On April 6, 2021, the total number of COVID-19-related employment complaints filed in United States courts passed the 2,000 mark.  Although it took eight months to reach the first 1,000 complaints (March–November 2020), it took less than five months to go from 1,000 to 2,000. Indeed, December 2020 through March 2021 included the four busiest months for new COVID-19-related employment complaints since the start of the pandemic.

As the country accelerates past the 2,000-complaint milestone, we note the following facts and trends using Jackson Lewis’ COVID-19 Employment LitWatch:

  • States with the most complaints filed are California (487), New Jersey (267), Florida (142), New York (137), Ohio (127), Texas (105), and Michigan (74).  Since January 1, 2021, states with the most, new complaints (in descending order) are California, New Jersey, Ohio, New York, Florida, Texas, and Michigan.
  • California is beginning to eclipse the rest of the country. Since January 1, 2021, California alone accounts for approximately 29% of all complaints filed in the United States, up from 21.4% of the first 1,000 complaints.  New Jersey holds steady in the number two spot, with 13% of complaints filed in 2021, slightly up from 12.6% of first 1,000 complaints.  Together, California and New Jersey account for 42% of all complaints filed in 2021.
  • California and New Jersey plaintiffs continue to flock to state court. Since January 1, 2021, 96.6% of California complaints and 89% of New Jersey complaints have been filed in state court.  During that same time period, outside of California and New Jersey, approximately 57% of complaints were filed in state court, and 43% in federal court.
  • Nearly all complaints now include allegations of wrongful termination. Since January 1, 2021, approximately 83.3% of complaints include allegations of wrongful termination.  This number has been steadily increasing throughout the pandemic.  Approximately 74% of the first 1,000 complaints included an allegation of wrongful termination.
  • The Healthcare industry continues to bear the brunt of COVID-19 litigation, but the Retail and Consumer Goods industry is experiencing a sharp increase. Since January 1, 2021, approximately 25.1% of all new complaints have targeted the Healthcare industry, which has been fairly constant throughout the pandemic.  The Retail and Consumer Goods industry, however, is experiencing a dramatic increase from 7.5% of the first 1,000 complaints filed, to approximately 13.7% of complaints filed in 2021.
  • “Disability, Leave & Accommodation,” “Discrimination/Harassment,” and “Retaliation/Whistleblower” continue to account for nearly all claims. These categories of complaints accounted for approximately 76% of the first 1,000 complaints but jumped to 85.5% of all complaints filed in 2021.
  • Class Action Lawsuits. Approximately 86 COVID-19-related employment class action complaints have been filed across the United States, primarily in California (36), Florida (14), Illinois (6), and New York (6).  Eighteen of these class actions were filed in 2021.

If you have any questions regarding COVID-19-related litigation, or any other employment law issues, do not hesitate to contact Jackson Lewis attorneys.

Providing incentives for employees to get the COVID-19 vaccine continues to be on the minds of organizations as vaccinations pick up speed. However, concerns about privacy and the shifting positions on wellness program regulation has left many employers wary about implementing more robust incentives. According to Bloomberg, two GOP members of Congress are urging the Equal Employment Opportunity Commission (EEOC) to provide some clarity.

Employer-sponsored wellness programs come in many forms, such as:

  • An education campaign to inform employees about healthier eating habits.
  • A gym membership subsidy.
  • A health risk questionnaire to help employees be more informed about their health risks.
  • A walking program designed to decrease sedentary lifestyles.
  • Making health coaches available for engagement on general wellness and/or chronic health issues.
  • Satisfaction of key health-related measures – heart rate, cholesterol level, body mass index (BMI).

Such programs are often tied to group health plans and the incentives for satisfying program requirements come in the form of cash payments, reduced contributions toward premiums, points that can later be redeemed, and other creative arrangements. A key compliance challenge for many of these programs is the size of the incentive – the underlying issue being whether the size of the incentive causes a loss of voluntariness. Programs that are part of group health plans generally are subject to regulations issued under the Affordable Care Act (ACA) and the Health Insurance Portability and Accountability Act (HIPAA), although other rules including those referred to below may apply. The ACA/HIPAA regulations are relatively clear on incentive limits and are not what GOP members of Congress and business leaders have expressed concerns about.

Under the Americans with Disabilities Act, disability-related inquiries of employees generally must be job-related and consistent with business necessity, unless made in connection with a voluntary wellness program. It is that exception, specifically whether the program is voluntary, that is causing much of the concern about vaccination incentive programs. We outlined a brief history of the EEOC’s position on voluntariness here.

Depending on the design of a COVID-19 vaccination incentive program, disability-related inquiries may be involved, raising the question about voluntariness. Is a $50 gift card too much, what about $500, will that render the program involuntary? How about 2 days off with pay? It is worth noting that, according to the EEOC,

“[s]imply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.” 

On January 7, 2021, the EEOC proposed a new approach that might wind up providing employers some certainty, but those regulations have been withdrawn following a regulatory freeze issued by the White House on January 20, 2021. Under those proposed rules, however, incentives are permitted under such programs provided they are de minimis.

Sen. Richard Burr (R-N.C.) and Rep. Virginia Foxx (R-N.C.) observed to the EEOC in a letter obtained by Bloomberg, looking for a response by April 20, 2021:

“Employers actively working to protect their employees by increasing the number of workers receiving vaccinations through incentive programs are seeking assurance this action is allowable and does not violate important labor laws such as the Americans with Disabilities Act (ADA) and other statutes within the jurisdiction of the EEOC”

Additionally, the data privacy, confidentiality, security, and record retention of the information needed to administer such programs also raises compliance issues under federal and state law. This includes the confidentiality rule under the ADA, the HIPAA privacy and security regulations for programs that are part of group health plans, OSHA record retention requirements, and state reasonable safeguard and breach notification requirements.

Many organizations have moved forward offering a variety of incentive programs to spur employees to get a COVID-19 vaccine. The level of legal risk, if any, for those programs is a function of several factors – does the program include a disability-related inquiry, how large is the incentive, is the program part of a group health plan, how is the program administered and enforced, and how is the privacy and security of the data maintained.

It remains to be seen whether the EEOC will provide greater clarity on the voluntariness of incentives for COVID-19 vaccination programs. In the meantime, employers will need to think carefully about the design and implementation of their programs.

Philadelphia has joined a growing list of localities to require employers to provide employees paid COVID-19-related sick leave.

When the federal Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020, many employees lost guaranteed paid COVID-19-related leave. As of March 29, 2021, employers with employees working in Philadelphia must provide them paid COVID-19-related sick leave.

The new 2021 Public Health Emergency Leave (PHEL) amends and expands Philadelphia’s previous COVID-19 paid leave ordinance that had expired on December 31, 2020. The amended PHEL ordinance is similar to the FFCRA, minus the tax credits, and expands existing paid sick leave requirements by mandating Philadelphia businesses with at least 50 employees provide additional paid time off to employees who have worked for the business at least 90 days.

Read more about Philadelphia’s COVID-19 Paid Sick Leave.

USCIS has issued a new policy guidance clarifying eligibility requirements for internationally recognized athletes (P-1A nonimmigrants). Effective immediately, the policy applies to P-1A petitions filed on or after March 26, 2021.

The policy explains some of the statutory definitions. For instance, a “major United States sports league” means one that has a distinguished reputation, commensurate with an internationally recognized level of performance, and a “major United States sports team” is one that participates in such a league.

A P-1A petition can be submitted for an “internationally recognized” individual or team to allow entrance into the United States to participate in an athletic competition. The competition must have a “distinguished reputation” and requires participation of an athlete or team to perform “at an internationally recognized level.”

Under the policy, the following are considerations for determining whether competitions qualify:

  • The level of viewership, attendance, revenue, and major media coverage of the events;
  • The extent of past participation by internationally recognized athletes or teams;
  • The international ranking of athletes competing; or
  • Documented merits requirements for participants.

The relevant statutory and regulatory provisions do not require an athlete or team to participate in a competition that is limited only to internationally recognized participants. It is sufficient to show the competition requires some level of participation by internationally recognized athletes to maintain its distinguished reputation in the sport.

That a competition is open to competitors at all skill levels can be a negative factor in the analysis. If the event includes differentiated categories of competition based on certain skill levels, however, the focus should be on the reputation and level of recognition of the specific category of competition in which the athlete or team seeks to participate. For instance, the Boston Marathon is open to many skill levels, but an individual who will be competing in the “elite category” is likely at the level required for a P-1A.

For a team submission, the petition must include evidence that the team as a unit is internationally recognized. If proved, each athlete will receive P-1A classification based on their membership on the team. In this circumstances, the individual may not perform services separate and apart from the team while in the United States. To do that, they must present evidence of international recognition based on their own reputation.

While these clarifications are useful, individuals planning to come to United States. to participate in competitions will still have to overcome COVID-19 travel restrictions if they have been in the UK, Ireland, the Schengen Zone, Brazil, South Africa, China, or Iran during the 14-day period prior to their planned admission to the United States. In May 2020, certain athletes were specifically exempted from these bans to allow planned competitions to continue; but in February 2021, that exemption was removed.

For any questions, please contact your Jackson Lewis attorney as we are available to assist you in bringing professional and amateur athletes to the United States.

As more counties move toward the Orange Tier on the state reopening guidance, businesses can reopen or operate under less restrictive requirements. This may mean employers need more employees than in the last several months. Though last year, the Governor vetoed a statewide right of recall requirement, several cities still have ordinances in place.

The following cities still have a right of recall ordinance related to COVID-19:

City Covered Employers
Long Beach

·  Commercial property employers that provide janitorial services (25 or more employees)

·  Hotel employers (25 or more employees)

 Los Angeles

·  Airport employers

·  Commercial property employers that employ 25 or more janitorial, maintenance, or security service workers

·  Event center employers

·  Hotel Employers

Oakland

·  Airport hospitality employers

·  Event center employers

·  Hotel employers

·  Restaurant employers (more than 500 employees)

Pasadena ·  Hotel employers
San Diego

·  Commercial property employers

·  Event center employers

·  Hotel employers

Santa Clara

·  Building service employers

·  Food service employers

·  Hotel employers

Most of the ordinances require covered employers to offer available positions to qualified employees who were previously laid off due to pandemic mandated closures. Typically, such offers are to be made to employees based on seniority and/or length of service with the Company. Each ordinance requires covered employers to provide employees with a certain period to accept or decline rehire before the employer offers the position to another former employee with less seniority or opens the position to new employees. Covered employers should review the rehire requirements in their locations to ensure they are complying with the various requirements specified.

San Francisco’s right of reemployment recently expired, but the Board of Supervisors is considering a replacement ordinance.

If you have questions on right of recall ordinances or other issues regarding rehire of employees, contact the authors or the Jackson Lewis attorney with whom you regularly work.

One of industries perhaps hardest hit by the coronavirus, the travel industry, received welcomed news late last week in the form of CDC guidance stating that people fully vaccinated against COVID-19 can resume domestic travel and do not need to get tested for COVID-19 before or after travel or self-quarantine after travel.

According to the guidance, released on April 2, 2021, fully vaccinated people need not get tested before leaving the United States (unless required by the destination) or self-quarantine after returning to the United States (unless required by state or local law). With the increasing rate of vaccinations, this is another encouraging sign of a steady approach to some sense of a normalcy, though there are lots of questions about what travel will look like in the months and possibly years ahead.

This change from the agency’s previous recommendation that people “delay travel and stay home,” according to the Washington Post, is based largely on “newly released studies showing the real-world effectiveness of the vaccines.” For example, one study showed the second dose of the COVID-19 vaccine reduced infection risk by 90 percent. Highlighting the demand for travel, the Washington Post notes TSA officials reported 26 days in March when more than a million people moved through security checkpoints, compared to only 124,021 on April 1, 2020.

So, what will travel look like going forward?

An option may be a “vaccine passport” or similar arrangement whereby a person’s vaccination status or other related information can be verified. According to CNN, although the White House has said it is not planning to maintain a central vaccinations database, officials are “working with a range of companies on establishing standards” for people to show they have been vaccinated. Other countries also are working on “vaccine passport”-type technology to facilitate travel while containing COVID-19.

A vaccine passport likely will involve a massive collection of individuals’ personal information, a price many may be willing to pay for vacation or work-related travel. Some involved in efforts to build such systems acknowledge the challenges, ranging from ensuring the systems work correctly to preventing identity theft and fraud. The World Health Organization echoed these concerns in a recent bulletin discussing similar technology it refers to as “immunity passports”:

While there may be limits to maintaining personal immunity certification information as private and confidential, measures should be implemented to minimize confidentiality breaches and non-consensual identification to reduce privacy concerns and protect nonimmune-certified individuals from any potential stigma and harm.

With business travel likely to increase, businesses quick to adopt a vaccine passport or similar system will have their own issues to consider concerning the privacy and security of their employees data and use of such systems, particularly in connection with international travel as the standards and requirements may be different.

Data privacy and security challenges are but one concern as travel in a post-COVID vaccination world picks up. Continued concern over COVID-19 variants combined with slow inoculation rates in many countries mean that U.S. consulates (which issue travel visas enabling international travelers to come to the U.S.) may be unable to keep up. Over the past year, international travel bans have proliferated across the world , starting with the travel bans and visa bans put into place beginning on March of 2020 by the Trump administration which were quickly followed by a succession of travel bans in other countries. The resulting patchwork of travel bans and rules resulted in shutting down most international travel to the United States, as well as worldwide, which has created a backlog of cases at U.S. consulates. Consulates have been operating at reduced staff for health and safety reasons and have struggled to implement the ever-changing travel bans. Throughout the last year the processing times for visa processing have steadily increased, if a visa was available at all. As travel opens up, adding a “vaccine passport” to the long list of travel requirements for obtaining a visa will further strain the consulates if they will be expected to implement it. Although consulates are familiar with handling personal identifying information, after all a visa application covers practically every personal biographical detail of the applicant’s life, a vaccine passport is an entirely new thing. How any such requirement would be balanced against the economic and business needs for travel is anyone’s guess.

As organizations reimagine how they do business, and now how travel will fit in to that mix, the list of things that need to be considered before getting on the road again continues to expand.

You didn’t know it was a thing?  Or maybe, like most, you just lost track of what day it is?  Or maybe it ranks somewhere behind New Beer’s Eve (the day before the end of prohibition) and National Tartan Day, both of which are most certainly things and also fall on April 6th.

If there was ever a year to celebrate National Employee Benefits Day, this is the year.  The last year needs no introduction, but it is worthwhile to take just a moment to acknowledge the role employee benefits and all the tireless employee benefit professionals have played in getting us through.

Last year showed us how central employer provided benefits are to our daily lives.  And in the time of the largest national crisis for most, employers, their benefits providers, and the entire system of employer-provided benefits rose to the occasion to provide flexibility and much-needed support to workers.  Whether it was voluntarily extending subsidized health coverage to those who would typically lose coverage because of a reduction in hours or termination, offering needed access to 401(k) assets through coronavirus related distributions and loans through the CARES Act, or allowing flexibility for mid-year changes in health care and flexible spending account elections, employers, vendors, and Washington, D.C. moved rapidly to respond.  At the same time, retirement plan fiduciaries weathered the increased threats of class action litigation over plan investment fees, new concerns related to protecting plan data, investment processes related to ESG funds and proxies, and a roller-coaster market.  Not to mention responding in real time to the ever expanding state and federal leave requirements.

So far, the year ahead appears to be full of its own twists and turns, albeit of a different vein.  As evidenced by the recent COBRA subsidy provisions in the American Rescue Plan Act of 2021, health care will continue to take center stage and the role of employer provided coverage against the backdrop of strengthened ACA Marketplaces, a bright spotlight on pharmacy benefits, transparency requirements, and rollouts of vaccines (and incentives) will keep us on our toes.  There will be other areas of focus for employers too—new opportunities to assist employees with student debt, expanding options in 401(k) plans such as withdrawals for birth and adoption assistance, and a new focus on voluntary benefits offerings alongside the traditional core offerings, plus new legislation around the bend on qualified retirement plans.  And as some begin the long march back to the office (and others continue to work remotely), we will confront pesky remote worker tax questions, a renewed focus on wellness benefits (including mental health), and a growing demand for financial wellness programs alongside changes that address our new normal, like the ability to pay for face masks, hand sanitizer and disinfecting wipes from our health flexible spending accounts.  There is much to do and no offseason for benefits professionals, but great opportunity to reevaluate benefit offerings, given changing employee needs and demands and a changing regulatory landscape under an ambitious new administration.

So, for now, take a minute and raise your copy of ERISA (and, of course, your favorite libation) to appreciate how much has been accomplished over the past year in the face of unchartered demands and stressors.  We are all looking forward to the year ahead for so many reasons and the changes (and opportunities) it brings in employee benefits and beyond.

The restrictions on the issuance of H-1B, L-1, and J-1 nonimmigrant “guest-worker” visas, which have been in place since June 24, 2020, expired without fanfare on March 31, 2021. As a result, U.S. consulates around the world will resume issuing H-1B, L-1, and J-1 visas without the need for an additional national interest exception application.

Now that the restriction has expired, H, L, and J visa applicants who have or had not been scheduled for interviews will be scheduled in accordance with each consulate’s existing phased resumption of services. Those who were refused visas based on the expired restrictions may reapply by submitting a new application and a new fee.

The expiration was not completely unexpected, given that a limited injunction had been issued in the fall of 2020 on the basis that the restrictions exceeded presidential authority. Additionally, many businesses, particularly those in the technology industry, have long-argued that the restrictions did not protect U.S. workers, but, instead, harmed the U.S. economy.

While the lifting of this particular restriction is helpful, the 14-day United Kingdom, Ireland, Schengen area, Brazil, South Africa, Iran, and China travel bans remain in place. Most of those travel bans, which are an effort to control the spread of COVID-19, were tightened in early March 2021. At that time, the Biden administration removed a number of categorial exceptions to the bans and left only exceptions for those who seek to enter the United States for humanitarian purposes, public health response, national security, or “vital support” for critical infrastructure sectors.

This is the fourth Trump administration travel ban that the Biden administration has removed. On January 20, 2021, the “Muslim” and “Africa” bans were terminated. In February, President Joe Biden also withdrew a Presidential Proclamation that prevented individuals from obtaining immigrant visas and entering the country as legal permanent residents, as it prevented the unification of family members and made it more difficult for industries to hire talent from abroad. At that time, many immigration advocates hoped the nonimmigrant visa restrictions would also be removed. Now, that has come to pass.

Jackson Lewis attorneys are available to assist you in determining how to continue to cope with the 14-day bans, COVID-19 test requirements for travel into the United States, and the reciprocal land port of entry travel bans at the Northern and Southern borders with Canada and Mexico.

ICE has announced that I-9 flexibility will be continued for another 60 days, until May 31, 2021. Here is ICE’s full announcement.

With this extension, ICE specifically noted that employees hired on or after April 1, 2021 who work exclusively in a remote setting due to COVID-19 related precautions will be exempt from the I-9 physical inspection requirements until they undertake non-remote employment on a “regular, consistent, or predictable basis or until the flexibility policy is terminated which is earlier.”

Specific issues related to I-9 compliance and return to the worksite will need to be resolved on a case-by-case basis, depending on the particular circumstances.

If you have questions about how to remain in compliance as employees return to your worksite, Jackson Lewis attorneys are available to assist.

The country begins the second year of the COVID-19 pandemic with optimism because of three Emergency Use Authorization vaccines and President Joe Biden’s direction that all states make all adults eligible for vaccination by May 1, 2021. As more workers return to work in person, there are key considerations for employers in the coming months.

Evolving Legal Landscape
While the Centers for Disease Control and Prevention (CDC) issued guidance and best practices throughout the last year, the decision as to whether to adopt, enforce, or exceed those guidelines was left exclusively to the states. What resulted was a patchwork of laws at the state, county, city, and local health department levels, and confusion as to which rules to follow and when.

The Biden administration has expressed a willingness to take more measures at the federal level and has increased uniformity in terms of approaches for vaccination, isolation and quarantine, and safety measures.

However, uniformity may not translate to a less fluid environment. The CDC, Department of Labor, and new administration continue to issue updates regularly, making it challenging for many employers to keep up.

OSHA Guidance for Employers
Although states are starting to lift or ease restrictions, employers can expect increased enforcement from the Occupational Safety and Health Administration (OSHA). On March 12, 2021, OSHA announced a National Emphasis Program (NEP) related to COVID-19, targeting “specific high-hazard industries or activities where this hazard is prevalent” and adding a focus on anti-retaliation efforts. The NEP covers certain healthcare industries (e.g., hospitals, home health, and skilled nursing facilities, among many others) and non-healthcare industries that have experienced high rates of COVID-19 infection (i.e., meat and poultry processing) or are public facing (i.e., restaurants, supermarkets, and grocery stores) and critical infrastructure. OSHA also will use calendar year 2020 Form 300A data to identify establishments with elevated rates of illness. With respect to anti-retaliation efforts, OSHA will increase efforts to ensure workers are aware of retaliation protections. (For a more detailed summary of the NEP, see OSHA Publishes New National Emphasis Program Targeting COVID-19 Enforcement.)

OSHA has not issued COVID-19-specific standards to date. In limited circumstances, OSHA has applied existing standards to situations involving COVID-19 (e.g., respiratory protection for healthcare employers). OSHA has otherwise been left to rely on the General Duty Clause in the Occupational Safety and Health Act to hold employers accountable for protecting workers against COVID-19 in the workplace. The General Duty Clause requires employers to provide a safe and healthy workplace that is free from recognized hazards likely to cause death or serious physical harm. OSHA has also issued COVID-19 guidance for several industries, as well as general guidance for all employers. The guidance does not carry the weight of the law, but may be useful to OSHA’s enforcement efforts.

Recently, OSHA is under additional pressure following a report from the Office of the Inspector General (OIG) that criticized the agency for not conducting enough onsite inspections or issuing COVID-19 standards sooner. Prior to the OIG’s report, President Biden had directed OSHA to consider whether emergency temporary standards were necessary, and to issue any such standards by March 15, 2021. The emergency temporary standards appear to be delayed, but are anticipated to be issued imminently.

Employers in some states, like California, Michigan, Oregon, and Virginia, are already subject to COVID-19 rules under occupational safety and health state plans. Employers should continue to consult state and local law for safety guidelines in the coming months.

EEOC Guidance for Employers
In March 2020, the U.S. Equal Employment Opportunity Commission (EEOC) published technical assistance for employers entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. The agency has provided periodic updates, most recently on December 16, 2020.

The technical assistance covers a wide range of topics that will continue to be important for employers in 2021, including:

  1. Disability-Related Inquiries and Medical Exams;
  2. Confidentiality of Medical Information;
  3. Hiring and Onboarding;
  4. Reasonable Accommodation;
  5. Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics;
  6. Furloughs and Layoffs;
  7. Return to Work;
  8. Age;
  9. Caregivers/Family Responsibilities;
  10. Pregnancy; and
  11. Vaccinations.

As employees begin returning to workplaces in greater numbers, employers should consider the EEOC’s guidance, especially regarding reasonable accommodations, as they establish their policies and practices and respond to requests for continued remote work and other flexible work arrangements.

The EEOC’s latest updates to its technical assistance addresses COVID-19 vaccinations and questions about the applicability of federal equal employment opportunity laws including the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act, Title VII of the Civil Rights Act, and the Pregnancy Discrimination Act. As employers develop policies and employee communications in connection with the vaccines, employers should review section K of the EEOC’s technical assistance. That section provides important insights on the EEOC’s view on important questions facing employers.

COVID-19 Vaccines and the Workplace
As of this writing, 24.5 percent of the U.S. population have received at least one dose of the vaccine. Employers are faced with how to handle vaccination and the return to work in person, and what role, if any, they should play in encouraging and enabling employees to safely become vaccinated.

In its January 2021 guidance, OSHA encouraged employers to make COVID-19 vaccines available to all eligible employees at no cost and to provide information and training on the benefits and safety of vaccinations.

While many employers are thinking through creative ways to incentivize vaccines, a number of states are considering measures that would prevent employers from mandating vaccinations for return to work or otherwise influence an employer’s approach to vaccinations. On the other end of the spectrum, New York has adopted legislation that requires employers to provide employees with up to four hours of paid time off for each COVID-19 vaccination. Jackson Lewis is tracking pending legislation related to vaccines and the workplace, including more than 100 bills being considered by state legislatures around the country.

In the CDC’s Guidance for Fully Vaccinated People, the CDC pointed to evidence suggesting that fully vaccinated individuals are “less likely to have asymptomatic infection and potentially less likely to transmit” the virus to others, but the CDC is continuing to learn more about individuals’ abilities to continue the spread of COVID-19 despite being vaccinated. As discussed below, the CDC guidance supports relaxed quarantine requirements for individuals who have been fully vaccinated. Therefore, employers may have a greater interest in vaccination programs, or at least knowing employees’ vaccination status. However, the CDC and OSHA recommend vaccinated individuals continue to wear masks, practice physical distancing in public, and take other steps to mitigate the spread of COVID-19.

The CDC has explained that it is still studying the duration of protection provided by the vaccine, and experts are continuing to evaluate at what point the country can achieve herd immunity, or community immunity (when a sufficient portion of the population of an area is immune to a specific disease to make its spread from person to person unlikely). There have been many positive developments and the outlook on the horizon looks promising, but at the moment, many aspects of the work environment are left unchanged. For now, employers should continue to follow state and local orders and guidance and may choose to consider ways in which they can enable employees to become vaccinated and provide information and training for those who are eligible, as consistent with applicable law. Employers who want to educate their workforce about the COVID-19 vaccines can use materials published by the CDC and state agencies.

Latest Guidance on Isolation, Quarantine
The CDC’s guidance on recommended isolation and quarantine periods has evolved as both the number of people vaccinated has recently grown, and the number of people in the United States who have recovered from COVID-19 and likely have some protection from the virus has increased.

For individuals who have tested positive for COVID-19 or are symptomatic, the CDC’s Discontinuation of Isolation for Persons with COVID-19 Not in Healthcare Settings sets a framework for when to discontinue isolation. However, not all states have adopted the CDC’s guidelines. Indeed, state and local requirements may not coincide with the CDC’s guidance on length of isolation.

With respect to quarantine, on March 12, 2021, the CDC issued revised guidance stating that individuals who have had COVID-19 within the past three months do not need to quarantine if exposed once more to someone positive, as long as they do not develop new symptoms. Similarly, the CDC’s recommendations for fully vaccinated people states that people who have been fully vaccinated do not need to quarantine after an exposure, as long as they experience no symptoms. Previously, the CDC limited this exclusion to quarantine only to individuals who had been fully vaccinated within 90 days. Now, the CDC appears to take a broader approach. Some states, including states with occupational safety and health state plans, may have specific rules regarding quarantine that differ from the CDC guidance regardless of vaccination status.

With the increasing number of Americans becoming vaccinated each day, time will tell as to which states will adopt the CDC’s recommendations. For now, state and local law must be consulted when evaluating the need and duration of quarantine for employees.

All employers, even those in states where quarantine may not be required for fully vaccinated employees, should exercise caution in handling communications regarding employees’ vaccination status when assessing return to work considerations. According to the EEOC’s guidance, asking whether a worker has been vaccinated is not a disability-related inquiry; however, the information may be protected by state or local privacy laws. Employers should be specific about what information should and should not be provided by employees to prevent unsolicited disclosure of medical or genetic information. There are other considerations and best practices for employers when it comes to employees’ vaccination status.

On the Horizon in 2021
While the future looks bright, employers can expect to see a lasting impact from COVID-19.

Continued Spotlight on Paid Sick, Family Leave

The pandemic unquestionably shined a light on employer paid leave policies. Pre-pandemic, many states and cities (such as Arizona, California, Nevada, New York, and others) already passed paid sick leave laws. There has been a push at the federal level for employers to provide paid sick leave. The Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020. The FFCRA required employers with fewer than 500 employees to provide paid sick and family leave for certain COVID-19-related reasons. To encourage employers to continue offering paid leave, the Consolidated Appropriations Act of 2021 gave employers who were covered under the FFCRA the option to voluntarily provide “qualified” paid sick leave or paid family leave wages to their employees and continue to receive a tax credit for such wages until March 31, 2021.

Under the American Rescue Plan Act signed by President Biden on March 11, the tax credits will again be extended, to September 30, 2021. However, Congress made significant changes to the FFCRA and the qualifying reasons for leave. Importantly, employee paid sick leave allotments will reset on April 1, 2021, the reasons for leave have been expanded to address testing and vaccination issues, and the paid family leave can be used for reasons other than childcare issues. (For more details of how the American Rescue Plan Act modifies the FFCRA, see The American Rescue Plan Extends FFCRA Tax Credit, But Not the Mandate.)

Remember that the FFCRA is voluntary and does not have any impact on employers with more than 500 employees. As a result, ongoing efforts for federal or state and local paid sick and family leave laws are expected. California, for example, has resurrected the statewide COVID-19 Supplemental Paid Sick Leave that expired at the end of 2020.

Return to Work

For the past year, employers have been encouraged, or required in some cases, to offer remote work to the extent possible. Technology companies have tried to keep up with demand. For example, according to the BBC, the use of Zoom increased 30 fold in April 2020.

Employers eager to return to in-person operations should be prepared for potential resistance from employees who have grown accustomed to working from home, as well as potential accommodation requests related to leave or continued remote work from those who cannot return to work due to medical issues. The EEOC guidance referenced above explains how the pandemic may impact the analysis of whether a requested accommodation poses “significant difficulty” or “significant expense” under the ADA. For example, the EEOC recognizes that the business losses associated with the pandemic are a relevant consideration and that “an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.” On the other hand, the EEOC also warns against excluding certain workers from the workplace involuntarily based on an employee’s higher risk for severe COVID-19 illness. Employers will need to balance the desire to return to “normal” with their obligations under the ADA and other federal and state laws.

Litigation for Years to Come

Jackson Lewis has developed COVID-19 Employment LitWatch to help employers track litigation trends related to COVID-19. Since the start of the pandemic, over 1,800 complaints have been filed in federal and state courts that allege related labor and employment law violations. More than 55 percent of the complaints allege violations related to disability, leave and accommodation, or discrimination or harassment. California has the most COVID-19 employment lawsuits in the country. (It allows employees to immediately request a right to sue notice from the California Department of Fair Employment and Housing.) Under federal and many state employment discrimination laws, employees often are required to wait months before requesting a right to sue notice. The waiting period frequently creates a delay between a challenged employment action and a lawsuit. Thus, employers may be seeing COVID-19 litigation well into 2022 and beyond.

To reduce the risk of litigation, employers should continue to monitor the ever-changing landscape of federal and state COVID-19 rules and orders. Employers can use Jackson Lewis’ COVID-19 Advisor to stay up-to-date on COVID-19 issues in all 50 states, including health and safety protocols, paid sick leave guidance, paid family leave and mini-Family and Medical Leave Act guidance, and business opening rules, among many other topics.

Jackson Lewis attorneys are closely monitoring the evolving demands on employers, including agency guidance, regulations, and best practices and are available to assist employers in preparing policies and procedures related to COVID-19 and other workplace matters.