With its new inspection initiative, the Occupational Safety and Health Administration (OSHA) is taking steps to ensure certain healthcare employers continue to protect workers against COVID-19, even as falling case numbers across the country have prompted many state and local agencies to withdraw mask mandates and other COVID-19 precautions.

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More than 500 lawsuits have been filed challenging vaccine mandates in some fashion. These are likely just the tip of the iceberg, however, as there are thousands of such complaints lurking “beneath the surface,” in the form of agency charges and alternative avenues for resolving disputes.

Equal Employment Opportunity Commission

One of the ways that employees are challenging employer-imposed vaccine mandates is to allege that the employer has failed to accommodate a disability or religious belief that they claim conflicts with a vaccination requirement. These complaints against private employers generally arise under Title VII of the Civil Right Act of 1964 (Title VII), the Americans with Disabilities Act (ADA) and/or attendant state laws. Both Title VII and the ADA require that such complaints first be filed with the Equal Employment Opportunity Commission (EEOC) or state agency counterparts. Only after exhausting their administrative remedies, are employees supposed to file suit in court.

Many claimants are seeking emergency injunctive relief to bar enforcement of the mandate and have gone directly to federal or state court. Many more, however, are filing EEOC charges. According to EEOC data provided to Bloomberg BNA, more than 2,700 vaccine-related charges already have been filed with the agency.

National Labor Relations Board

Labor unions have filed a number of lawsuits challenging employer vaccine mandates, mostly against public employers. Unions also have filed charges against private employers with the NLRB and initiated arbitration against employers of all types to challenge implementation of vaccination mandates and other COVID-related policies.

Union challenges to private employers’ vaccine mandates (and to discipline or discharge arising from employees’ failure to comply) are filed as grievances that may be heard by arbitrators or pursued as unfair labor practice charges with the National Labor Relations Board (NLRB). Claims may allege, for example, unlawful implementation of COVID-related policies and/or challenge discipline issued under those policies as unlawful.

It is difficult to know how many such complaints have been asserted and how they will fare. A clearer picture will emerge as unresolved complaints are decided by arbitrators and administrative law judges of the NLRB, who will issue decisions that a Board panel may adopt, reject or modify on review. It will be some time before we see a precedential NLRB decision issued in a vaccine mandate case.

Executive Orders and Federal Rulemaking

In addition to challenges to individual employer-imposed mandates, a wave of lawsuits have sought to invalidate Biden Administration efforts to increase the nation’s vaccination rate. These include President Biden’s executive orders for federal contractors (EO 14042) and U.S. government employees (EO 14043), Department of Defense (DOD) vaccine mandates for military and civilian employees, the Occupational Safety and Health Administration’s Emergency Temporary Standard (OSHA ETS) “vaccine or test” rule for employers with at least 100 employees or more, the Centers for Medicare and Medicaid Services (CMS) mandate for covered providers who participate in the Medicare and Medicaid programs and others covered by the CMS mandate, and a mandate for federally funded Head Start programs.

With few exceptions, courts have been unwilling to enjoin private employers’ vaccination requirements. In contrast, courts have been far more inclined to bar enforcement of government-issued mandates, at least while the ongoing legal challenges are pending. The DOD vaccination requirements are on hold pursuant to an injunction issued by the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit also suspended enforcement of the OSHA ETS, but the Sixth Circuit dissolved the stay. The U.S. Supreme Court reversed the Sixth Circuit’s decision and granted a temporary stay. The Biden Administration has since withdrawn the OSHA ETS.

However, the Supreme Court overturned the Fifth Circuit’s decision to stay the interim CMS vaccine mandate pending deliberations on the merits of the legal challenge, allowing the CMS rule to take effect in the 24 states where enforcement had been enjoined. (Challenges to the CMS mandate are pending in the Eighth and Eleventh Circuits as well.)

Meanwhile, a Georgia federal district court has issued a preliminary nationwide injunction halting enforcement of EO 14042, and the U.S. Court of Appeals for the Eleventh Circuit has denied the federal government’s motion to stay a preliminary injunction pending appeal. Federal courts also have enjoined enforcement of a federal vaccination mandate for Head Start teachers and blocked a vaccine mandate for federal workers.

State and Local Mandates

Many state and local governments also have enacted mandatory vaccination requirements. Some measures apply solely to government employees or specifically to healthcare industry employees (public and private). State and local governments have adopted vaccine mandates for their own employees and, acting as regulators, have implemented vaccination requirements for healthcare workers (both public and private), for students, faculty and staff of universities and K-12 schools, and for patrons of restaurants, gyms, and other public establishments. As with federal government mandates, vaccination requirements imposed by state and local governments likewise are facing a wave of legal challenges.

In one case, the U.S. Court of Appeals for the First Circuit affirmed a district court’s order denying a preliminary injunction to bar the State of Maine from enforcing its emergency vaccination requirement for healthcare workers on religious grounds. Also, the Second Circuit Court of Appeals has affirmed a district court’s decision to deny a preliminary injunction in a case challenging the New York City Department of Education’s COVID-19 vaccine mandate. The U.S. Supreme Court has denied review in both cases.

A number of states have passed laws curtailing employers and others from requiring COVID-19 vaccines or providing for a variety of exemptions that may limit the effectiveness of any mandate, including statutory protections from discharge based on vaccination status.

As COVID-19 restrictions loosen around the state, California’s legislature continues its consideration of legislation pertaining to the pandemic.

Assembly Bill (AB) 1993 which was introduced in February proposes that employers require employees and independent contractors who are eligible to receive the COVID-19 vaccine to show proof of vaccination. Current employees and independent contractors would need to confirm their vaccination status on January 1, 2023, and new employees and independent contractors would need to show proof at the time of hiring and contracting. As with vaccine mandates the state passed last year for healthcare and direct care workers, the legislation would allow for exemptions for individuals who have a medical condition or disability or because of a sincerely held religious belief.

The law would be administered by the Department of Fair Employment and Housing (DFEH) and would allow for the DFEH to impose penalties on employers who fail to comply.

Jackson Lewis continues to track legislation pertaining to employers in California. If you have questions about vaccine mandates or related issues, contact a Jackson Lewis attorney to discuss.

While many employers are concerned with complying with the recently passed statewide COVID-19 Supplemental Paid Sick Leave, employers should also be aware of the interactions between regular paid sick leave and COVID-19 related absences. As such, employers are well-served to stay current on the latest updates for San Francisco’s Paid Sick Leave Ordinance.

The San Francisco Office of Labor Standards Enforcement (OLSE) recently issued a temporary update to its guidance regarding San Francisco’s Paid Sick Leave ordinance and COVID-19. The following is a summary of the temporary changes made to that guidance.

Policies Requiring Doctor’s Notes

Under the temporarily amended guidance, policies or practices that require a doctor’s note or other documentation for the use of paid sick leave of more than five consecutive workdays (whether full or partial days) shall be deemed presumptively reasonable, provided an employee is using paid sick leave for a COVID-19 related reason and is not under a doctor’s care, the employer shall accept the employee’s attestation of the need for paid sick leave pursuant to current CDC guidelines and OLSE Rule 2.4, pertaining to potential abuse of sick leave. This change is temporary and only in effect for the duration of the COVID-19 public health emergency.

When the public health emergency ends, or upon a decision to revoke this temporary guidance, the guidance will revert back to the previous rule which stated that requiring a doctor’s note for the use of paid sick leave of three or fewer consecutive workdays shall be deemed unreasonable. The previous rule also stated that practices that required a doctor’s note for the use of paid sick leave of more than three workdays was deemed reasonable.

COVID-19 Related Reasons for Use of Paid Sick Leave

The temporary guidance sets forth several COVID-19 specific reasons for which an employee may use San Francisco Paid Sick Leave.  Those reasons are:

  • The employee takes time off work because public health officials or healthcare providers require or recommend an employee isolate or quarantine to prevent the spread of disease.
  • The employee takes time off work for a COVID-19 vaccination appointment or vaccination side effects.
  • The employee takes time off work because the employee’s business or a work location temporarily ceases operations in response to a public health or other public official’s recommendation.
  • The employee takes time off work because the employee needs to provide care for a family member to attend a COVID-19 vaccination appointment, who is experiencing vaccination side effects, or who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine.
  • The employee takes time off work because the employee needs to provide care for a family member whose school, childcare provider, senior care provider, or work temporarily ceases operations in response to a public health or other public official’s recommendation.

Finally, the guidance makes it clear that workers who have been laid off by their employers are not eligible for paid sick leave. Employees also are not allowed to use sick leave to supplement a reduction in hours.  The guidance states that leave is only available to use for qualifying reasons when an employee is unable to work a portion of their scheduled hours.

If you have questions about compliance with San Francisco’s Paid Sick Leave requirement or have questions about related issues, contact a Jackson Lewis attorney to discuss.

As the COVID-19 pandemic continues to evolve daily, the Centers for Disease Control and Prevention (CDC) has updated its guidelines on what is required or recommended for travelers after their arrival in the United States. These new changes join the December 2021 requirements about travel to the United States.

Reiterating: Before Boarding

Non-U.S. individuals (those who are neither U.S. citizens, U.S. nationals, nor legal permanent residents) are required to show two things:

U.S. individuals, on the other hand, are only required to either show a negative COVID-19 test result taken no more than one day before travel or provide documentation of recovery from COVID-19 within the past 90 days. Because there is no vaccination requirement, U.S. individuals may also be required to provide contact information to airlines before boarding to facilitate contact tracing if it becomes necessary.

New: After Arrival

The new post-arrival recommendations and requirements also vary based upon citizenship status.

Non-U.S. individuals who were allowed to fly to the U.S. based on an exception without being fully vaccinated may be required to make certain attestations:

  • Agree to be tested within 3-5 days after arrival, unless they have documentation of recovery from COVID-19 within the past 90 days.
  • Agree to stay home or in a hotel room and self-quarantine for a full 7 days, even if they have a negative test, unless they have documentation of recovery from COVID-19 within the past 90 days.
  • If the COVID-19 test comes back positive or if COVID-19 symptoms develop, the non-U.S. individual should isolate.
  • Those who intend to remain in the United States for 60 days or longer must become fully vaccinated within 60 days of arrival or as soon as medically appropriate, absent a medical contraindication or if the individual is too young to be vaccinated.

Non-U.S. individuals who are fully vaccinated but not “up to date,” i.e., have not received a booster, should stay home and self-quarantine for full 5 days after travel.

  • CDC recommends testing within 3-5 days after travel, self-monitoring for symptoms, and isolating and testing if symptoms develop

U.S. individuals should do the following upon arrival:

If not vaccinated or not up to date with COVID-19 vaccines:

  • Stay home and self-quarantine for a full 5 days after travel

Even U.S. individuals who are vaccinated should:

  • Get tested within 3-5 days after travel
  • Self-monitor for symptoms and isolate if symptoms develop

There is a distinction between isolation and quarantining, but that distinction does not change the required behavior.

  • Isolation separates sick people with a contagious disease from people who are not sick.
  • Quarantine separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick.

Jackson Lewis attorneys are available to help answer questions about these requirements.

The same week that California’s third round of COVID-19 Supplemental Paid Sick Leave went into effect, the Governor released the state’s strategy for the endemic phase of COVID-19.

Aligning with the new endemic strategy, on February 28, the California Department of Public Health (CDPH) issued revised guidance regarding masks. Effective March 1, 2022, vaccinated and unvaccinated individuals are not required to wear masks in public settings, though it is still strongly recommended.

To address the fact that Cal/OSHA’s Amended COVID-19 Emergency Temporary Standard (ETS) still required unvaccinated individuals in the workplace to wear a mask, the Governor issued an Executive Order, which suspends the general requirement that unvaccinated workers wear face coverings when indoors. In doing so, the Governor brings the ETS into alignment with the CDPH guidance. This allows employers to follow the CDPH guidance unless a more stringent local order applies. Nevertheless, employers should keep in mind that employees may still be required to wear face coverings under CDPH’s isolation and quarantine recommendations.

Universal masking is still required under the CDPH guidance in the following indoor settings:

  • Indoors in K-12 schools and childcare facilities (this will be lifted effective March 11, 2022)
  • On public transit
  • Emergency shelters and cooling and heating centers
  • Health care settings
  • State and local correction facilities and detention centers
  • Homeless shelters
  • Long term care settings and adult senior care facilities

Employers should continue to monitor local health departments, the California Department of Public Health, and Cal/OSHA for changes to COVID-19 workplace requirements. Employers can check Jackson Lewis’ COVID-19 Advisor for updates on workplace requirements in California and around the country.

If you have questions about COVID-19 workplace requirements or related issues, contact a Jackson Lewis attorney to discuss.

On February 19, 2022, the newest statewide COVID-19 Supplemental Paid Sick Leave took effect.

California’s Division of Labor Standards Enforcement (DLSE) has published an FAQ Page to provide guidance regarding COVID-19 Supplemental Paid Sick Leave (SPSL).

The new FAQ page covers questions pertaining to the following:

  • Reasons for Taking Leave
  • Start Date and End Date
  • Requesting Leave from An Employer
  • Calculating an Employee’s Hours of Leave
  • Permissive Limits on Use and Verification
  • Credits
  • Payment of Leave, Record-Keeping, and Paystubs
  • Enforcement
  • Relation to Other Laws

There is some information in the FAQs that employers should take special note of.

Retroactive Payment

Retroactive payments are only required if the covered employee requests retroactive time for qualified absences prior to February 19, 2022.

Employers may request documentation if the employee is requesting retroactive leave for the employee or a qualifying family member testing positive for COVID-19.

This documentation could include, among other things, a medical record of the test result, an e-mail or text from the testing company with the results, a picture of the test result, or a contemporaneous text or e-mail from the employee to the employer stating that the employee or a qualifying family member tested positive for COVID-19.

If retroactive payment is being sought from the hours that an employee may use for any other qualifying reason employer may not deny a worker 2022 COVID-19 Supplemental Paid Sick Leave based solely on a lack of certification from a health care provider.

Wage Statement

The itemized wage statement or separate writing requirement ensures covered employees understand how many separate hours they have used for 2022 COVID-specific sick leave. The 2022 SPSL differs from the 2021 SPSL in that the paystub must list what has been used instead of what is available to use.  If no hours have yet been used then the paystub or other writing issued at the time wages are paid must indicate 0.

In addition, Labor Code Section 247.5 requires that records be kept for a three-year period on regular paid sick days and 2022 SPSL days accrued and used and that the records be made available to the Labor Commissioner or employee upon request.

Notice Requirement

Under California law, employers are required to display the required poster about 2022 SPSL in a place at the worksite where employees can easily read it.

If an employer’s covered employees do not frequent a workplace, the employer may satisfy the notice requirement by disseminating notice through electronic means.

If you have questions about 2022 COVID-19 Supplemental Paid Sick Leave or related issues, contact a Jackson Lewis attorney to discuss.

In this issue of the Class Action Trends Report, Jackson Lewis attorneys look back at class action developments in 2021, including COVID-19 vaccine mandate litigation, significant procedural decisions, wage and hour suits, and the continuing rise of cases brought under the California Private Attorneys General Act and Illinois Biometric Information Privacy Act, among other litigation trends.

On April 4, 2022, a merits panel of the D.C. Circuit Court of Appeals will hear oral arguments on a petition seeking to force OSHA to issue a permanent standard for healthcare occupational exposure to COVID-19 and to reinstate the Healthcare Emergency Temporary Standard on Occupational Exposure (Healthcare ETS) to COVID-19 pending the permanent standard. The D.C. Circuit Court of Appeals’ referral of this matter to a merits panel was initiated by the Court’s own motion.

On December 27, 2021, OSHA announced the withdrawal of the Healthcare ETS and confirmed its intent to issue a permanent infectious disease standard. Less than two weeks later, on January 5, 2022, National Nurses United and several other labor unions filed an Emergency Petition for a Writ of Mandamus and Request for Expedited Briefing and Disposition with the D.C. Circuit Court of Appeals. In re: National Nurses United, et al., No. 22-1002 (D.C. Cir. Jan. 5, 2022).

The unions argue that OSHA has failed to adequately protect nurses and other healthcare workers from COVID-19. OSHA filed its opposition to the petition on January 21, 2022, arguing, among other things, that OSHA was unable to finalize a permanent healthcare standard because it focused the agency’s resources on its COVID-19 Vaccination and Testing Emergency Temporary Standard (which was also withdrawn). OSHA indicated it expects to complete rulemaking for a permanent healthcare standard within six-to-nine months.

The Healthcare ETS applied in settings where COVID-19 patients are treated, and it required healthcare employers with more than 10 employees to develop and implement written COVID-19 plans that included the following elements:

  • Assigning a designated safety coordinator;
  • Patient screening and management;
  • Policies and procedures to comply with CDC guidelines;
  • Facemask and PPE requirements;
  • Protections while using aerosol-generating procedures on persons with suspected or confirmed COVID-19;
  • Physical distancing;
  • Solid barriers at employee work stations;
  • Cleaning and disinfection protocols;
  • HVAC system requirements;
  • Health screening and medical management requirements;
  • Paid leave for vaccinations, vaccination recovery, and medical removal from work due to COVID-19 infection or certain COVID-19 exposures;
  • Employee training;
  • Anti-retaliation protections;
  • Employee COVID-19 logs; and
  • Reporting work-related COVID-19 fatalities and in-patient hospitalizations.

OSHA has indicated its forthcoming permanent infectious disease standard will cover all industries and address airborne, droplet, and non-bloodborne contact diseases.

While OSHA has indicated it may use the now-withdrawn Healthcare ETS to support citations against healthcare employers under the General Duty Clause of the OSH Act, only the COVID-19 log and reporting provisions formally remain in effect.

Reinstatement of the Healthcare ETS would have a significant impact on covered employers, particularly as COVID-19 cases appear to be dropping throughout the country and more jurisdictions are loosening restrictions.

Please contact a Jackson Lewis attorney with any questions.