On August 2nd, seven Bay Area counties and the city of Berkeley joined the ranks of Los Angeles, Sacramento, and Yolo counties in issuing local ordinances that reinstitute indoor masking mandates. The orders require all individuals, regardless of vaccination status, to wear face coverings when indoors in public settings, with limited exceptions, beginning on August 3rd.

The following counties are included in the joint mandate:

  • Alameda
  • Contra Costa
  • Marin
  • San Francisco
  • San Mateo
  • Santa Clara
  • Sonoma

The City of Berkeley, which runs its own public health agency, also joined in the mandated mask orders.

Under the revised orders everyone, including fully vaccinated individuals are required to wear face coverings indoors in public settings, including but not limited to office settings. The mandates require businesses to implement the indoor face-covering order and encourage employers to make available face coverings to all individuals entering their businesses.

There are some exemptions in the orders, such as under the San Francisco order, which generally allows individuals to remove face coverings indoors for the following reasons:

  • Indoor public settings while alone or with members of the same household
  • When actively eating or drinking
  • In a personal motor vehicle alone or with members of the same household
  • Live or recorded performances or professional sports
  • Religious gatherings
  • Personal services such as facials only while actively receiving service
  • Certain recreational sports such as swimming

While the California Department of Public Health, is currently only recommending universal masking indoors, employers should check the status of the local county and city health orders if they are uncertain about the requirements for masking in areas they operate. The state of California COVID-19 homepage provides links to all county and city public health departments.

Jackson Lewis will continue to track COVID-19 related statutes and ordinances around the state of California. If you have questions about masks in the workplace or related issues, contact a Jackson Lewis attorney to discuss.

On July 28th the California Department of Public Health (“CDPH”) issued revised guidance for the use of masks, including recommending universal masking indoors statewide. This guidance comes on the heels of changes in the Centers for Disease Control (“CDC”) guidance recommending masking for indoor settings in areas with substantial and high transmission of COVID-19. The revised CDPH guidance for universal indoor masking is only a recommendation at this time. However, several counties have gone one step further and are now mandating masking indoors.

Mid-July, the County of Los Angeles issued a revised order mandating masking for public indoor settings regardless of an individual’s vaccination status. More recently, the counties of Sacramento and Yolo have issued orders mandating masking indoors.

These two counties’ orders nearly mirror each other and require that face coverings be worn, regardless of an individual’s vaccination status, in all indoor public settings, venues, gatherings, and workplaces.

Going forward, individuals, businesses, venue operators, and others responsible for the operation of indoor public settings must:

  • Require patrons to wear face coverings for all indoor settings, regardless of their vaccination status, and
  • Post clearly visible and easy-to-read signage at all entry points for indoor settings to communicate the masking requirements to patrons.

The order indicates individuals do not need to wear a face-covering indoors in any of the following circumstances:

  • When working alone in a closed office or room,
  • When actively eating and/or drinking,
  • When swimming or showering in a fitness facility,
  • When obtaining a medical or cosmetic service involving the nose or face, or
  • If the individual is specifically exempted pursuant to CDPH guidance.

The Sacramento and Yolo County orders became effective July 30, 2021.

Several other counties, including San Diego and Riverside, are now strongly recommending, but not yet mandating, masking indoors.

Jackson Lewis will continue to track COVID-19 related statutes and ordinances around the state of California. If you have questions about masks in the workplace or related issues, contact a Jackson Lewis attorney to discuss.

The State Department, in coordination with the CDC, raised its Travel Advisory for the United Kingdom to “Do Not Travel” because of COVID-19 (Level IV).

Coincidentally, the Department’s move came on the same day Prime Minister Boris Johnson lifted most COVID-19-related restrictions in the United Kingdom (yet, excluding Wales, Scotland, and Northern Ireland). He made this move as the case numbers are rising because most adults in the United Kingdom are fully vaccinated.

Despite the United Kingdom lifting its restrictions, the European Union has opened its borders to individuals from the United States (with various restrictions). Further, Canada is about to open its borders to fully vaccinated U.S. citizens and permanent residents. Moreover, the White House reported that the United States will not be lifting travel restrictions due to the spread of the Delta variant. Press Secretary Jen Psaki said that it is not clear how long the restrictions will last. As of July 23, 2021, the CDC announced that the seven-day average of COVID-19 cases in the United States was up over 46 percent from the prior week.

Therefore, despite lobbying efforts aimed at increasing summer tourism from Europe, the Presidential Proclamations restricting travel to the United States due to COVID-19 are likely to remain in effect throughout the tourist season and beyond. The travel restrictions were imposed more than a year ago, in January 2020, when President Donald Trump instituted the ban on travel from China. Further bans were instituted in 2020 and 2021 on individuals travelling from Iran, the United Kingdom, Ireland, the 26-member countries of the Schengen Zone, Brazil, South Africa, and, more recently, India. To overcome these restrictions those who need to travel to the United States but are subject to the bans must either “camp-out” in a non-banned country (if they can enter such a country) for 14 days before attempting to enter the United States or they must apply for and receive a National Interest Exception (NIE) to the relevant ban. Eligibility for NIEs is set forth in a web of complex and changing guidance from the Department of State and Customs and Border Protection.

Employers all over the country are suffering due to the bans. Their key employees cannot travel back and forth from or to the United States for important business purposes. The highly skilled or temporary, seasonal workers they need to boost their businesses and the economy cannot be hired. This is compounded by the fact that most U.S. consulates abroad are extremely back-logged and understaffed due to COVID-19.

If you have questions about the travel bans, Jackson Lewis attorneys are available to assist you in developing travel strategies and applying for NIEs.

On July 26, 2021, the U.S. Department of Health and Human Services (DHHS) and the U.S. Department of Justice (DOJ) issued guidance explaining that “long COVID” can be a disability under Titles II and III of the Americans with Disabilities Act (ADA), which apply to state/local government and public accommodations respectively, Section 504 of the Rehabilitation Act of 1973 (Section 504), and Section 1557 of the Patient Protection and Affordable Care Act (Section 1557).

While most individuals recover from COVID-19 within a couple of weeks, some individuals have ongoing symptoms or experience new/returning symptoms post-COVID-19 infection. Citing to the Centers for Disease Control and Prevention (CDC), the guidance states that people with long COVID have a range of symptoms that can last weeks or months after they are infected with the virus. Common symptoms of long COVID include: tiredness or fatigue; difficulty thinking or concentrating (“brain fog”); shortness of breath or difficulty breathing; headache; headache; dizziness on standing; heart palpitations; chest pain; cough; joint or muscle pain; depression or anxiety; fever; and loss of taste or smell. In some cases, people experience damage to organs, including the heart, lungs, kidneys, skin and brain.

Although the guidance acknowledges that long COVID is not always a disability, it indicates that an individualized assessment is necessary to determine whether a person’s condition or symptoms substantially limit a major life activity. The guidance also provides examples of when long COVID could meet that definition under applicable law.

In addition, the guidance outlines examples of reasonable modification or accommodations that may be necessary for individuals whose long COVID qualifies a disability, such as providing additional time on a test for a student who has difficulty concentrating or modifying procedures so a customer who finds it too tiring to stand in line can sit down without losing their place in line, among other things.

Obligations under Title I of the ADA, which applies to private employers, are beyond the scope of the guidance. However, the definition of “disability” is the same under each title of the ADA. Also, the Office of Disability Employment Policy (ODEP) at the U.S. Department of Labor (DOL) recently launched a new webpage that includes resources on long COVID, such as information on requesting and providing workplace accommodations for individuals with long COVID. In addition, ODEP released a blog discussing the impact of long COVID on workers with disabilities. DHHS, DOJ, and DOL/ODEP do not have jurisdiction over employers for purposes of ADA compliance, and the guidance is informal. The U.S. Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing the employment provisions of the ADA, has not specifically addressed long COVID on its COVID resource page. Nevertheless, the recent guidance from other agencies may preview how EEOC will view claims related to long COVID.

In an effort to slow the spread of the Delta variant of the COVID-19 virus, President Biden announced (in a July 29, 2021 White House Fact Sheet, as well as at a press conference) that on-site federal contractor employees will be asked about their vaccination status and if not fully vaccinated, be required to wear a mask and undergo COVID testing:

[E]very federal government employee and onsite contractor will be asked to attest to their vaccination status. Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice weekly screening testing requirement, and be subject to restrictions on official travel.

President Biden is also directing his team to develop a plan to

“take steps to apply similar standards to all federal contractors.”

The administration will also “encourage employers across the private sector to follow this strong model.”

We are awaiting announcement of the details of this plan and will keep you posted on further developments on this White House initiative.

In its latest guidance, the Centers for Disease Control and Prevention (CDC) recommends that everyone — including individuals fully vaccinated with one of the available COVID-19 vaccines — wear masks in indoor public settings in all areas with substantial and high transmission of the COVID-19 virus. It also recommends that everyone get tested following exposure to someone with a suspected or confirmed case of COVID-19. Read more.

Can employers mandate vaccines? The Department of Justice’s Office of Legal Counsel (OLC) says they can, but before employers do, they should consider the many legal and practical risks.

On July 26, 2021, the OLC issued an opinion (dated July 6, 2021) stating that the COVID-19 vaccinations’ Emergency Use Authorization (EUA) status under the Food, Drug, and Cosmetics Act (FDCA) does not prevent public and private entities from imposing vaccine requirements. However, the OLC expressly states that the opinion does not address whether any other federal, state, or local laws or regulations might restrict the ability of an entity to mandate the vaccine or adopt any particular vaccination policy.  Read our full article.

The hoped-for opening of the U.S.-Canadian border is set to begin in August.

Canada plans to open its land borders to fully vaccinated U.S. citizens and U.S. permanent residents for non-essential travel at 12:01 a.m. on August 9, 2021. The United States, however, has extended its land border travel restrictions on the northern and southern borders until August 21, 2021.

U.S. citizens and permanent residents who are residing in the United States (who are not otherwise exempt from the travel restrictions) will be able to enter Canada at land borders for discretionary travel, i.e., tourism, with proof of vaccination in English or French. Individuals must be 14 days out from full vaccination to be eligible.

Requirements include:

*            Translations of proof of vaccination will be accepted if accompanied by the original vaccination certificates.

*            Travelers should use ArriveCAN to submit travel information, including proof of vaccination.

*            Vaccinations must be from vendors accepted by the Canadian government.

*            Unvaccinated children under 12 years of age will be able to enter Canada if they are travelling with a parent or guardian who is fully vaccinated.

*            Those who cannot receive the vaccinations for health reasons will be able to enter Canada (and the Canadian government will be providing more information on what proof will be required soon).

*            Pre-entry COVID-19 molecular tests will still be required even for fully vaccinated travelers.

*            Quarantines will be required only for individuals who show COVID-19 symptoms.

*            All visitors must adhere to Canada’s COVID-19 health measures, including masking in public places, carrying vaccination proof, and monitoring themselves for COVID-19 symptoms.

Other fully vaccinated foreign nationals will be allowed to enter Canada on or about September 7, 2021, if the country’s epidemiological profile “remains favourable.”

Jackson Lewis attorneys are available to assist you with questions about travel restrictions.

The worker shortage in manufacturing has been exacerbated by the 2020 COVID-19 pandemic, which erased over a decade of job gains in the manufacturing sector, eliminating more than 1.4 million positions, according to a report by Deloitte and the Manufacturing Institute (MI). To counter the trend, manufacturers should consider working with local schools and youth programs to develop a sustainable pipeline of talent. Read more.

The CDC is now recommending that everyone – including fully vaccinated individuals – wear masks in indoor public settings in all areas with substantial and high transmission of the COVID-19 virus and get tested following exposure to someone with suspected or confirmed COVID-19. The new CDC guidance also recommends universal indoor masking for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination status.

In its latest Interim Public Health Recommendations for Fully Vaccinated People, the CDC explains that while infections, even with the Delta variant, happen only in a small proportion of people who are fully vaccinated, “preliminary evidence suggest that fully vaccinated people who become infected with the Delta variant can spread the virus to others.”

In a media briefing today, CDC Director Rochelle Walensky explained that the CDC made this decision based on evidence from recent investigations of outbreaks involving the Delta variant which is now the predominant variant in the U.S.  These investigations have shown that on the rare occasion that a vaccinated individual is infected with the Delta variant, that vaccinated person can have as much viral load as a non-vaccinated individual infected with the Delta variant.

New CDC Recommendations For Fully Vaccinated Individuals in Non-Healthcare Settings

As a result, the CDC recommends new steps for fully vaccinated people in non-healthcare settings to protect themselves from being infected with the Delta variant and potentially spreading it to others:

  • Wear a mask in public indoor settings if they are in an “area of substantial or high transmission.” The CDC suggests that fully vaccinated people might choose to mask, regardless of transmission level, particularly if they or someone in their household is immunocompromised or at increased risk for severe disease or if someone in their household is unvaccinated.
  • Get tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19, regardless of whether they have symptoms, and wear a mask in public indoor settings for 14 days after exposure or until a negative test result.

The CDC continues to recommend that vaccinated individuals isolate and get tested if they experience symptoms of COVID-19 and isolate if they test positive.

Healthcare industry employers should continue to follow CDC’s Healthcare Infection and Prevention Control Recommendations and, where applicable, OSHA’s COVID-19 Healthcare Emergency Temporary Standard.

What Areas Have Substantial or High Transmission?

The CDC’s color-coded COVID Data Tracker shows the level of transmission by county.  Red counties have “High” transmission and orange counties have “Substantial” transmission.  The data tracker is updated daily and is based on total new cases per 100,000 persons in the past 7 days and percentage of NAATs (a type of viral diagnostic test) that are positive during the past 7 days.  Currently, 63.45% of US counties have either substantial or high rates of community transmission.

What Does This Mean For Employers?

The CDC information is just guidance; it does not mandate activity.  However, it does provide recommendations for individuals and businesses to follow and OSHA and many states look to CDC for their own recommendations.  In its  guidance for non-healthcare facilities updated on June 10, 2021, OSHA relied on CDC’s guidance for fully vaccinated individuals when it concluded that “most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure” and focused its guidance on protecting unvaccinated and otherwise at-risk workers.  At that time, the CDC was only recommending that non-vaccinated individuals wear face coverings and OSHA aligned its guidance with the CDC recommending that unvaccinated and otherwise at-risk workers use face coverings or surgical masks, unless their work tasks require a respirator or other PPE. Given OSHA’s reliance on CDC guidance for non-healthcare workplaces, OSHA may expect such workplaces to follow the CDC’s new mask recommendations and is likely to update its guidance to once again align with the CDC.

In the last few weeks, many jurisdictions had begun to reinstitute mask requirements or extend them back to cover vaccinated individuals because of the Delta variant.  We expect with the recent CDC shift, others will likely follow CDC guidance and recommend or require universal masking in indoor public settings in counties where there is substantial or high transmission rates as shown by CDC’s tracker.  Unlike CDC and OSHA “guidance” some of the state and local recommendations are mandatory.  State and local authorities may also adopt the CDC’s view that vaccinated individuals should test following exposure to someone with suspected or confirmed COVID-19.

Employers should continue to carefully monitor state and local guidance as well as the level of transmission in their geographic areas which is evolving rapidly. The updated CDC guidance is specifically tied to areas that have substantial and high transmission rates. Since those rates are tied to the prior 7-day period, the transmission rates will continue to change for the foreseeable future, especially after holidays when individuals naturally gather together. For some employers reinstating mask rules for all employees, regardless of community transmission rates, may be a preferred approach to minimize change, particularly if they have offices in multiple locations. While this type of administrative ease is tempting, employers should keep in mind that such a policy will be unpopular with employees in the areas of the country where vaccination rates are high and transmission rates are low—Currently 36.52% of the counties in the country have low to moderate transmission rates and according to CDC’s tracker, those rates are decreasing.  For employers choosing to tie their mask rules to the varying transmission rates, they should be careful in how they communicate any new masking rule so they do not instill fear or distraction every time masking requirements are adjusted due to changes in the local community transmission rate.

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.