As the pandemic continues to evolve, so does the EEOC’s guidance. On July 12, 2022, the EEOC once again updated its COVID-19 guidance: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to reflect the pandemic’s changing state. The updated guidance follows CDC’s June 10, 2022 statements regarding the current state of the COVID-19 pandemic.

Read more here.

In early June 2022, the California Department of Public Health (CDPH) issued an order revising the definition of “close contact.” Under the CDPH order, close contact was defined as “someone sharing the same indoor airspace (e.g. home, clinic waiting room, airplane, etc.) for a cumulative total of 15 minutes or more over a 24-hour period.” This created confusion because “same indoor airspace” could be quite broad and is certainly much broader than the 6 feet-15 minutes-24 hour definition the entire nation had been using.  Compounding the problem was Cal/OSHA’s deference to the CDPH definition of “close contact” in its ETS, which California employers are required to follow.

CDPH had provided some clarification in guidance issued on June 20, 2022, stating that when entities are responding to potential exposure they may prioritize the response by:

  • Identifying close contacts who may be considered “high-risk contacts” based on their proximity to the case in the setting, the duration or intensity of their exposure, and/or their greater risk of severe illness or death from an exposure.
  • Determining any smaller spaces within the larger indoor setting for the purposes of assessing potential exposure.
  • Determining any transient exposures totaling <15 minutes, such as passing in a hallway. Those with transient exposures would not meet the definition of close contact.

On July 18, 2022, Cal/OSHA updated its FAQ for the ETS to address the close contact determination as it relates to the ETS. Cal/OSHA states that a shared indoor airspace may be analyzed in several ways as follows:

  • Smaller spaces contained within a large indoor space that are separated by floor-to-ceiling walls are not part of the same indoor airspace as the large indoor space, e.g. suites, waiting areas, bathrooms, or break areas.
  • Larger indoor settings that are not divided into smaller spaces that are separated by floor-to-ceiling walls may constitute a shared indoor airspace e.g. open-floor plan offices, warehouses, or retail stores. In this situation, Cal/OSHA states that “employers must evaluate whether employees shared the same indoor airspace on a case-by-case basis, considering the duration and proximity of the contact, regardless of the specific task of the employees.”
  • Cal/OSHA states in its guidance that “proximity and length of exposure are key to this determination.”

If you have questions about the Cal/OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

The onset of the COVID-19 pandemic was sudden and devastating, and even as the threat levels subside, the fallout endures. To be sure, the healthcare industry has long been on the forefront of battling the threat to public health posed by COVID-19. While there has been a broad and varied governmental response to the multitude of concerns arising out of COVID-19, a significant component of that has been the enactment and enforcement of laws and rules governing workplace safety—and nowhere more so than in healthcare facilities.

Of course, the healthcare environment has naturally been subjected to the most stringent requirements, including mandatory vaccines and personal protective equipment (PPE). The safety-driven concerns in turn served as a catalyst for legislative and other governmental action to institute protections from retaliation to those who expose unsafe practices, i.e., “whistleblowers.”

At the federal level, OSHA has not only stepped-up enforcement of workplace safety concerns, but it has taken a prominent role in protecting workers against retaliation. In fact, OSHA recently released guidelines on how to file a Section 11(c) complaint for retaliation against employees who report COVID cases or health concerns to their employers. There has been a substantial increase in the number of whistleblower complaints to OSHA arising out of alleged pandemic safety-related violations. Not to be left out, the U.S. Attorney has set up its own hotline specifically for COVID-related claims.

In the context of state law, some states had existing whistleblower protections for healthcare workers reporting certain health or safety violations, including civil remedies. Many cases are working their way through the courts. One example is in California, where a court held that a former healthcare employee could proceed with a claim after she objected to being assigned to assess patients entering a senior living center when she had been exposed to COVID-19 (and was later terminated). Clark v. Calson Mgmt., LLC, Case No. BCV-20-101901 (Cal. Super. Ct. Sept. 8, 2020).

Despite existing whistleblower protections and increased OSHA federal regulatory enforcement, legislative efforts to enact protections at the state level have gained momentum. Indeed, there has been a particular focus on healthcare. Last year, New York Labor Law Sec. 741 was amended and broadened to provide further protections for health care workers who speak out against what they believe to be “improper quality of workplace safety” for employees or patient care to the media or within their company. Colorado passed a similar law. Various other states, including Maine, Arizona, Minnesota, Washington, and others are contemplating similar legislation. Under the New York statutory scheme, a whistleblower must initially bring the unsafe activity, policy or practice to a supervisor’s attention and allow a reasonable opportunity for correction. But, if retaliation ensues, violations can be costly.

As protections proliferate and enforcement intensifies, it is more important than ever for healthcare employers to ensure that proper safety protocols are followed, reports of unsafe conditions are taken seriously, and key personnel are highly trained. If you need more information or have questions, please contact the Jackson Lewis attorney with whom you regularly work, or any member of our Healthcare group.

On June 17, 2022, Governor Newsom issued an executive order terminating certain provisions of prior executive orders related to Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS). Some of the terminated orders were no longer necessary due to changes in the ETS. For example, previously the Governor had issued an executive order stating exclusion periods could not be longer than California Department of Public Health (CDPH) guidelines or local ordinances. However, since the ETS now defers to CDPH guidance on isolation and quarantine, the Governor has rescinded his prior executive order on this issue. Moreover, Cal/OSHA has issued guidance for employers on COVID-19 Isolation and Quarantine that aligns with CDPH requirements.

The current version of the ETS remains in effect until the end of 2022. However, Cal/OSHA won’t be done with COVID-19 regulations in 2023. The agency is currently working on a permanent COVID-19 Standard. Recently, the draft of the proposed regulation was released.

The draft regulation carries over many of the employer obligations from the current ETS. The following are some of the proposed requirements:

  • COVID-19 procedures, either included in their Injury and Illness Prevention Program (IIPP) or a separate document.
  • Exclusion and prevention requirements for positive employees and close contacts.
  • Employers would continue to be required to provide testing to employees who have a close contact in the workplace.
  • Employers would continue to have notice requirements for COVID-19 exposure.
  • Employers would continue to have to provide face coverings to employees.
  • Employers would continue to have reporting and recordkeeping requirements for COVID-19 cases and outbreaks in the workplace.

Currently, no public hearing has been set for the proposed permanent COVID-19 Standard, so it is uncertain how soon the regulations may be implemented.

If you have questions about the Cal/OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

As of 12:01 a.m. on Sunday, June 12, 2022, passengers flying to the United States from abroad will no longer need to present a negative COVID-19 test to board (or prove that they have recovered from COVID-19 within the prior 90 days). Non-U.S. citizens, including those entering on temporary visas (with limited exceptions), must still show proof that they are fully vaccinated.

This relaxation of the test requirement was announced by the White House based on a CDC recommendation.  The CDC determined that the science and data made it clear that the requirement was no longer needed, at least in part because of the great progress that the United States has made in terms of vaccines and treatments that prevent serious illness and deaths.  The CDC, however, will review the data within 90 days and reinstate the requirement if circumstances change.

The negative COVID-test rule for international travel back to the United States was first put in place in January 2021 by the Trump Administration.  At that time, the test had to be performed within three days of boarding.  By December 2021, the Biden Administration changed the rule to require the test within one day of departure. For some time, the rule has been opposed by airlines and the travel industry because of its financial impact.  Travel plans were being postponed because individuals feared being stuck abroad if they or any member of their party tested positive.  Moreover, some individuals who tested positive (or feared they would) were circumventing the rule by entering the United States at a land or sea port of entry where negative COVID-19 tests were not required.

In April 2021, a federal court struck down the COVID-19 mask mandate for planes, trains and buses, although the CDC still recommends masking, and the administration is appealing that decision.

The American Society for Health Care Human Resources Administration (ASHHRA) recently held an incredibly useful conference bringing together healthcare human resources leaders from around the country. Here are four key takeaways from that gathering of thought leaders.

  1. Employee Engagement Impacts Patient Care and Revenue

While this may seem self-evident to those on the front lines, there also is data to back this up. At a time when revenue is increasingly tied to patient satisfaction and quality metrics, strong employee engagement is not only the right thing to do, it is a financial imperative. Take for example one speaker’s reference to a Press Ganey study, which he explained showed a 1 percent change in employee morale equals a 2 percent change in the patient experience. Consider this connection between patient experience and revenue: a Harvard Business Review study found “a five-point increase in hospital rating is associated with a 1 percent increase in profit margin.” HR leaders are well-positioned to make the case for strong employee engagement programs.

  1. Innovative Recruiting and Staffing Alternatives are a Must Have

Speakers at the conference discussed many of the recruiting tools covered in this recent Healthcare Workplace Update post.  There were two other areas of interest on this front. First, the increasing use of predictive data analytics in recruiting. This is an investment that may yield significant dividends by reducing turnover or at least making it more predictable. Another topic was creating an internal staffing agency. This approach can reduce agency costs while retaining nurses and other professionals by meeting their desire to travel and work at different facilities.

  1. Plan for More Active Regulators

Speakers addressed the likelihood that regulators would be more active in the healthcare field than they have been in recent years. With new Equal Employment Opportunity Commission (EEOC) commissioners appointed by President Biden, the EEOC likely will publish more guidance on anti-discrimination laws and focus more on alleged systemic violations of those laws. On the accreditation front, The Joint Commission and other accreditors are adopting new survey approaches to measure compliance with the CMS COVID-19 vaccine rule. Finally, OSHA is in the midst of a “highly focused” inspection initiative aimed at hospitals, skilled nursing facilities, and assisted living facilities that treat or handle COVID-19 patients and have been previously cited or inspected for COVID-19 concerns that will continue until June 9. HR leaders can take a leading role in helping their organizations prepare for these new regulatory challenges.

  1. If You Don’t Engage Employees, Labor Unions Will

While union membership is at a record low in the U.S., several factors make today’s workplace fertile ground for union organizing. First, according to a study by McKinsey, “the top three factors employees cited as reasons for quitting were that they didn’t feel valued by their organizations (54 percent) or their managers (52 percent) or because they didn’t feel a sense of belonging at work (51 percent).” Second, according to a Gallup poll approval of labor unions is the highest it has been since 1965, with 68% having a favorable view of unions. That figure jumps to 77 percent among people ages 18-34 and 70 percent for college graduates. All these factors make clear that healthcare employers who want to be union-free need to invest in creating a culture where employees feel valued by their organization and their manager. HR leaders can play an integral role in establishing this kind of workplace culture.

Members of the Jackson Lewis Healthcare industry group work with clients on all these issues on a daily basis. Please contact the Jackson Lewis attorney you work with or one of our industry group members if you have any questions about these key takeaways.

At the end of April, the Cal/OSHA Standards Board voted to approve the Third Readoption of the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS). The revised version of the ETS took effect on May 6, 2022.

As promised when passed, Cal/OSHA has released updated guidance to assist with this version of the ETS that expires January 1, 2023.

Cal/OSHA posted an update to the Revisions to the ETS FAQ. This FAQ details the changes in the May 6th version of the ETS and requirements from prior ETS that remain. There is a separate General COVID-19 ETS FAQ that responds more to the application of the ETS and has been updated to conform to the recent changes in the ETS.

The Cal/OSHA Isolation and Quarantine Fact Sheet has also been updated to reflect changes in the revised ETS. The Fact Sheet includes an easy reference table that explains when employees must be excluded from the workplace, depending on whether they test positive for COVID-19 or have close contact with positive cases.

Finally, the Cal/OSHA Fact Sheet on “What Employers Need to Know” has been updated for the amendments to the ETS that went into effect May 6th. The following is a summary:

  • Face Coverings – Face covering requirements are the same for all employees regardless of vaccination status and are no longer required in all indoor locations. The guidance now also defers to California Department of Public Health (CDPH) masking requirements.
  • Respirators – Employers must provide respirators to employees who request them for voluntary use regardless of vaccination status.
  • Cleaning and Disinfecting – The ETS no longer includes any cleaning and disinfecting requirements.
  • Testing and Exclusion
    • Employers are now required to make COVID-19 testing available at no cost and during paid time to employees with COVID-19 symptoms regardless of vaccination status and regardless of whether there is a known exposure. COVID-19 testing must also be made available to employees who had a close contact in the workplace, during outbreaks, and during major outbreaks.
    • The detailed prescriptive requirements for exclusion of employees after close contact have been deleted. Instead, employers must review CPDH guidelines for individuals who had close contact and implement quarantine and other measures in the workplace to prevent COVID-19 transmission in the workplace.
    • The requirements for employees who test positive for COVID-19 have been updated to reflect the most recent CDPH isolation and quarantine guidelines. Regardless of vaccination status, positive employees can return to work after 5 days if the employee has a negative test, symptoms are improving, and they wear a face covering at work for an additional 5 days. Otherwise, most employees can return after 10 days.
  • Definitions
    • “Close contact” and “infectious period” are now defined so that their meaning will change if CDPH changes its definition of the term in a regulation or order. This will allow more flexibility and consistency with CDPH.
    • “COVID-19 test” was simplified to make it easier to use self-administered and self-read tests. A video or observation of the entire test process is no longer necessary; just a date/timestamped photo of the test result will now be sufficient.
    • “Fully vaccinated” was deleted as this term is no longer used in the regulations. All protections now apply regardless of vaccination status and requirements do not vary based on an employee’s vaccination status.

If you have questions about the Cal/OSHA ETS or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

There are further updates from the CDC for all air travelers.

Now, most travelers will have to show  a negative COVID-19 test or documentation of recovery from COVID-19 and contact information to board an airplane for the United States. As before, U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and those entering the United States on immigrant visas do not need to be fully vaccinated. Other non-U.S. citizens, including those entering on temporary visas (with limited exceptions), must show proof that they are fully vaccinated. A booster dose is not required to meet this requirement.

In addition, while no longer required, CDC continues to recommend that people wear masks in indoor public transportation settings.

What to Do After Arrival

Non-U.S. citizens, including those entering on temporary visas who are not fully vaccinated, but allowed to travel to the United States by air based on an exception, may be required to attest to some or all the following:

  • Get tested within 3-5 days after arrival absent documentation of having recovered from COVID-19 in the past 90 days;
  • Stay at home or in your hotel room and self-quarantine for a full 7 days, even if test is negative, absent documentation of having recovered from COVID-19 in the past 90 days;
  • Isolate if test result is positive or symptoms develop; and
  • Those intending to stay in the United States for 60 days or longer should become fully vaccinated within 60 days of arrival, or as soon as medically appropriate.
  • Follow all state, tribal, local, and territorial recommendations or requirements.

U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and those entering the United States on immigrant visas as well as non-U.S. citizens, including those entering on temporary visas who are fully vaccinated but not up to date with vaccines, i.e., not up to date on boosters, CDC recommends:

  • Stay home and self-quarantine for a full 5 days after travel absent documentation of having recovered from COVID-19 in the past 90 days;
  • Get a viral test 3-5 days after arrival absent documentation of having recovered from COVID-19 in the past 90 days;
  • Self-monitor for symptoms and isolate and get tested if symptoms develop; and
  • Follow all state, tribal, local, and territorial recommendations or requirements.

Individuals who recently recovered from COVID-19 (within the past 90 days), regardless of vaccination status:

  • No need to test within 3-5 days after arrival;
  • No need to self-quarantine after arrival;
  • If symptoms develop after arrival, isolate immediately and get tested;
  • Continue to isolate until test results are available; and
  • Wear a well-fitting mask around others.

All other travelers:

  • Get a viral test 3-5 days after arrival;
  • Self-monitor for symptoms and isolate and get tested if symptoms develop; and
  • Follow all state, tribal, local, and territorial recommendation or requirements.

COVID-19 travel requirements and recommendations can change at any time due to changing circumstances. It is important to check the CDC websites for guidance prior to travel.

On April 14, 2022, the Centers for Disease Control (CDC) updated its post-arrival recommendations.

Almost everyone (unless specifically exempted) who is at least 2 years old must have a negative COVID-19 test (tests include an antigen test or a nucleic acid amplification test) to board an airplane for the United States. Travelers fall into two broad categories: 1) U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and immigrants, and 2) non-U.S. citizen and non-U.S. immigrant entering on temporary visas.

After Arrival in United States

After arrival, CDC recommends all travelers, including U.S. citizens, legal permanent residents, nonimmigrant foreign nationals, and any individuals who are fully vaccinated but are not up to date on vaccinations (i.e., not boosted) should:

  • Get a COVID-19 viral test 3-5 days after travel.
  • Self-monitor and quarantine, then isolate if the COVID-19 test is positive or if symptoms develop.
  • If the traveler recovered from a documented COVID-19 infection within the past 90 days (regardless of vaccination status), then COVID-19 viral testing or self-quarantine is not required unless symptoms develop.

Vaccination Requirement

Those in group 1 (U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and immigrants) need not show proof of being fully vaccinated against COVID-19 before traveling to the United States by air, but those in group 2 (non-U.S. citizen and non-U.S. immigrant entering on temporary visas) do. However, the following members in group 2 can be excepted from the fully vaccinated requirement:

  • Diplomats
  • Children under 18 years of age
  • Individuals with documented medical contraindications for vaccination
  • Participants in certain COVID-19 vaccine trials
  • Documented humanitarian or emergency exceptions
  • Individuals with valid nonimmigrant visas (other than B visas) who are citizens of countries with limited COVID-19 vaccine availability
  • Member of the U.S. Armed Forces and their spouses and children under 18
  • Crew members with C or D visas
  • Individuals whose entry into the United States is in the national interest

Non-citizens who have been excepted from the fully vaccinated requirement may have to attest to some or all the following upon arrival:

  • Take a viral test 3-5 days after arrival, unless within 90 days of recovering from COVID-19.
  • Stay home or in a hotel room and self-quarantine for 5 days even if the viral test is negative, unless within 90 days of recovering from COVID-19.
  • Isolate if the viral test is positive or if symptoms develop during the 5 days.
  • If planning to remain in the United State for at least 60 days, the individual must become fully vaccinated within 60 days of arrival unless vaccination is not medically appropriate.

To receive an exception, an individual must provide an attestation to show their eligibility for such an exception.

Jackson Lewis attorneys are available to assist you with any questions regarding travel eligibility.

I-9 flexibility is extended until October 31, 2022, due to continuing COVID-19 precautions.

The Department of Homeland Security (DHS) guidance remains the same and preparing for the possible end of the flexibility is still advised. Indeed, DHS stated, “[E]mployers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.”

Jackson Lewis attorneys are available to assist you with any questions regarding I-9 flexibility, E-Verify, employment authorization verification policies and procedures, and establishing processes to prepare for the possible end of flexibility.