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”:

  • 14 days after receiving one dose of an approved single dose vaccine;
  • 14 days after receiving the second dose in a two-dose series vaccine; or
  • 14 days after receiving two doses of any approved “mix and match” combination administered at least 17 days apart.

The CDC has a list of approved vaccines. Boosters are not required.

Acceptable proof include the following:

  • Vaccination certificate with QR code or digital pass via Smartphone application with QR code
  • Printout of COVID-19 vaccination record or certificate issued at a national or subnational level by an authorized vaccine provider
  • Digital photos of vaccination card or record, downloaded vaccination record or vaccination certification from an official source, or a mobile phone application without a QR code
  • All proof must have personal identifiers (full name plus at least one other identifier such as date of birth or passport number) that match passport or other travel documents
  • Airlines will determine is when a translation is required

The following are excepted from the requirement to provide proof of vaccination:

  • Those on official government business or diplomatic travel
  • Children under 18 years of age
  • Participants in certain COVID-19 vaccine trials
  • Persons with medical contraindications to vaccination
  • Persons issued humanitarian or emergency exception
  • Persons with valid nonimmigrant visas (except B-1/B-2) who are from countries with limited COVID-19 vaccine availability
  • Members of U.S. Armed Forces and their spouses and children (under 18 years old)
  • Sea crew members on C-1 or D nonimmigrant visas
  • Persons whose entry is in the U.S. national interest as determined by the Secretary of State, Transportation, or Homeland Security (or their designees)
  • Individuals who are excepted may have to agree to following certain protocols upon entry into the United States

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.

On December 31, 2022, Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS) finally sunset. However, the Standards Board has been working to pass a permanent standard to ensure it is in place before the expiration of the ETS. The Board has announced it will be voting on the permanent standard at its upcoming meeting on December 15th. Of note, while it is called a permanent standard, the proposed standard includes a two-year sunset, consistent with the recognition that COVID-19 is now moving into its endemic phase. As employers prepare for a permanent standard here are some of the highlights of what will stay the same and change from the ETS. Changes from ETS
  • End of Exclusion Pay.  One of the biggest changes in the permanent standard is that exclusion pay will no longer be required to compensate employees who miss work due to an employer-caused COVID-19 exposure.
  • Modified Masking Requirements. Certain mask requirements have been removed from the permanent standard. The definition of an “exposed group” still contains a “momentary pass-through” exception. This exception is being broadened to include individuals who are not masked. As re-defined, the momentary pass-through exception applies to a place where persons momentarily pass through without congregating, provided that it is not a work location, working area, or a common area at work.
  • Reduced Reporting Requirements. Employers will no longer be required to report outbreaks to the local health department under the permanent standard. Moreover, a COVID-19 outbreak can be deemed over when “one or fewer” new cases are detected in the exposed group for a 14-day period. An investigation, review, and correction of hazards following an outbreak no longer will be required to be “immediate” following an outbreak.
Continuation from ETS
  • Recordkeeping Requirements.  Employers will still be required to maintain records of workers’ infections, but they will not need to maintain records of employees deemed a close contact.
  • Updated Definition of “Close Contact.”  The definition of “close contact,” which is important for purposes of notice, also continues to be linked to the California Department of Public Health definition.
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.

In our latest issue of the Class Action Trends Report, Jackson Lewis attorneys look at the current state of COVID-19-related litigation at this late stage of the global pandemic.

Employers have faced more than 5,000 COVID-19-related lawsuits — hundreds of which were brought as putative class or collective actions — and new lawsuits continue to be filed every day. In fact, September 2022 saw the highest number yet of new complaints challenging employer vaccine mandates. Wage and hour suits raising a variety of legal claims continue to dot the class action landscape. COVID-19-related layoffs and plant closings, and remote work trends fueled by COVID-19 quarantines, will impact WARN Act litigation for years to come.

While the worst of the COVID-19 pandemic appears to be behind us, the outbreak of COVID-19-related litigation shows no signs of slowing.

Previously, the California Department of Public Health (CDPH) had redefined “close contact’ as someone sharing the same indoor airspace with a person who had COVID-19 for a cumulative total of 15 minutes or more over a 24-hour period. This definition had caused issues for employers in particular who needed to comply with notice requirements. These notice requirements were recently extended until 2024.

In order to allow businesses to better respond to potential exposures, the CDPH revised its definition of close contact to set clearer parameters. Under the revision “close contact” is defined as the following:

  • In indoor spaces 400,000 or fewer cubic feet per floor (such as home, clinic waiting room, airplane, etc.), a close contact is defined as sharing the same indoor airspace for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during an infected person’s (confirmed by COVID-19 test or clinical diagnosis) infectious period.
  • In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), a close contact is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person’s infectious period.

The CDPH revision also clarifies that spaces that are separated by floor-to-ceiling walls e.g. offices, suites, and waiting rooms are considered distinct indoor airspaces for purposes of close contact.

The CDPH also published a Questions and Answers for Beyond the Blueprint which explains the difference between direct and indirect exposure as well as how healthcare facilities should respond to potential exposure when using the updated definition.

Employers should review the revised definition as it applies to notice requirements to employees who may have been exposed.

If you have questions about the effect of the CDPH revisions or related issues, contact a Jackson Lewis attorney to discuss.

After more than two and half years, Washington State Governor Jay Inslee has announced that he will be ending the COVID-19 state of emergency, effective October 31, 2022.  When that occurs, all remaining state COVID-19 emergency proclamations will end as well.

Even after the state of emergency is lifted, the Department of Health’s statewide Face Covering Order will remain in place for health care and long-term care settings, as well as correctional facilities in some circumstances.  Governor Inslee indicated he will seek to keep in place protections for workers who choose to wear a mask in their workplace, but he will presumably need the Legislature to pass that legislation.  Washington State’s COVID-19 vaccination requirements for health care and education workers will end when the state of emergency is lifted.  Employers may choose to maintain their own employee vaccination requirements, but should consult with counsel about the related legal issues.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.

Since March 2020, COVID-19 rules have been confusing at best.  On August 11, 2022, in an effort to streamline the guidance and reflect the current state of the pandemic, the CDC once again issued updated guidance.  The new guidance focuses on individual responsibility and is designed to help the public better understand how to protect themselves and others if they are sick or exposed.

The most recent CDC COVID-19 recommendations include the following:

  • Vaccination. The CDC continues to promote the importance of being up to date with vaccination to protect people against serious illness, hospitalization, and death.  However, while the CDC continues to recommend vaccination, its guidance no longer differentiates between vaccinated and unvaccinated.
  • Quarantine.  The CDC no longer recommends quarantining following COVID-19 exposure, regardless of vaccination status.  Instead of quarantine, the CDC recommends anyone exposed to COVID-19 wear a high-quality mask for 10 days and get tested on day 6.  Previously, the CDC recommended a 5-day quarantine for anyone who was not up to date with vaccinations.
  • Isolation.  The CDC continues to recommend that regardless of vaccination status, individuals should isolate from others if they are sick and suspect that they have COVID-19 or have tested positive for COVID-19.
    • The CDC recommends that individuals with COVID-19 stay home for at least 5 days. After 5 days, if the individual is fever-free for 24 hours without the use of medication, and their symptoms are improving (or they never had symptoms) they can end isolation.
    • However, the CDC now recommends that individuals who had moderate illness (experienced shortness of breath or had difficulty breathing) or severe illness (were hospitalized) due to COVID-19 or have a weakened immune system, should isolate through at least day 10 and those who had severe illness or have a weakened immune system should consult with their healthcare provider before ending isolation.
    • The CDC also recommends that someone who has ended isolation should avoid being around anyone who is at high risk for a serious case of COVID-19 until at least day 11.
    • Finally, the CDC recommends that if an individual’s COVID-19 symptoms worsen, they should restart their isolation at day 0.
  • Testing.  The CDC no longer recommends screening testing of asymptomatic people without known exposures in most community settings.
  • Physical Distance. The CDC emphasizes that physical distance is just one component of how individuals can protect themselves and others.  The CDC recommends considering the risk in a particular setting, including local COVID-19 Community Levels and the important role of ventilation, when assessing the need to maintain physical distance.

The CDC’s focus on individual responsibility, the removal of distinctions between vaccinated and unvaccinated, the removal of quarantine recommendations and the discussion of mask wearing as an individual responsibility are good news for employers who are considering relaxing COVID-19 workplace requirements.

This likely will not be the last we hear from the CDC on this topic.  Indeed, the CDC stated that it intends to issue more specific guidance for settings such as healthcare, congregate living, and travel.

In March 2022, the California Department of Public Health (CDPH) dropped universal indoor masking, though masking was still required in certain places. By April 2022, most counties had also ceased universal indoor masking requirements. However, recently, the Los Angeles County Department of Public Health (LACDPH) stated if the uptick in cases and hospitalizations continued, then the County would implement a new indoor universal mask mandate effective July 29, 2022.

On July 28, 2022, the LACDPH announced it would not proceed with a new universal masking mandate due to a reduction in transmission and hospitalizations. However, LA County’s current order still requires masks in the following situations:

  • On all forms of public transportation in LA County. This includes trains, buses, taxis, and ride-shares.
  • In all indoor transportation hubs in LA County, including airport and bus terminals, train and subway stations, seaports or other indoor port terminals, or any other indoor area that serves as a transportation hub.
  • In healthcare settings
  • In long-term care settings and adult/senior care facilities
  • In state and local correctional facilities and detention centers
  • Shelters and cooling centers

Currently, no counties in California require indoor universal masking. However, employers should review state and local orders to determine if different requirements apply to their industry.

Employers should also be aware that in certain circumstances, employees may be required to wear a face covering after testing positive for COVID-19, having a close contact with someone who has tested positive, or during an outbreak.

If you have questions about current mask requirements or issues related to COVID-19 in the workplace, contact a Jackson Lewis attorney to discuss.

As the pandemic continues to evolve, so does the EEOC’s guidance. On July 12, 2022, the EEOC once again updated its COVID-19 guidance: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to reflect the pandemic’s changing state. The updated guidance follows CDC’s June 10, 2022 statements regarding the current state of the COVID-19 pandemic.

Read more here.

In early June 2022, the California Department of Public Health (CDPH) issued an order revising the definition of “close contact.” Under the CDPH order, close contact was defined as “someone sharing the same indoor airspace (e.g. home, clinic waiting room, airplane, etc.) for a cumulative total of 15 minutes or more over a 24-hour period.” This created confusion because “same indoor airspace” could be quite broad and is certainly much broader than the 6 feet-15 minutes-24 hour definition the entire nation had been using.  Compounding the problem was Cal/OSHA’s deference to the CDPH definition of “close contact” in its ETS, which California employers are required to follow.

CDPH had provided some clarification in guidance issued on June 20, 2022, stating that when entities are responding to potential exposure they may prioritize the response by:

  • Identifying close contacts who may be considered “high-risk contacts” based on their proximity to the case in the setting, the duration or intensity of their exposure, and/or their greater risk of severe illness or death from an exposure.
  • Determining any smaller spaces within the larger indoor setting for the purposes of assessing potential exposure.
  • Determining any transient exposures totaling <15 minutes, such as passing in a hallway. Those with transient exposures would not meet the definition of close contact.

On July 18, 2022, Cal/OSHA updated its FAQ for the ETS to address the close contact determination as it relates to the ETS. Cal/OSHA states that a shared indoor airspace may be analyzed in several ways as follows:

  • Smaller spaces contained within a large indoor space that are separated by floor-to-ceiling walls are not part of the same indoor airspace as the large indoor space, e.g. suites, waiting areas, bathrooms, or break areas.
  • Larger indoor settings that are not divided into smaller spaces that are separated by floor-to-ceiling walls may constitute a shared indoor airspace e.g. open-floor plan offices, warehouses, or retail stores. In this situation, Cal/OSHA states that “employers must evaluate whether employees shared the same indoor airspace on a case-by-case basis, considering the duration and proximity of the contact, regardless of the specific task of the employees.”
  • Cal/OSHA states in its guidance that “proximity and length of exposure are key to this determination.”

If you have questions about the Cal/OSHA emergency temporary 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.

The onset of the COVID-19 pandemic was sudden and devastating, and even as the threat levels subside, the fallout endures. To be sure, the healthcare industry has long been on the forefront of battling the threat to public health posed by COVID-19. While there has been a broad and varied governmental response to the multitude of concerns arising out of COVID-19, a significant component of that has been the enactment and enforcement of laws and rules governing workplace safety—and nowhere more so than in healthcare facilities.

Of course, the healthcare environment has naturally been subjected to the most stringent requirements, including mandatory vaccines and personal protective equipment (PPE). The safety-driven concerns in turn served as a catalyst for legislative and other governmental action to institute protections from retaliation to those who expose unsafe practices, i.e., “whistleblowers.”

At the federal level, OSHA has not only stepped-up enforcement of workplace safety concerns, but it has taken a prominent role in protecting workers against retaliation. In fact, OSHA recently released guidelines on how to file a Section 11(c) complaint for retaliation against employees who report COVID cases or health concerns to their employers. There has been a substantial increase in the number of whistleblower complaints to OSHA arising out of alleged pandemic safety-related violations. Not to be left out, the U.S. Attorney has set up its own hotline specifically for COVID-related claims.

In the context of state law, some states had existing whistleblower protections for healthcare workers reporting certain health or safety violations, including civil remedies. Many cases are working their way through the courts. One example is in California, where a court held that a former healthcare employee could proceed with a claim after she objected to being assigned to assess patients entering a senior living center when she had been exposed to COVID-19 (and was later terminated). Clark v. Calson Mgmt., LLC, Case No. BCV-20-101901 (Cal. Super. Ct. Sept. 8, 2020).

Despite existing whistleblower protections and increased OSHA federal regulatory enforcement, legislative efforts to enact protections at the state level have gained momentum. Indeed, there has been a particular focus on healthcare. Last year, New York Labor Law Sec. 741 was amended and broadened to provide further protections for health care workers who speak out against what they believe to be “improper quality of workplace safety” for employees or patient care to the media or within their company. Colorado passed a similar law. Various other states, including Maine, Arizona, Minnesota, Washington, and others are contemplating similar legislation. Under the New York statutory scheme, a whistleblower must initially bring the unsafe activity, policy or practice to a supervisor’s attention and allow a reasonable opportunity for correction. But, if retaliation ensues, violations can be costly.

As protections proliferate and enforcement intensifies, it is more important than ever for healthcare employers to ensure that proper safety protocols are followed, reports of unsafe conditions are taken seriously, and key personnel are highly trained. If you need more information or have questions, please contact the Jackson Lewis attorney with whom you regularly work, or any member of our Healthcare group.