In a recent post, we highlighted the need for a privacy and cybersecurity training program, one not solely focused on spotting phishing attempts (although that is quite important as well). A primary reason, quite simply, is that employees continue to be a leading cause of data breaches. This fact was reaffirmed for the Wyoming Department of Health (WDOH) when an employee mistake resulted in the disclosure of nearly 165,000 Wyomingites. And, the risk is only amplified in the current remote work environment.

The WDOH announced on April 27, 2021, that it had inadvertently exposed 53 files containing COVID-19 and Influenza test data and 1 file containing breath alcohol test results. Some of the files had been exposed as early as November 5, 2020, but WDOH did not discover the incident until March 10, 2021. According to WDOH, the files included name or patient ID, address, date of birth, test result(s), and date(s) of service, but did not contain social security numbers, banking, financial, or health insurance information.

The breach resulted from an “inadvertent exposure” of the files by a WDOH workforce employee who mistakenly and impermissibly uploaded the files to private and public GitHub.com repositories, resulting in disclosure to unauthorized individuals. Notably, WDOH intended GitHub.com, internet-based software development company, be used by its employees only for software code storage and maintenance.

It is not clear why the WDOH employee uploaded 54 files containing patient test result data, including COVID-19 test results, to a service intended for storage of coding data. And, we do not know whether the employee in this case received training on the purpose and use of GitHub.com. However, according to WDOH’s announcement, the files were promptly removed from GitHub.com, the employee was sanctioned, and WDOH retrained its workforce on data privacy and security best practices.

Certainly, mistakes processing personal information are going to happen and no amount of training will prevent all data incidents and breaches. There is no silver bullet. An important question for an organization to ask, however, is whether reasonable steps are being taken to minimize the risk to data, even with regard to inadvertent errors in handling and with regard to use of company systems, among other things.

Training can be one of a number of tools organizations use to create a culture of privacy and security. Increased awareness can help to minimize, even if not eliminate, inadvertent errors. The white paper we provided in our earlier post outlines several considerations for developing a robust program designed to continually remind employee of the vigilance needed to protect personal information from unauthorized access, acquisition, modification, and disclosure. It is and will continue to be an ongoing challenge, particularly in the current environment with workplaces shifting as we emerge from the harshest effects of the pandemic.

In November 2020, Cal OSHA passed the COVID-19 Emergency Temporary Standards (ETS). Currently, the Standards are set to expire on October 2, 2021.

As outlined in prior articles, the ETS require that employers:

  • Establish, implement, and maintain an effective written COVID-19 Prevention Program.
  • Implement COVID-19 preventative measures.
  • Report information to their local health department.
  • Retain records related to COVID-19 cases in the workplace in a confidential manner.
  • Exclude workers known to have COVID-19 or who have had exposure.
  • Identify and manage COVID-19 infections and outbreaks in the workplace.

Unfortunately, the ETS are already lagging behind federal and state guidance pertaining to COVID-19. In particular, the ETS do not take into consideration guidance from the CDC regarding fully vaccinated individuals.

At the Cal OSHA Standard Board meeting on April 15th, several public commenters admonished the Standard Board about the lack of guidance from Cal OSHA or in the ETS regarding vaccinated individuals. The Standard Board disclosed that revisions to the ETS, including revisions about vaccinated individuals are in progress. Though it would be difficult due to tight timelines, the Standard Board hoped to have revisions passed by June, when California is tentatively set to fully reopen.

Jackson Lewis will continue to track developments pertaining to Cal OSHA regulations and requirements. If you have questions about the ETS or related compliance issues contact a Jackson Lewis attorney to discuss.

Frustrated by constantly shifting guidance and shortages of respirators and other personal protective equipment experienced in 2020, employers are rejecting Occupational Safety and Health Administration (OSHA) citations for COVID-19 infractions and contesting them like never before.

To read the article in its entirety, please click here.

Last week, President Biden encouraged employers to pay employees for time off to get vaccinated against COVID-19 and highlighted the tax credits available for employers with less than 500 employees. The American Rescue Plan Act of 2021 (ARPA) signed by the President on March 11, 2021 continued the tax credits available under the Families First Coronavirus Response Act (FFCRA) for covered employers who voluntarily decide to provide “qualified” paid sick leave or paid family leave wages to their employees through September 30, 2021.  As discussed in our March article, employers can receive the tax credit for providing leave for certain qualifying reasons.  Those reasons include, among other COVID-related reasons: (1) obtaining a COVID-19 immunization and (2) recovering from an injury, disability, illness or condition related to COVID-19 immunization.

On the same day as President Biden’s statement, the IRS issued this Fact Sheet providing further details about the tax credits available under the ARPA including information about how employers may claim the credit for paid leave if they choose to provide it for the reasons covered under the ARPA including for employees to obtain or recover from COVID-19 vaccinations.

While paid time off under the federal ARPA is optional for employers, some states including New York, require employers to provide employees with paid time off for COVID-19 vaccinations. Last week, Chicago joined the list of jurisdictions legislating vaccination pay requirements. Chicago’s ordinance includes pay obligations for employers who mandate vaccinations and requires other employers to allow employees to use accrued paid time off to obtain vaccinations. Employers considering pay obligations for time off from work for COVID-19 vaccination should also consider state and local paid sick leave laws which may cover time off for preventative care that would include vaccinations.  Finally, state and federal wage and hour laws may impact whether pay is required for time spent receiving a vaccine depending on the employee’s exempt/non-exempt status, the timing of the vaccination, and whether the vaccine is required for the employee’s job.

Jackson Lewis attorneys are closely monitoring updates and guidance in this area and are available to assist employers in preparing policies and procedures related to COVID-19 paid time off.

Customs and Border Protection has announced that travel restrictions on the Northern and Southern borders will be extended until May 21, 2021.

For close to 400 days, admission at the land ports of entry has been limited to “essential” travel. Essential travel generally includes individuals entering for work, but it does not include any sort of tourism and families have been separated during this time.

Representative Brian Higgins (NY -26), co-chair of the Northern Border Caucus, wants to see individuals with family, property, or business interests in Canada exempted from the restrictions and a full reopening of the Northern border by July 2021.

Representative Higgins said: “Families on both sides of the border have been torn apart, people who love each other, parents, grandchildren, unable to see each other …. We need a plan to open the U.S.-Canadian border. With vaccines, face masks and good physical distancing we can do so safely and successfully.” Beyond the essential travel restrictions, testing and quarantine requirements have been imposed as well.

Representative Higgins’ call comes at a time when the Department of State (DOS) is issuing new travel warnings due to “unprecedented” COVID-19 risks in 80 percent of the countries in the world. DOS plans to expand travel advisories and advise U.S. citizens to stay home. The Johns Hopkins Coronavirus Resource Center reports the top 10 COVID-19 “hot spots” include India, Brazil, France, Russia, the United Kingdom, Turkey, Italy, Spain, Germany, and the United States.

The COVID-19 Supplemental Paid Sick Leave statute was signed into law a month ago and, despite a FAQ issued by the California Labor Commissioner, employers were faced with uncertainty as to whether their employee’s leave request qualified under the statute.  Fortunately, the Labor Commissioner has updated its FAQs to provide further clarity to employers.

Reasons for Leave

The first clarification pertains to leave for childcare purposes. The statute states that eligible employees may take supplemental paid sick leave if “caring for a child…whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.” This wording led to confusion for employers since individuals were claiming the language required supplemental sick leave pay if their school or childcare facility had been closed for a prolonged period of time and not due to a sudden COVID-19 closure due to an issue on the premises.

The Labor Commissioner has stated this language means a child’s school or place of care has been closed after concern that a person who had been present on the school or daycare premises on or after January 1, 2021, was exposed to, or had contracted, COVID-19.  This does not include caring for a child whose school or daycare was closed before January 1, 2021.  If the school or daycare was closed on or after January 1, 2021, it must have been due to a closure, or partial closure, making the care unavailable due to COVID-19 on the premises.

The next clarification is whether an employee is eligible for supplemental paid sick leave if someone the employee lives with is exposed, experiences symptoms, or is diagnosed with COVID-19. The Labor Commissioner states that an eligible employee may use supplemental paid sick leave if the employee is caring for a family member either because the family member has been recommended by a medical professional to stay home due to COVID-19 or the family member is subject to a COVID-19 related quarantine or isolation period.

Requests for Leave

The Labor Commissioner has clarified that an employer must provide supplemental paid sick leave to an eligible employee “immediately upon the oral or written request” of the eligible employee.

Relation to Other Laws

The Labor Commissioner specifies that the recently passed supplemental paid sick leave is different than both the federal Families First Coronavirus Response Act (FFCRA) and the 2020 California COVID-19 Supplemental Paid Sick Leave. The new law provides an additional bank of time for COVID-19 related reasons.

The Labor Commissioner also notes in the FAQs that federal law currently provides tax credits for employers with less than 500 employees who provide COVID-19 related paid sick leave voluntarily. The Labor Commissioner directs employers to the  Internal Revenue Service FAQs for more information on the federal tax credit.

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

The Department of Homeland Security (DHS) has announced that it plans to release 22,000 more H-2B visas in addition to the 66,000 H-2B visas available annually, reserving 6,000 for the Northern Triangle countries of Guatemala, El Salvador, and Honduras.

U.S. employers may bring foreign nationals to this country to fill temporary, non-agricultural jobs in H-2B status. H-2B visas are relied on heavily by the tourist, hospitality, landscaping, seafood, and construction industries. In recent years, all the visas have been used up and businesses have gone begging for more – often just to be able to remain afloat.

Annually, 66,000 H-2B visas are available, half for the winter season and half for the summer season. These 33,000 visas are wholly insufficient for the number of jobs open for H-2B workers. For the summer of 2021, the Department of Labor received applications for a total of 98,000 workers, all vying for one of the coveted 33,000 spots. Due to the overwhelming demand, the 33,000 H-2B visas were used by February 12, 2021. The prospect of thousands of jobs unfilled for their busiest season panicked many industries.

For years, employers have advocated for additional H-2B visas. In response, Congress authorized DHS to release more visas. In 2020, DHS planned to release an additional 35,000 visas, with 10,000 specifically reserved for nationals of Guatemala, El Salvador, and Honduras, but that was put on hold due to high unemployment rates resulting from the COVID-19 pandemic.

It could be a few months before USCIS issues the final rule and obligations for employers to obtain one of the 22,000 new H-2B visas. If it is like last year, U.S. employers likely will need to perform additional recruitment before applying for the visas.

Jackson Lewis attorneys are available to assist you through the process of applying for the newly released H-2B visas and bringing new workers to the United States.

The Healthcare Workforce Resilience Act (HWRA) has been introduced in the Senate again. The bill would recapture 15,000 immigrant visas for doctors and 25,000 for nurses.

The bill has bipartisan support. Introduced by Senators Dick Durbin (D-IL), John Cornyn (R-TX), Todd Young (R-IN), Chris Coons (D-DE), and Susan Collins (R-ME), the bill focuses on starting to eliminate the shortage of healthcare workers in the United States that has become more apparent during the COVID-19 pandemic. Providing immigrant visas to doctors and nurses would not only be an attractive incentive to those overseas, but to those already in the United States because they would no longer be restricted by the geographic scope of their nonimmigrant visas. That limitation and questions about telehealth continue to be obstacles to deploying medical assistance where needed during spikes in COVID-19 cases across the country.

At the introduction of the bill, Senator Collins said, “By issuing unused employment-based visas to immigrant medical professionals, this bipartisan legislation would help strengthen our health care workforce and preserve access to care, particularly in rural and underserved communities in Maine and across our country.” If the bill passes as proposed, the filing period for the unused visas would end 90 days after the termination of the COVID-19 emergency declaration.

Under its provisions, the bill:

  • Recaptures unused visas for doctors, nurses, and their families;
  • Exempts the recaptured visas from country caps;
  • Requires employers to attest that no United States workers will be displaced by those petitioning for the visas; and
  • Requires no-fee expedited processing.

This bill has been introduced before, but might have even more force now because the idea of recapturing unused visas has been proposed by President Joe Biden in his U.S. Citizenship Act. Visas often go unused due to the mistakes in counting and administrative delays and errors – some, but not all, unused visas have been recaptured in the past by legislation.

The HWRA is supported by many organizations, including physicians groups (such as the American Medical Association, the American Academy of Family Physicians, and the American Academy of Pediatrics), nursing associations (such as the American Organization for Nursing Leadership), the National Rural Health Association, as well as the American Immigration Lawyers Association and the American Business Immigration Coalition.

The bill will be introduced into the House of Representatives, also on a bipartisan basis, by Representatives Brad Schneider (D-IL), Tom Cole (R-OK), Tom O’Halleran (D-AZ), and Don Bacon (R-NE).

Jackson Lewis attorneys will follow the progress of the bill and provide updates as they become available.

The Occupational Safety and Health Administration’s (OSHA) recent Updated Interim Enforcement Response Plan for COVID-19 (Response Plan) was issued on the same day it announced its National Emphasis Program (NEP). Healthcare employers will continue to be a target of OSHA’s inspection efforts pursuant to the NEP. The Response Plan provides directions for OSHA compliance officers on how to conduct COVID-19 inspections.

The Response Plan details the categories of documents compliance officers should request. It also identifies specific standards that are most applicable to infectious diseases, which are:

  • Recording and Reporting Occupational Injuries and Illness;
  • Personal Protective Equipment;
  • Respiratory Protection;
  • Sanitation;
  • Accident Prevention Signs and Tags;
  • Access to Employee Exposure and Medical Records; and
  • The General Duty Clause of the Occupational Safety and Health Act.

The Response Plan also suggests OSHA will expect stricter compliance than it did during the early stages of the pandemic. For example, the Response Plan acknowledges OSHA has been exercising some enforcement discretion for the recording of COVID-19 cases, but notes that “employers should have an increased ability to determine whether an employee’s COVID-19 illness is likely work-related” in light of increased understanding of how the infection is transmitted and prevented.

Many healthcare providers have struggled with shortages of supplies and personal protective equipment, such as respirators. OSHA previously used enforcement discretion in addressing those situations. However, shortages are unlikely to serve as a compelling excuse for non-compliance. The Centers for Disease Control and Prevention (CDC) recently revised its guidance about sanitizing and reusing respirators due to an increase in supply. The Response Plan similarly states that shortages of health and safety equipment, such as N95 filtering facepiece respirators, are “becoming less of a barrier to compliance.” The Response Plan instructs compliance officers to evaluate the employer’s good faith efforts to comply with OSHA standards, including whether the employer “thoroughly explored alternative options to comply with the applicable standard(s),” like remote communications or training and efforts to obtain alterative respiratory protection devices. However, the Response Plan reiterates that enforcement discretion will not be exercised when respirators and other supplies and services are “readily available.”

A summary of the Response Plan can be found here.

The Governor has signed Senate Bill 93, which would require that covered employers offer employees laid off due to the COVID-19 pandemic available positions based on a preference system. The new statute is targeted at the hospitality industry, which has started to reopen as the state moves toward full reopening.

The bill is a budget bill and therefore the statute becomes effective immediately.

Specifically, the ordinance applies to the following industries:

  • Hotels
  • Private clubs
  • Event Centers
  • Airport Hospitality Operations
  • Airport Service Providers
  • Building Services to office, retail, or other commercial buildings

The bill includes further qualifications as to the size of the enterprise for application of the statute.

Under the new statute, employees who were employed by the employer for 6 months or more in the 12 months preceding January 1, 2020, and whose most recent separation from active service was due to a reason related to the COVID-19 pandemic, must be offered positions they are qualified for first before hiring new employees. Laid-off employees are deemed qualified if they held the same or similar position at the time of lay-off.

Covered employers must give laid-off employees 5 business days to respond to offers of reemployment, along with other requirements.

The statute also includes certain record-keeping requirements, for covered employers to be able to contact laid-off employees when positions become available.

The bill will sunset on December 31, 2024.

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