News, Insights, and Strategies for Employers from Jackson Lewis
As anticipated, President Joe Biden has rescinded the COVID-19 safety requirements for federal contractors in connection with the declared end of the COVID-19 public health emergency and the World Health Organization determination that COVID-19 is no longer a Public Health Emergency of International Concern.
Read more here.
The U.S. COVID-19 Public Health Emergency will end on May 11, 2023, one week after the World Health Organization determined that COVID-19 is no longer a Public Health Emergency of International Concern. On that same day, the Biden-Harris Administration has announced it will end COVID-19 vaccination requirements for federal employees, federal contractors, and international air travelers. The Administration also announced that the Department of Health and Human Services and the Department of Homeland Security will start the process to end their vaccination requirements for Head Start educators, healthcare facilities certified by the Centers for Medicare & Medicaid Services (CMS), and certain noncitizens at the land border.
COVID-19 still exists but like all emergencies, the COVID-19 Public Health Emergency was never intended to last forever. Thankfully. We will undoubtedly continue to see occasional upticks of COVID-19 infections. But for now, the CDC’s COVID-19 Community Levels map shows low levels across almost the entire U.S. except for scattered small, pockets of medium and high levels. And with more people having some level of immunity either due to past exposure, vaccination, or a hybrid mix of both, and with the increased availability of therapeutics, COVID-19 presents a lower risk of severe illness across the United States. As explained recently by the CDC:
The United States has mobilized and sustained a historic response to the COVID-19 pandemic. As a nation, we now find ourselves at a different point in the pandemic – with more tools and resources than ever before to better protect ourselves and our communities.
The end of the U.S. Public Health Emergency does not mean the end of all COVID-19 regulation. Some state and local requirements remain in place. But it is a good time for employers who might still have COVID-19 protocols in place to assess whether those protocols still make sense for their workplace in light of our current COVID-19 circumstances. Policies like testing and vaccination, and some accommodations, should be reviewed for legal compliance given the changes. The end of the Public Health Emergency provides employers a good opportunity to communicate with employees regarding what to expect in the workplace on a going forward basis and hopefully start to put the COVID chapter behind us.
Please reach out to the Jackson Lewis attorney with whom you regularly work to discuss all these issues.
The last-standing COVID-19-related travel restrictions will soon expire. Bringing the United States in line with most countries around the world, after May 11, 2023, non-citizen, nonimmigrant air passengers need not show proof of being fully vaccinated to board a flight to the United States.
Until May 12, nonimmigrants must still document having a bivalent or monovalent dose of an approved COVID-19 vaccine taken at least 14 days before their arrival in the United States.
In addition, beginning May 12, non-U.S. travelers will be able to enter the United States by land or ferry without providing evidence of up-to-date vaccinations.
In addition to ending the travel restrictions, the Biden Administration also announced that the COVID-19 vaccination requirements for federal employees and federal contractors will end May 11, and the Administration will start the process to end the vaccination requirement for head start educators and CMS (Centers for Medicare and Medicaid Services)-certified facilities.
The COVID-19 public health emergency has been in effect since January 2020. Anticipating the end of the emergency declaration, USCIS already ended the 60-day grace period granted to respond to requests from the agency. On May 4, 2023, DHS and ICE announced that the flexibility to conduct remote verification of documents for Form I-9 purposes will end as of July 31, 2023. Beyond that, USCIS still has discretion to grant measures, including extensions, on a case-by-case basis upon request for those who have been affected by unforeseen circumstances, including a public health emergency. Unforeseen circumstances related to COVID-19 may still fall into this category.
Jackson Lewis attorneys are available to answer any questions regarding travel or COVID-19-related flexibilities, particularly those connected with preparing for the end of flexibility regarding Form I-9 employment verifications.
The Biden-Harris Administration has announced that, at the end of the day on May 11, 2023, it will end COVID-19 vaccination requirements for federal employees, federal contractors, and international air travelers. The COVID-19 public health emergency also will end on the same day.
In addition, the Administration announced that the Department of Health and Human Services (HHS) and the Department of Homeland Security will start the process to end their vaccination requirements for Head Start educators, healthcare facilities certified by the Centers for Medicare & Medicaid Services (CMS), and certain noncitizens at the land border.
According to the Administration, the COVID-19 vaccination requirements were announced in 2021 “to promote the health and safety of individuals and the efficiency of workplaces, protecting vital sectors of our economy and vulnerable populations.”
It noted, “Our Administration’s vaccination requirements helped ensure the safety of workers in critical workforces including those in the healthcare and education sectors, protecting themselves and the populations they serve, and strengthening their ability to provide services without disruptions to operations.”
According to the Administration, the country is in a different phase of the pandemic and these government requirements are no longer necessary. “Since January 2021, COVID-19 deaths have declined by 95%, and hospitalizations are down nearly 91%. Globally, COVID-19 deaths are at their lowest levels since the start of the pandemic.”
The CMS mandate originally was announced by Secretary of Health and Human Services Xavier Becerra, who administers the Medicare and Medicaid programs. While there were legal challenges to the mandate, the U.S. Supreme Court’s Jan. 13, 2022, 5-4 decision ruled in favor of the government, allowing the CMS COVID-19 vaccine mandate to continue. The decision permitted CMS to enforce, in all states and U.S. territories, its interim final rule requiring many Medicare and Medicaid providers to ensure their covered staff are vaccinated against COVID-19.
The Administration states that HHS will start the process to end the CMS vaccination requirement, but it has not provided further guidance as to when or how that will occur.
The removal of the CMS requirement will allow healthcare employers to make their own decisions about whether to continue a COVID-19 vaccination requirement. Affected CMS-covered employers should review existing policies and practices around vaccination requirements, remembering that state or local requirements may still impose continuing COVID-19 vaccination requirements. In addition, some jurisdictions may bar COVID-19 vaccination requirements in the absence of the federal mandate.
Please contact a Jackson Lewis attorney with questions.
Effective April 3, 2023, Oregon OSHA suspended its rules addressing the COVID-19 Public Health Emergency and Amended Work Clothing Rules via Oregon OSHA Administrative Order 1-2023.
The COVID-19 rules have been temporarily suspended as an interim measure until Oregon OSHA implements the permanent rulemaking process to fully repeal the rules, which it intends to do shortly. For those employees who still feel vulnerable to contracting COVID-19, the agency also made temporary amendments that include allowing employees the option to wear face coverings, and requiring employers to supply face coverings at no cost to employees when the employer requires their use.
These changes are in tandem with Oregon Health Authority’s announcement that masks are no longer required in healthcare settings, also effective April 3, 2023.
In October 2022, Governor Newsom announced the California COVID-19 State of Emergency would end on February 28, 2023. While this will phase out some of the tools the state used in handling the COVID-19 pandemic, it does not mean the end of all COVID-19 regulations and requirements for employers. Three illustrative examples are discussed below.
Supplemental Paid Sick Leave
As employers may know, the statewide supplemental paid sick leave expired at the end of 2022. Following Governor Newsom’s lead, the City of Los Angeles has rescinded its local emergency, which has caused its supplemental paid sick leave requirement to sunset effective February 15, 2023. Similarly, the City of Long Beach has voted to sunset its local supplemental paid sick leave effective February 21, 2023.
Some local supplemental paid sick leave ordinances, however, have remained in place. The City of Oakland is considering extending its local emergency which would extend the requirements of its local supplemental paid sick leave. Additionally, the County of Los Angeles has not indicated when it will end its local emergency, which means its supplemental paid sick leave will remain in effect for unincorporated areas of the county.
Moreover, San Francisco voters approved the Public Health Emergency Leave Ordinance, which provides paid leave for employees for “public health emergencies” which currently include COVID-19, in the city.
Cal/OSHA Regulations and Requirements
On February 3, 2023, Cal/OSHA’s COVID-19 Prevention Non-Emergency Regulations went into effect. The regulations will apply to California employers for two years, except for the recordkeeping requirements which will expire in three years.
Moreover, in 2022, a bill was passed to extend COVID-19 employee notice requirements until 2024. Previously under Assembly Bill 685 which was passed in 2020, if an employer received notice of potential exposure to COVID-19, the employer was required to provide written notice of the potential exposure within one business day to all employees who were at the worksite. Originally, this notification requirement was set to expire on January 1, 2023. Assembly Bill 2693 extends this notification requirement to January 1, 2024 and gives employers another option for complying with these notification requirements.
Right of Recall
In 2021, California passed Senate Bill 9 which required that covered employers offer employees laid off due to the COVID-19 pandemic available positions based on a preference system. This law sunsets on January 1, 2024. Several cities across the state have passed similar right of recall ordinances which remain in effect despite the end of the state of emergency.
If you have questions about your COVID-19 obligations in California, please reach out to a Jackson Lewis attorney to assist.
California employers take note: the non-emergency version of the Cal/OSHA COVID-19 Prevention regulations are now in effect.
At the end of 2022, the Cal/OSHA Standards Board voted to adopt the COVID-19 Prevention non-emergency regulations to replace the Emergency Temporary Standard(ETS).
On February 3, 2023, the California Office of Administrative Law approved the non-emergency standard. Though not titled a temporary standard, the non-emergency standard is set to sunset two years from its effective date, with the exception of the recordkeeping requirements which will expire in three years.
In conjunction with the approval, Cal/OSHA published both a Frequently Asked Question Page (FAQ) and a COVID-19 Model Prevention Program.
The FAQ covers the following:
The FAQs provide some useful information as employers pivot from the ETS requirements.
Hybrid/Remote Employees
The non-emergency regulations apply only when employees work at the workplace or are exposed at work, and not when they work from home. The regulations do not apply to employees who are assigned to telework and who choose to work somewhere other than their home e.g. a hotel or a rental property unless arranged by the employer as employer-provided housing. Additionally, these regulations do not apply to employees who are covered by the Aerosol Transmissible Diseases regulation.
Close Contact Definition
The non-emergency regulations continue to use the revised definition of “close contact” set forth by the California Department of Public Health (CDPH) in October 2022.
The FAQs also provide a formula for determining the cubic feet of an indoor space.
Face Coverings and Personal Protective Equipment
Under the non-emergency regulations, employers must provide face coverings and ensure they are worn when required by CDPH.
Additionally, all employers must provide and ensure face coverings are worn during outbreaks at the workplace, as well as ensure the use of face coverings when employees return to work after having COVID-19 or after a close contact.
Testing Requirements
Under the non-emergency regulation, employers must offer testing at no cost and during paid time:
Benefits to Excluded Workers
The non-emergency regulation no longer includes an exclusion pay requirement. Though the Standards Board discussed in December holding a vote to amend the regulations to include exclusion pay, that has not proceeded to date and was not indicated for the Board’s upcoming meeting on February 16th. The FAQs indicate that employees who test positive may be eligible for other benefits such as state disability.
Jackson Lewis will continue to track COVID-19 regulations and requirements into the endemic phase. If you have questions about the Cal/OSHA COVID-19 Standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.
On Friday, January 13, 2022, a New York State Supreme Court Judge for Onondaga County struck down the New York State Department of Health regulation mandating certain healthcare professionals be “fully vaccinated” against COVID-19, declaring the regulation to be “null, void, and of no effect.” (Medical Professionals for Informed Consent, et. al. v. Bassett, et al.)
The New York State Healthcare COVID-19 Vaccine Mandate initially was enacted as an Executive Order in August 2021 under then Governor Andrew Cuomo’s emergency powers. Almost one year after the state of emergency ended in New York, the New York State Health Commissioner adopted the COVID-19 Vaccine Mandate as a permanent regulation in June 2022.
On October 20, 2022, Petitioners-Plaintiffs Medical Professionals for Informed Consent sought to enjoin and permanently restrain Defendants-Respondents, including the Commissioner of Health, Governor Hochul and the New York State Department of Health, from implementing or enforcing the COVID-19 Healthcare Vaccine Mandate.
The court held that New York State’s Public Health Law limits the Commissioner of Health from implementing any mandatory immunization program except as provided under the Public Health Law and that since none of the coronaviruses are covered under the Public Health Law, the Commissioner of Health acted outside the scope of her authority in implementing the vaccine mandate.
As of now, there has been no statement from the Department of Health regarding whether they intend to appeal the decision.
In the meantime, healthcare employers should be mindful that the Centers for Medicare & Medicaid Services’ COVID-19 vaccine requirement may still apply to their organization.
If you have any questions about what this decision means for your organization, please contact a Jackson Lewis attorney.
Starting on Jan. 5, 2023, COVID-19 travel restrictions are back for those traveling to the United States from China, Hong Kong, or Macau. Individuals will have to show evidence of a negative COVID-19 test or of recovery from COVID-19.
Restrictions will apply to everyone over the age of 2 boarding a flight from China, Hong Kong, or Macau to a destination in the United States. The restrictions will also apply to those who transit through third countries to the United States or those who are connecting in the United States to further destinations. Such individuals will have to show evidence of a negative COVID-19 test taken no more than two days prior to departure. This applies across the board, regardless of the individual’s nationality, immigration status, or vaccination status. The alternative is to provide proof of recovery from COVID-19 from within 90 days of departure.
The COVID-19 test must be a PCR test or a monitored self-test authorized by the FDA.
There will be limited exceptions for emergency travel to protect someone’s life or health from serious threat or danger.
Individuals travelling through South Korea, Toronto, or Vancouver to the United States will need to show evidence of a negative COVID-19 test if they have been in China within 10 days of boarding.
Other countries are also issuing similar regulations. To date those include Australia, Canada, France, Israel, Italy, Japan, Malaysia, Morocco, Qatar, Singapore, South Korea, Spain, Thailand, and the United Kingdom.
The Chinese government criticizes that these new restrictions lack a scientific basis, coming just as China has opened its borders to visitors. The first ban on travel from China due to COVID-19 was imposed by the Trump Administration in Feb. 2020 and was lifted in Nov. 2021 by the Biden Administration.
Jackson Lewis attorneys are available to assist regarding the new requirements.
While many COVID-19 travel restrictions have been removed, all nonimmigrant foreign nationals continue to be required to present proof of being fully vaccinated against COVID-19 in order to board an international flight to the United States.
A summary of the COVID-19 vaccination requirements can be found below.
Someone is “fully vaccinated”:
The CDC has a list of approved vaccines. Boosters are not required.
Acceptable proof include the following:
The following are excepted from the requirement to provide proof of vaccination:
In addition to the above COVID-19 travel restrictions, when traveling to the United States, all nonimmigrants should carry a passport valid for at least six months and a valid U.S. visa stamp or ESTA approval (if eligible).
Please reach out to your Jackson Lewis attorney if you will be traveling internationally or have any questions about COVID-19 travel restrictions.
