Diversity Visa (DV) Electronic Registration for Fiscal Year (FY) 2023 opens October 6, 2021, at noon ET and closes on November 9, 2021, at noon ET.

There is no cost to register, but, if selected, applicants must pay the visa application or I-485 Adjustment of Status fees.

Individuals born in certain countries are not eligible to apply because more than 50,000 natives of those countries have immigrated to the United States in the past five years. The list of ineligible countries is basically the same as last year, except Guatemala has been removed and Venezuela has been added.

The ineligible countries for FY 2023 are:

Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, Venezuela and Vietnam. Individuals born in Macau SAR and Taiwan are eligible.

Although there is no registration fee, individuals may not submit more than one application. Doing so will lead to disqualification. Eligibility requirements are on the Diversity Lottery website. Interested applicants should apply early and not wait until the last week when heavy demand could lead to website delays. Applicants must apply online. No late or paper entries are accepted.

A few highlights from the instructions:

  • Applicants must have a valid, unexpired passport to apply. There are some waivers available, including for stateless applicants or applicants who cannot get a passport from a Communist-controlled country.
  • Cross-chargeability is a possibility. Applicants can apply based upon the country of birth of a derivative spouse or possibly based upon the country of birth of either of their parents if neither parent was a “resident” (other than on a temporary basis) of the applicant’s country of birth at the time of the applicant’s birth.
  • Applicants may apply from within the United States or from abroad.
  • Eligible applicants must have at least a high school education or its equivalent or two years of work experience within the past five years in an occupation that requires at least two years of training or experience as defined by the Department of Labor.
  • No one eligible country will be allocated more than 7% of the 55,000 DVs that are available for the year.

FY 2023 DV entrants will be able to check the status of their applications online at www.dvprogram.state.gov starting on May 8, 2022.

Due to COVID-19, the 2021 Diversity Lottery has been mired in litigation. The hope is that the FY 2023 DV will not have similar problems.

If you have questions about the DV Program 2023 process, Jackson Lewis attorneys are available to assist.

The country dodged a government shutdown at the end of September, but we may be faced with the same problem on December 3, 2021, when Congress will again have to fund the government. Because we often come close to a shutdown (and sometimes shutdowns happen), it is important to remember how a shutdown affects the immigration agencies.

USCIS

Because USCIS is fee-funded, it generally continues working even during a government shutdown. However, there are a few programs that stop because they receive appropriated funds:

E-Verify

Because E-Verify receives appropriated funds, it stops during a shutdown.

It may not be possible to:

  • Enroll in E-Verify;
  • Create an E-Verify case;
  • View or take action on any case;
  • Add, delete, or edit any user account;
  • Reset passwords;
  • Edit company information;
  • Terminate accounts;
  • Run reports; or
  • Resolve Tentative Nonconfirmations (TNCs).

In the past, during shutdowns, E-Verify has suspended the “three-day rule” and extended the time period for resolving TNCs. Employers are advised not to take any adverse action against an employee while an E-Verify case remains in limbo.

Department of Labor (DOL)

DOL would shut down. The FLAG and PERM systems are inaccessible and BALCA goes into a holding pattern. If this were to happen, we would expect DOL to suspend some deadlines. Remember that USCIS cases that require Labor Condition Applications or Labor Certifications such as H-1Bs, E-3s, or H-2Bs will be affected.

Department of State

Like USCIS, visa and passport operations are fee-funded and would continue despite a government shutdown. But certain consular operations can be affected if the post has not collected enough in terms of fees. Given the slowdowns at consulates due to COVID-19, a government shutdown could just add to the problems. Indeed, some consulates with inadequate funding might close except for “life or death” emergencies.

Customs and Border Protection (CBP)

Because CBP staff are “essential workers,” ports of entry continue to operate during a shutdown, but application processing can be affected.

U.S. Immigration and Customs Enforcement (ICE)

ICE continues its enforcement and removal operations. The ICE Student and Exchange Visitor is fee-funded so continues to operate.

If a government shutdown is imminent, Jackson Lewis attorneys are available to assist you in strategizing and planning.

The temporary COVID-19 Massachusetts emergency paid sick leave (MA EPSL) has been extended through April 1, 2022.

In spring 2021, Massachusetts established a statewide mandate for employers to temporarily provide employees up to 40 hours of MA EPSL when they are unable to work due to specific qualifying reasons related to the pandemic. The law was set to expire on September 30, 2021, but a legislative amendment has extended the law through April 1, 2022. In addition, the new law extends the coverage of the MA EPSL to allow leave to care for family members receiving immunization or recovering from immunization.  Read more about this development here.

When use or disclosure of an individual’s health information or medical records is at issue, the assumption seems to be, much more often than not, that the HIPAA privacy and security rules apply. This has certainly been the case during the COVID-19 pandemic. Of course, it is true that in most healthcare settings, HIPAA is the primary law governing the use and disclosure of individually identifiable health information. However, HIPAA is often incorrectly applied in workplace settings.

Today, in an effort to clarify some of these issues as they relate to COVID-19 vaccination data, the Office for Civil Rights (OCR), the agency responsible for enforcing the HIPAA privacy and security rules (the “HIPAA rules”), issued this guidance. We have summarized some of the key points below.

Do the HIPAA rules prohibit businesses or individuals from asking whether their customers or clients have received a COVID-19 vaccine?

The OCR’s answer is clear – No.

The HIPAA Privacy Rule does not prohibit any person (e.g., an individual or an entity such as a business), including HIPAA covered entities and business associates, from asking whether an individual has received a particular vaccine, including COVID-19 vaccines.

It is important to remember that the HIPAA rules apply only to covered entities and business associates. In general, covered entities include health plans, health care clearinghouses, and health care providers that conduct standard electronic transactions. But, HIPAA does not apply to entities functioning in their role as employers or to employment records.

The OCR also reminds organizations that even if HIPAA applies, it regulates the use and disclosure of protected health information (PHI), not the ability to request information. Thus, the HIPAA rules do not prohibit a covered entity from receiving COVID-19 vaccination information about an individual. Of course, organizations that receive such information, including employers, still may have a duty to safeguard that information and keep it confidential.

Do the HIPAA rules prohibit an employer from requiring a workforce member to disclose whether they have received a COVID-19 vaccine to the employer, clients, or other parties?

This is a popular question these days. The OCR’s answer, “No.”

OCR reminds readers that the HIPAA rules do not apply to employment records:

including employment records held by covered entities or business associates in their capacity as employers.

The OCR also observed that:

federal anti-discrimination laws do not prevent an employer from choosing to require that all employees physically entering the workplace be vaccinated against COVID-19 and provide documentation or other confirmation that they have met this requirement, subject to reasonable accommodation provisions and other equal employment opportunity considerations.

But, again, once collected, vaccination information must be kept confidential and stored separately from the employee’s personnel files under Title I of the Americans with Disabilities Act (ADA). And, group health plans sponsored by employers are, in most cases, HIPAA covered entities. This means that COVID-19 vaccination information maintained in connection with those plans, such as claims information, would be PHI subject to the HIPAA rules.

Do the HIPAA rules prohibit a covered entity or business associate from requiring its workforce members to disclose to their employers or other parties whether the workforce members have received a COVID-19 vaccine?

Another popular question and, again, the OCR’s answer is no.

The HIPAA rules generally do not regulate what information can be requested from employees as part of the terms and conditions of employment. The following examples from OCR make clear that HIPAA does not prohibit a covered entity or business associate from requiring or requesting each workforce member to:

  • Provide documentation of their COVID-19 or flu vaccination to their current or prospective employer.
  • Sign a HIPAA authorization for a covered health care provider to disclose the workforce member’s COVID-19 or varicella vaccination record to their employer.
  • Wear a mask–while in the employer’s facility, on the employer’s property, or in the normal course of performing their duties at another location.
  • Disclose whether they have received a COVID-19 vaccine in response to queries from current or prospective patients.

Do the HIPAA rules prohibit a doctor’s office from disclosing an individual’s PHI, including whether they have received a COVID-19 vaccine, to the individual’s employer or other parties?

Here, the answer is generally, yes. The doctor’s office is a HIPAA covered entity and the HIPAA rules prohibit covered entities from using or disclosing an individual’s (patient’s) PHI except with the individual’s authorization, unless an exception applies. Exceptions include, for example, disclosures made for treatment, payment, or health care operations. Absent an exception, the doctor’s office will need a written authorization in order to disclosure the records.

Note, however, if the physician that owns the practice, while functioning as an employer, has COVID-19 vaccination information about an employee of the practice, the HIPAA rules generally would not apply to prohibit the physician from disclosing that information. But, other laws could apply, such as the ADA.

The OCR provides some additional examples:

  • A covered physician is permitted to disclose PHI relating to an individual’s vaccination to the individual’s health plan as necessary to obtain payment for the administration of a COVID-19 vaccine.
  • A covered hospital is permitted to disclose PHI relating to an individual’s vaccination status to the individual’s employer so that the employer may conduct an evaluation relating to medical surveillance of the workplace (e.g., surveillance of the spread of COVID-19 within the workforce) or to evaluate whether the individual has a work-related illness, provided all of the following conditions are met:
    • The covered hospital is providing the health care service to the individual at the request of the individual’s employer or as a member of the employer’s workforce.
    • The PHI that is disclosed consists of findings concerning work-related illness or workplace-related medical surveillance.
    • The employer needs the findings in order to comply with its obligations under the legal authorities of the Occupational Safety and Health Administration (OSHA), the Mine Safety and Health Administration (MSHA), or state laws having a similar purpose
    • The covered health care provider provides written notice to the individual that the PHI related to the medical surveillance of the workplace and work-related illnesses will be disclosed to the employer.

Organizations across the country are struggling with COVID-19 related regulations and the impact on their operations – screening requirements, vaccination mandates, how to incentivize vaccinations, responding to customer demands for vaccination status information about employees, maintaining adequate staffing levels, arranging for COVID-19 testing, etc. This OCR guidance should help to some degree by clarifying some questions regarding whether an often-cited set of rules – the HIPAA rules – apply to limit the use and disclosure of information necessary to carry out some of these activities. As explained above, the HIPAA rules often are not applicable.

In the latest issue of the Class Action Trends Report, Jackson Lewis attorneys discuss the emerging class action risks that arise at this stage of the COVID-19 pandemic, as employers navigate return-to-work challenges including employee screening, mask and vaccine mandates, and the need for ongoing safety measures as the crisis persists. We also take a look at the state of class action COVID-19 litigation.

As expected, the Safer Federal Workforce Task Force issued the Guidance contractors have been anticipating to implement President Biden’s September 9, 2021 Executive Order 14042:  Ensuring Adequate COVID Safety Protocols for Federal Contractors (“Order”).  The 14-page document includes definitions,  description of the specifics requirements contractors must undertake and by when, and a list of 21 FAQs.  Importantly, FAQ (#20) states that covered federal contractors must comply with the Guidance independent of the requirements of OSHA’s upcoming Emergency Temporary Standard that will apply to employers with 100 or more employees.

Though the text of the Order did not explicitly state it, the Guidance makes clear contractors will be required to mandate vaccinations of covered employees, except in limited circumstances where a legally entitled accommodation is appropriate.  The guidance states covered employees must be fully vaccinated no later than December 8, 2021.

Additional highlights of the Guidance include:

  • A Broad Scope: the Guidance does not alter the scope of the Order’s coverage or exclusions and applies to a:
    • procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;
    • contract or contract-like instrument for services covered by the Service Contract Act (SCA);
    • contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 CFR 4.133(b); or
    • contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.

Notably, whereas the proposed federal contractor $15 Minimum Wage regulations omit coverage for procurement contracts for services, the Task Force Guidance does not.  Thus, service providers – prime and subcontractors – may be covered by Federal Acquisition Regulation (FAR) implementation of the Guidance, even if they do not have any contract covered by the SCA. As a reminder, sub contracts solely for the provision of products are expressly excluded and contracts for the provision of products (e.g. non-procurement for services contracts) are not included in the list of covered contracts or contract-like instruments.

Interestingly, the Guidance also “strongly encourages” agencies to apply the Guidance to contracts “for the manufacturing of products,” which seems to be at odds with the Order’s exclusion of subcontracts solely for the provision of products.

  • Broad Coverage for Workplaces and Employees : via its definitions and FAQs, the Guidance expands coverage to remote employees and any employee at a federal contractor location where any employee is working “on or in connection with” a covered federal contract.

Covered contractor employee – means any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.

Covered contractor workplace – means a location [including outdoor workplaces – FAQ 7] controlled by a covered contractor at which any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract. A covered contractor workplace does not include a covered contractor employee’s residence.

The Guidance also expressly addresses remote workers:

Q11: How does this Guidance apply to covered contractor employees who are authorized under the covered contract to perform work remotely from their residence?

A: An individual working on a covered contract from their residence is a covered contractor employee, and must comply with the vaccination requirement for covered contractor employees, even if the employee never works at either a covered contractor workplace or Federal workplace during the performance of the contract. A covered contractor employee’s residence is not a covered contractor workplace, so while in the residence the individual need not comply with requirements for covered contractor workplaces, including those related to masking and physical distancing, even while working on a covered contract.

As for remote workers working on or in connection with a covered contract, they must be vaccinated, regardless of whether they ever work at or visit a covered location.   However, remote workers while at their residences need not comply with masking and distancing requirements.

Thus, Guidance coverage is determined primarily by assessing for each of a federal contractor’s locations whether federal work on – or even in connection with – a covered contract is being performed.  At all such locations, all employees at that location and visitors to that location are covered.

An employee works “in connection with” a covered contract if they “perform[s] duties necessary to the performance of the covered contract, but [is] not directly engaged in performing the specific work called for by the covered contract.  These functions may include, for example, “human resources, billing, and legal review, perform work in connection with a Federal Government contract.”

  • All Campus Buildings and Employees May Be Covered: for federal contractors with campus environments, but only one building where federal work is performed (on or in connection with), Guidance FAQ 9 states that the requirements apply to all the buildings, employees and visitors at each building,

…unless a covered contractor can affirmatively determine that none of its employees in or at one building, site, or facility will come into contact with a covered contractor employee during the period of performance of a covered contract… including interactions through use of common areas such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.

  • Vaccines, Masking and Distancing: covered employees must be “fully vaccinated,” unless legally entitled to an accommodation due to a disability or religious belief, practice or observance.  Covered employees and site visitors must follow CDC guidance for masking and physical distancing.  Covered contractors must require the following for all individuals in covered workplaces:
    • Wear appropriate masks consistently and correctly (over mouth and nose).
    • Wear appropriate masks in any common areas or shared workspaces (including open floorplan office space, cubicle embankments, and conference rooms).
    • For individuals who are not fully vaccinated, wear a mask in crowded outdoor settings or during outdoor activities that involve sustained close contact with other people who are not fully vaccinated, consistent with CDC guidance.
  • Notice to Employees and Visitors: covered contractors must designate a person or persons to implement the Guidance and “ensure that covered contractor employees [and visitors] comply with the requirements … related to the showing or provision of proper vaccination documentation.”

It goes without saying that federal contractors and subcontractors have a lot of work in front of them to implement the Order and this Guidance.  We will share additional thoughts and insights as we continue to dig in and learn more.

A flurry of employment law-related bills are headed to Governor Newsom for consideration, however, no bills are being presented related to statewide supplemental paid sick leave. In March 2021, California resurrected and expanded statewide COVID-19 supplemental paid sick leave.  The legislation sunsets on September 30, 2021, and there is no legislation pending to extend it.

While the leave entitlement could be extended by the Governor by an Executive Order, there has been no indication from the Governor’s office that an order is planned.

Pursuant to the terms of the legislation, after September 30th, the requirement to provide supplemental paid sick leave will end.  However, if a covered employee is taking supplemental paid sick leave at that time, the employee can finish taking the amount of leave they are entitled to receive.

Some local supplemental paid sick leave requirements will remain in effect beyond September 30, 2021, such as the City of Los Angeles and the City of Long Beach. Employers should review local sick leave requirements to ensure compliance as the state legislation expires.

Jackson Lewis continues to track COVID-19 legislation affecting employers. If you have questions about supplemental paid sick leave requirements or related issues, contact a Jackson Lewis attorney to discuss.

For now, California employers are beholden to state and local COVID-19 requirements as well as Cal/OSHA’s infamous COVID-19 Emergency Temporary Standards (ETS). The ETS are set to expire on January 14, 2022. However, Cal/OSHA has recently released a draft of a semi-permanent standard for COVID-19.

The current proposal would create a COVID-19 standard that would be subject to renewal or expiration after two years. Here are the key differences between the proposed standard and the current ETS.

COVID-19 Included in IIPP

Instead of requiring a separate COVID-19 Prevention Program, employers would address COVID-19 through their Injury and Illness Prevention Program (IIPP). Under the proposed standard, employers would still be required to assess COVID-19 hazards in the workplace and train employees about appropriate safety practices.

Testing Requirements

The proposed standards would adopt a more stringent testing requirement that would mandate employers provide testing to all employees with a close contact with a positive person, regardless of vaccination status. Only employees who have recently recovered from COVID-19 and are asymptomatic would be exempt from such testing requirements.

Face Coverings

After the criticism that Cal/OSHA faced due to being out of step with state requirements for face coverings, the proposed standard would set California Department of Public Health (CDPH) guidance as the minimum standard. Unvaccinated employees would still need to wear face coverings indoors or in vehicles.

No More Exclusion Pay

The proposed semi-permanent standard would eliminate the requirement of exclusion pay for employees who are excluded from the worksite to quarantine. Excluded employees would still need to be provided information on applicable benefits such as sick leave.

Limitation on Respirator Requirement

The current ETS requires that employers provide respirators to employees who are not fully vaccinated upon request. In the proposed standard, respirators would only need to be provided to employees who had been identified by a health care professional as being at increased risk of severe illness.

Procedures for Outbreaks

During an outbreak in the workplace, all employees would be required to wear face coverings regardless of vaccination status. And employers would need to provide respirators during major outbreaks to all employees. The testing exemption for fully vaccinated employees during outbreaks would also be removed.

The Cal/OSHA Advisory Committee on COVID-19 is convening on September 23rd to discuss the proposed standard in more depth. The proposed standard would still have several administrative hoops to clear before it could replace the ETS.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. 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 President Joe Biden travelled to a meeting of the United National General Assembly, the Administration announced that, in early November, COVID-19 travel restrictions would be relaxed for fully vaccinated travelers from all the previously restricted countries: the UK and Ireland, the 26 Schengen Zone countries, Brazil, China, India, Iran, and South Africa.

The details are not yet in place, but the expectation is that the Centers for Disease Control and Prevention (CDC) will recommend which vaccinations will be accepted and how many shots of each will be necessary. Further, a negative COVID-19 test also is expected to be required within 72 hours of boarding and there will be a contract tracing aspect.

The “essential” travel restrictions at the northern and southern land and sea borders are still in effect and have not yet been addressed.

Jackson Lewis attorneys will provide updates as they become available.