith’s Labor & Employment group is proud to announce the launch of our video chat series, Employment Law Watch: Real Time. The series will focus on new developments and hot topics that employers around the world need to know about. Tune in for regular 10 to 15 minute chats led by the firm’s labor…

Under the Occupational Safety and Health Act (OSH Act or the Act), employees who raise concerns regarding safety or health in the workplace are protected against retaliation from their employer. With the publication of the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS), employers should be mindful that the Act’s whistleblower protections extend to employees who raise concerns about their employer’s compliance with the ETS.

OSHA ETS 

On November 5, 2021, OSHA published its much-anticipated ETS designed to minimize the risk of COVID-19 transmission in the workplace. We have previously discussed the requirements of the ETS, but generally speaking, the ETS requires employers with 100 or more U.S. employees to implement a policy that either (i) mandates COVID-19 vaccination for all employees, or (ii) encourages vaccination for all employees and requires testing of unvaccinated employees. The ETS also requires paid time off for vaccination and recovery from the side effects of vaccination, and it imposes recordkeeping obligations on employers.

Given OSHA’s limited number of workplace safety inspectors and the large number of employers subject to the ETS, employees will be key in enforcement of the ETS as suggested by recent remarks by the Biden administration. Jim Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, recently stated that OSHA will focus on job sites “where workers need assistance to have a safe and healthy workplace … [t]hat typically comes through in the form of a complaint.” And, on November 10, 2021, in the announcement of a joint initiative between the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB) to increase protections for whistleblowers, Solicitor of Labor Seema Nanda remarked: “[i]n the U.S. Department of Labor’s fight against … unsafe or unhealthy workplaces, and other unlawful employment practices, we will use all tools available to protect workers from retaliation.”

Further, while employees previously could file complaints with OSHA raising workplace safety and health concerns related to COVID-19 under the Act’s General Duty Clause, the ETS makes it easier for OSHA to establish a violation of the Act. Unlike the amorphous General Duty Clause, the ETS sets out specific standards for employers and penalties for failure to comply. Moreover, the ETS obviates the need for OSHA to establish a recognized hazard – that is, the workplace condition or practice to which employees are exposed has the potential for death or serious physical harm – for each General Duty clause violation since OSHA has already determined that COVID-19 constitutes a recognized hazard determination in issuing the ETS.
Continue Reading Employers subject to OSHA ETS must be mindful of OSH Act whistleblower protections

Recently, we posted about President Biden’s COVID-19 Action Plan, “Path out of the Pandemic” (the Memo). To recap: the Memo instructs OSHA to develop and issue an Emergency Temporary Standard (ETS) to require all employers with 100+ employees to ensure their workers are vaccinated against COVID-19 or to require them to submit to…

With the lifting of COVID-19 legal restrictions in England on 19 July 2021, David Ashmore (Partner) and Alison Heaton (Knowledge Management Lawyer) from the Reed Smith employment team comment on the key issues/hot topics for employers.

What is changing on 19 July for employers?

The instruction to work from home if you can is being lifted from 19 July 2021. From this date it will be up to employers to decide whether employees should return to working in line with pre-COVID arrangements, retain the current work-from-home set-up, or move towards hybrid working.

Can an employer impose new arrangements from 19 July?

Although employers could require a return to a contractual place of work from 19 July, mandating an immediate change to current work-from-home arrangements is not recommended – not only does it run contrary to the government’s advice to implement any return to the workplace gradually, but is unlikely to be well-received by employees. Instead, employers are advised to prepare for a transition to new/previous arrangements over a period of weeks and months. Having a clear, robust and well-communicated health and safety and return-to-work plans, and adopting a flexible approach wherever possible, will allow for an easier adjustment. Where the employer wants to make changes to contractual arrangements, they will need the employee’s consent.

What if an employee does not want to return to the workplace – is that redundancy?

No. Where the employee is not willing to return to work, and alternative arrangements cannot be agreed, this will not be a redundancy situation (as redundancy only arises if the business closes, there is a closure of the workplace, or where there is a reduced need for employees).

How should employers deal with return-to-office anxiety?

Numerous circumstances may make some individuals reluctant to return to the workplace or previous working arrangements, certainly in the near term. Employers are encouraged to have an open dialogue with staff, taking time to understand each individual’s unique challenges and preferences, and to provide a supportive and flexible approach to find a mutually agreeable solution. They will need to be particularly vigilant in circumstances where the reluctance to return is linked to concerns about health and safety, and act reasonably when responding to concerns. Where it is not being offered, employers can perhaps expect to see a surge in flexible-working requests, and will need to treat these with care – where employees have successfully worked from home and/or flexibly during the pandemic, it may be harder to justify rejecting requests seeking to make that a more permanent arrangement.  
Continue Reading Preparing for a return to the workplace in the UK after 19 July 2021

As we previously reported, over the past year, New York State has adopted a statewide sick leave law, paid leave for COVID-19 vaccination, and paid quarantine leave.  Last week, the New York State Department of Labor (NYSDOL) issued guidance on the use of New York State Sick Leave (NYSSL) as it pertains…

The Los Angeles County Board of Supervisors recently enacted an urgency ordinance that requires employers to provide supplemental paid leave of up to four hours per injection for employees working in unincorporated areas of Los Angeles County to obtain the COVID-19 vaccine. The Employee Paid Leave for Expanded Vaccine Access Ordinance (the Ordinance) is effective retroactively to January 1, 2021 and will remain in effect until August 31, 2021.

Covered employers and eligible employees

The Ordinance applies to all employers who have employees working in the unincorporated areas of Los Angeles County. The Ordinance establishes a presumption that a worker is an employee and the employer bears the burden to demonstrate that a worker is a bona fide independent contractor, and thus not entitled to any benefits under the Ordinance.

Covered employers must provide “COVID-19 Vaccine Leave” to eligible employees to:

  1. Travel to and from a COVID-19 vaccine appointment;
  2. Receive the COVID-19 vaccine injection; and
  3. Recover from any symptoms related to receiving the COVID-19 vaccine that prevent the employees from being able to work or telework.

Eligible employees are those who: 1) work in the unincorporated areas of Los Angeles County; and 2) have exhausted all available leave time under California’s 2021 COVID-19 Supplemental Paid Sick Leave Law, codified as Labor Code section 248.2. In other words, because Labor Code section 248.2 already requires employers to provide up to 80 hours of paid leave to employees for the same reasons as the Ordinance, employees must first use all available paid leave provided by Labor Code section 248.2 before they are eligible for paid leave under the Ordinance.
Continue Reading It pays to be vaccinated in Los Angeles County with new paid leave ordinance