Philadelphia court employees will be required to get vaccinated against COVID-19 as a condition of continued employment; they must be vaccinated, or offer proof of a medical exception, by November 15, 2021, the First Judicial District (FJD) has announced. Moreover, the FJD will review requests for religious exemptions on a case-by-case basis. Read more.

The Centers for Disease Control and Prevention (CDC) announced that as of October 1, 2021, all applicants for Green Cards must be fully vaccinated against COVID-19.

There are some exemptions from the requirement, but anyone who does not qualify for an exemption and refuses vaccination will be inadmissible.

The COVID-19 vaccine joins the list of other vaccines (including, among others, measles, mumps, polio, tetanus, and diphtheria) that have long been necessary for immigration. Vaccination against vaccine-preventable diseases has been required by federal statute since 1996 for every immigrant seeking entry or seeking to adjust status to legal permanent resident.

For now, the United States has accepted three COVID-19 vaccines, but that may be changed by the Advisory Committee on Immunization Practices (ACIP) as time goes on. ACIP is a group of 15 experts who make recommendations to CDC.

Blanket waivers to the COVID-19 vaccine requirement will be available for:

  • Those too young to receive the vaccine
  • People with medical contraindications
  • Individuals from countries with no or limited vaccine supplies

Waivers will not be available for individuals who have had COVID-19 and may still have immunity.

Religious or moral ground exemptions may be requested from USCIS (as has always been the case).

If you have questions about this new vaccination requirements, Jackson Lewis attorneys are available to assist you.

In June 2021, the U.S. Chamber of Commerce released the America Works Report, which is based on an analysis of more than 20 years of federal jobs and employment data. Among the findings is that there are approximately half as many available workers for every open job and the ratio continues to fall. While the COVID-19 pandemic is certainly part of the conversation, it is only one of many contributing factors to the growing shortage. Please see our full analysis here.

Testing for COVID-19 certainly has evolved over the past 18 months or so. As supply and allocation continue to face challenges, guidance on serological/antibody versus viral testing, testing in the workplace, informed consent, among other things have emerged to help guide coronavirus testing in the workplace. President Biden’s Path out of the Pandemic (the “Path”) seeks to drive higher levels of COVID-19 vaccination, while allowing COVID-19 testing as an option under certain components of the Path. Testing as an option to vaccination is likely to create more demand for a product already in high demand, and organizations may need to think more carefully about how the President’s Path may change their current COVID programs. More at home testing may be what is needed to help get further down the Path.

A significant part of the Path for employers is the anticipated rule from the Department of Labor for employers with 100 or more employees. The Path explains:

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

Employers’ struggle to get more of their workers vaccinated for COVID-19 continues. There are several reasons, more than can be identified and explained here. But some include the vaccine’s only having FDA Emergency Use Authorization (EUA) versus full FDA approval (although that is wearing away), required reasonable accommodations for disability and sincerely held religious beliefs, fears about complications from the vaccine, etc.

This has not stopped employers from rolling out a bevy of creative measures to drive vaccination levels higher – gift cards, paid time off, raffles, health plan premium surcharges, increase in paid holidays, and other perks for those who get the vaccination. Some of these efforts have helped. Delta Airlines recent announcement of a $200 health plan premium surcharge is reported to have moved 4,000 of its 20,000 unvaccinated employees to get the vaccination. Still, according to health experts, levels of vaccination are not where they should be and the Delta variant continues to spread.

It is likely, at least in the short run, that a significant segment of the population will remain unvaccinated, notwithstanding the President’s Path, DOL guidance, and employer incentives. So, as weekly testing is likely to become more common, employers will need to manage that cadence at a reasonable cost and with minimal administration, and at home testing may be the answer for a lot of organizations. As reported by the Washington Post:

Most take-home tests, including BinaxNOW and Quidel’s QuickVue test, are antigen tests that look for protein pieces of the virus. PCR tests detect the virus’s genetic material.

Home tests are less sensitive than PCR tests and tend to be better at turning up positive results in people who are symptomatic than those without obvious signs of illness. But they offer some key advantages. Results usually show up in 10 to 15 minutes. And they can be administered at the point of care — nursing homes, clinics, schools, private residences. Most PCR tests are administered at testing sites and need to be sent to labs, meaning turnaround time is almost always 48 hours or more.

There are still lots of issues that need to be considered, not the least of which are the anticipated guidance from the DOL/OSHA and cost. On the issue of cost, one question has been whether at home or other point-of-care tests have to be covered under a group health plan. CMS guidance from earlier this year provides some insight:

Q4. Do point-of-care tests for COVID-19 have to be covered without cost sharing under the FFCRA?

Yes. The FFCRA and the CARES Act make no distinction between point-of-care and other tests; all COVID-19 diagnostic tests that meet one of the criteria outlined in section 6001 of the FFCRA, as amended by section 3201 of the CARES Act, must be covered without cost sharing, prior authorization, or medical management (including for asymptomatic individuals with no known or suspected exposure to COVID-19). 

However, the same guidance clarifies “plans and issuers are not required to provide coverage of testing such as for public health surveillance or employment purposes. But there is also no prohibition or limitation on plans and issuers providing coverage for such tests.”

Nonetheless, as employers begin to ramp up to get on the President’s Path, at-home antigen testing for employees may be a significant part of their plans.    

During a press conference Thursday afternoon, President Biden announced a broad plan that will include as-yet undefined guidance to require federal contractors to “provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract or contract-like instrument.”  While the President’s remarks and the Administration’s corresponding plan suggest a vaccine mandate, the President’s Executive Order does not explicitly mandate a vaccination requirement.   The requirement, however, is expected to be established by the Safer Federal Workforce Task Force.

The President’s plan is encompassed in an Executive Order covering federal contractors (discussed below) and a White House broader publication entitled “Path Out Of The Pandemic – President Biden’s Covid-19 Action Plan.”  The text of the plan states

the President has signed an Executive Order to take those actions a step further and require all federal executive branch workers to be vaccinated. The President also signed an Executive Order directing that this standard be extended to employees of contractors that do business with the federal government.

President Biden’s broader plan will also include a requirement that all employers with 100 or more employees “ensure” their workforces are either “fully vaccinated” or test negative for COVID-19 at least once a week.  Press outlets briefed on the plan today say that OSHA will issue an emergency rule to implement this aspect of the plan.  Additionally, the plan is to require employers to provide employees paid time off to get vaccinated.

The multi-faceted plan the President announced today comes on the heels of a mandate announced in August that all federal employees and on-site federal contractor employees either be vaccinated against COVID-19 or face repeated testing, and comply with strict social distancing and masking requirements.  A recorded webinar regarding the on-site federal contractor mandate can be found here.

Today’s Federal Contractor Executive Order

The President’s Executive Order, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” provides and outline, but stops short of requiring the vaccine and leaves the most critical details to a contract clause to be crafted by the Safer Federal Workforce Task Force.  Specifically, the Order the states:

[b]y September 24, 2021, the Safer Federal Workforce Task Force (Task Force) shall, as part of its issuance of Task Force Guidance, provide definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions to Task Force Guidance that apply to contractor and subcontractor workplace locations and individuals in those locations working on or in connection with a Federal Government contract or contract-like instrument (as described in section 5(a) of this order).

The Order does make clear that federal contracting agencies shall

ensure that contracts and contract-like instruments (as described in section 5(a) of this order) include a clause that the contractor and any subcontractors (at any tier) shall incorporate into lower-tier subcontracts.  This clause shall specify that the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance).

It goes on to state the clause will:

…provide definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions to Task Force Guidance that apply to contractor and subcontractor workplace locations and individuals in those locations working on or in connection with a Federal Government contract or contract-like instrument (as described in section 5(a) of this order).

The Order is similar in many respects to the President’s federal contractor minimum wage order.  For example, “[t]his clause shall apply to any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract.  Thus, the mandate will not apply to a federal contractor’s entire workforce.

As with the federal minimum wage, the COVID Order will apply to any new contract, as well as “new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument…”

Notably, the Order does not apply to manufacturers or suppliers of goods, to grants, to contracts with Indian Tribes under the Indian Self-Determination and Education Assistance Act, or to employees who perform work outside the United States or its outlying areas.

Rather, the Order applies to:

  • Procurement contracts for services, construction, or a leasehold interest in real property;
  • Contracts for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
  • Contracts for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); and
  • Contracts entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.

And explicitly does not apply to:

  •  grants;
  •  contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended;
  • contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation;
  • employees who perform work outside the United States or its outlying areas, as those terms are defined in section 2.101 of the Federal Acquisition Regulation; or
  • subcontracts solely for the provision of products.

Milestone and Effective Dates

  • September 24, 2021: the Safer Federal Workforce Task Force will issue its guidance/draft clause;
  • October 8, 2021: contracting agencies shall take steps to include the clause in contracts entered into on or after October 15, 2021 that are not covered by the Federal Acquisition Regulation;
  • October 15, 2021: the date when the clause should begin appearing in covered contracts.

As we know you are, we are anxious to learn more about the task force guidance and clause and will keep you posted as we learn more.

Over its regular and two special sessions, the Texas legislature has passed several bills that are or soon will be in effect and will impact employers’ workplace policies and procedures. Additional special legislative sessions yet may be held and, with them, more changes may be on the horizon. Read more.

Georgia employers may be experiencing some whiplash from the latest updates to the state’s unemployment and partial unemployment rules and regulations in the wake of the COVID-19 pandemic. Most recently, the Georgia Department of Labor (GDOL) amended its Separation Notice form. This is another update in a long line of notable changes to the state’s unemployment and partial unemployment rules and regulations in the post-pandemic world. Read more.

Once again, at the last moment, ICE has extended “flexibility” for I-9 employment verification. This time, for four more months, until the end of the year, December 31, 2021, due to continuing COVID-19 precautions.

Employees hired on or after April 1, 2021, who work exclusively in a remote setting are temporarily exempt from the physical inspection requirements associated with Form I-9 Employment Eligibility Verification. This flexibility allows employers to continue to inspect I-9 documents virtually, over video link, or by fax or email. Flexibility will continue until an employee undertakes non-remote employment on a regular, consistent, or predictable basis, or until the policy is terminated. ICE reiterated that flexibility applies only to employers and workplaces that are operating remotely. If employees are physically present at a work location, flexibility does not apply.

This four-month extension is helpful because many companies have not been able to return to in-office employment on a consistent basis. Nevertheless, it is important to be prepared for the end of the flexibility program by:

  • Keeping track of employees who have been verified virtually, when they will be returning to work, and the deadline for in-person verification; and
  • Identifying and training staff to conduct the necessary in-person reviews.

Flexibility has been in effect since March 2020. Perhaps ICE will decide to adopt flexibility permanently. But, if not, hopefully DHS and ICE will provide sufficient notice of the end of the policy.

Please reach out to your Jackson Lewis attorney for any questions about Form I-9 verification, staff training, or audits of your I-9 forms and program.

In June, with much fanfare, California announced it was reopening and lifting many of the COVID-19 restrictions that had been in place through state executive and health department orders. However, as there have been surges of COVID-19 across the state, many state and local orders requiring COVID-19 controls have changed in response. Mask mandates and vaccination requirements for certain workers, in particular, have been on the rise. Employers should carefully review new state and local guidance as well as their procedures to account for the new developments.

Read the full article here.

Following on the heels of an executive order by Oregon’s governor requiring full vaccination for teachers, staff, and volunteers in K-12 schools, the Oregon Health Authority issued a new rule requiring that healthcare providers and healthcare staff be vaccinated against COVID-19 as of October 18, 2021.  Read more from our Oregon colleagues here.