As long as they can show that they are fully vaccinated against COVID-19, foreign travelers will be allowed to visit the United States beginning November 8, 2021, according to the Biden Administration.

Until now, we knew only that the 14-day travel restrictions and the northern and southern border restrictions would be lifted sometime in November. Now, it has been reported that all these restrictions will be lifted, and new vaccination requirements will take effect on November 8, 2021.

On September 20, 2021, the Administration announced it would lift the 14-day travel restrictions that affected individuals trying to enter the United States from China, Iran, the UK and Ireland, the 26 Schengen Zone countries, Brazil, South Africa, and India in November. The quid pro quo for that was that all foreign travelers from any country would have to be fully vaccinated and provide a negative COVID-19 test three days before their proposed entry date to board an airplane to the United States.

On October 14, 2021, the Administration announced the northern and southern border restrictions that had been in place since March 2020 would be lifted when the 14-day travel restrictions were lifted and, at that time, fully vaccinated individuals could enter for any purpose. One proviso: unvaccinated individuals will still be able to enter the United States until January 2022 at land and sea ports of entry, but only if they are entering for “essential” purposes – such as work.

Details about exceptions or exemptions have not been released. We will provide updates as soon as those are available.

The United States will open its northern and southern land borders to fully vaccinated foreign nationals sometime in November 2021. When this happens, it will be the first time since March 2020 that these individuals will be able to enter the United States from Canada and Mexico for “non-essential” purposes, such as tourism, shopping, and family gatherings.

The reopening is expected to occur in two phases. During the first phase, fully vaccinated foreign nationals will be able to enter for non-essential purposes. Unvaccinated individuals will still be able to enter for essential purposes, including for work. During the second phase, scheduled to go into effect in early January 2022, all foreign nationals, whether entering for essential purposes or not, will have to be fully vaccinated. The expectation is that there will be limited exceptions, for example for children.

The “essential travel” restrictions applied only to land and sea borders. Foreign nationals have been able to fly into the United States from Canada or Mexico if they met the COVID-19 testing requirements. In November, however, new COVID-19 vaccination and testing requirements will be in place for all air travel. All foreign nationals seeking to enter the United States from anywhere, with limited exceptions, will have to be fully vaccinated, as well as show proof of a negative COVID-19 test taken within three days of departure. Unvaccinated U.S. citizens and legal permanent residents will need to provide evidence of a negative COVID-19 test taken within 24 hours of boarding a flight to the United States and undergo testing upon arrival.

The United States is a little late to the border game. Canada reopened its border to fully vaccinated Americans on August 9, 2021, and to other fully vaccinated foreign nationals on September 7, 2021. It is still not clear exactly when the new U.S. rules will become effective. The United States already announced that the 14-day travel restrictions on China, Iran, the UK and Ireland, the 26 Schengen Zone countries, Brazil, South Africa, and India are scheduled to be lifted sometime in “early” November. The northern and southern border restrictions will be lifted at the same time. We are still awaiting official guidance on documentation requirements and the implementation date.

Jackson Lewis attorneys will provide updates as they become available.

The State Department cannot rely on presidential proclamations to refuse to adjudicate visas, Judge James E. Boasberg in the U.S. District Court for the D.C. District has held.

Judge Boasberg said nothing about what the State Department needs to do in line with its opinion, but established that the Administration’s travel restrictions did not include visa restrictions.

Since the issuance of the Presidential Proclamations restricting the entry of foreign nationals who have spent any time during the 14 days prior to their entry in over 30 countries (China, Iran, the UK and Ireland, the Schengen Zone countries, Brazil, South Africa and India), most U.S. Consulates abroad have been refusing to issue or even schedule visa interview appointments for individuals who do not qualify for National Interest Exceptions (NIEs) to the Proclamation. This has meant that even foreign nationals who were willing to wait out the 14 days in non-restricted countries would have difficulty getting a visa. It was a Catch-22. If they stayed in a restricted country, they might not get a visa because they did not qualify for an NIE and if they went to a non-restricted country, they might not get visas because they were third-country nationals.

The court recognized that this whole issue may soon become moot because the Biden Administration has said that the 14-day travel restrictions will be lifted in early November. But even when the restrictions are lifted and the Consulates go back to issuing visas rather than NIEs, it is likely that backlogs and delays will persist.

Visa processing at U.S. Consulates abroad was effectively suspended from March through July 2020. Since then, Consulates started a phased resumption of services. However, services are still not fully restored due to various COVID-19 restrictions abroad and many U.S. Consulates are not even fully staffed. As Consulates rely on visa fees rather than government funding, some have been unable to hire new staff due to the lack of fees. This means that it may be difficult for Consulates to staff up to eliminate backlogs.

If you have any questions about the effect of the D.C. Court’s ruling, Jackson Lewis attorneys are available to assist.

As vaccination mandates continue to be a topic of discussion and discord in the workplace, the world of college athletics is not exempt from similar mandatory vaccine controversy.

The First Amendment rights of 16 student-athletes seeking a religious exemption as a basis to avoid compliance with Western Michigan University’s (WMU) COVID-19 vaccination requirement were “likely violated,” the U.S. Court of Appeals for the Sixth Circuit has ruled, upholding a decision of the U.S. District Court for the Western District of Michigan.

The 16 student-athletes represented a broad, diverse group of student-athletes participating on WMU’s sports teams including football, baseball, women’s basketball, women’s soccer, the dance team, and cross-country programs.

The Circuit Court upheld the District Court’s issuance of a preliminary injunction allowing the student-athletes to continue participating in intercollegiate athletics at WMU despite the athletes’ refusal to comply with WMU’s mandate that all student-athletes receive a COVID-19 vaccine to continue playing and representing WMU in intercollegiate competition.

The Sixth Circuit has jurisdiction over Michigan, Ohio, Kentucky and Tennessee, all states containing numerous colleges and universities recognized for their athletic teams.

WMU policy stated that in order “to maintain full involvement in the athletic department,” students must be vaccinated against COVID-19.

This vaccination requirement did not apply to any other students at WMU.

Despite this specific student-athlete directive, the policy provided, “Medical or religious exemptions and accommodations will be considered on an individual basis.”

The Circuit Court focused on the fact that, despite the policy’s recognition of exemptions and accommodations, the WMU denied the student-athlete applications of several student-athletes, stating only that the applicant would have “[n]o participation in Intercollegiate sports.”

In addition, the Court noted, WMU failed to respond to certain accommodation requests, but still prevented the student-athlete from participating as a member of their team in collegiate competition.

The Court also pointed out that WMU only provided the student-athletes the limited choice of getting vaccinated or not fully participating in intercollegiate sports. The Court concluded “that conditioning the privilege of playing sports on plaintiffs’ willingness to abandon their sincere religious beliefs burdened their free exercise rights.”

The Court recognized WMU’s good faith as well as “the burdens COVID-19 has placed on this nation’s universities,” stating its “holding is narrow.”

The Court noted, “[O]ther attempts by the University to combat COVID-19, even those targeted at intercollegiate athletics, may pass constitutional muster.”

However, WMU’s announcement of a process that allows student-athletes to seek individualized exemptions requires the University to explain why it chose not to grant an exemption to any student-athlete seeking such protection.

Jackson Lewis’ Sports Industry Team will continue to monitor any further developments regarding the WMU case and its potential impact on college sports. Please contact a Jackson Lewis attorney or any member of our COVID-19 team if you have any questions.

Manufacturing employers continue to feel the brunt of emerging and evolving trends related to the COVID-19 pandemic: workplace safety, labor shortages, absence management, remote technology, and employee retention — just to name a few. Read more.

On October 5, 2021, Governor Newsom signed Assembly Bill 654 (AB 654), which expands the types of employers who are exempt from COVID-19 outbreak reporting requirements. Specifically, under AB 654, employers such as community clinics, adult day health centers, community care facilities, and child daycare facilities are exempt from COVID-19 outbreak reporting required under Assembly Bill 685 (AB 685) passed in 2020.

AB 654 also clarifies the time frame for employer notification of cases to public health agencies and narrows the definition of worksite for covered exposures. Additionally, AB 654 revises the requirement that employers provide information on COVID-19 employee-related benefits to only apply to employees who were on the premises at the same worksite as the qualifying individual within the infectious period. Similarly, the bill also revises the notification requirement regarding the cleaning and disinfection plan the employer is implementing to only apply to employees who were on the premises at the same worksite as the qualifying individual within the infectious period, and the employers of subcontracted employees who were on the premises at the same worksite as the qualifying individual within the infectious period.

This bill takes effect immediately as an urgency statute.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss

The Federal Acquisition Regulation (FAR) Council has issued a Deviation  Clause that will implement President Biden’s Executive Order 14042:  Ensuring Adequate COVID Safety Protocols for Federal Contractors (FAR Clause).  The FAR Council appended the FAR Clause to its Guidance to federal agencies so that agencies can begin immediate incorporation of the Clause into solicitations and contracts (FAR Guidance), while the FAR Council undertakes the formal rulemaking process, including a notice and comment period, for development of a final FAR clause.

The FAR Guidance, requests contracting agencies to develop deviations allowing use of the new FAR Clause. Significantly, however, individual agencies are left to make their own determinations as to how expansively to include the Clause.  As of this date, three of the largest contracting agencies—the Department of Defense (“DoD”), General Services Administration (“GSA”), and Veterans Affairs (“VA”) have all published deviations directing their contracting officers to incorporate the FAR Clause into solicitations and contracts.

While each of these groups follows the directives of the Executive Order and the FAR Guidance, there are subtle distinctions among the agencies on how far they will expand discretionary coverage.  Contractors should carefully review the directives from each agency with which they contract to get a full sense of the likelihood of coverage.

The FAR Clause requires covered contractors to comply with the Executive Order  and all guidance issued by the Safer Federal Workforce Task Force, including FAQs, “as amended during the performance of the contract,” but otherwise adds little clarifying information beyond the Executive Order and the Safer Federal Workforce Task Force (Task Force) Guidance. The Executive Order and the Task Force Guidance limit the vaccine, masking and distancing mandates to employees working in the United States and its outlying areas.

The FAR Clause defines these terms, consistent with Section 2.101 of the FAR, as:

United States or its outlying areas means—

(1) The fifty States;

(2) The District of Columbia;

(3) The commonwealths of Puerto Rico and the Northern Mariana Islands;

(4) The territories of American Samoa, Guam, and the United States Virgin Islands;

and

(5) The minor outlying islands of Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Atoll.

Section 5(b) of the Order excludes from coverage “employees who perform work outside the United States or its outlying areas…”

Contractors must include the FAR Clause in subcontracts at any tier that exceed the $250,000 simplified acquisition threshold if they are for “services, including construction, performed in whole or in part within the United States or its outlying areas.”

Despite the foregoing limitation to contracts for “services,” the FAR Guidance reiterates that agencies are, nonetheless, “strongly encouraged” to include the FAR Clause in:

  • Contracts that have been or will be awarded prior to November 14 on solicitations issued before October 15; and
  • Contracts that are not covered or directly addressed by the order because the contract or subcontract is under the simplified acquisition threshold or is a contract or subcontract for the manufacturing of products.

As addressed previously, this extension of the possible coverage of the Executive Order and Task Force Guidance means that some contractors may not know for certain that they have a covered contract until the FAR Clause appears in a new contract or is incorporated as a modification to an existing contract.

As employers consider implementing a vaccine mandate to encourage employees to get vaccinated against COVID-19, we have recently discussed the merits of imposing a “vaccine surcharge” on monthly health insurance premiums for those employees who remain unvaccinated.  There were unanswered questions about specific legal issues, but now the Department of Labor (DOL), Health and Human Services (HHS), and the Treasury (collectively, the Departments) issued FAQ guidance (the “FAQ”) to confirm that employers can incentivize employees by offering discounts on monthly insurance premiums for those who have been vaccinated for COVID-19 or impose insurance “surcharges” for those who choose not to be vaccinated (for reasons other than due to a medical condition.)  In making such clarifications, the FAQ also confirmed:

Insurance discounts/surcharges for COVID-19 vaccinations must adhere to existing Health Insurance Portability and Accountability Act (HIPAA) wellness guidelines for activity-based wellness programs.  Q/A-3 of the FAQ confirms that requiring an employee to be vaccinated for COVID-19 to receive the benefit of lower health insurance premiums does require the employee to perform or complete an activity related to a health factor and thus must satisfy the existing five criteria for activity-based wellness arrangements under HIPAA:

  • The program must be reasonably designed to promote health or prevent disease (the FAQ suggests helping schedule vaccination appointments and establishing a toll-free hotline to answer questions);
  • The program must provide a reasonable alternative standard to qualify for the discount on health insurance premiums (the FAQ suggests providing the discount if the individual can verify it would be unreasonably burdensome or medically inadvisable to be vaccinated for COVID-19 due to an existing medical condition);
  • The program must provide notice of the availability of a reasonable alternative standard (the FAQ suggests mandating compliance with the CDC’s mask guidelines for any employee who cannot otherwise be vaccinated because of an existing medical condition);
  • The incentive award (or penalty) cannot be more than 30% of the total cost of employee-only coverage when combined with all other wellness program awards or penalties; and
  • All employees must be offered the opportunity to qualify for the incentive at least once per year.

Note that the FAQ does not require an accommodation for religious or other non-medical reasons.  There is also no prohibition against allowing employees to meet the vaccination criteria at any time during the year.  However, the FAQ does advise employers considering adopting COVID-19 vaccination incentive programs to consult Section K of the Equal Employment Opportunity Commission’s What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

The premium discount/surcharge amount must be included in affordability calculations under the Affordable Care Act.  As we have discussed previously, Q/A-5 confirms that wellness incentives for COVID-19 vaccinations are considered the same as any other non-tobacco incentive.  To determine whether the employee’s monthly premium cost is “affordable” under Code Section 4980H(b), employers with over 50 full-time employees or full-time equivalents must disregard any premium discount amounts and include any vaccine surcharge amounts in the total cost of employee-only coverage.

Employers may not exclude employees from eligibility or coverage under a group health plan solely because of an employee’s COVID-19 vaccination status.  As an alternative to using a vaccine surcharge to incentivize employees, several employers have considered providing an exclusion from coverage under a group health plan for COVID-related claims for nonvaccinated employees.  Q/A-4 clarifies that such exclusionary practices would violate HIPAA nondiscrimination mandates and thus are not permissible.

Employers must provide 100 percent coverage of all COVID vaccination costs, including boosters.  The FAQ confirms that employers must provide coverage under their non-grandfathered group health plan for 100 percent of the cost of all vaccine shots (in compliance with Section 3203 of the CARES Act,) and Q/A-1 confirms this coverage mandate also includes the cost of any booster doses authorized or approved by the Food and Drug Administration or through an Emergency Use Authorization through the Centers for Disease Control.  But in a welcomed clarification, Q/A-1 and 2 indicate that because of confusion from prior guidance, the mandate for 100 percent coverage under a group health plan will not be enforced for periods before the release of this FAQ, October 4, 2021.

Conclusion:  Other questions remain, such as how the vaccine surcharge program should work during mid-year periods and whether it uniformly applies to other dependents (or other questions raised in our previous articles).  The FAQ clarifies many questions for employers considering implementing these arrangements just in time for the upcoming health plan renewal season.  For more information about imposing a vaccination surcharge on unvaccinated employees or other wellness program related questions, please contact the authors or the Jackson Lewis attorney with whom you regularly work.

Without any fanfare, Cal/OSHA updated its FAQs for the emergency temporary standards (ETS) on September 21, 2021, to incorporate new guidance from the California Department of Public Health (CDPH).

Importantly, the CDPH has relaxed its quarantine recommendations for unvaccinated, asymptomatic workers.  The ETS, which governs most workplaces in California, requires a 10-day quarantine period in most circumstances.  The recent guidance from the CDPH provides an even shorter quarantine option for asymptomatic unvaccinated employees.  Specifically,  asymptomatic unvaccinated employees may now end their quarantine either 10 days after exposure or 7 days after exposure if they test negative.  However, the diagnostic specimen has to be collected at least 5 days from the date of exposure to take advantage of this guidance.

In its FAQs, Cal/OSHA acknowledged that it is required by Executive Order N-84-20 to defer to CDPH’s quarantine lengths if they are shorter than the exclusion requirements in the ETS.  However, Cal/OSHA also noted, if an employer prevents an employee from complying with the shorter quarantine conditions recommended by the CDPH, then the longer quarantine requirements in the ETS will apply.  Additional highlights from the new CDPH guidance are below.

Isolation for Individuals who Test Positive

The CDPH recommends a symptom-based strategy for determining the duration of isolation for people with COVID-19 who are symptomatic. Under this strategy, persons with COVID-19 who have symptoms and were instructed to care for themselves at home may discontinue self-isolation under the following conditions:

  • At least 10 days have passed since symptom onset; AND
  • At least 24 hours have passed since the resolution of fever without the use of fever-reducing medications; AND
  • Other symptoms have improved.

For persons with COVID-19 who do not have any symptoms, the CDPH recommends they self-isolate at least 10 days from the date of the first positive COVID-19 diagnostic test.  If they develop symptoms during this time, the standard for symptomatic individuals above will apply instead.

Quarantine for Unvaccinated Persons

The CDPH recommends that unvaccinated persons who have had close contact with someone suspected or confirmed to have COVID-19 get tested and self-quarantine. Close contacts that remain asymptomatic may discontinue self-quarantine under the following conditions:

  • Quarantine can end after Day 10 from the date of last exposure without testing, OR
  • Quarantine can end after Day 7 if a diagnostic specimen is collected on day 5 or later from the date of exposure and the test is negative.

In addition to the conditions above, during the 14 days after exposure, the close contact should continue monitoring their symptoms, wear a mask when around others, wash their hands, avoid groups, and stay at least 6 feet from others. If the person develops symptoms within 14 days of exposure, they should self-isolate immediately and get tested.

Quarantine for Vaccinated Persons

Under the CDPH guidance, the exposed person does not have to quarantine if they are fully vaccinated before the exposure and have not developed symptoms. Similarly, if an exposed person tested positive for COVID-19 before their recent exposure and (1) it has been less than 3 months since they started having symptoms from their prior infection and (2) they have not had any new symptoms, they do not need to quarantine.

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.

While not all the details are available, the Biden Administration is releasing more information about the lifting of the 14-day travel restrictions.

Here is what is known so far:

  • The 14-day travel restrictions on China, Iran, the UK and Ireland, the 26 Schengen Zone countries, Brazil, South Africa and India are scheduled to be lifted sometime in “early” November. No specific date has been provided.
  • On that same date, the new rule requiring all foreign national adults to be fully vaccinated before boarding flights to the United States, in addition to showing proof of a negative COVID-19 test taken within 72 hours of departure, will become effective.
  • Individuals must be “fully vaccinated” with a COVID-19 vaccine approved for emergency use by the World Health Organization (WHO). However, the specific vaccines that will be accepted and the criteria for proof of vaccination have yet to be released. This may mean that the approved vaccines could go beyond those that are currently authorized for use in the United States.
  • Unvaccinated U.S. citizens and legal permanent residents will face tougher requirements. They will need to provide a negative COVID-19 test taken within 24 hours of boarding a flight to the United States and will undergo testing upon arrival.
  • Airlines will be required to collect information on travelers that can be used for contact tracing.

Details not yet available include:

  • How children will be treated under the new regimen.
  • The specifics regarding the types of testing that will be required and accepted (e.g., rapid tests, PCR tests, and so on)
  • How the “upon arrival testing” of unvaccinated U.S. citizens and permanent residents will be conducted.
  • Some limited exemptions to the requirements (perhaps for children and for some humanitarian concerns) are expected, but those have not been detailed. In addition, anyone who receives an exception may have to agree to “vaccination on arrival.”
  • Whether some form of the current national interest exception program will remain in effect for travelers who do not meet the proposed vaccination requirements.

While companies have surely been stymied by the 14-day travel restrictions, it is not yet clear how the switch from the 14-day restrictions for 33 countries to vaccination requirements for all foreign nationals will affect businesses and the economy overall. While employers who have been dealing with the 14-day travel restrictions have something to look forward to, employers with employees they wish to transfer from abroad or who have business dealings in countries with low vaccination rates or limited access to WHO-approved vaccines need to be thinking ahead to November.

Jackson Lewis attorneys will continue to provide updates on these important travel requirements as they become available. If you have any questions about strategies to deal with the proposed changes, please contact us.