Due to a rise in transmission of the Delta variant causing a rapid increase in COVID-19 cases in California, the California Department of Public Health (CDPH) issued a new order to help prevent the spread of COVID-19 in hospitals, high-risk congregate settings, and other health care settings.

The order takes effect on August 9, 2021, and states that all covered facilities must be in full compliance by August 23, 2021.

The order applies to the following types of facilities:

  • Acute health care and long-term care settings, including:
    • General Acute Care Hospitals
    • Skilled Nursing Facilities (including Subacute Facilities)
    • Intermediate Care Facilities
  • High-risk congregate settings, including:
    • Adult and Senior Care Facilities
    • Homeless Shelters
    • State and Local Correctional Facilities and Detention Centers
  • Other health care settings, including:
    • Acute Psychiatric Hospitals
    • Adult Day Health Care Centers
    • Adult Day Programs Licensed by the California Department of Social Services
    • 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
    • Dental Offices
    • Dialysis Centers
    • Hospice Facilities
    • Pediatric Day Health and Respite Care Facilities
    • Residential Substance Use Treatment and Mental Health Treatment Facilities

The order requires covered facilities to verify the vaccination status of all workers and have a plan in place for tracking verified worker vaccination status.

The order also mandates COVID-19 testing requirements for those employees who are unvaccinated or incompletely vaccinated. The testing requirements set forth in the order are based on the type of facility where the employee works.

The order also sets forth mask and respirator requirements for covered facilities.

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 nation’s largest healthcare groups and associations have released separate statements endorsing the position that all healthcare workers should be fully vaccinated and supporting the implementation of mandatory COVID-19 vaccination policies in hospitals and health systems nationwide.

On July 21, 2021, the American Hospital Association (“AHA”), an organization representing close to 5,000 members, released a statement urging all healthcare workers to be fully vaccinated. The statement also voiced the AHA’s support of hospitals and healthcare systems that adopt mandatory COVID-19 vaccination policies for workers, while recognizing that such policies must be shaped by local laws and other factors impacting whether and how those policies are implemented. Similarly, America’s Essential Hospitals (“AEH”), an association representing more than 300 members, also released a similar statement encouraging mandatory vaccination policies. AEH’s statement concludes by urging its member hospitals to “take quick action, consistent with federal and state guidance and laws, to require vaccination for their employees.”

The AHA encourages healthcare systems to take certain steps to facilitate an orderly roll out of any mandatory policy, including:

  • Providing exemptions to the policy for medical reasons and accommodations (e.g., a sincerely held religious belief);
  • Following relevant CDC guidelines, OSHA requirements, and other applicable state or federal law and/or guidelines regarding the use of personal protective equipment and other infection control practices for unvaccinated workers who have been granted an exemption or accommodation;
  • Implementing the policy in compliance with applicable local and state laws;
  • Following CDC and FDA guidelines on how to determine which workers are eligible and should be prioritized for vaccination;
  • Monitoring data relating to FDA authorized or approved vaccines that are being distributed;
  • Providing workers with information about the efficacy and safety of the COVID-19 vaccine in an effort to encourage voluntary vaccinations; and
  • Offering flexibility in workers’ schedules to permit time for workers to receive the vaccine and recover from potential side effects.

Shortly after the AHA and AEH released their statements, a group of more than 50 health care organizations (including the American Medical Association, the American College of Physicians, the American Academy of Pediatrics and the American Public Health Association) released a joint statement calling all healthcare and long-term care employers to create a mandate requiring that their employees receive the COVID-19 vaccine.

These statements follow a recent trend set by local state hospital associations, including the Connecticut Hospital Association and Virginia Hospital & Healthcare Association, where such organizations have voiced their support of mandatory COVID-19 vaccination policies for healthcare workers. Additionally, dozens of hospitals and healthcare systems nationwide have publicly announced the implementation of a mandatory COVID-19 vaccination policy for their workers.

Healthcare employers considering mandatory vaccination policies must consider key legal and practical considerations in crafting any such policy. In addition to the items identified in the AHA statement, healthcare employers must consider additional factors, including: 1) additional obligations that may exist in unionized workforces; 2) interactive dialogue processes relating to accommodation requests; 3) employee relations considerations and messaging; 4) consequences for noncompliance; 5) applicable state and local laws and regulations; 6) whether and how the employer will confirm vaccination status and the coordination of related recordkeeping; and 7) the impact such a mandate will have on wage and hour compliance.

If you have questions about how these trends impact your business or on your company’s specific practices or policies, please reach out to the Jackson Lewis attorney whom you regularly work, or any member of our Healthcare Industry Team.

Summer law clerk Jennie Marco contributed significantly to this post.

Hundreds of colleges and universities across the country, both public and private, have issued policies requiring students be fully vaccinated against COVID-19 prior to the start of the fall semester. In the first court case to address a challenge to a university’s COVID-19 vaccination mandate, the Northern District of Indiana denied a preliminary injunction motion filed by eight students seeking to enjoin Indiana University from enforcing its policy requiring the COVID-19 vaccine for the fall 2021 semester. Klaassen et al. v. The Trustees of Indiana University, No. 1:21-CV-00238 (N.D. Ind. July 18, 2021). Read more.

Public schools and universities are barred from requiring vaccines that have not received full U.S. Food and Drug Administration (FDA) approval under Ohio House Bill 244 (HB 244), signed by Governor Mike DeWine on July 14, 2021. The new law goes into effect on October 13, 2021. Read more about this new Ohio law here.

Secretary of Homeland Security Alejandro N. Mayorkas announced an 18-month extension and re-designation of Somalia for Temporary Protected Status (TPS) through March 17, 2023.

The Secretary stated, “Three decades of conflict in Somalia, along with natural disasters and disease outbreaks, have worsened an already severe humanitarian crisis.” Somalia has been dealing with violence, drought, flooding, and food insecurity along with the additional challenges to their healthcare system due to COVID-19.

The approximately 450 Somali nationals in TPS in the United States will be able to extend their status. The re-designation will allow an estimated 100 additional individuals who have resided in the United States continuously since July 19, 2021, to file initial applications for TPS protection. DHS has not announced the particulars, but current and new beneficiaries will have to apply during a 60-day registration period and will be able to apply for employment authorization and travel authorization.

The specifics regarding the application process should be announced in the Federal Register soon. It is important not to attempt to file any applications before that notice is published.

TPS is a form of humanitarian relief. DHS may designate countries for TPS due to temporary conditions that prevent nationals from safely returning home or that prevent countries from being in a position to handle repatriation adequately.

Jackson Lewis attorneys will provide updates as they become available.

The Deferred Action for Childhood Arrival program (DACA) is not legal, U.S. District Court Judge Andrew Hanen has ruled in State of Texas et al. v. U.S. et al.

Judge Hanen issued an injunction preventing the Department of Homeland Security (DHS) from accepting new DACA applications. However, recognizing the substantial reliance interests involved, he allowed current DACA beneficiaries to continue to renew their statuses and their employment authorization – at least while appeals are pending. The Biden Administration immediately responded that it would appeal the decision.

The case is expected to wind its way through the U.S. Court of Appeals for the Fifth Circuit (in New Orleans) and end up at the U.S. Supreme Court for a third time. The first time was when the Supreme Court heard an appeal of Judge Hanen’s earlier decision that the extension of DACA and the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents were illegal. In that case, the Supreme Court tied, leaving Judge Hanen’s nationwide injunction in place. The second time, the Supreme Court ruled on narrow technical grounds that the Trump Administration had not followed the proper procedures when it attempted to terminate the DACA program.

The question now is whether Congress will pass legislation to protect the “Dreamers” and provide them a path to permanent residence and U.S. citizenship. The American Dream and Promise Act, passed by the House in 2021, provides those paths, but the full bill is not likely to pass in the Senate. A carve-out of the DACA provision might be possible. Otherwise, the thousands of individuals who were brought to the United States by their parents before the age of 16, will remain in limbo.

DACA was put into place by the Obama Administration in 2012 and has been under attack since 2017, when the Trump Administration announced it would terminate DACA. President Joe Biden has stated that Dreamers are “part of our national fabric and make vital contributions to communities across the country every day.” President Biden recognized the Dreamers’ contributions have been particularly evident during the COVID-19 pandemic, as “[m]any have worked tirelessly on the frontlines throughout this pandemic to keep our country afloat, fed, and healthy – yet they are forced to live with fear and uncertainly because of their immigration status.”

Judge Hanen’s decision in State of Texas v. U.S. does not affect the status or employment authorization of any current DACA beneficiaries. DACA beneficiaries who have unexpired employment authorization documents do not need to reverify employment authorization as a result of this ruling (although they will need to reverify prior to the expiration of their employment authorization).

Please reach out to your Jackson Lewis attorney with any question about employees on DACA.

On June 17th the Cal/OSHA Standards Board passed amended COVID-19 Emergency Temporary Standards, which were intended to bring consistency between the California Department of Public Health mask guidance and Cal-OSHA’s workplace requirements.

However, since the passage of the amendments, several counties, including Los Angeles County, have seen a rise in COVID-19 cases. In response, the Los Angeles County Public Health Department (LADPH) issued a revised order that went into effect on July 17, 2021. This followed a “strong recommendation” that all individuals wear masks indoors that was issued by the LADPH in late June.

Under the new order, everyone must wear a mask, regardless of vaccination status in the following situations:

  • In all public settings, venues, gatherings, and businesses in Los Angeles County
  • On planes, trains, buses, ferries, taxis and ride-shares, and all other forms of public transport
  • In transportation hubs like airports, bus terminals, train stations, marinas, seaports and other ports, subway stations, or any other area that provides transportation
  • Healthcare settings, including long-term care facilities.
  • State and local correctional facilities and detention centers
  • Shelters and cooling centers
  • Indoor at any youth-serving facility (such as K-12 schools, childcare, day camps, etc.)
  • In any outdoor location where it is the policy of the business or venue.

Individuals, businesses, venue operators or a host of public indoor settings must:

  • Require all patrons to wear masks for all indoor settings, regardless of their vaccination status; and,
  • Post clearly visible and easy to read signage, with or without having an employee present, at all entry points for indoor and outdoor settings to communicate the masking requirements to patrons.

Although Cal-OSHA allows fully vaccinated employees to forgo face coverings in the workplace upon providing proof, or attesting, that they are fully vaccinated, Cal-OSHA allows local health jurisdictions to require more protective mandates. Accordingly, the LA County order overrides the more permissible Cal-OSHA Temporary Standards.

The LA County order allows certain employees in workplaces to be exempt from wearing a mask when performing specific tasks that cannot feasibly be performed wearing a mask. These types of exceptions are limited to the period of time in which such tasks are actually being performed. Moreover, workers who cannot feasibly wear a mask while performing their work must be tested for COVID-19 at least twice per week, unless the employer is provided proof of the employee’s full vaccination against COVID-19 or proof of recovery from laboratory-confirmed COVID-19 within the past 90 days.

The County has also issued revised guidance regarding mask requirements available on their website.

The Bay Area could soon have renewed masks mandates, as the Counties of Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, Sonoma, and the City of Berkley have issued a joint statement strongly recommending masking for everyone 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.

Several months after Governor Newsom signed into law a statewide right of recall statute affecting the hospitality industry and building services, the Labor Commissioner’s office finally issued a Frequently Asked Questions page.

The FAQs clarify that an acceptance by an employee of an offer must be delivered to the employer within 5 business days, which does not include Saturdays, Sundays, or California state holidays.

Moreover, the obligation to offer positions does not end if an employee declines a position. If an employee turns down a job offer, an employer must offer the employee subsequent jobs that are to be filled assuming the employee worked at the same or similar position. As stated in the statute, an employer does not have to recall a non-qualified employee. A qualified employee is defined as an employee who held the same or similar position with the employer at the time of the employee’s most recent lay-off.

An employer must provide the laid-off employee a written notice within 30 days of the date of filling the position if the position is filled by a less senior employee. The notice must include the length of service with the employer of those hired in lieu of that recall, along with all reasons for the decision.

An employer must keep the following records for at least three years from the date of a lay-off notice:

  • the laid-off employee’s full name, job classification, date of hire, last known address of residence, email address, telephone number;
  • a copy of the lay-off notice; and
  • copies of all communication between employer and employee concerning employment offers.

The Labor Commissioner also notes that the statewide right of recall is the minimum bar for employee rights, but cities are permitted to make more stringent requirements. And several California cities continue with their own COVID-19 related right of recall ordinances.

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

In Virginia, returning — or planning to return — to the physical workplace following the COVID-19 pandemic means ensuring employment practices comply with the Commonwealth’s significantly changing legal landscape. Read more.

While Washington state reopened on June 30 with the new Washington Ready plan, under which most industries have returned to normal capacity and operations, this reopening has loosened, but not eliminated, COVID-19 safety and masking requirements for employees and customers.

New Masking Guidelines and Requirements

As part of the reopening plan, the governor issued Updated COVID-19 Facial Covering Guidance for Employers and Businesses and the Department of Labor & Industries (L&I) issued its own requirements and guidelines emphasizing the continuing dangers of workplaces with only partially vaccinated workforces.

Employers must ensure unvaccinated employees continue to wear a mask while working indoors. Fully vaccinated individuals (those who are at least two weeks out from their final dose of the applicable vaccination) no longer need to wear face coverings inside or outside, except when in healthcare settings, correctional facilities, homeless shelters, schools, and using public transportation. However, employers must require proof of vaccination if they choose to relax masking measures for fully vaccinated employees. Examples of the type of documentation allowed from employees are:

  1. Proof of vaccination, such as the Centers for Disease Control and Prevention (CDC) vaccination card or a photo of it, which the employer is not required to keep a copy of;
  2. A signed a hard copy or electronic document attesting to the employee’s fully vaccinated status;
  3. Documentation from a healthcare provider; and
  4. A record from a state immunization information system.

Employers must be able to demonstrate they have verified vaccination status for workers who are not masked or physically distanced. Verification methods may include:

  1. Creating a log of workers who have verified they have been vaccinated and the date of verification;
  2. Checking vaccination status each day as workers enter a jobsite;
  3. Marking a worker’s badge or credential to show they are vaccinated; or
  4. Other methods demonstrating an employer has verified worker vaccination status also may meet the standard.

Some of these recommended measures do not account for their impact on employee morale or possible compliance issues under other laws, such as the Americans with Disabilities Act (ADA). Overall, employers should consider keeping the vaccination status and information of employees private on a need-to-know basis and consult with counsel in developing a plan for vaccination verification.

L&I also has updated DOSH Directives 1.70 and 11.80 to implement the changes to masking requirement guidance from the state and CDC for vaccinated employees. For example, DOSH Directive 11.80 clarifies that an employer must have a demonstrable process to verify vaccination status but is not required to keep a copy of employee vaccination records, which may require secure and confidential handling as medical records.

Employers may even require vaccination as a condition of employment, except as prohibited by state or federal law (e.g., the Equal Employment Opportunity Commission, ADA, and so on). An employer’s request for proof that an employee is vaccinated aligns with Equal Employment Opportunity Commission guidance that such a request is not a disability-related inquiry.

Businesses may rely on the “honor system” to assume customers who are not wearing face coverings are fully vaccinated. Business owners and local authorities may continue to require employees and customers to wear face coverings in businesses. Local authorities and landlords may not prohibit businesses from requiring face coverings or from requiring customers to show proof of vaccination.

Under SSB 5254, during a public health emergency, so long as an employer does not require employees or contractors to wear a specific type of personal protective equipment (PPE), the employer must accommodate employees or contractors’ voluntary use of gloves, goggles, face shields, face masks, and other protective devices or equipment. Employees and contractors may not use such devices or equipment if doing so:

  1. Introduces hazards to the work environment;
  2. Interferes with the employer’s security requirements; or
  3. Conflicts with safety standards set by L&I or the Department of Health.

Employers also have the right to verify that voluntary use of PPE meets all applicable workplace health and safety requirements.

Additional Protections for Workers Getting Vaccinated

The Safe Workers Proclamation prohibits employers from taking adverse employment action (defined broadly) against a Washington worker (including independent contractors) for:

  1. Receiving a COVID-19 vaccination;
  2. Taking “reasonable” time off to receive a vaccination or recover from its side effects;
  3. Taking time off when the worker is subject to a COVID-19 quarantine or isolation order;
  4. Taking time off when the worker is advised by a healthcare official or provider to self-quarantine or self-isolate due to a positive COVID-19 diagnosis; or
  5. Taking time off when the worker is experiencing COVID-19 symptoms and seeking a medical diagnosis or treatment.

Accordingly, while this Proclamation remains in effect, employers may not discipline employees for engaging in any of these activities during work hours, even if the employee lacks sufficient paid sick leave.

Other Updated L&I Rules

L&I has again extended temporary WAC 296-800-14035 to remain in effect until at least September 21, 2021. This rule requires that, where a business activity is prohibited by an emergency proclamation, an employer may not allow employees to perform work. This rule also requires employers to comply with all conditions for operation under the governor’s proclamations.

Health Emergency Labor Standards Act

L&I has released a set of Questions and Answers for Protecting High-Risk Employees from Discrimination During Public Health Emergencies, which relates to the new law known as HELSA. HELSA adds numerous protections for specified workers during public health emergencies involving infectious or contagious diseases.

Jackson Lewis attorneys are closely monitoring updates and changes to legal requirements and guidance and are available to help employers weed through the complexities involved with state-specific or multistate-compliant plans.

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.