As the state of California moves toward full reopening, employers in certain jurisdictions in California already have to contend with local right of reemployment or recall requirements. While last year Governor Newsom vetoed a statewide right of recall, the state legislature has approved a similar statute, Senate Bill 93.  If signed by the Governor, the bill would require that covered employers offer employees laid off due to the COVID-19 pandemic available positions based on a preference system.

Covered Employers

Under the proposed legislation, employers who operate hotels, private clubs, event centers, airport hospitality services, or building services to office, retail, or other commercial buildings would have to comply with the statewide right of recall.

Each of the industries covered is further defined based on the size of the enterprise and related qualifications.

Covered Employees

The bill applies to “laid-off employees” defined as an employee who was 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.

Requirement

Covered employers must offer laid-off employees all job positions that become available for which the employee is qualified. Laid-off employees will be deemed qualified if the employee held the same or similar position at the time of lay-off.

The laid-off employee must be given at least 5 business days to respond to the offer.

If more than one employee would be entitled to a position, the employer must offer the position to the employee with the greatest length of service based on the date of hire.

An employer that declines to recall a laid-off employee on the grounds of lack of qualifications must provide the laid-off employee written notice within 30 days.

Record-keeping

Covered employers will be required to retain the following records for at least three years measured from the date of layoff:

  • Employee’s full legal name
  • Employee’s job classification at time of separation
  • Employee’s date of hire
  • Employee’s last known residence address
  • Employee’s last known email
  • Employee’s last known telephone number
  • A copy of the notice of layoff

The statute is a budget bill and, therefore, if signed will go into effect immediately. Per the current terms, it will sunset on December 31, 2024.

While typically new bills are not sent to the governor until the end of the legislative session, bills may be approved and sent before the end of the session. This session, the governor has already signed a couple of bills related to COVID-19, including supplemental paid sick leave.

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

20 million Californians have already been vaccinated, with all individuals age 16 and up eligible for vaccination effective April 15th. The Department of Fair Employment and Housing recently released updated COVID-19 guidance, which included guidance on employer vaccination programs. The California Labor Commissioner followed suit and released guidance regarding COVID-19 Testing and Vaccination pertaining to California regulations governed by the Labor Commissioner.

According to the Labor Commissioner, if an employer requires an employee to obtain a COVID-19 test or vaccination, the employer must pay for the time it takes for the testing or vaccination, including the time, spent traveling if the testing/vaccination is off-site.  As “hours worked,” employers should remember that all time associated with employer-mandated testing and vaccinations must be considered for overtime purposes, and comply with California’s meal and rest period requirements.

The Labor Commissioner also indicated if an employee is mandated by an employer to be tested for COVID-19 or be vaccinated, any cost of the test or vaccination must be reimbursed by the employer as a business expense. If the test or vaccine is conducted off-site, the employee is also entitled to travel time and business mileage reimbursement for travel to and from the off-site location.

An employee may also use COVID-19 Supplemental Paid Sick Leave for a vaccination appointment not mandated by the employer. It is important to note that the employer cannot require the use of paid leave when testing and obtaining a vaccination is mandated by the employer since that would be considered “hours worked.”

Jackson Lewis continues to track COVID-19 legislation and guidance affecting employers. If you have questions about the COVID-19 obligations for employers or related issues, contact a Jackson Lewis attorney to discuss.

The Biden administration has called for all people at least 18 to be eligible for the COVID-19 vaccine by April 19, 2021. Most states have already done so.

A BenefitsPro article cites a 2017 survey from the Society for Human Resource Management (SHRM) that found almost 60 percent of employers offer on-site flu vaccinations. Naturally, with expanding availability of COVID-19 vaccination doses and widespread eligibility, organizations are asking whether setting up an on-site COVID-19 vaccination program is more involved than one offering flu shots. The short answer is yes.

The country continues to operate under a national emergency due to a pandemic, not present during a typical flu season. Accordingly, concerns about safety and minimizing spread are significantly amplified. Individuals tend to be familiar with flu vaccines, not so with the current COVID-19 vaccines. Concerns over the emergency use authorization status of the COVID-19 vaccine, privacy, individual rights, school openings and childcare, effects on continued employment, liability, and so on are apparently not as prominent when getting an annual flu shot.

Taking those and other concerns into account, organizations considering setting up an on-site COVID-19 vaccination program have several issues to consider. Below is a nonexhaustive list of a few of those issues. Additionally, the Centers for Disease Control and Prevention has provided some guidance for organizations establishing a workplace vaccination program, as has the National Institute of Health.

Getting Organized

Whether an organization will set up a program for one or multiple locations, it is critical to have a plan in place and responsibility assigned to carry out that plan. Many organizations will rely on a local health department (LHD) or a third-party health care provider (TPHCP) to administer the vaccine. But it is unlikely that either will just show up and start putting needles in arms. The organization will need to address a range of action items, and that will include outlining who will be responsible for what.

Vaccine Administration and Reporting

A big question is who is going to order, receive, and store the vaccine doses, administer them to patients, satisfy federal and state reporting requirements, and carry out other health-related duties and obligations. Unless the organization has an existing on-site occupational health clinic, staffed with persons who are adequately trained, it will typically look to an LHD or TPHCP who will marshal, store, dispense, and, if needed, dispose of unused vaccine doses. Additionally, that entity generally will be responsible for reporting mandates and related activities.

When partnering with an LHD or TPHCP to administer vaccines, a careful review of the services or other agreement is warranted to clearly set out which services are being provided and which are not being provided, among other issues.

Facility Suitability and Preparedness

Even as the pace of vaccinations continues to increase, the threat of contracting COVID-19 remains. Thus, federal and state health authorities recommend continuing health and safety measures: screening, social distancing, mask wearing, and so on. Thus, planning for on-site COVID-19 vaccine administration should include a review of how the facility can best accommodate the personnel needed to deliver the vaccine, as well as those receiving it. This should include evaluating the space and traffic flow and designating separate places for registration, vaccine administration, and recovery to ensure appropriate social distancing.

Preparing a chart of the space can help organizers maintain the applicable safety measures, as well as better plan for contingencies and adequate communication.

Liability

Whether setting up a health fair or an on-site vaccination clinic, concerns about potential liability will certainly arise, such as from an adverse reaction to the health service rendered. This is no less true for the COVID-19 vaccine. However, healthcare providers and employers may qualify for a level of immunity under the Public Readiness and Emergency Preparedness Act (PREP Act), provided the requirements of the PREP Act are satisfied. The Prep Act protects “covered persons,” such as:

  • Program planners: individuals and entities involved in planning, administering, or supervising programs for distribution of a countermeasure (e.g., state or local governments, Indian tribes, or private sector employers or community groups that establish requirements or provide guidance, technical or scientific advice or assistance, or provide a facility); and
  • Qualified persons: persons who prescribe, administer, or dispense countermeasures such as healthcare and other providers or other categories of persons named in a declaration, that engage in countermeasures covered by the Health and Human Services Secretary’s declaration, as amended, such as “products that are approved, cleared, or licensed by FDA; authorized for investigational use, i.e. an Investigational New Drug [] or Investigational Device Exemption [], by FDA, authorized under an EUA by FDA, or otherwise permitted to be held or used for emergency use in accordance with Federal law” in a manner consistent with the requirements of the declaration, provided they have not engaged in willful misconduct.

Organizations should review the scope of this immunity with legal counsel, along with other steps for mitigating potential exposures not covered by the PREP Act, such as insurance and contract negotiation.

Communications

There are several areas of communication that must be considered, including what needs to be communicated, who is responsible for communicating, and when to communicate. For example, it is important to ensure those eligible to get the vaccine have been provided sufficient information to make an informed decision about getting vaccinated. Often the LHD or TPHCP will provide employers information that will need to be shared with employees prior to the on-site vaccination day. Further, questions may arise in the process from employees, the third-party provider, or even the media concerning the organization’s vaccination program. Anticipating and planning response strategies to these inquiries will help avoid potentially damaging miscommunications while building confidence in the program.

Employment Issues

Bringing COVID-19 vaccinations on-site for employees will raise several employment issues that organizations should be thinking about, such as:

  • Whether vaccination should be mandatory or voluntary. This is a difficult decision for many organizations that requires careful examination of several factors, including employee morale and applicable federal and state law. For employers moving forward with an on-site COVID-19 vaccination program, additional considerations exist if they intend to mandate the vaccine. Since pre-screening questions required as part of the on-site administration will include medical inquiries, whether an employer can mandate that employees receive the vaccine will be limited. Generally, employers who administer or contract with an administrator to come on-site to vaccinate employees can only mandate if the pre-vaccination screening questions do not include inquiries about genetic information and vaccination is job-related and consistent with business necessity.
  • COVID-19 vaccine incentives. As an alternative to mandating vaccinations, employers who wish to strongly encourage vaccinations, may choose to offer employees an incentive to get the vaccine. Depending on the incentive, employers, will need to be prepared to provide reasonable accommodations for persons with disabilities and religious objections, and to assess the appropriateness of the incentive.
  • Informed consent. Employers holding on-site COVID-19 vaccination programs may wish to have employees sign an informed consent as a condition of receiving the vaccine on-site. An informed consent should contain appropriate disclosures about the vaccine and the vaccination process, a statement that the employee understands the process as well as an acknowledgment that receipt of the vaccination was the employee’s free choice.
  • Employee benefit. An arrangement sponsored by an employer to provide vaccines for employees may be structured to be part of or itself an employee welfare benefit plan under the Employee Retirement Income Security Act of 1974 (ERISA). Employers should seek legal counsel on whether ERISA applies, as well as other laws regulating benefit plans, such as HIPAA and the Affordable Care Act.
  • Eligibility. Organizations may want to consider whether persons other than common law employees based at the administration site will be eligible to get the vaccination on-site. Other categories of individuals to consider might include employees working and living in other states, non-U.S. employees, family members, contractors, and contingent workers.
  • Scheduling, leave management. Offering a COVID-19 vaccination program on-site could raise logistical challenges regarding scheduling – when to schedule the first and second doses, the amount of lead time needed to maximize participation, how to stagger scheduling to avoid business interruption, providing time for employees who may experience adverse effects, and the like. Working ahead of time to address these issues could go a long way to maximizing vaccination rate and minimizing business interruption and dissatisfied employees.
  • Labor relations. Offering a COVID-19 vaccine to employees represented by a labor union may require negotiations with that union.

Data Privacy and Security

The ongoing debate over privacy and “vaccine passports” illustrates the sensitivity about information relating to a person’s vaccination status. Accordingly, an organization’s plan for on-site delivery of COVID-19 vaccines to employees should carefully consider how information about vaccination status will be shared. Some sharing of information in such an environment may be unavoidable (“Hey, I saw you getting a vaccination, how did it go?”). Organizations should be doing what they can to minimize unnecessary and unauthorized access and acquisition of such information. This includes coordinating with third-party vendors where applicable and ensuring appropriate privacy and security safeguards are in place. If an employer requires proof of vaccination from employees, such information should be treated as confidential medical information.

There is quite a bit to think about when setting up a COVID-19 vaccination program. While flu vaccination programs likely differ, prior experience with health fairs and flu vaccination offerings can be helpful reference points. Having a good team in place, careful planning, and the support and collaboration of an LHD or TPHCP, among other things, will help lead to a successful program.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.

In March 2021, the Office of Inspector General (OIG) at the U.S. Department of Health and Human Services (HHS) released results from a national survey conducted between February 22-26, 2021 of front-line hospital administrators at 320 hospitals across 45 states, the District of Columbia, and Puerto Rico.  The purpose of the survey was to assess how responding to the ongoing COVID-19 pandemic has impacted hospital administrators’ capacity to care for patients, staff, and the communities they serve.

The survey focused primarily on (1) the most difficult challenges administrators face responding to the COVID-19 pandemic right now and the strategies used to address those challenges; (2) each organization’s greatest concerns for the future; and (3) how the government can best support hospitals.

Employee Well-Being

Administrators specifically reported the pandemic had resulted in increased hours and responsibilities for staff, including longer hours, extra shifts, reassignments to COVID-19 related duties and tasks, and mandatory overtime, leading to exhaustion and mental fatigue. Importantly, they also reported concerns about the trauma experienced by staff members and the grave realities of the pandemic weighing on their mental health, including mourning the loss of colleagues from COVID-19, being on the front lines caring for dying patients in their last moments without any patient family members present, and facing separation from their families for extended periods of time in an effort to keep their family members safe from potential exposure.

Turnover and Staffing Shortages

Administrators also reported that hospitals have experienced higher than normal turnover among medical staff causing staffing shortages, especially in positions such as respiratory therapists, certified nursing assistants, phlebotomists, laboratory technicians, and support staff critical to hospital operations.  Hospitals attributed much of this turnover to the fatigue from pandemic care, prompting staff members to retire early or even leave healthcare altogether.  With potentially fewer financial resources and a smaller labor pool, smaller and rural hospitals reported that these shortages especially impacted them.

To address staffing shortages hospitals have relied more extensively on traveling nurses and staffing agencies to fill essential roles, although patient care concerns have resulted because individuals filling these roles are less familiar with individual hospitals’ protocols.  Administrators are also concerned that the COVID-19 pandemic has deterred interest in the healthcare industry for students–a staffing impact that could remain for years to come.

Vaccines

As vaccines are distributed across the country, healthcare workers were some of the first to receive them.  However, administrators reported challenges responding to vaccine misinformation amongst staff and communities, as well as ensuring vaccine access for rural and low-income communities.  Administrators face difficulties convincing staff members of the importance and safety of the vaccine.

Overcoming these Challenges

To combat these challenges, administrators noted that they are establishing employee assistance and mental health and social support programs for staff.  They are also leveraging resources to reallocate staff from other departments and trying to retain and attract talent with higher pay, overtime incentives, bonuses, and other benefits where possible.  Further, they are launching vaccine education campaigns to educate employees and their communities from which they are seeing results.

Certainly, the survey underscores that the strains of the COVID-19 pandemic–both physical and emotional–are far-reaching.  Please reach out to your Jackson Lewis attorney who can provide additional best practices and resources as we navigate these challenges together.

On April 6, 2021, the total number of COVID-19-related employment complaints filed in United States courts passed the 2,000 mark.  Although it took eight months to reach the first 1,000 complaints (March–November 2020), it took less than five months to go from 1,000 to 2,000. Indeed, December 2020 through March 2021 included the four busiest months for new COVID-19-related employment complaints since the start of the pandemic.

As the country accelerates past the 2,000-complaint milestone, we note the following facts and trends using Jackson Lewis’ COVID-19 Employment LitWatch:

  • States with the most complaints filed are California (487), New Jersey (267), Florida (142), New York (137), Ohio (127), Texas (105), and Michigan (74).  Since January 1, 2021, states with the most, new complaints (in descending order) are California, New Jersey, Ohio, New York, Florida, Texas, and Michigan.
  • California is beginning to eclipse the rest of the country. Since January 1, 2021, California alone accounts for approximately 29% of all complaints filed in the United States, up from 21.4% of the first 1,000 complaints.  New Jersey holds steady in the number two spot, with 13% of complaints filed in 2021, slightly up from 12.6% of first 1,000 complaints.  Together, California and New Jersey account for 42% of all complaints filed in 2021.
  • California and New Jersey plaintiffs continue to flock to state court. Since January 1, 2021, 96.6% of California complaints and 89% of New Jersey complaints have been filed in state court.  During that same time period, outside of California and New Jersey, approximately 57% of complaints were filed in state court, and 43% in federal court.
  • Nearly all complaints now include allegations of wrongful termination. Since January 1, 2021, approximately 83.3% of complaints include allegations of wrongful termination.  This number has been steadily increasing throughout the pandemic.  Approximately 74% of the first 1,000 complaints included an allegation of wrongful termination.
  • The Healthcare industry continues to bear the brunt of COVID-19 litigation, but the Retail and Consumer Goods industry is experiencing a sharp increase. Since January 1, 2021, approximately 25.1% of all new complaints have targeted the Healthcare industry, which has been fairly constant throughout the pandemic.  The Retail and Consumer Goods industry, however, is experiencing a dramatic increase from 7.5% of the first 1,000 complaints filed, to approximately 13.7% of complaints filed in 2021.
  • “Disability, Leave & Accommodation,” “Discrimination/Harassment,” and “Retaliation/Whistleblower” continue to account for nearly all claims. These categories of complaints accounted for approximately 76% of the first 1,000 complaints but jumped to 85.5% of all complaints filed in 2021.
  • Class Action Lawsuits. Approximately 86 COVID-19-related employment class action complaints have been filed across the United States, primarily in California (36), Florida (14), Illinois (6), and New York (6).  Eighteen of these class actions were filed in 2021.

If you have any questions regarding COVID-19-related litigation, or any other employment law issues, do not hesitate to contact Jackson Lewis attorneys.

Providing incentives for employees to get the COVID-19 vaccine continues to be on the minds of organizations as vaccinations pick up speed. However, concerns about privacy and the shifting positions on wellness program regulation has left many employers wary about implementing more robust incentives. According to Bloomberg, two GOP members of Congress are urging the Equal Employment Opportunity Commission (EEOC) to provide some clarity.

Employer-sponsored wellness programs come in many forms, such as:

  • An education campaign to inform employees about healthier eating habits.
  • A gym membership subsidy.
  • A health risk questionnaire to help employees be more informed about their health risks.
  • A walking program designed to decrease sedentary lifestyles.
  • Making health coaches available for engagement on general wellness and/or chronic health issues.
  • Satisfaction of key health-related measures – heart rate, cholesterol level, body mass index (BMI).

Such programs are often tied to group health plans and the incentives for satisfying program requirements come in the form of cash payments, reduced contributions toward premiums, points that can later be redeemed, and other creative arrangements. A key compliance challenge for many of these programs is the size of the incentive – the underlying issue being whether the size of the incentive causes a loss of voluntariness. Programs that are part of group health plans generally are subject to regulations issued under the Affordable Care Act (ACA) and the Health Insurance Portability and Accountability Act (HIPAA), although other rules including those referred to below may apply. The ACA/HIPAA regulations are relatively clear on incentive limits and are not what GOP members of Congress and business leaders have expressed concerns about.

Under the Americans with Disabilities Act, disability-related inquiries of employees generally must be job-related and consistent with business necessity, unless made in connection with a voluntary wellness program. It is that exception, specifically whether the program is voluntary, that is causing much of the concern about vaccination incentive programs. We outlined a brief history of the EEOC’s position on voluntariness here.

Depending on the design of a COVID-19 vaccination incentive program, disability-related inquiries may be involved, raising the question about voluntariness. Is a $50 gift card too much, what about $500, will that render the program involuntary? How about 2 days off with pay? It is worth noting that, according to the EEOC,

“[s]imply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.” 

On January 7, 2021, the EEOC proposed a new approach that might wind up providing employers some certainty, but those regulations have been withdrawn following a regulatory freeze issued by the White House on January 20, 2021. Under those proposed rules, however, incentives are permitted under such programs provided they are de minimis.

Sen. Richard Burr (R-N.C.) and Rep. Virginia Foxx (R-N.C.) observed to the EEOC in a letter obtained by Bloomberg, looking for a response by April 20, 2021:

“Employers actively working to protect their employees by increasing the number of workers receiving vaccinations through incentive programs are seeking assurance this action is allowable and does not violate important labor laws such as the Americans with Disabilities Act (ADA) and other statutes within the jurisdiction of the EEOC”

Additionally, the data privacy, confidentiality, security, and record retention of the information needed to administer such programs also raises compliance issues under federal and state law. This includes the confidentiality rule under the ADA, the HIPAA privacy and security regulations for programs that are part of group health plans, OSHA record retention requirements, and state reasonable safeguard and breach notification requirements.

Many organizations have moved forward offering a variety of incentive programs to spur employees to get a COVID-19 vaccine. The level of legal risk, if any, for those programs is a function of several factors – does the program include a disability-related inquiry, how large is the incentive, is the program part of a group health plan, how is the program administered and enforced, and how is the privacy and security of the data maintained.

It remains to be seen whether the EEOC will provide greater clarity on the voluntariness of incentives for COVID-19 vaccination programs. In the meantime, employers will need to think carefully about the design and implementation of their programs.

Philadelphia has joined a growing list of localities to require employers to provide employees paid COVID-19-related sick leave.

When the federal Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020, many employees lost guaranteed paid COVID-19-related leave. As of March 29, 2021, employers with employees working in Philadelphia must provide them paid COVID-19-related sick leave.

The new 2021 Public Health Emergency Leave (PHEL) amends and expands Philadelphia’s previous COVID-19 paid leave ordinance that had expired on December 31, 2020. The amended PHEL ordinance is similar to the FFCRA, minus the tax credits, and expands existing paid sick leave requirements by mandating Philadelphia businesses with at least 50 employees provide additional paid time off to employees who have worked for the business at least 90 days.

Read more about Philadelphia’s COVID-19 Paid Sick Leave.

USCIS has issued a new policy guidance clarifying eligibility requirements for internationally recognized athletes (P-1A nonimmigrants). Effective immediately, the policy applies to P-1A petitions filed on or after March 26, 2021.

The policy explains some of the statutory definitions. For instance, a “major United States sports league” means one that has a distinguished reputation, commensurate with an internationally recognized level of performance, and a “major United States sports team” is one that participates in such a league.

A P-1A petition can be submitted for an “internationally recognized” individual or team to allow entrance into the United States to participate in an athletic competition. The competition must have a “distinguished reputation” and requires participation of an athlete or team to perform “at an internationally recognized level.”

Under the policy, the following are considerations for determining whether competitions qualify:

  • The level of viewership, attendance, revenue, and major media coverage of the events;
  • The extent of past participation by internationally recognized athletes or teams;
  • The international ranking of athletes competing; or
  • Documented merits requirements for participants.

The relevant statutory and regulatory provisions do not require an athlete or team to participate in a competition that is limited only to internationally recognized participants. It is sufficient to show the competition requires some level of participation by internationally recognized athletes to maintain its distinguished reputation in the sport.

That a competition is open to competitors at all skill levels can be a negative factor in the analysis. If the event includes differentiated categories of competition based on certain skill levels, however, the focus should be on the reputation and level of recognition of the specific category of competition in which the athlete or team seeks to participate. For instance, the Boston Marathon is open to many skill levels, but an individual who will be competing in the “elite category” is likely at the level required for a P-1A.

For a team submission, the petition must include evidence that the team as a unit is internationally recognized. If proved, each athlete will receive P-1A classification based on their membership on the team. In this circumstances, the individual may not perform services separate and apart from the team while in the United States. To do that, they must present evidence of international recognition based on their own reputation.

While these clarifications are useful, individuals planning to come to United States. to participate in competitions will still have to overcome COVID-19 travel restrictions if they have been in the UK, Ireland, the Schengen Zone, Brazil, South Africa, China, or Iran during the 14-day period prior to their planned admission to the United States. In May 2020, certain athletes were specifically exempted from these bans to allow planned competitions to continue; but in February 2021, that exemption was removed.

For any questions, please contact your Jackson Lewis attorney as we are available to assist you in bringing professional and amateur athletes to the United States.

As more counties move toward the Orange Tier on the state reopening guidance, businesses can reopen or operate under less restrictive requirements. This may mean employers need more employees than in the last several months. Though last year, the Governor vetoed a statewide right of recall requirement, several cities still have ordinances in place.

The following cities still have a right of recall ordinance related to COVID-19:

City Covered Employers
Long Beach

·  Commercial property employers that provide janitorial services (25 or more employees)

·  Hotel employers (25 or more employees)
 Los Angeles

·  Airport employers

·  Commercial property employers that employ 25 or more janitorial, maintenance, or security service workers

·  Event center employers

·  Hotel Employers
Oakland

·  Airport hospitality employers

·  Event center employers

·  Hotel employers

·  Restaurant employers (more than 500 employees)
Pasadena ·  Hotel employers
San Diego

·  Commercial property employers

·  Event center employers

·  Hotel employers
Santa Clara

·  Building service employers

·  Food service employers

·  Hotel employers

Most of the ordinances require covered employers to offer available positions to qualified employees who were previously laid off due to pandemic mandated closures. Typically, such offers are to be made to employees based on seniority and/or length of service with the Company. Each ordinance requires covered employers to provide employees with a certain period to accept or decline rehire before the employer offers the position to another former employee with less seniority or opens the position to new employees. Covered employers should review the rehire requirements in their locations to ensure they are complying with the various requirements specified.

San Francisco’s right of reemployment recently expired, but the Board of Supervisors is considering a replacement ordinance.

If you have questions on right of recall ordinances or other issues regarding rehire of employees, contact the authors or the Jackson Lewis attorney with whom you regularly work.

One of industries perhaps hardest hit by the coronavirus, the travel industry, received welcomed news late last week in the form of CDC guidance stating that people fully vaccinated against COVID-19 can resume domestic travel and do not need to get tested for COVID-19 before or after travel or self-quarantine after travel.

According to the guidance, released on April 2, 2021, fully vaccinated people need not get tested before leaving the United States (unless required by the destination) or self-quarantine after returning to the United States (unless required by state or local law). With the increasing rate of vaccinations, this is another encouraging sign of a steady approach to some sense of a normalcy, though there are lots of questions about what travel will look like in the months and possibly years ahead.

This change from the agency’s previous recommendation that people “delay travel and stay home,” according to the Washington Post, is based largely on “newly released studies showing the real-world effectiveness of the vaccines.” For example, one study showed the second dose of the COVID-19 vaccine reduced infection risk by 90 percent. Highlighting the demand for travel, the Washington Post notes TSA officials reported 26 days in March when more than a million people moved through security checkpoints, compared to only 124,021 on April 1, 2020.

So, what will travel look like going forward?

An option may be a “vaccine passport” or similar arrangement whereby a person’s vaccination status or other related information can be verified. According to CNN, although the White House has said it is not planning to maintain a central vaccinations database, officials are “working with a range of companies on establishing standards” for people to show they have been vaccinated. Other countries also are working on “vaccine passport”-type technology to facilitate travel while containing COVID-19.

A vaccine passport likely will involve a massive collection of individuals’ personal information, a price many may be willing to pay for vacation or work-related travel. Some involved in efforts to build such systems acknowledge the challenges, ranging from ensuring the systems work correctly to preventing identity theft and fraud. The World Health Organization echoed these concerns in a recent bulletin discussing similar technology it refers to as “immunity passports”:

While there may be limits to maintaining personal immunity certification information as private and confidential, measures should be implemented to minimize confidentiality breaches and non-consensual identification to reduce privacy concerns and protect nonimmune-certified individuals from any potential stigma and harm.

With business travel likely to increase, businesses quick to adopt a vaccine passport or similar system will have their own issues to consider concerning the privacy and security of their employees data and use of such systems, particularly in connection with international travel as the standards and requirements may be different.

Data privacy and security challenges are but one concern as travel in a post-COVID vaccination world picks up. Continued concern over COVID-19 variants combined with slow inoculation rates in many countries mean that U.S. consulates (which issue travel visas enabling international travelers to come to the U.S.) may be unable to keep up. Over the past year, international travel bans have proliferated across the world , starting with the travel bans and visa bans put into place beginning on March of 2020 by the Trump administration which were quickly followed by a succession of travel bans in other countries. The resulting patchwork of travel bans and rules resulted in shutting down most international travel to the United States, as well as worldwide, which has created a backlog of cases at U.S. consulates. Consulates have been operating at reduced staff for health and safety reasons and have struggled to implement the ever-changing travel bans. Throughout the last year the processing times for visa processing have steadily increased, if a visa was available at all. As travel opens up, adding a “vaccine passport” to the long list of travel requirements for obtaining a visa will further strain the consulates if they will be expected to implement it. Although consulates are familiar with handling personal identifying information, after all a visa application covers practically every personal biographical detail of the applicant’s life, a vaccine passport is an entirely new thing. How any such requirement would be balanced against the economic and business needs for travel is anyone’s guess.

As organizations reimagine how they do business, and now how travel will fit in to that mix, the list of things that need to be considered before getting on the road again continues to expand.