International travel during the COVID-19 pandemic has been challenging, but conditions are finally improving. Many Americans are now vaccinated against COVID-19. The latest CDC reporting indicates 50.9% of the U.S. population has received at least one vaccine dose and more than 41% of the U.S. population has been fully vaccinated.

Many international destinations are planning for an uptick in tourism – including Europe. Unfortunately, there remains no consistency in the rules in effect across the pond. With Europe opening, many have been hoping since May that the United States will reciprocate and eliminate at least some of the COVID-19 international travel restrictions.

The EU Commission’s overall recommendation is that tourists from countries with low infection rates be allowed to enter if they are fully vaccinated with an EU-approved vaccine. This is reflected in some recent developments from European countries. For example:

  • Denmark has opened to EU/Schengen countries and plans to open to international tourists later in June.
  • France plans to use a “traffic light” system to determine which countries’ residents can visit and what restrictions will apply.
  • Malta is open fully to vaccinated travelers.
  • The UK plans to use a “traffic light” system that will determine “green-listed” countries, who will need to quarantine, and what testing will be required.
  • Portugal is open to EU/Schengen countries and the UK.
  • Italy is open to those from the UK, the EU, and Israel who are fully vaccinated.
  • The Netherlands is open to 15 low-risk countries.
  • Greece has been open to the EU, the United States, the UK, and Israel if the travelers are fully vaccinated or have a negative COVID-19 test.

In the meantime, the CDC has lowered travel restrictions for more than 100 countries. Further, especially due to upcoming international travel requirements, the United States is considering offering voluntary documentation that would allow U.S. residents to prove vaccination status. However, these vaccine “passports” have been controversial and a spokesperson from DHS noted that there will be “no federal vaccination database or a federal requirement for Americans to provide they’ve been vaccinated . . . . ” The status of these “passports” promises to be an evolving area, considering the privacy concerns that have been raised, such as in New York.

For now, everything is country by country and airline by airline – and everything is subject to change (make sure your airline tickets and hotel reservations are refundable!).

Those planning to travel need to make sure to check with the appropriate consulates before starting to plan. Jackson Lewis attorneys stand ready to assist with any questions you may have.

Fifteen months after the COVID-19 pandemic began, the Occupational Safety and Health Administration (OSHA) has promulgated an Emergency Temporary Standard (ETS) for healthcare employers. OSHA has published voluntary guidance for other industries.

To read this article in full, please click here.

In an emergency meeting on June 9th, the Cal/OSHA Standards Board reversed itself and voted to withdraw the amended COVID-19 Emergency Temporary Standards (ETS) it had just approved on June 3rd.  As such, employers will remain governed by the ETS that was passed in November 2020.

The emergency meeting was held so that the Board could consider changes to California Department of Public Health (CDPH) guidance regarding face coverings that will go into effect June 15th.

The Board could consider new revisions as early as their regular meeting scheduled for June 17th. The Board also has the option to elect to revoke the ETS altogether. However, based on the Board’s discussion regarding preserving their right to pass further revisions by withdrawing the most recent amendment, a full revocation of the ETS seems unlikely.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. 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.

As several cities are allowing businesses to resume their operations to pre-pandemic levels, many employees are being called back to on-site work. Thankfully, schools have been welcoming children for in-person learning for several months now, and parents are hoping to send them to summer camps. Approximately 26 million American children attend summer camps in a “normal” year, and this year there is a pent-up desire and demand.

The president and CEO of the American Camp Association discussed the importance of summer camps in 2021 because “[c]hildren need to regain some of those unpracticed social and emotional competencies, friendship skills and communication skills” they have lost due to the COVID-19. The problem is that many summer camps rely on hiring foreign students in J-1 Work/Travel cultural exchange programs to serve as camp counselors – and this year, for many camps, that is not going well: like other businesses that rely on temporary, seasonal workers, summer camps are having visa troubles.

The first major hurdle was when former President Donald Trump instituted a nonimmigrant visa ban last year that included most types of J-1 visas. That ban was lifted, but the backlogs at the U.S. consulates remain, and visas for camp counselors are not top priority. Some camps fear that they will not be able to open and others will have to cut back on programs – even those serving disabled children.

Exchange students from abroad also fill other seasonal jobs in tourist areas. In a typical year, about 100,000 students travel on a J-1 visa for Work/Travel programs. Exchange visitor programs are meant to “assist in the development of friendly, sympathetic, and peaceful relations between the United States and the other countries of the world.” The foreign students learn about the United States, travel after finishing their work programs, and add to diversity. They “discover America and meet Americans.”

The J-1 exchange programs are sponsored by the Department of State and are diplomatic in nature. Businesses are pressing DOS to create national interest exceptions for J-1 cultural exchange applicants to facilitate their travel to the United States. Senator Jean Shaheen (D. NH) has also been pushing the White House to address the J-1 visa backlog, noting that the program is “critical to fill seasonal jobs . . . like summer camps and lifeguarding.” So, while camp directors make plans to open safely following CDC Guidelines, they may not be able to offer a full slate of programs due to lack of staff.

Last year, camps lost approximately $16 billion in direct revenue. If anything close to that happens again, the economies in areas that rely heavily on camping and tourism may not be able to bounce back.

If you have any questions regarding J-1 exchange programs, please reach out to your Jackson Lewis attorney.

Before the pandemic hit, remote work was, in most cases, a thing of the future. Concern about the productivity of remote workers caused many employers to resist these arrangements. Employees, they thought, would rather be taking care of laundry or kids than taking care of their duties. Enter Covid-19 – and most employers around the world were left without a choice: life threw remote work upon them and it became—in most instances—their only alternative. More than one year of telehealth, work-from-home and virtual meetings later, they have survived and, to the surprise of some, productivity in many cases has improved. It might seem, then, that remote work is here to stay, at least for non-patient facing roles.

But…is it? As vaccination rates go up and transmission rates go down, employers around the country are debating whether to bring employees back to the workplace or allow them to keep working remotely. And, whatever option they choose, two things hold true: employers will navigate uncharted waters and employees—if they get called back—will not return to the workplace they once knew. In this decision-making process, questions inevitably will arise. Will all (or only some) employees be required to return to the workplace? Will they be there for the full workweek or will they have a reduced in-person schedule? Must those who return be fully vaccinated? If not, will employers provide incentives to those who are? Will employers accept lack of childcare as a reason to permit remote work? Will out-of-state work be acceptable? What tax liabilities, if any, does that create?

While there is no right, wrong or definite answer to many of these questions, employers embarking the “getting back to normal” ship need to consider them. Choosing either to go back to the workplace or to stay remote—if not done with the appropriate knowledge and planning—may result in unintended discriminatory practices and unfortunately entail the risk of claims. And, while we have some guidance from federal and state agencies on what’s legal and what’s not, best practices will always depend on each employer’s circumstances, structure and employee roles.

So, what should employers do? First, understand their and their employees’ needs. Can they support fully remote work for all or certain positions? Do they want to? Would a hybrid model work best? Do they want to maintain robust telehealth offerings? Will remote work–including with out of state employees–help recruit and retain non-patient facing workers? Second, evaluate if they have in place all policies required to implement their return-to-work (or stay-remote- or hybrid) strategy. Do their policies and practices appropriately address all issues? Will employees feel safe going back into the workplace? Is their remote work policy current? If not, their third step is to create and/or modify internal policies and procedures to best suit their post-pandemic workplace, whatever it may look like. Hot topics to include and/or review are vaccination rules, programs and/or incentives, employee leaves—whether pandemic related or not—, anti-discrimination policies and change communication strategies.

Whatever you decide your post-pandemic workplace will look like, we’re here to help. Please reach out to your Jackson Lewis attorney who can provide additional best practices and resources as we navigate these challenges together.

On June 8, 2021, New York State updated the NY Forward Guidance for several industries, including office-based and food services employers, with changes that many people feel are overdue.

In addition to incorporating updated mask, physical distancing, and capacity rules that have been in place since New York adopted the Centers for Disease Control and Prevention (CDC) guidance for fully vaccinated individuals on May 19, 2021, the most significant modification to the NY Forward Guidance update is the change in screening questions. The guidance no longer requires employers to ask about symptoms, close contact, or COVID-19 infections that occurred in the last 14 days. Instead, the new daily health screening questions properly reflect the most current CDC and New York State Department of Health isolation and quarantine guidelines for COVID-19.

The following three screening questions are required:

  1. Are you currently experiencing, or recently experienced (in the last 48 hours), any new or worsening COVID-19 symptoms?
  2. Have you had close contact (being within six feet for at least 10 minutes over a 24-hour period) or proximate contact (as determined by health authorities) in the past 10 days with any person confirmed by diagnostic test, or suspected based on symptoms, to have COVID-19?
  3. Have you tested positive through a diagnostic test for COVID-19 in the past 10 days?

Prior to June 8, the time period for all three questions was 14 days, which was premised on outdated COVID-19 public health authority guidance. In addition, if an employee had a preexisting condition that mirrored COVID-19 symptoms, such as migraines, they were required to answer the symptom screening question in the affirmative. The updated guidance permits employees to account for preexisting conditions.

Finally, the updated NY Forward Guidance now expressly provides an exemption from answering the close-contact question in the affirmative for employees who are either fully vaccinated or who have recently (in the last three months) fully recovered from COVID-19.

The updated guidance is a reminder to employers that the NY Forward Guidance is still applicable for businesses seeking to operate in person.

Jackson Lewis attorneys are closely monitoring updates and changes to legal requirements and guidance and are available to help weed through the complexities involved in state-specific or multistate-compliant plans.

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.

In its first all-virtual/remote video-cast hearing, the Equal Employment Opportunity Commission (EEOC) discussed workplace civil rights implications of the COVID-19 pandemic for employees and employers.  (Transcript of the April 28, 2021 hearing is available here.)  During the hearing, Chairwoman Charlotte Burrows acknowledged that the EEOC must help employers navigate the new workplace landscape created by the pandemic, including equal opportunity issues related to telework, public health announcements, and more.  Commission members also acknowledged the need for EEOC guidance on COVID-19-related issues, such as accommodation under the Americans with Disabilities Act (ADA), vaccine incentives, mandatory vaccination policies, selection criteria for layoffs or furloughs, and return-to-work policies and challenges.

Not long after the hearing, the EEOC updated its guidance on COVID-19 to include additional information on vaccines, incentives, and the confidentiality of vaccination status.

The hearing itself included two panels of witnesses from, or representing, communities hit especially hard by COVID-19.  Members of the Commission asked the panelists various questions to gain insight on how the EEOC should address contentious workplace issues. The first panel was comprised of a senior economist and policy expert, directors of advocacy groups representing Asian Americans, migrant workers, and women, and the presidents and executive directors of the Society for Human Resource Management and the Lawyers’ Committee for Civil Rights Under Law. Members of the Commission asked the first panel how, following months of extended periods of telework, the EEOC could help employers determine whether in-person work is an essential function. Panelists suggested the EEOC focus on retaliation, specifically in the context of changes in schedules and remote work, as well as establishing best practice guidance for safely returning to physical work sites, safety standards, and vaccination education. Other topics raised by the Commission in the first panel included: the type of guidance needed from the EEOC to address recent heightened awareness of discrimination toward the Asian American and Pacific Islander communities during the COVID-19 pandemic; whether retaliation claims have increased during the pandemic, and how the EEOC could reach affected vulnerable groups; and the type of vaccination incentives employers should offer.

The second panel included an expert on the American-Indian community, economics consultants, national labor and health policy experts, senior attorneys and experts with various organizations that combat disability discrimination, age discrimination, religious and national origin discrimination, as well as a Senior Vice President and Assistant General Counsel at the Center for Workplace Compliance (a national employer association). In response to Commission questions, the second panel recognized a pandemic-related increase in failure to accommodate claims, especially with regard to teleworking accommodations, as well as an increase in workplace harassment claims arising in new contexts, including virtually and in remote call settings. The second panel also discussed the need for guidance regarding vaccine incentives and mandatory vaccine policies to help employers avoid potential Title VII violations.  With regard to harassment claims, panelists recommended a strong anti-harassment policy and modifications to training presentations to address some of these new contexts.

The EEOC is expected to issue additional guidance on these and other pandemic and post-pandemic workplace challenges soon.

Jackson Lewis attorneys will continue to monitor and report any further developments from the EEOC. In the meantime, if you have questions about the EEOC, or any employment law issues, please do not hesitate to contact Jackson Lewis attorneys.

Before 2020, the City of Santa Monica was one of a handful of cities that had a right of recall ordinance. However, since the beginning of the pandemic, many local governments enacted right to recall ordinances to return displaced workers to their prior positions.  Recently, the state joined these local governments, passing SB 93 relating to the right of recall for the hospitality industry.

As more employers have obligations under such regulations, the California Court of Appeal has timely issued a published opinion regarding Santa Monica’s right of recall ordinance, which the Court of Appeal notes is similar to the state and local right of recall ordinances currently in effect.

In the case, Bruni v. The Edward Thomas Hospitality Corporation, the plaintiff was a restaurant server who was laid off after about four months working for the employer. He brought a claim under Santa Monica’s right of recall ordinance, which provided that laid-off employees who had been employed for six months or more had the right to be rehired under certain circumstances. The plaintiff had previously worked with the employer for 10 months but had voluntarily separated. The plaintiff argued that his prior 10 months of employment should count for purposes of the ordinance.

However, the Court of Appeal held that the purpose of the ordinance was “to protect employees who were involuntarily laid off due to economic circumstances—not to protect employees who quit for personal reasons.”  Based on the purpose of the ordinance, the Court of Appeal held that the plaintiff failed to state a cause of action under the recall ordinance. However, the Court of Appeal stated in its opinion it was not deciding the issue of whether discrete periods of employment may ever be aggregated to satisfy the length of service requirement. The Court was only concluding that employment that was ended by a voluntary resignation cannot be aggregated with a later period of employment that ended in a layoff to meet the period of employment requirement.

While not definitively applicable to the state or local ordinances, the Court of Appeal’s decision provides persuasive guidance of the calculation of employment periods for the purpose of right of recall requirements around the state.

If you have questions about right of recall requirements or related issues, contact a Jackson Lewis attorney to discuss.

On May 20, 2021, the Cal/OSHA Standards Board  (“Board”) delayed a vote on proposed changes to the COVID-19 Emergency Temporary Standards (“ETS”). At that time, the Board claimed they would revise the ETS to address updated guidance from the Centers for Disease Control and Prevention (“CDC”) for fully vaccinated persons. However, the revised ETS passed by the Board late on June 3rd falls short of following all of the CDC’s newest guidance and takes a more restrictive approach than previously proposed revisions.

The amended ETS will be submitted to the Office of Administrative Law (“OAL”) and the OAL has 10 calendar days to approve, just in time for the reopening of California on June 15th. It is assumed the ETS will be approved by the OAL.

Here are the changes to the ETS that California employers should be aware of:

  • Physical distancing: The 6 feet physical distancing requirements will remain in place until July 31, 2021. However, the amended ETS adds the following exceptions to physical distancing:
    • An employee wearing a respirator if required by the employer and used in compliance with the Respiratory Protection Standard in Cal. Code. Regs., tit. 8, section 5144.
    • Locations at which all employees are fully vaccinated, except for employees who require a reasonable accommodation or exception to vaccination under federal or state law.
  • Face coverings: Employers are still required to provide face coverings and ensure face coverings are worn when indoors, when outdoors and less than 6 feet away from others, and where required by orders from the California Department of Public Health or local orders. However, the following exceptions apply:
    • When an employee is either alone in a room or when all persons in a room are fully vaccinated.
    • Employees who wear respirators as required by other sections.
    • Employees who are fully vaccinated when they are outdoors and do not have any COVID-19 symptoms.

Employers looking to take advantage of the exceptions for social distancing and face coverings will also have to have effective documentation showing affected employees are fully vaccinated as required by the ETS. This will create some additional compliance obligations with respect to medical records and the protection of employees’ private and confidential information.

  • Respirators for unvaccinated employees: Effective July 31, 2021, employers must provide filtering facepiece respirators (i.e., NIOSH-approved devices that are able to filter particulate matter, such as the N95s) to employees that are not vaccinated for voluntary use

 Employers should note that respirators are different from face coverings, in that respirators provide personal protection to the individual wearing the respirator. Face coverings, in contrast, are meant to provide source control.  As a result of this requirement, employers will also need to comply with Title 8, Section 5144(c)(2), which has specific requirements for voluntary respirator use, such as providing certain information to users contained in Appendix D of Section 5144. Employers must similarly develop written procedures for employees to use respirators in the workplace that ensure employees’ use of respirators does not pose a hazard and that respirators are used in a correct manner.

  • Partitions: Partitions must continue to be used until July 31, 2021, to protect employees working indoors and at outdoor mega-events. One exception to this is to provide respirators for voluntary use in compliance with Section 5144(c)(2). After July 31, 2021, employers could remove partitions but would be required to reinstall them in the case of multiple COVID-19 infections or outbreaks in the workplace.
  • Exclusion: Fully vaccinated employees that test positive for COVID-19 (or are otherwise considered a COVID-19 case) must still be excluded from the workplace until the return to work requirements (same as the prior ETS) are met. However, fully vaccinated employees no longer need to be excluded from the workplace due to a close contact, so long as they do not develop symptoms.
  • Testing: Employers must continue to make COVID-19 testing available at no cost during paid time to all employees who have had a close contact except for those who are fully vaccinated before the close contact or certain individuals who have recovered from COVID-19.

California employers will need to carefully consider these new standards in developing their plans as the state moves toward reopening on June 15th.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. 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.

Although the Biden Administration has taken steps to maintain H-4 EADs for spouses of highly skilled H-1B workers, the program is still in jeopardy. Now, the Biden Administration is representing the Department of Homeland Security (DHS) in defending the H-4 EAD rule.

In 2014, the Obama Administration published the H-4 EAD rule, giving certain H-4 spouses the ability to apply for work authorization. These spouses were married to H-1B workers who were being sponsored for green cards and who were waiting in line, along with their spouses, to get permanent residence, including work authorization. By 2015, a group of technology workers filed a suit in federal court claiming that the Obama Administration had exceeded its authority by granting work authorization to non-citizens without legislation. That case had various starts and stops and ups and downs, but it is now active again. During the Trump Administration, the case was slowed down because it seemed that President Donald Trump was going to withdraw the H-4 EAD rule. Despite many threats, that never happened.

Summary judgment motions have been filed in the lawsuit, and a group of tech giants and trade groups have filed an amicus brief arguing, along with DHS, that there was nothing illegal about the program’s establishment. The companies argue that:

  • Granting spouses work authorization makes it easier to hire and retain highly skilled H-1B workers; and
  • Eliminating H-4 EADs could mean that needed talent would be more attracted to other countries that are more hospitable.

More than 90,000 spouses currently work pursuant to H-4 EADs. Most of these spouses are highly educated themselves and are married to Indian nationals. Further, most of them are women – many of whom have already been negatively affected economically by the COVID-19 pandemic.

The amicus brief explains the problem succinctly:

This is a case of enormous practical consequence: The regulation at issue here—the H4 Rule . . . —provides work authorization to more than 90,000 H-4 visa-holders (spouses of certain H-1B visa-holders), more than 90% of whom are women. Invalidation of this rule would result in these talented individuals being barred from the workplace, forcibly severing tens of thousands of employment relationships across the country. The results would be utterly destructive for the families impacted; by just one measure, about 87% of these families have made crucial life decisions on the promise of H-4 employment, including whether to have a child and whether to buy a house.

Regardless of the result of the summary judgment motions, there will probably be appeals and, with the appeals, more uncertainty. At a time when our economy needs boosting, this uncertainty can prevent new H-1B workers from coming to the United States and prevent those who are already here from making long-term economic commitments. The best solution is legislation.

President Joe Biden has included work authorization for H-4 spouses in his American Citizenship Act of 2021. The Biden Administration has indicated that it is open to passing parts of the legislation where there can be bipartisan agreement. Bills have been previously introduced that would have prevented the rescission of the H-4 EAD rule. Perhaps actually providing H-4 employment authorization will also come to the fore.

Jackson Lewis attorneys will continue to provide updates on this topic.