Employers in the U.S. are facing regulatory upheaval on multiple fronts. The federal government has taken up a new interest in potentially limiting the applicability of restrictive covenants, such as non-compete agreements. Meanwhile, the Occupational Safety and Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS) (currently stayed by the Fifth Circuit) requiring employers with 100 or more employees to ensure all employees are either vaccinated or taking weekly COVID-19 tests.

These seemingly disparate legal trends are colliding in recent federal and state bills.

On November 3, 2021, nine Republican House Members sponsored a Federal bill that would void existing non-compete agreements for any employee who is fired for “not receiving a COVID-19 vaccine.” The bill would also require the Federal Trade Commission (FTC) to issue regulations prohibiting employers from enforcing non-compete agreements with such employees.

Similar bills have been introduced around the country. The trend began in Texas and Tennessee, then New Hampshire followed suit on November 16, 2021.

The Tennessee bill has even more “bite” than its federal and state companions. If a private employer requires the signing employee to receive a vaccine as a condition of employment, any non-compete, non-solicitation, non-disparagement, or confidentiality provision entered after the effective date of the proposed law would be void and unenforceable. Even if the employee gets the vaccine voluntarily and later resigns to work for a competitor, these provisions would be void simply by virtue of the employer having required the vaccine in the first place.  (Which, of course, may be mandatory under federal law.)

Whether any of these bills actually gains traction remains to be seen. We will continue to monitor this legislation and post updates once we know more. In the meantime, Jackson Lewis attorneys are available to assist employers navigate regulatory changes in these, and other, areas of law.

U.S. passport agencies maintained extremely limited operations as a consequence of the COVID-19 pandemic. There were significant delays, application status could not even be checked online and people were encouraged to wait to apply until normal operations resumed absent life or death emergencies. In June 2020, the agency started resuming regular operations with a backlog of 1.7 million applications in place. The Department of State recommends that individuals apply four to six months in advance of travel, but the published timelines are not quite that long. Those timelines suggest that regular processing should take two to three months and expedited processing (which is available now) takes five to seven weeks from the time the application is submitted.

Submission can be another hurdle. In-person application spots are limited and individuals must apply in person (not by mail) if any of the following apply:

  • First passport application;
  • Applicant is under 16 years of age;
  • Last passport was issued when the applicant was under 16 years of age;
  • Prior passport was lost, stolen, or damaged; or
  • Prior passport was issued more than 15 years ago.

Individuals applying for U.S. passports may receive the new Next Generation Passport. The new passport is modernized and designed to be smarter and safer than older passports. It has new security features including polycarbonate data page, laser engraved personalization, and updated artwork featuring images of U.S. architecture, history, culture, landscapes, and traditions. Prior versions of U.S. passports and cards continue to be valid until they expire. The Passport Agency also notes that even those who apply now may still receive the older style passport while it gradually replaces its passport printers.

Although most U.S. citizens receive passports with “regular blue” covers, some U.S. passports have different covers. Among others, there are:

  • Diplomatic Black Passports for foreign service officers and others with diplomatic status;
  • Official Brown Passports for employees of the U.S. government when travelling abroad on business; and
  • Service Gray Passports issued to third-party contractors travelling in support of the U.S. government.

When you travel abroad on a U.S. passport, you may be required to present a passport with at least six months’ validity beyond your proposed travel dates.

If you have any questions about applying for U.S. passports in the United States or abroad, Jackson Lewis attorneys are available to assist you.kim

The EEOC has recently updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to include a section on Retaliation and Interference.

The update to EEOC’s guidance reviews anti-retaliation protections under the federal equal employment opportunity (EEO) laws including Title VII of the Civil Rights Act (Title VII) and Title I of the Americans with Disabilities Act (ADA). The updated guidance provides some reminders for employers in the COVID-19 context:

  1. Current employees (including full-time, part-time, probationary, seasonal, and temporary), job applicants, and former employees are protected by the anti-retaliation provisions of the EEO laws. In addition, anti-retaliation protections apply regardless of an applicant’s or employee’s citizenship or work authorization status.
  2. Retaliation includes an employer’s action in response to an activity protected under the EEO laws that could deter a reasonable person from engaging in protected activity. However, usually, retaliation “would not include a petty slight, minor annoyance, or a trivial punishment.”
  3. An employee who has engaged in protected EEO activity may still be subject to discipline for legitimate reasons if the employer is acting based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline.
  4. The ADA prohibits not only retaliation for protected EEO activity but also “interference” with an individual’s exercise of ADA rights, such as asking for a reasonable accommodation.

These considerations under EEO laws which are always good to remember, are especially important as employers cope with unique situations with accommodation requests and high tensions in the workplace due to COVID-19.

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

Updated! The Safer Federal Workforce Task Force has updated the error in the vaccination deadline reported yesterday, correcting January 18, 2021 to January 18, 2022.

Vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than January 18, 2022. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.

On November 10, the Safer Federal Workforce Task Force again updated the binding Guidance for Federal Contractors and Subcontractors implementing Executive Order 14042, and issued new and updated FAQs for federal contractors.

January 18, 2022 “Full Vaccination” Deadline is “Official” 

The first order of business was to officially extend the full vaccination deadline from December 8, 2021 to January 4, 2022, as stated in the White House Fact Sheet regarding the OSHA Emergency Temporary Standard (ETS).  As we addressed last week, the deadline was extended to correspond with the ETS and CMS deadlines.  Specifically, the fact sheet stated employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022.

Recall, however, that the Executive Order’s definition of “fully vaccinated” is two weeks after a last vaccine shot:

  • Fully vaccinated – People are considered fully vaccinated for COVID-19 two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine. There is currently no post-vaccination time limit on fully vaccinated status; should such a limit be determined by the Centers for Disease Control and Prevention, that limit will be considered by the Task Force and OMB for possible updating of this Guidance.

Thus, the critical deadline is January 18, two weeks after the deadline to get a final dose.  January 4 will be the last day a covered employee could receive a final dose and be fully vaccinated by January 18.  The newly updated Guidance actually uses the date of January 18, 2021, but this is obviously a typo which we think will likely be corrected imminently by the TaskForce.

Given the Fact Sheet is not itself regulatory action, there was some confusion as to whether the deadline had been “officially” extended, especially given that the ETS was subsequently enjoined by the Fifth Circuit Court of Appeal.  Because the Guidance implements Executive Order 14042, the deadline has now been officially extended.

New and Updated FAQs

 None of the new or updated FAQs is particularly significant but they are helpful.  A new FAQ provides a link to signage for employees regarding the vaccine, masking and distancing requirements:

  • NEW Q: Is there sample signage that a covered contractor can post at entrances to covered contractor workplaces providing information on safety protocols?
  • A: Yes. Covered contractors should post signage at entrances to covered contractor workplaces providing information on safety protocols for fully vaccinated and not fully vaccinated individuals and instruct individuals to follow the appropriate workplace safety protocols while at the covered contractor workplace. Sample signage for areas of high or substantial levels of community transmission can be found here. Sample signage for areas of low or moderate levels of community transmission can be found here.

Another updates CDC guidance regarding when a vaccination should be delayed.

Given the new deadline, this FAQ has also been updated (unfortunately with the same obvious typo):

  • UPDATED Q: Are the workplace safety protocols enumerated in the Task Force Guidance for Federal Contractors and Subcontractors the same irrespective of whether the work is performed at a covered contractor workplace or at a Federal workplace?

 

  • A: Yes. The Task Force Guidance applies to all covered contractor employees and to all contractor or subcontractor workplace locations.  While at a Federal workplace, covered contractor employees must also comply with any additional agency workplace safety requirements for that workplace. Because covered contractor employees working on a covered contract need to be fully vaccinated after January 18, 2021, covered contractor employees who work only at a Federal workplace need to be fully vaccinated by that date as well, unless legally entitled to an accommodation.

We are monitoring the Task Force website on a daily basis for updates to the Guidance and the FAQs, so please check back soon.

The Centers for Medicare & Medicaid Services (CMS) has issued an Interim Final Rule (IFR) establishing the COVID-19 vaccination requirements for staff employed at Medicare- and Medicaid-certified providers and suppliers. Read more.

Several states, Washington D.C., and Puerto Rico have made updates to their COVID-19-related laws, regulations and orders.

List of States Limiting Employer COVID-19 Vaccine Mandates Continues to Expand

Iowa, Tennessee, Utah, and Florida recently have joined the expanding list of states passing laws curtailing the use of COVID-19 vaccine mandates by private employers. Read the details here.

California

As uncertainty about the federal OSHA Emergency Temporary Standard persists, Cal/OSHA’s Standards Board has announced it will not discuss the changes to California COVID-19 ETS at its November 18th meeting. Read more.

Puerto Rico

Puerto Rico Governor Pedro R. Pierluisi has issued an Executive Order (EO) requiring all private sector employers with at least 50 employees to adopt COVID-19 vaccine or testing requirements. Read more.

Washington, D.C.

On November 18, 2021, D.C. Mayor Muriel Bowser signed the “COVID Vaccination Leave Emergency Amendment Act of 2021” and it has now been enacted. Accordingly, the Emergency Act will remain in effect for not more than 90 days, or until February 16, 2022. The legislation ensures paid time off for both COVID-19 vaccination and recovery from any side effects. Read more.

The Centers for Medicare & Medicaid Services (CMS) has issued an Interim Final Rule (IFR) establishing the COVID-19 vaccination requirements for staff employed at Medicare and Medicaid-certified providers and suppliers. Read more.

In June, California relaxed many of its COVID-19 restrictions, including allowing fully vaccinated individuals to go without a face covering indoors, with limited exception. Also in June, Cal/OSHA passed an amended Emergency Temporary Standard (“ETS”) that allowed for fully vaccinated employees to go without a face covering in most situations.

However, as California started to see an increase in COVID-19 cases, many county health departments reinstated mask mandates regardless of an individual’s vaccination status, including Los Angeles and Counties in the San Francisco Bay Area. And in July, the California Department of Public Health also issued a recommendation for universal masking, though it was not a mandate.

As California heads into the end of the year, some counties are now setting up criteria to lift mask mandates.

At the start of October, the Bay Area Health Officers issued criteria for lifting indoor masking requirements. Under these criteria, the following would need to occur for indoor masking requirements to be lifted:

  • The jurisdiction reaches the moderate (yellow) COVID-19 transmission tier as defined by the Centers for Disease Control & Prevention (CDC), and remains there for at least three weeks, AND
  • COVID-19 hospitalizations in the jurisdiction are low and stable, in the judgment of the health officer, AND
  • 80% of the jurisdiction’s total population is fully vaccinated, OR 8 weeks have passed since the COVID-19 vaccine has been authorized for emergency use for 5- to 11-year-olds.

Thus far, only Marin County has satisfied the criteria and lifted its mask mandate.

And at the start of November, the Los Angeles County Department of Public Health (LADPH) released its own framework for lifting its mask mandates.

For outdoor mega-events involving more than 10,000 people, LADPH outlined that before masking requirements are lifted, all of the following criteria need to be met:

  • L.A. County case rates must demonstrate three consecutive weeks at or below moderate transmission as defined by the CDC – that is, less than 50 new weekly cases per 100,000 residents;
  • hospitalizations remain low and stable at or below 600 daily COVID hospitalizations for three consecutive weeks;
  • 80% or more of county residents 12 and older are fully vaccinated; and,
  • there are no emerging reports of significantly circulating new variants of concern that threaten vaccine effectiveness.

For masking requirements to be lifted at indoor events or establishments involving fewer than 1,000 people, including indoor offices and worksites,

  • sites must have a vaccination verification process in place, and,
  • All employees and customers must be fully vaccinated, accommodating with additional requirements those employees with approved exemptions.
  • And L.A. County metrics must meet all of the same standards as for lifting masking requirements at outdoor mega-events.

Employers should continue to monitor local health departments, the California Department of Public Health, and Cal/OSHA for changes to COVID-19 workplace requirements. Employers can check Jackson Lewis’ COVID-19 Advisor for Updates in workplace requirements in California and around the country.

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

As employers with 50 or more full-time (or full-time equivalent) employees are well aware, the Patient Protection and Affordable Care Act (”ACA”) requires annual submission of Forms 1094-C and 1095-C with the Internal Revenue Service, and distribution of Forms 1095-C.  These submissions and distributions are generally due:

 Furnishing of Forms 1095-C to employees: January 31
Paper submission of Forms 1094-C and 1095-C to the IRS (if applicable): February 28
Electronic submission of Forms 1094-C and 1095-C to the IRS (required for employers submitting 250+ forms): March 31

Over the years since these requirements became effective, however, the IRS has often extended these deadlines.  First, such extensions were intended to aid employers as they got used to the new rules. Most recently, an extension was announced via Notice 2020-76 regarding the 2020 deadlines to recognize the challenges brought by the COVID-19 pandemic.

No such luck, it appears, for the 2021 reporting as no such extension has been announced (nor is one expected).  This means that employers subject to the ACA’s reporting requirements should be working internally or with their outside vendors to meet these deadlines.

One issue we are seeing is that employers who have fluctuated in size a great deal over the past two years (sometimes getting smaller and then growing again quickly, or vice versa) are unsure of whether the ACA reporting requirements apply to them.  Generally, the reporting requirements apply starting the year after which the employer first averages 50 or more full-time (including full-time equivalent) employees on business days.  As with all things tax code, however, there can be a lot more to the analysis.

The Employee Benefits practice group is available to help employers navigate these rules’ nuances and ensure they don’t get tripped up with unexpected reporting penalties.  Please contact a team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.