On August 26, 2022, Chief U.S. District Judge Matthew Brann for the United States District Court for the Middle District of Pennsylvania dismissed a putative class action representing approximately 100 healthcare company employees brought against their employer, Geisinger Clinic. In the suit, the employees challenged their employer’s policy requiring employees to either be vaccinated for COVID-19 or agree to regular testing and quarantining. In dismissing the complaint, the court rejected the employees’ religious discrimination, constitutional, and state law claims, calling the employees’ evidence “a collection of distorted statements and anti-vaccine hocus-pocus.”
At the outset of the COVID-19 pandemic, the U.S. Equal Employment Opportunity Commission (EEOC) took the position that the Americans with Disabilities Act (ADA) standard for conducting medical examinations (job-related and consistent with business necessity) was always met for COVID-19 viral screening testing. On July 12, 2022, the EEOC updated its position in light of the evolving nature of the COVID-19 pandemic.
On December 17, 2021, a three-judge panel of the Sixth Circuit Court of Appeals dissolved the stay of the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). Shortly thereafter, OSHA posted new compliance dates on its website.
The COVID-19 pandemic has led to an explosion of remote work, including for positions traditionally not considered eligible for remote work. As employers have returned employees to office work environments, some employees who historically worked on-site have requested continued work from home as an accommodation under the Americans with Disabilities Act (ADA). On September 7, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) brought its first lawsuit alleging that an employer had discriminated against a disabled employee by failing to accommodate her by allowing work from home due to her increased risk of COVID-19 and by terminating her employment.
A federation of hotel and motel owners and operators challenged a San Diego ordinance that requires certain building service and hospitality employers to recall workers laid off due to the pandemic before hiring new employees.
For the past several months, the media have been reporting on the general labor shortage in the United States. Most manufacturers have been understaffed in their factories for even longer than this news cycle, but current events have transformed what before 2020 was merely a typical challenge for manufacturers seeking to hire enough people, into a dilemma that for many is mission critical. Even if understaffed manufacturers have been able to hit most or all customer deadlines this year, continuing to operate with staffing shortages for too long can cause short- and long-term damage to workforces and therefore businesses. Requiring employees to work excessive overtime hours not only leads to employee burn out, but it also increases unplanned absences, work injuries, overuse of leave under the Family and Medical Leave Act (FMLA), additional compensation for overtime premiums, disengagement (with resulting lost productivity), and attrition.
On August 12, 2021, New Orleans Mayor LaToya Cantrell and the City of New Orleans Health Department announced updated Guidelines for COVID-19 Reopening, which require individuals to provide proof of “having received at least one dose of a COVID-19 vaccine” or “evidence of a negative COVID-19 PCR test taken no more than 72 hours before entry” in order to access certain indoor establishments.
Louisiana has become the first state with a Democratic governor to pass a law eliminating the $300-per-week supplemental unemployment benefit created by the federal American Rescue Plan Act of 2021 (ARPA). Under the new measure, Act No. 276, which Governor John Bel Edwards signed into law on June 15, 2021, Louisiana eliminated the $300 benefit, effective August 1, 2021, while increasing the weekly maximum benefit amount.
Germany’s nationwide “emergency brake” system—the public health framework of rules and restrictions first implemented by the German government in April 2021 to help contain the spread of COVID-19—expired on June 30, 2021, and, slowly but surely, some semblance of normality has begun returning to German citizens’ private and working lives. Due to a sharp drop in COVID-19 infection rates in Germany and because of the progress of Germany’s vaccination campaign, the federal government recently determined that the time was right to relax restrictive measures.
As the COVID-19 pandemic enters a new phase in the United States and employees return to the workplace, some employers may need to face controversial issues regarding vaccinated and unvaccinated employees. Below are some considerations for employers as they take steps to prevent or resolve workplace disagreements regarding vaccines and other workplace safety measures to help employees focus on work.
New Jersey Governor Phil Murphy signed legislation (A5820/S3866) and Executive Order (EO) No. 244 on June 4, 2021, ending the COVID-19 Public Health Emergency (but not the overall state of emergency) first declared on March 9, 2020, in EO 103.
The Coronavirus Job Retention Scheme (also known as the “furlough scheme”) has been in operation since April 2020, as part of the United Kingdom government’s response to the COVID-19 pandemic. The scheme has enabled employers across the UK to retain their employees and protect jobs preventing unemployment and mass redundancies or reductions in force.
Effective June 30, 2021, Oregon Governor Kate Brown, the Oregon Health Authority (OHA), and the Oregon Occupational Safety and Health Division (Oregon OSHA) lifted most statewide mask and physical distancing restrictions related to COVID-19, with limited exceptions. Mask requirements remain in place in some specialized settings, including healthcare, emergency medical services, public transit, transportation hubs, and correctional facilities. In addition, businesses may continue to require individuals to wear masks, face coverings, or face shields, and physically distance regardless of vaccination status. Individuals may continue to wear masks, face coverings, or face shields, even when not required, if they choose to do so.
On June 17, 2021, at the end of yet another chaotic day in administrative rulemaking, California’s new COVID-19 Emergency Temporary Standards (ETS) finally became effective. The ETS bring substantial changes to the COVID-19 regulatory requirements with which employers have struggled since California’s Division of Occupational Safety and Health (Cal/OSHA) initial ETS took effect almost 7 months ago, on November 30, 2020.
On May 5, 2021, New York Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which mandates workplace health and safety protections from any airborne infectious disease that the commissioner of health has designated as “a highly contagious communicable disease that presents a serious risk of harm to the public health.” On June 11, 2021, Governor Cuomo signed legislation to amend the NY HERO Act. The amendments extend the effective date of section 1 of the act, pertaining to the creation and adoption of airborne infectious disease plans. Pursuant to the amendment, section 1 will take effect on July 5, 2021. Section 2, which pertains to the establishment of workplace safety committees, will take effect on November 1, 2021.
On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated the vaccination section (section K) of its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The update clarifies a number of vaccination issues with which employers have grappled without any official guidance to advise them.
On May 5, 2021, New York Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which mandates extensive new workplace health and safety protections for all airborne infectious diseases. This action was quickly followed by the New York State Assembly’s May 10, 2021, and the New York State Senate’s May 14, 2021, introduction of identical bills to amend certain provisions of the NY HERO Act.
Twenty-two of 27 Republican-led states have announced that they will end enhanced federal COVID-19 unemployment benefits early. Of those, four (Arizona, Montana, New Hampshire, and Oklahoma) will offer additional monetary incentives for individuals to return to work. To date, no state with a Democratic governor has chosen to opt out of the COVID-19–related enhanced federal unemployment programs.
On May 18, 2021, the Oregon Health Authority (OHA) issued a new guidance titled, “Interim Guidance for Fully Vaccinated Individuals,” adjusting the applicability and enforcement of current state guidance for fully vaccinated individuals. Here are the key provisions of the new interim guidance.
On May 18, 2021, Santa Clara County, California, issued a health order that both relieves employers of some earlier COVID-19–related requirements and imposes new obligations on employers, particularly with respect to employees’ vaccination status. Santa Clara County also issued the “Mandatory Directive on Use of Face Coverings” and the “Mandatory Directive For Unvaccinated Personnel.”
Since the beginning of May 2021, multiple states have announced their intent to opt out of enhanced federal unemployment benefits. To cease participation in enhanced federal unemployment benefit programs, a state must provide at least 30 days’ written notice to the U.S. Department of Labor (DOL). A state may cease participation in one or all of the six programs that allow for enhanced federally funded benefits.
On April 28, 2021, President Joe Biden unveiled a proposal to permanently expand unemployment benefits in his most recent economic package, the American Families Plan. The proposed expansion of unemployment benefits is in addition to the $2 billion already allocated to unemployment “system modernization, equitable access and fraud prevention” from the American Rescue Plan Act of 2021. According to the White House, “the [unemployment insurance] system is in desperate need of reform and strengthening.”
On April 16, 2021, California Governor Gavin Newsom signed Senate Bill (SB) 93 into law. This new statute creates California Labor Code Section 2810.8 and requires that employers in certain industries make written job offers to employees whom they laid off because of COVID-19. Employees have five business days to respond and, if more than
Hospitality and event center workers received additional job rights protection under a new ordinance passed by the Minneapolis City Council. The new ordinance requires employers to recall those workers, if and when they are needed in reverse order of seniority. Ordinance No.2021-12, entitled “Hospitality Worker Right to Recall,” seeks to minimize the impact on affected employees in an industry particularly hard-hit by the COVID-19 pandemic and to stabilize the workforce.
On April 12, 2021, Michigan Governor Gretchen Whitmer announced that the Michigan Occupational Safety and Health Administration (MIOSHA) would extend the sunset date for the state’s COVID-19 emergency rules, which were set to expire on April 14, 2021, for six more months.
On March 2, 2021, the City Council of San Diego, California, extended the “COVID-19 Worker Recall and Retention Ordinance” (O-21231/O-2021-20). The ordinance provides certain rights and preferences to hotel and janitorial workers affected by the COVID-19 pandemic. The ordinance originally took effect on September 8, 2020, and was set to expire on March 8, 2021. However, given the extraordinary loss of jobs in San Diego in the building services, leisure, and hospitality industries, the city council opted to extend the ordinance’s sunset provision until March 8, 2022, by way of an emergency ordinance (O-21296/O-2021-97).
Within days, California employers may have to provide employees with even more COVID-19–related paid leave. On March 18, 2021, the California Legislature passed Senate Bill 95, which creates new Labor Code Section 248.2 and Labor Code Section 248.3. These new Labor Code sections provide covered employees and in-home supportive service providers with up to 80 new hours of COVID-19 supplemental paid sick leave. As explained below, the bill is far more expansive than the California COVID-19 supplemental paid sick leave statute that expired on December 31, 2020. The new legislation covers more employers and requires paid sick leave for many more reasons. If Governor Newsom signs SB 95, the law will take effect 10 days later and expire on September 30, 2021, unless extended.
On March 12, 2021, Minnesota Governor Tim Walz dialed back Minnesota’s COVID-19–related restrictions by issuing Emergency Executive Order (EO) 21-11, “Adjusting Limitations on Certain Activities and Taking Steps Forward.” Most provisions of the executive order went into effect on March 15, 2021, and relate to activities outside of the home, including relaxing restrictions on specific businesses (e.g., restaurants, bars, indoor gyms, and entertainment venues).
March 2021 marks one year since the beginning of state-mandated stay-at-home orders and workplace shutdowns due to the global COVID-19 pandemic. The pandemic has caused the most significant disruption to workplaces in generations, and not just in terms of barking dogs, homeschooling, gate-crashers at virtual meetings, and sweat pants. The pandemic forced employers and employees to quickly pivot and change. Many of these changes will undoubtedly impact the workplace for years to come. The following is a roundup of 10 ways in which the pandemic may have a lasting influence on how we work.
Upon taking office, President Joe Biden, through an executive order, instructed the U.S. Department of Labor (DOL) to review prior guidance on the availability of an individual to receive unemployment benefits if the individual has refused to return to work or take new work due to a fear of contracting COVID-19. On February 25, 2021, the DOL issued new guidance related to a return to work under a scenario in which an individual feels unsafe.