Puerto Rico has made COVID-19 vaccination mandatory for additional industries after Governor Pedro R. Pierluisi extended vaccination requirements for employees in the health and hospitality sectors beginning August 16, 2021. Under new Executive Order (EO-2021-063), restaurants, theaters, and other establishments in the dining and entertainment industries must comply with requirements for mandatory vaccination beginning August 23, 2021. Read more.

Anyone thinking of travelling internationally next year needs to plan ahead. Due to backlogs, applications for new or renewed U.S. passports should be filed at least six months in advance. The Department of State (DOS) reports that regular processing takes up to 18 weeks and expedited processing takes at least 12 weeks. DOS is only prioritizing life and death emergencies.

Because of these delays, some individuals are being fooled by scammers who promise passports at “lightning speed.” The Better Business Bureau advises that applicants should be wary of phony websites, unsolicited emails and calls, and unusual forms of payment.

DOS has also been affected by technological issues. It has temporarily suspended its online passport booking system for urgent/emergency passports because of bots. Third parties have been using automated programs (bots) to scoop up all available appointments and then sell them to needy travelers.  During the temporary suspension, applicants will have to use a telephone to book an appointment. This suspension only affects the 26 passport agencies and centers that accept urgent requests. It does not affect bookings at passport acceptance facilities such as post offices, libraries, and certain government offices.

Members of Congress in both parties are looking for answers from DOS about how it is addressing the backlogs and long wait times.

Connecticut is requiring certain healthcare employees be vaccinated with the COVID-19 vaccine. Connecticut joins other states, including Washington and Massachusetts, in mandating vaccination. Read more.

Federal contractors are being contacted by their contracting agencies about implementing requirements relating to President Joe Biden’s mandate that all federal employees and on-site contractor employees either be vaccinated against COVID-19 or face repeated testing, and comply with strict social distancing and masking requirements. Read more.

According to Forbes.com, more employers are considering imposing a premium surcharge on employees participating in the company’s health plan who are not vaccinated for COVID-19. Whether positioned as rewards or penalties, wellness program incentives have become vehicles of choice for encouraging behaviors believed to be healthy and reducing health plan costs. For years, tobacco users have faced health plan premium surcharges if they failed to cease using tobacco products (and if they also failed to comply with reasonable alternatives, such as completing a smoking cessation program). More COVID-19 “unvaccinated” employees may start facing similar surcharges if they choose to remain unvaccinated for COVID.

Implementing a COVID-19 premium surcharge wellness program to provide an incentive for more plan participants to get vaccinated comes with some compliance challenges. Those challenges depend largely on the design of the program and the administration of it. And, unfortunately, the guidance surrounding wellness programs, particularly from the Equal Employment Opportunity Commission (EEOC), remains less than clear. Check out a brief history of the EEOC’s position on wellness (prior to recent updated to its pandemic guidance).

Employers considering a health plan premium surcharge for plan participants who remain unvaccinated have some issues to consider in structuring the program, such as:

  • How much will the surcharge be?
  • How does a vaccination surcharge interact with other wellness incentives the employer offers?
  • Will the surcharge apply only with respect to employees who remain unvaccinated? What about spouses and dependents (assuming a COVID-19 vaccination is available)?
  • How long should plan participants have to get fully vaccinated?
  • What proof will be required to establish vaccination? There has been a rise in fake vaccination cards, and a warning from the FBI that making or buying such cards is a crime. What are the consequences under the plan for a participant who submits a fake card?
  • Is the vaccination requirement “participatory,” or is it “health-contingent”? If health contingent, and considered “activity only,” what reasonable alternative standard will be made available should vaccination be medically inadvisable for the participant?
  • What protections are in place for the handling of vaccination data and, in some cases, medical data supporting a reasonable alternative standard, all of which constitute protected health information under HIPAA?
  • Does the Americans with Disabilities Act apply even if vaccination does not constitute a disability-related inquiry or a medical examination? In other words, what reasonable accommodations need to be made available, if any?
  • As COVID-19 variants continue to emerge along with more talk of vaccine boosters, should the program also include boosters, if available?

On May 28, 2021, the EEOC updated its pandemic guidance to clarify that employers may offer employees an incentive if the confirm they have been vaccinated on their own from a pharmacy, public health department, or other health care provider. According to the same guidance, employers may even offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent, so long as the incentive (a reward or penalty) is not “so substantial as to be coercive.” However, the incentive may not extend to the employee’s family members receiving a vaccination administered by the employer or its agent as that could violate Title II of the Genetic Information Nondiscrimination Act, according to the EEOC.

Prior to its May 2021, guidance, the EEOC had issued a notice of proposed rulemaking (NPRM) attempting to clarify its position on wellness program. Withdrawn by the incoming Biden Administration, the NPRM is summarized here. Notably, the general rule that would have permitted only de minimis incentives, came with an exception for health-contingent wellness programs that (i) are part of, or qualify as, group health plans and (ii) are subject to and comply with the applicable provisions of the ACA/HIPAA wellness rule. Such programs would have been able to provide more than de minimis incentives, provided there were not greater than what is permitted under the ACA/HIPAA wellness rules.

Some employers are moving beyond incentives, including surcharges, to simply mandate COVID-19 vaccinations on the condition of employment. That approach comes with its own set of issues and risks. However, organizations choosing a health plan premium surcharge wellness program approach will want to consider these and other related issues carefully.

New Jersey is requiring employers in covered healthcare and high-risk congregate settings (“covered settings”) to establish a policy that: (1) mandates vaccinations or weekly testing for workers; (2) creates a system to track the results of the applicable testing requirements; and (3) creates a system to communicate the results of such testing to local public health departments.

Executive Order 252 (EO 252), issued by Governor Phil Murphy on August 6, 2021, takes effect on September 7, 2021. Employers in the “covered settings” must ensure adequate policies, privacy protections, and training or education procedures are in place to comply with the mandate. Read our full coverage here.

Puerto Rico Governor Pedro R. Pierluisi has issued an Executive Order (EO-2021-058) making COVID-19 vaccination mandatory for all public employees in the Executive Branch. EO-2021-058, which goes into effect August 16, 2021, also recommends that all commercial establishments and private entities that are open to the public implement similar requirements.

In addition, the Secretary of Health of Puerto Rico has issued an administrative order reinstating masking requirements for fully vaccinated people in all indoor spaces and in outdoor spaces when social distancing of at least six feet is not possible.

Governor Pierluisi also issued EO-2021-062, which goes into effect August 16, 2021, to expand the scope of EO 2021-058 and establish a mandatory vaccination requirement for the following individuals:

  1. Independent contractors in the Executive Branch, and their employees, who physically work in a government agency.
  2. Employees in the health sector (i.e., hospitals, laboratories, emergency rooms, medical services clinics, health centers, medical offices, therapy centers, pharmacies, blood banks, elderly care centers, medical cannabis dispensaries, among others).
  3. Employees and guests of all hotels, hostels, guesthouses, and short-term rentals across the island.

Read our full coverage here.

With the significant increase in COVID-19 cases, the state of California has started implementing new measures to try to combat the rise.  On July 26, 2021, the California Department of Public Health (CDPH) issued an order requiring covered healthcare facilities to verify the vaccination status of all workers and put mandatory testing requirements in place for those employees who are unvaccinated.

Only a week and a half later, CDPH issued a new, first in the nation, order mandating that workers who provide services or work in certain health care facilities receive their first dose of a one-dose vaccine or their second dose of a two-dose vaccine by September 30, 2021.

Covered Facilities

Workers for the following facilities are covered by the order:

  • General Acute Care Hospitals
  • Skilled Nursing Facilities (including Subacute Facilities)
  • Intermediate Care Facilities
  • Acute Psychiatric Hospitals
  • Adult Day Health Care Centers
  • Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers
  • Ambulatory Surgery Centers
  • Chemical Dependency Recovery Hospitals
  • Clinics & Doctor Offices (including behavioral health, surgical)
  • Congregate Living Health Facilities
  • Dialysis Centers
  • Hospice Facilities
  • Pediatric Day Health and Respite Care Facilities
  • Residential Substance Use Treatment and Mental Health Treatment Facilities

Covered Workers

“Worker” for purposes of the order is defined as all paid and unpaid individuals who work in indoor settings where care is provided to patients or patients have access for any purpose. Per the order, this includes workers who have the potential for direct or indirect exposure to patients, and include nurses, technicians, students, contractual staff not employed by the facility directly, security, facilities management, administrative, and billing personnel.

Exemptions

Workers may be exempt from the vaccination requirements only if they provide a declination form signed by the worker stating that they are declining based on religious beliefs or due to a qualifying medical reason. To be eligible for the qualified medical reason exemption the worker must provide their employer a written statement signed by a physician, nurse practitioner, or another licensed medical professional practicing under the license of a physician, stating the individual qualifies for the exemption. The statement should also indicate the probable duration of the worker’s inability to receive the vaccine if known. The statement should not describe the underlying medical condition or disability.

Exempt workers must be tested for COVID-19 twice weekly if in acute health care and long-term care settings, and once weekly if in other health care settings. Exempt workers must also wear a surgical mask or higher-level respirator approved by the National Institute of Occupational Safety and Health, such as an N95 filtering facepiece respirator, at all times while in the facility.

Recordkeeping

Consistent with privacy laws and regulations, the facility must maintain records of each worker’s vaccination status or exemption. For those employees who are exempt from the vaccination requirement, the facility must also maintain all COVID-19 test results.

Jackson Lewis attorneys are closely monitoring updates and changes to legal requirements and guidance and are available to help employers sift through the complexities involved with COVID-19 regulations and orders.

If you have questions regarding compliance with the CDPH order or related workplace COVID-19 requirements, please reach out to the Jackson Lewis attorney with whom you regularly work or any member of our COVID-19 team.

The American Rescue Plan Act of 2021 (ARPA) extends tax credits available to covered employers who provide qualified sick and family leave wages  (within the meaning of ARPA) to their employees between April 1, 2021 through September 30, 2021.

The Internal Revenue Service (IRS) recently updated its FAQs on the Paid Sick and Paid Family Leave credits to now include within the definition of qualified sick and family leave wages, wages paid for leave taken by employees to accompany individuals to COVID-19 vaccination appointments, and to care for individuals recovering from COVID-19 vaccine-related illnesses.

Specifically, the July 29, 2021 updated FAQs make the following key changes:

  • Qualified sick leave wages include wages paid with respect to leave taken by an employee to accompany an “individual” to obtain a COVID-19 immunization or to care for an “individual” recovering from any injury, disability, illness, or condition related to the immunization; and
  • An “individual” for whom employers may seek to receive a tax credit for providing employees with leave to accompany or care for someone following immunization includes: (1) a family member; (2) someone who regularly resides in the employee’s home; or (3) a similar person with whom the employee has a relationship that creates an expectation the employee would care for that person. The term “individual” does not include persons with whom employees have no personal relationship.

Covered employers paying qualified sick and paid family leave wages (including wages related to immunizations as described above) may be entitled to a tax credit for up to two weeks (up to 80 hours) of paid sick leave at 2/3 the employee’s regular rate of pay (up to $200 per day or $2,000 in the aggregate); or a tax credit for up to twelve weeks of paid family leave at 2/3 the employee’s regular rate of pay (up to $200 per day or $12,000 in the aggregate).

Jackson Lewis attorneys will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the American Rescue Plan Act of 2021 or related tax credit issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Disability, Leave and Health Management Group or Employee Benefits Group.