Remote Work for School Principal Is Not Reasonable ADA Accommodation if Physical Presence Is Essential, Federal Court Rules

The U.S. District Court for the Eastern District of Virginia recently rejected a school principal’s argument that remote work was a reasonable accommodation for her asthma and restrictive lung disease that she claimed were exacerbated by the poor condition of the school building in which she worked.

Verbal Disclosure of Employee’s COVID-19 Status Didn’t Breach Health Record Disclosure Law, Wisconsin Appeals Court Rules

On July 27, 2023, the Wisconsin Court of Appeals held in Mosley v. Oakwood Lutheran Senior Ministries that verbal disclosure of an employee’s COVID-19 status does not support a violation of Wisconsin healthcare record disclosure laws or a cause of action for invasion of privacy.

California Supreme Court Holds Employers Do Not Owe Duty of Care to Prevent the Spread of COVID-19 Outside the Workplace

The Supreme Court of California recently held that the California Workers’ Compensation Act does not bar an employee’s spouse from bringing a negligence claim against the employer where the employee contracts COVID-19 at the workplace and brings the virus home to the employee’s spouse. The court also held that an employer does not owe a duty of care under California law to prevent the spread of COVID-19 to an employee’s household members.

Fifth Circuit Weighs in for the First Time Since COVID-19 as to When Remote Work Can Be Reasonable Accommodation

Fifth Circuit precedent recognizes the “general consensus among courts” that regular, in-person work is an essential function of most jobs. Yet the continued viability of this premise has been in question, given the ability of thousands of employees to work remotely during the COVID-19 pandemic. This has in turn created hurdles for employers seeking to bring employees back into the physical workplace while facing a barrage of accommodation requests under the Americans with Disabilities Act (ADA) to work from home.

California Legislature Moves to Expand and Make Permanent Hospitality and Building Services Recall Rights

The California Legislature is poised to make it even more difficult for hospitality and business service providers to operate in California. Senate Bill (SB) No. 723 amends California Labor Code Section 2810.8, which provides recall rights to certain hospitality and business services employees laid off because of COVID-19 and is scheduled to sunset in December 2024. SB 723 eliminates the sunset provision and makes Section 2810.8 permanent.

The COVID-19 Emergency Declaration Has Ended—But Do the Accommodations Continue?

On May 11, 2023, the COVID-19 public health emergency ended, creating uncertainty as to employers’ continued obligation to accommodate employees due to pandemic-related reasons. The U.S. Equal Employment Opportunity Commission (EEOC) has sought to address these questions through an update that it issued on May 15, 2023, to its COVID-19 technical assistance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

The Public Health Emergency Has Ended; Colorado Employees May Use Public Health Emergency Leave for Three More Weeks

The end of the public health emergency (PHE) began the sunsetting of the Colorado Healthy Families and Workplaces Act’s requirement for employers in Colorado to provide PHE leave stemming from the COVID-19 pandemic. This means that Colorado employees may use PHE leave through June 8, 2023.

Mission Accomplished … White House Declares an End to the Pandemic and the CMS Vaccine Mandate

On May 1, 2023, the Biden administration announced that it would be ending all of its various COVID-19 vaccination requirements on May 11, 2023, the same date as the COVID-19 national emergency and public health emergency will end, according to the U.S. Centers for Disease Control and Prevention (CDC)). The U.S. Department of Health and Human Services (HHS) has begun the process to terminate the Centers for Medicare and Medicaid Services’s (CMS) interim final rule requiring CMS-certified healthcare facilities to implement and enforce a policy that all covered staff within their covered facilities be vaccinated against COVID-19.

No Change in DOL/Treasury Guidance for Employer Health Plans Issued Before Declared End of COVID-19 National Emergency

In response to House Joint Resolution 7, which was signed into law on April 10, 2023, ending the National Emergency declaration that had been in effect since March 2020, the U.S. Department of Labor and the U.S. Department of the Treasury have clarified informally that they intend to continue to use May 11, 2023, as the relevant date in applying guidance on the end of the National Emergency.

Ogletree Deakins OSHA Tracker City Feature: Southeastern Cities’ Inspections, Citations, and Penalties

Ogletree Deakins recently launched its OSHA Tracker, which compiles and filters inspection and citation data by Occupational Safety and Health Administration (OSHA) region, state, city, industry, and date. Employers in Region 4—covering Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee—may find the trends and, in some cases, surprises, among OSHA’s inspections, citations, and penalties data useful in planning and implementing their workplace safety programs.

New York HERO Act Amendment Establishes a Five-Day Deadline to Recognize Workplace Safety Committees

On December 28, 2022, Governor Kathy Hochul signed into law an amendment to Section 2 of the New York Health and Essential Rights Act (NY HERO Act). The amendment, which took effect immediately upon signing, provides that “[a]n employer must recognize within five business days the establishment of a workplace safety committee.”

New York Judge Blocks COVID-19 Vaccination Mandate for Healthcare Facilities

On January 17, 2023, a New York trial court judge struck down the state’s vaccine mandate for healthcare workers, ruling that the New York State Department of Health (DOH) acted outside its authority and noting that “the COVID-19 shots do not prevent transmission.”

Cal/OSHA’s COVID-19 ETS Will Remain in Effect Pending OAL Approval of COVID-19 Prevention Non-Emergency Regulations

New COVID-19 prevention regulations adopted by the California Occupational Safety and Health Standards Board on December 15, 2022, were sent to the Office of Administrative Law (OAL) for approval. The new regulations will not take effect until approved by OAL, which has thirty working days to complete its review.

Fifth Circuit Affirms Preliminary Injunction Blocking Federal Contractor COVID-19 Vaccine Mandate

On December 19, 2022, a panel for the U.S. Court of Appeals for the Fifth Circuit affirmed a preliminary injunction blocking enforcement of President Joe Biden’s COVID-19 federal contractor vaccine mandate. The 2-1 panel decision in State of Louisiana v. Biden found that to allow the mandate would result in an “enormous,” “transformative,” and “truly unprecedented” expansion of the powers of the president without clear authorization from Congress.

Montana’s Vaccination Discrimination Law: Federal Court Blocks Enforcement

On December 9, 2022, a federal judge in Montana permanently blocked enforcement in healthcare settings of a first-in-the-nation law that had prohibited discrimination in employment and the provision of services based on vaccination status—including vaccination against COVID-19—finding the law is unconstitutional and preempted by federal law.