Under Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS), employers are mandated to have a written COVID-19 Prevention Program. In light of the recent revisions to the ETS, Cal/OSHA has released an updated model prevention program. The updated program includes directives for vaccinated and unvaccinated individuals such as face-covering requirements. The new model program also includes an appendix for documentation of employee’s COVID-19 vaccination status.

While the model prevention program is very detailed, employers will still need to conduct a workplace-specific evaluation to ensure they are appropriately addressing the hazards facing their workforce. Employers can find fact sheets and links to Cal/OSHA’s FAQs about the ETS on the COVID-19 Prevention Emergency Temporary Standards page.

If you have need assistance in updating your COVID-19 Prevention Program 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.

To help employers dealing with labor shortages due to the limits on H-2B temporary, seasonal visas, a new rule published by the Department of Labor (DOL) increases the H-2B numerical limits. DOL also released a rule that allows H-2B nonimmigrant workers already in the United States to begin work immediately with a new employer after an H-2B petition has been filed if it is supported by a valid Temporary Labor Certification (TLC) received by USCIS even if it is not yet approved.

The new rules do not apply to employees who are continuing to work with the same employer. Those employees are not “portable,” instead they are entitled to keep working for up to an additional 240 days if the extension of stay was timely filed.

Portability for workers changing employers applies if:

  • The H-2B extension was received before May 25 and is pending on May 25, 2021; or
  • USCIS receives the H-2B petition between May 25 and November 22, 2021.

First, the new employee may be employed for up to 60 days beginning on the employment start date of the petition or May 25, 2021, whichever is later.

Second, the 60-day period begins on the Received Date of the Form I-797, Notice of Action, acknowledging receipt of the petition or the employment start date, if later than the receipt date.

Completing a Form I-9, Employment Eligibility Verification, for H-2B portability requires:

  • An unexpired Form I-94, Arrival/Departure Record indicating H-2B status and the employee’s foreign passport constitute a List A Document
  • In Section 2, List A enter:
    • Unexpired foreign passport information
    • Unexpired Form I-94 information
    • Enter “60-Day Ext.” and the date extension of stay petition was submitted to USCIS in the Additional Information field
  • Employment authorization must be reverified in Section 3 by the end of the 60-day period or when a decision is received from the USCIS, whichever is sooner.

If USCIS denies the petition or the new petition is withdrawn by the employer before the 60-day period expires, USCIS will automatically terminate the worker’s employment authorization 15 calendar days after the denial or the withdrawal.

Although the new allotment of H-2Bs have been snatched up, there are still some H-2B visas available for employees from the Northern Triangle countries. If those are not all allotted by July 8, 2021, the remaining visas will be released by the end of July.

If you have questions about the I-9 process for H-2B workers, please reach out to your Jackson Lewis attorneys. We will continue to provide updates as they become available.

For more information on H-2B petitions, see the new H-2B Employer Data Hub.

Since 2019, private employers with at least 50 employees have been required in most instances, pursuant to NRS 608.0197, to provide 0.01923 hours of paid leave to their employees for each hour worked. Now, Nevada has enacted new law requiring employers to provide additional paid leave to allow employees to receive a COVID-19 vaccination and clarifying that employees may use existing paid leave to care for themselves and their family members. Read more from our Nevada colleagues about these new employer obligations.

The simple answer is Cal/OSHA has not clarified if the 30-year retention rule is triggered by requirements of the COVID-19 Emergency Temporary Standards (ETS).

Pursuant to Cal/OSHA’s amended ETS employers are required to document the vaccination status of their employees if the employer intends to allow vaccinated employees to work without a face covering or to determine whether an employee needs to be excluded from the workplace due to a close contact with a COVID-19 case.

Under Cal/OSHA’s Frequently Asked Questions for the revisions to the ETS  three acceptable options are outlined for obtaining this vaccination information:

  • Employees provide proof of vaccination (vaccine card, image of vaccine card, or health care document showing vaccination status), and the employer maintains a copy.
  • Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
  • Employees self-attest to vaccination status and the employer maintains a record of who self-attests.

Under a separate Frequently Asked Questions page for the ETS generally, Cal/OSHA includes the following:

Q: How long are employers required to maintain documentation of employee vaccination status?

A: Vaccination records created by the employer under the ETS need to be maintained for the length of time necessary to establish compliance with the regulation, including during any Cal/OSHA investigation or appeal of a citation.

In order to encourage documentation using vaccination records, Cal/OSHA has determined that it would not effectuate the purposes of the Labor Code to subject such records to the thirty (30) year record retention requirements that apply to some medical records.

It is unclear if this response is intended to absolve employers from the typical 30-year medical record retention for all methods of vaccination status confirmation or only “employer created” documents such as when an employee’s self-attests to vaccination status.

Under 8 CCR 3204, subdivision (d), employers are mandated to maintain for at least the duration of an employee’s employment plus 30 years, medical records of employees, except for minor exceptions. Under the regulation, a medical record is defined as a “record concerning the health status of an employee which is made or maintained by a physician, nurse, or other health care personnel, or technician.”

Based on the general Cal/OSHA regulation, it would appear if an employer collects a copy of the vaccine card or other proof that was made or maintained by a physician, nurse, or other health care personnel, or technician, the employer would need to maintain those records for the duration of employment plus thirty years.

Hopefully, Cal/OSHA will further clarify their FAQs regarding the maintenance of vaccination records shortly. In the meantime, employers should be sure that if they are requesting documentation of vaccination status from employees it is being maintained in a confidential file.

If you have questions about compliance with the Cal/OSHA ETS or related workplace safety issues contact a Jackson Lewis attorney to discuss.

The Baltimore City Council recently passed an ordinance, in a vote of 13-2, barring the use of facial recognition technology by city residents, businesses, and most of the city government (excluding the city police department) until December 2022.  Council Bill 21-0001  prohibits persons from “obtaining, retaining, accessing, or using certain face surveillance technology or any information obtained from certain face surveillance technology.”

Facial recognition technology has become more popular in recent years, including during the COVID-19 pandemic. As the need arose to screen persons entering a facility for symptoms of the virus, including temperature, thermal cameras, kiosks, and other devices embedded with facial recognition capabilities were put into use, often inadvertently. However, many have objected to the use of this technology in its current form, citing problems with the accuracy of the technology, as summarized in a June 9, 2020 New York Times article, “A Case for Banning Facial Recognition.”

While many localities across the nation have barred the use of facial recognition systems by city police, and other government agencies, such as San Francisco and Oakland, Baltimore is only the second city (following Portland, Oregon), to ban biometric technology use by private residents and businesses. Effective January 1, 2021 the City of Portland banned the use of facial recognition by private entities in any “places of public accommodation” within the boundaries of the city. “Places of public accommodation was broadly defined to include any “place or service offering to the public accommodations, advantages, facilities, or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise.”

Specifically, the Baltimore ordinance prohibits an individual or entity from obtaining, retaining, or using facial surveillance system or any information obtained from a facial surveillance system within the boundaries of Baltimore city. “Facial surveillance system” is defined as any computer software or application that performs face surveillance. Notably, the Baltimore ordinance explicitly excluded from the definition of “facial surveillance system” a biometric security system designed specifically to protect against unauthorized access to a particular location or an electronic device, meaning employers using a biometric security system for employee/visitor access to their facilities would appear to be still be permissible under the bill. The ordinance also excludes from its definition of “facial surveillance system” the Maryland Image Repository System (MIRS) used by the Baltimore City Police in criminal investigations.

A person in violation of the law is subject to fine of not more than $1,000, imprisonment of not more than 12 months, or both fine and imprisonment.  Each day that a violation continues is considered a separate offense. The criminalization of use of facial recognition, is first of its kind across the United States.

The Baltimore bill also includes a separate section applicable only to the Mayor and City Council of Baltimore City, requiring an annual surveillance report by the Director of Baltimore City Information and Technology or any successor entity, in consultation with the Department of Finance to be submitted to the Mayor of Baltimore detailing: 1) each purchase of surveillance technology during the prior fiscal year, disaggregated by the purchasing agency, and 2) an explanation of the use of the surveillance technology.  In addition, the report must be posted to the Baltimore City Information and Technology website. Examples of surveillance technology that must be included in the report include: automatic license plate readers, x-ray vans, mobile DNA capture technology and software designed to forecast criminal activity or criminality.

It is important to note, that the bill’s provisions are set to automatically expire December 31, 2022 unless the City Council, after appropriate study, including public hearings and testimonial evidence concludes that such prohibitions and requirements are in the public interest, in which case the law will be extended for an additional 5 years.

The Baltimore ordinance has been met with significant opposition by industry experts, particularly as the ordinance would be the first in the U.S. to criminalize private use of biometric technologies. In a joint letter, the Security Industry Association (SIA), the Consumer Technology Associations (CTA) and the Information Technology and Innovation Foundation (ITIF) and XR Association to reject the enactment of the Baltimore ordinance on grounds that it is overly broad and prohibits commercial applications of facial recognition technology that already have widespread public acceptance and provide “beneficial and noncontroversial” services, including for example: increased and customized accessibility for disabled persons, healthcare facilities to verify patient identities while reducing the need for close-proximity interpersonal interactions, banks to enhance consumer security to verify purchases and ATM access, and many more. A similar concern was voiced by Councilmember Issac Schliefer who was one of the two votes opposing the ordinance.

The ordinance now awaits signage by Baltimore Mayor Brandon Scott, and if signed, will become effective 30 days after enactment. In anticipation, of the ordinance’s potential enactment, businesses in the City of Baltimore should begin evaluating whether they are using facial recognition technologies, whether they fall into one of the exceptions in the ordinance, and if not what alternatives they have for verification, security, and other purposes for which the technology was implemented.

After releasing an Emergency Temporary Standard (ETS) for COVID-19 for healthcare employers on June 10, 2021, the Occupational Safety and Health Administration (OSHA) has announced that it is publishing the ETS in the Federal Register on June 21, 2021. The publication gives the ETS immediate effect, but most elements of the ETS will not be enforceable for 14 days, on July 5, 2021.  Read complete coverage.

While the past week brought many changes around California for COVID-19 requirements, both the state statute and several local supplemental paid sick leave ordinances persist.

The statewide COVID-19 Supplemental Paid Sick Leave (“SPSL”) law remains in effect until September 30, 2021.

As a reminder, under the state SPSL, employees are entitled to leave for the following reasons:

  • The employee is subject to a quarantine or isolation period related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is attending an appointment to receive a vaccine for protection against COVID-19;
  • The employee is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework;
  • The employee is experiencing symptoms related to COVID-19 and seeking medical diagnosis;
  • The employee is caring for a family member who is subject to a quarantine or isolation order or has been advised to self-quarantine;
  • The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Similarly, many local ordinances also remain in effect, and so employers should be aware of the local ordinances applicable to their business. There may be overlap under the local ordinances with the statewide obligations.

Locality Expires
Long Beach (City) Based upon City Council determination.
Los Angeles (City) Until 2 calendar weeks after the expiration of the COVID-19 local emergency period.

Los Angeles

(County – unincorporated areas only)

 Shall be in effect until two calendar weeks after the expiration of the COVID-19 local emergency, as ratified and declared by the Board of Supervisors.

Marin

(County – unincorporated areas only)

 September 30, 2021
Oakland (City) Shall expire after the expiration of Oakland’s Declaration of COVID-19 Emergency.
Sacramento (City) June 30, 2021
San Jose (City) June 30, 2021
Sacramento (City) September 30, 2021
Santa Rosa (City) September 30, 2021

Sonoma

(County -unincorporated areas only)

 September 30, 2021

 

Marin and Sonoma County are the most recent localities to issue or expand their supplemental paid sick leave ordinances. Marin applies to employers with 25 or fewer employees. However, the reasons for which paid leave may be taken, and the amount of supplemental paid sick leave provided, mirror the statewide law. Sonoma County similarly extended the expiration date of its supplemental paid sick leave ordinance, but also provided a new bank of time retroactive to January 1, 2021.

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

The last few weeks have been quite tense for California employers as they watched the drama unfold with the state’s Department of Industrial Relations’ Division of Occupational Safety and Health (“Cal/OSHA”) over amendments to the standing COVID-19 Emergency Temporary Standards (“ETS”)

In case you missed it: a few weeks ago, Cal/OSHA delayed a vote on amendments to the ETS to have more time to consider new guidance from the Centers for Disease Control and Prevention (“CDC”) and the state’s health department. Then, Cal/OSHA considered new proposed amendments, which passed following two votes during an emergency meeting. These changes would have amended the ETS if approved by the Office of Administrative Law. However, the Standards Board withdrew the amendments and scheduled another emergency meeting. After proposing more revisions to the ETS to be considered on June 17th, Cal/OSHA also issued guidance in the form of a Frequently Asked Questions Page to explain proposed amendments.

Finally, on June 17th, the Standards Board passed an amended ETS and Governor Newsom issued an Executive Order to make the amended ETS effective as soon as filed with the Secretary of State.

The changes mainly attempt to bring the ETS in alignment with recent changes to California Department of Public Health (“CDPH”) Orders.

The following are the highlights of the changes to the ETS.

Face Coverings

All employees regardless of vaccination status do not have to wear masks outdoors. However, unvaccinated employees must be trained that face coverings are recommended outdoors for people who are not fully vaccinated when six feet of physical distance between people cannot be maintained.

Fully vaccinated employees do not have to wear a face-covering indoors unless (1) the employees’ work is subject to respiratory protection requirements under other health and safety standards, (2) there is an outbreak in the workplace, defined as three or more employees testing positive within a 14 day period or (3) the vaccinated employee is conducting COVID-19 screenings. Fully vaccinated employees also do not have to wear face coverings outdoors.

Employers must provide face coverings and ensure they are worn by unvaccinated employees when working indoors or in a vehicle with others.

Exceptions to Face Coverings for Unvaccinated Employees

  • When employees are outside.
  • When an employee is alone in a room or vehicle.
  • While eating or drinking, but only if employees are at least six feet apart and outside air has been maximized to the extent feasible. (Note that this is one area where physical distancing is still required. However, employers are still directed to evaluate the need for physical distancing and potential placement of barriers.)
  • Employees wearing a respirator under an employer’s Respiratory Protection Program

Employers are also required to provide face coverings to comply with applicable orders and the ETS, as well as to employees upon request, regardless of an employee’s vaccination status.

Physical Distancing

The amended ETS mostly eliminates physical distancing and barrier requirements, without consideration of employees’ vaccination status.

One clear exception is for locations where unvaccinated employees are eating and drinking, as noted above. Physical distancing is also still required in some cases, including:

  • If an employer assesses a workplace hazard and determines that physical distancing is necessary for the workplace.
  • If there is an outbreak, employers must evaluate whether physical distancing or barriers are needed to control transmission.
  • Physical distancing and barriers are mandated in the event of a major outbreak, defined as 20 or more employees testing positive.

Testing

Employers must continue to offer testing at no cost to employees under the following circumstances:

  • The employee is symptomatic and unvaccinated, regardless of whether there is a known exposure.
  • The employee is unvaccinated and has had a workplace exposure to COVID-19 (i.e. close contact with known or suspected COVID-19 infected person).
  • The employee is vaccinated, but has had a known workplace exposure, and has developed symptoms.
  • Employees who are unvaccinated in an outbreak (i.e., 3 or more employee positives within a 14-day period).
  • All employees in an exposed group during a major outbreak (i.e., 20 or more employee positives within a 30-day period).

Exclusion

Fully vaccinated employees and certain employees who have tested positive for COVID-19 previously, do not need to be excluded from the workplace following an exposure to COVID-19 unless they become symptomatic.

Documentation for Vaccine Status

To take advantage of the relaxed preventive measures, Cal/OSHA’s amendments require that the employer document employees’ vaccination status, especially for those not wearing a face covering.

Though the ETS does not specify a particular method for documenting status, the standard is performance-based and requires the documentation method to be effective. The FAQs for the amended ETS state acceptable options for documentation include:

  • Employees provide proof of vaccination, including a vaccine card or health care document showing vaccination status, and the employer maintains a copy.
  • Employees provide proof of vaccination and the employer maintains a record of the employees who presented proof but not the vaccine record itself.
  • Employees self-attest to vaccination status and the employer maintains a record of who self-attests.

Note that some of the options for documentation can have additional compliance obligations under Cal/OSHA’s Access to Medical Records Standard and related regulations. The alternative to collecting this information per Cal/OSHA is to require all employees to wear a face-covering instead of having a documentation process.

If an employee declines to state their vaccination status, the employer is required under the amended ETS to treat the employee as unvaccinated.

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.

Travel restrictions related to COVID-19 have been in place for more than a year. Certain restrictions have been removed, but the ones on travel from Brazil, China, India, Iran, Ireland, the Schengen Zone, South Africa, and the United Kingdom remain in effect. The White House wants to remove more restrictions and has announced it is putting together working groups with Canada, Mexico, the European Union, and the United Kingdom to “chart a path forward, with a goal or reopening international travel with . . . key partners.”

The groups will include experts from the White House COVID-19 Response Team, the National Security Council, and the Centers for Disease Control and Prevention. They will focus on real-time data. But a White House official noted, lifting restrictions will not be happening “today.”

The travel industry, and airlines in particular, has been hoping the United States will act quickly to remove the current COVID-19-based restrictions on travel, so their businesses and the economy in general can benefit from the summer season. Airline officials from the United States and the United Kingdom have been urging the lifting of trans-Atlantic restrictions. But they “do not expect Washington to lift restrictions until around July 4 at the earliest as the administration aims to get more Americans vaccinated.”

At the G-7 meeting, Prime Minister Justin Trudeau and President Joe Biden spoke about travel restrictions on their shared border. The land border is open only to “essential” travel. The essential travel ban has been in effect since March 2020 and keeps being renewed a month at a time. Currently, it is set to expire on June 21, 2021. There was “speculation that the border could reopen as early as June 22.” That does not seem to be in the cards. Trudeau has not wanted to lift restrictions until 75% of all Canadians have had at least one shot of a vaccine – a mark they might meet in July. For now, Canada is working on a phased approach, where the country might first exempt travelers who are fully vaccinated from quarantine rules.

We will provide updates on the possible loosening of travel restrictions as they become available. In the meantime, if you have questions about any of the travel restrictions and need advice about developing strategies for overcoming them, Jackson Lewis attorneys are available to assist you.

Employers in the healthcare setting have been grappling with issues related to COVID-19 vaccinations that raise many practical and legal questions, starting with: should we ask about vaccination status? Should we require employees to be vaccinated? If not required, should we encourage employees to be vaccinated? How should we encourage it? Identifying these questions is a helpful starting point, but it may be more useful to know what is really happening in the field. Looking for answers, Jackson Lewis surveyed healthcare employers; 42 participants responded as follows:

(1) Do you plan to survey your workforce on vaccine status? 54.76% say YES.

 

 

 

 

 

 

 

 

(2) What percentage of your employees are vaccinated (or that you believe to be vaccinated)?

The highest percentage of participating employers (35.71%) believe that 60% to 79% of their workforce is vaccinated, with an estimated 40% to 59% of employees vaccinated close behind (30.95% of employers who participated in the survey).

 

 

 

 

 

(3) Do you require employees to be vaccinated or are you planning to do so?

Most employers surveyed (70%) mostly likely will not require vaccinations due to concerns with legal or employee relations issues. Another 18% responded they would only consider mandating vaccinations if required by law. Of the 12% who do plan to/are considering a mandate, 4% will mandate for all employees, 6% will only mandate for employees who return to the office, and the final 2% will mandate that employees who travel are vaccinated.

 

 

 

 

 

 

(4) Do you offer any incentives for employees to receive the vaccine (including financial, paid time off or other benefits)?

Last, over a third of employers who participated in the survey are offering incentives to encourage employees to become vaccinated. Another almost 10% are considering incentives. However, most employers (57.14%) responded that they are not offering or planning to offer incentives.

 

 

 

 

 

 

 

 

Please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team, to learn more about how to successfully navigate vaccination issues regarding your workforce.