You didn’t know it was a thing?  Or maybe, like most, you just lost track of what day it is?  Or maybe it ranks somewhere behind New Beer’s Eve (the day before the end of prohibition) and National Tartan Day, both of which are most certainly things and also fall on April 6th.

If there was ever a year to celebrate National Employee Benefits Day, this is the year.  The last year needs no introduction, but it is worthwhile to take just a moment to acknowledge the role employee benefits and all the tireless employee benefit professionals have played in getting us through.

Last year showed us how central employer provided benefits are to our daily lives.  And in the time of the largest national crisis for most, employers, their benefits providers, and the entire system of employer-provided benefits rose to the occasion to provide flexibility and much-needed support to workers.  Whether it was voluntarily extending subsidized health coverage to those who would typically lose coverage because of a reduction in hours or termination, offering needed access to 401(k) assets through coronavirus related distributions and loans through the CARES Act, or allowing flexibility for mid-year changes in health care and flexible spending account elections, employers, vendors, and Washington, D.C. moved rapidly to respond.  At the same time, retirement plan fiduciaries weathered the increased threats of class action litigation over plan investment fees, new concerns related to protecting plan data, investment processes related to ESG funds and proxies, and a roller-coaster market.  Not to mention responding in real time to the ever expanding state and federal leave requirements.

So far, the year ahead appears to be full of its own twists and turns, albeit of a different vein.  As evidenced by the recent COBRA subsidy provisions in the American Rescue Plan Act of 2021, health care will continue to take center stage and the role of employer provided coverage against the backdrop of strengthened ACA Marketplaces, a bright spotlight on pharmacy benefits, transparency requirements, and rollouts of vaccines (and incentives) will keep us on our toes.  There will be other areas of focus for employers too—new opportunities to assist employees with student debt, expanding options in 401(k) plans such as withdrawals for birth and adoption assistance, and a new focus on voluntary benefits offerings alongside the traditional core offerings, plus new legislation around the bend on qualified retirement plans.  And as some begin the long march back to the office (and others continue to work remotely), we will confront pesky remote worker tax questions, a renewed focus on wellness benefits (including mental health), and a growing demand for financial wellness programs alongside changes that address our new normal, like the ability to pay for face masks, hand sanitizer and disinfecting wipes from our health flexible spending accounts.  There is much to do and no offseason for benefits professionals, but great opportunity to reevaluate benefit offerings, given changing employee needs and demands and a changing regulatory landscape under an ambitious new administration.

So, for now, take a minute and raise your copy of ERISA (and, of course, your favorite libation) to appreciate how much has been accomplished over the past year in the face of unchartered demands and stressors.  We are all looking forward to the year ahead for so many reasons and the changes (and opportunities) it brings in employee benefits and beyond.

The restrictions on the issuance of H-1B, L-1, and J-1 nonimmigrant “guest-worker” visas, which have been in place since June 24, 2020, expired without fanfare on March 31, 2021. As a result, U.S. consulates around the world will resume issuing H-1B, L-1, and J-1 visas without the need for an additional national interest exception application.

Now that the restriction has expired, H, L, and J visa applicants who have or had not been scheduled for interviews will be scheduled in accordance with each consulate’s existing phased resumption of services. Those who were refused visas based on the expired restrictions may reapply by submitting a new application and a new fee.

The expiration was not completely unexpected, given that a limited injunction had been issued in the fall of 2020 on the basis that the restrictions exceeded presidential authority. Additionally, many businesses, particularly those in the technology industry, have long-argued that the restrictions did not protect U.S. workers, but, instead, harmed the U.S. economy.

While the lifting of this particular restriction is helpful, the 14-day United Kingdom, Ireland, Schengen area, Brazil, South Africa, Iran, and China travel bans remain in place. Most of those travel bans, which are an effort to control the spread of COVID-19, were tightened in early March 2021. At that time, the Biden administration removed a number of categorial exceptions to the bans and left only exceptions for those who seek to enter the United States for humanitarian purposes, public health response, national security, or “vital support” for critical infrastructure sectors.

This is the fourth Trump administration travel ban that the Biden administration has removed. On January 20, 2021, the “Muslim” and “Africa” bans were terminated. In February, President Joe Biden also withdrew a Presidential Proclamation that prevented individuals from obtaining immigrant visas and entering the country as legal permanent residents, as it prevented the unification of family members and made it more difficult for industries to hire talent from abroad. At that time, many immigration advocates hoped the nonimmigrant visa restrictions would also be removed. Now, that has come to pass.

Jackson Lewis attorneys are available to assist you in determining how to continue to cope with the 14-day bans, COVID-19 test requirements for travel into the United States, and the reciprocal land port of entry travel bans at the Northern and Southern borders with Canada and Mexico.

ICE has announced that I-9 flexibility will be continued for another 60 days, until May 31, 2021. Here is ICE’s full announcement.

With this extension, ICE specifically noted that employees hired on or after April 1, 2021 who work exclusively in a remote setting due to COVID-19 related precautions will be exempt from the I-9 physical inspection requirements until they undertake non-remote employment on a “regular, consistent, or predictable basis or until the flexibility policy is terminated which is earlier.”

Specific issues related to I-9 compliance and return to the worksite will need to be resolved on a case-by-case basis, depending on the particular circumstances.

If you have questions about how to remain in compliance as employees return to your worksite, Jackson Lewis attorneys are available to assist.

The country begins the second year of the COVID-19 pandemic with optimism because of three Emergency Use Authorization vaccines and President Joe Biden’s direction that all states make all adults eligible for vaccination by May 1, 2021. As more workers return to work in person, there are key considerations for employers in the coming months.

Evolving Legal Landscape
While the Centers for Disease Control and Prevention (CDC) issued guidance and best practices throughout the last year, the decision as to whether to adopt, enforce, or exceed those guidelines was left exclusively to the states. What resulted was a patchwork of laws at the state, county, city, and local health department levels, and confusion as to which rules to follow and when.

The Biden administration has expressed a willingness to take more measures at the federal level and has increased uniformity in terms of approaches for vaccination, isolation and quarantine, and safety measures.

However, uniformity may not translate to a less fluid environment. The CDC, Department of Labor, and new administration continue to issue updates regularly, making it challenging for many employers to keep up.

OSHA Guidance for Employers
Although states are starting to lift or ease restrictions, employers can expect increased enforcement from the Occupational Safety and Health Administration (OSHA). On March 12, 2021, OSHA announced a National Emphasis Program (NEP) related to COVID-19, targeting “specific high-hazard industries or activities where this hazard is prevalent” and adding a focus on anti-retaliation efforts. The NEP covers certain healthcare industries (e.g., hospitals, home health, and skilled nursing facilities, among many others) and non-healthcare industries that have experienced high rates of COVID-19 infection (i.e., meat and poultry processing) or are public facing (i.e., restaurants, supermarkets, and grocery stores) and critical infrastructure. OSHA also will use calendar year 2020 Form 300A data to identify establishments with elevated rates of illness. With respect to anti-retaliation efforts, OSHA will increase efforts to ensure workers are aware of retaliation protections. (For a more detailed summary of the NEP, see OSHA Publishes New National Emphasis Program Targeting COVID-19 Enforcement.)

OSHA has not issued COVID-19-specific standards to date. In limited circumstances, OSHA has applied existing standards to situations involving COVID-19 (e.g., respiratory protection for healthcare employers). OSHA has otherwise been left to rely on the General Duty Clause in the Occupational Safety and Health Act to hold employers accountable for protecting workers against COVID-19 in the workplace. The General Duty Clause requires employers to provide a safe and healthy workplace that is free from recognized hazards likely to cause death or serious physical harm. OSHA has also issued COVID-19 guidance for several industries, as well as general guidance for all employers. The guidance does not carry the weight of the law, but may be useful to OSHA’s enforcement efforts.

Recently, OSHA is under additional pressure following a report from the Office of the Inspector General (OIG) that criticized the agency for not conducting enough onsite inspections or issuing COVID-19 standards sooner. Prior to the OIG’s report, President Biden had directed OSHA to consider whether emergency temporary standards were necessary, and to issue any such standards by March 15, 2021. The emergency temporary standards appear to be delayed, but are anticipated to be issued imminently.

Employers in some states, like California, Michigan, Oregon, and Virginia, are already subject to COVID-19 rules under occupational safety and health state plans. Employers should continue to consult state and local law for safety guidelines in the coming months.

EEOC Guidance for Employers
In March 2020, the U.S. Equal Employment Opportunity Commission (EEOC) published technical assistance for employers entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. The agency has provided periodic updates, most recently on December 16, 2020.

The technical assistance covers a wide range of topics that will continue to be important for employers in 2021, including:

  1. Disability-Related Inquiries and Medical Exams;
  2. Confidentiality of Medical Information;
  3. Hiring and Onboarding;
  4. Reasonable Accommodation;
  5. Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics;
  6. Furloughs and Layoffs;
  7. Return to Work;
  8. Age;
  9. Caregivers/Family Responsibilities;
  10. Pregnancy; and
  11. Vaccinations.

As employees begin returning to workplaces in greater numbers, employers should consider the EEOC’s guidance, especially regarding reasonable accommodations, as they establish their policies and practices and respond to requests for continued remote work and other flexible work arrangements.

The EEOC’s latest updates to its technical assistance addresses COVID-19 vaccinations and questions about the applicability of federal equal employment opportunity laws including the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act, Title VII of the Civil Rights Act, and the Pregnancy Discrimination Act. As employers develop policies and employee communications in connection with the vaccines, employers should review section K of the EEOC’s technical assistance. That section provides important insights on the EEOC’s view on important questions facing employers.

COVID-19 Vaccines and the Workplace
As of this writing, 24.5 percent of the U.S. population have received at least one dose of the vaccine. Employers are faced with how to handle vaccination and the return to work in person, and what role, if any, they should play in encouraging and enabling employees to safely become vaccinated.

In its January 2021 guidance, OSHA encouraged employers to make COVID-19 vaccines available to all eligible employees at no cost and to provide information and training on the benefits and safety of vaccinations.

While many employers are thinking through creative ways to incentivize vaccines, a number of states are considering measures that would prevent employers from mandating vaccinations for return to work or otherwise influence an employer’s approach to vaccinations. On the other end of the spectrum, New York has adopted legislation that requires employers to provide employees with up to four hours of paid time off for each COVID-19 vaccination. Jackson Lewis is tracking pending legislation related to vaccines and the workplace, including more than 100 bills being considered by state legislatures around the country.

In the CDC’s Guidance for Fully Vaccinated People, the CDC pointed to evidence suggesting that fully vaccinated individuals are “less likely to have asymptomatic infection and potentially less likely to transmit” the virus to others, but the CDC is continuing to learn more about individuals’ abilities to continue the spread of COVID-19 despite being vaccinated. As discussed below, the CDC guidance supports relaxed quarantine requirements for individuals who have been fully vaccinated. Therefore, employers may have a greater interest in vaccination programs, or at least knowing employees’ vaccination status. However, the CDC and OSHA recommend vaccinated individuals continue to wear masks, practice physical distancing in public, and take other steps to mitigate the spread of COVID-19.

The CDC has explained that it is still studying the duration of protection provided by the vaccine, and experts are continuing to evaluate at what point the country can achieve herd immunity, or community immunity (when a sufficient portion of the population of an area is immune to a specific disease to make its spread from person to person unlikely). There have been many positive developments and the outlook on the horizon looks promising, but at the moment, many aspects of the work environment are left unchanged. For now, employers should continue to follow state and local orders and guidance and may choose to consider ways in which they can enable employees to become vaccinated and provide information and training for those who are eligible, as consistent with applicable law. Employers who want to educate their workforce about the COVID-19 vaccines can use materials published by the CDC and state agencies.

Latest Guidance on Isolation, Quarantine
The CDC’s guidance on recommended isolation and quarantine periods has evolved as both the number of people vaccinated has recently grown, and the number of people in the United States who have recovered from COVID-19 and likely have some protection from the virus has increased.

For individuals who have tested positive for COVID-19 or are symptomatic, the CDC’s Discontinuation of Isolation for Persons with COVID-19 Not in Healthcare Settings sets a framework for when to discontinue isolation. However, not all states have adopted the CDC’s guidelines. Indeed, state and local requirements may not coincide with the CDC’s guidance on length of isolation.

With respect to quarantine, on March 12, 2021, the CDC issued revised guidance stating that individuals who have had COVID-19 within the past three months do not need to quarantine if exposed once more to someone positive, as long as they do not develop new symptoms. Similarly, the CDC’s recommendations for fully vaccinated people states that people who have been fully vaccinated do not need to quarantine after an exposure, as long as they experience no symptoms. Previously, the CDC limited this exclusion to quarantine only to individuals who had been fully vaccinated within 90 days. Now, the CDC appears to take a broader approach. Some states, including states with occupational safety and health state plans, may have specific rules regarding quarantine that differ from the CDC guidance regardless of vaccination status.

With the increasing number of Americans becoming vaccinated each day, time will tell as to which states will adopt the CDC’s recommendations. For now, state and local law must be consulted when evaluating the need and duration of quarantine for employees.

All employers, even those in states where quarantine may not be required for fully vaccinated employees, should exercise caution in handling communications regarding employees’ vaccination status when assessing return to work considerations. According to the EEOC’s guidance, asking whether a worker has been vaccinated is not a disability-related inquiry; however, the information may be protected by state or local privacy laws. Employers should be specific about what information should and should not be provided by employees to prevent unsolicited disclosure of medical or genetic information. There are other considerations and best practices for employers when it comes to employees’ vaccination status.

On the Horizon in 2021
While the future looks bright, employers can expect to see a lasting impact from COVID-19.

Continued Spotlight on Paid Sick, Family Leave

The pandemic unquestionably shined a light on employer paid leave policies. Pre-pandemic, many states and cities (such as Arizona, California, Nevada, New York, and others) already passed paid sick leave laws. There has been a push at the federal level for employers to provide paid sick leave. The Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020. The FFCRA required employers with fewer than 500 employees to provide paid sick and family leave for certain COVID-19-related reasons. To encourage employers to continue offering paid leave, the Consolidated Appropriations Act of 2021 gave employers who were covered under the FFCRA the option to voluntarily provide “qualified” paid sick leave or paid family leave wages to their employees and continue to receive a tax credit for such wages until March 31, 2021.

Under the American Rescue Plan Act signed by President Biden on March 11, the tax credits will again be extended, to September 30, 2021. However, Congress made significant changes to the FFCRA and the qualifying reasons for leave. Importantly, employee paid sick leave allotments will reset on April 1, 2021, the reasons for leave have been expanded to address testing and vaccination issues, and the paid family leave can be used for reasons other than childcare issues. (For more details of how the American Rescue Plan Act modifies the FFCRA, see The American Rescue Plan Extends FFCRA Tax Credit, But Not the Mandate.)

Remember that the FFCRA is voluntary and does not have any impact on employers with more than 500 employees. As a result, ongoing efforts for federal or state and local paid sick and family leave laws are expected. California, for example, has resurrected the statewide COVID-19 Supplemental Paid Sick Leave that expired at the end of 2020.

Return to Work

For the past year, employers have been encouraged, or required in some cases, to offer remote work to the extent possible. Technology companies have tried to keep up with demand. For example, according to the BBC, the use of Zoom increased 30 fold in April 2020.

Employers eager to return to in-person operations should be prepared for potential resistance from employees who have grown accustomed to working from home, as well as potential accommodation requests related to leave or continued remote work from those who cannot return to work due to medical issues. The EEOC guidance referenced above explains how the pandemic may impact the analysis of whether a requested accommodation poses “significant difficulty” or “significant expense” under the ADA. For example, the EEOC recognizes that the business losses associated with the pandemic are a relevant consideration and that “an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.” On the other hand, the EEOC also warns against excluding certain workers from the workplace involuntarily based on an employee’s higher risk for severe COVID-19 illness. Employers will need to balance the desire to return to “normal” with their obligations under the ADA and other federal and state laws.

Litigation for Years to Come

Jackson Lewis has developed COVID-19 Employment LitWatch to help employers track litigation trends related to COVID-19. Since the start of the pandemic, over 1,800 complaints have been filed in federal and state courts that allege related labor and employment law violations. More than 55 percent of the complaints allege violations related to disability, leave and accommodation, or discrimination or harassment. California has the most COVID-19 employment lawsuits in the country. (It allows employees to immediately request a right to sue notice from the California Department of Fair Employment and Housing.) Under federal and many state employment discrimination laws, employees often are required to wait months before requesting a right to sue notice. The waiting period frequently creates a delay between a challenged employment action and a lawsuit. Thus, employers may be seeing COVID-19 litigation well into 2022 and beyond.

To reduce the risk of litigation, employers should continue to monitor the ever-changing landscape of federal and state COVID-19 rules and orders. Employers can use Jackson Lewis’ COVID-19 Advisor to stay up-to-date on COVID-19 issues in all 50 states, including health and safety protocols, paid sick leave guidance, paid family leave and mini-Family and Medical Leave Act guidance, and business opening rules, among many other topics.

Jackson Lewis attorneys are closely monitoring the evolving demands on employers, including agency guidance, regulations, and best practices and are available to assist employers in preparing policies and procedures related to COVID-19 and other workplace matters.

On his first day in office, President Joe Biden signed a memorandum fortifying the Deferred Action for Childhood Arrivals (DACA) policy. His administration also has granted Temporary Protected Status (TPS) to more individuals: those from Venezuela and Burma. Building on this, President Biden also proposed broad legislative immigration reform, including a path to citizenship for DACA (or Dreamers) and TPS beneficiaries, as well as for the 11 million undocumented immigrants currently living and working in the United States. But finding enough bipartisan support for passing broad immigration reform is far from assured. In recognition of that, the administration has adopted a “multiple trains” strategy to move specific pieces of the plan.

On March 18, 2021, the House passed two such bills: The American Dream and Promise Act (“Dream Act”) and the Farm Workforce Modernization Act (“Farm Act”).

The Dream Act would provide a path to citizenship for Dreamers, certain TPS beneficiaries, and Deferred Enforced Departure (DED) beneficiaries, approximately two million people in total. The bill passed the House with a 228 to 197 bipartisan majority. The Farm Act passed with a larger 247 to 174 bipartisan majority. It would allow undocumented farm workers who pass necessary background checks and pay a $1,000 fine to receive temporary legal status. This status could be renewed indefinitely for as long as the individual maintains farm employment. There would also be a path to permanent residency for longtime workers, streamlining of the H-2A visa process, new wage standards, and a mandate for E-Verify for agriculture.

The COVID-19 pandemic brought to the fore the essential nature of the work performed by many DACA, TPS, and DED beneficiaries, particularly in healthcare, as well as work performed by undocumented workers, especially in agriculture, ranching, and the dairy industry. Despite that, some Senators’ concerns about amnesty, asylum policies, and the increase in individuals detained at the Southern border may delay or block the passage of the bills.

Jackson Lewis attorneys will provide updates as they become available.

Some of the inbound international travel restrictions that have bedeviled U.S. employers reportedly are expected to be lifted by mid-May.

This will include restrictions on travel from the UK, Europe, and Brazil, as well as the travel restrictions at the Northern and Southern borders, which were recently continued until April 21, 2021. An anonymous senior administration official said there would be a “sea-change in mid-May when vaccines are more widely available to everyone.”

The administration reviews the travel restrictions weekly. There appear to be two schools of thought: 1) those who are concerned about lifting travel restrictions due to the spread of COVID-19 variants and 2) those who believe that the COVID-19 testing requirements for boarding international flights are sufficient.

The plethora of world-wide travel restrictions has led to confusion and hardships to businesses and individuals, and there is no direct evidence that the travel bans are needed now that COVID-19 testing is widely available.

Industry groups, including the airlines, have been urging the administration to loosen restrictions and rely on “core public health protections, such as the universal mask mandate, inbound international testing requirements, physical distancing or other measure that have made travel safer and reduced transmission of the virus.”

Jackson Lewis attorneys will be monitoring this situation and provide updates as soon as they become available.

Over 40 percent of counties in the United States are experiencing population declines, and the country is experiencing a decline in the working-age population. Together, these demographics, some say, may signal an eventual slowdown of the economy. How to reverse the trend? Immigrants moving to targeted areas could help stem the decline.

Countries such as Australia and Canada have already adopted immigration programs that focus on their particular states’ or provinces’ needs for workers.

In the United States, various internal economic development programs have targeted immigrants for training and have found way to “match” immigrants with local businesses. But these programs are aimed at tapping immigrants who are already in the United States. For at least 10 years, some states have been trying to gain permission to establish their own work visa programs. The American Citizenship Act of 2021 (ACA 2021), proposed by the Biden administration, would provide such an opportunity. One of its many features is a five-year pilot program that would allow states to essentially recruit immigrants from abroad to join particular industries in specific geographic areas.

The ACA 2021 program would allow an additional 10,000 immigrant visas a year based on localized economic development strategies. Labor certifications proving there are not sufficient U.S. workers in the area to fill the need would be required. The bill also would give the Department of Homeland Security (DHS) the authority to adjust the number of green cards available annually based on macroeconomic conditions.

The “heartland visa” program discussed in Congress is similar to the ACA 2021 pilot program. It is also geographically targeted, with communities and foreign skilled workers “opting-in.” The heartland visa program would require communities to provide funding to “welcome” the new immigrants in exchange for the immigrants remaining in the community for at least a certain amount of time. Similar programs have been adopted by states outside the immigration context to welcome new residents to work and build their state economies. A couple of examples include Tulsa, Oklahoma, which has a remote worker program that includes a $10,000 stipend. Newton, Iowa, also offers a $10,000 grant toward purchasing a home to bring residents to the city.

As the country looks toward a post-COVID-19 economy, targeted immigration programs could speed the recovery. Jackson Lewis attorneys will provide updates particularly regarding the progress of the ACA 2021 as they become available.

On the anniversary of California’s statewide shelter-in-place orders, Governor Newsom signed legislation bringing back the statewide COVID-19 Supplemental Paid Sick Leave.

The new statute requires employers to display a required poster issued by the California Labor Commissioner and which the Labor Commissioner issued on March 22, 2021. Like prior required posters, the notice includes covered leave reasons and the amount of time eligible employees are entitled. If employees do not frequent the workplace, employers may satisfy the notice requirement by disseminating via electronic means, including e-mail. The statute provides a 10-day grace period until March 29, 2021, for employers to comply but should disseminate or display the poster as soon as feasible.

The Labor Commissioner, also quickly released a Frequently Asked Questions page, regarding the new COVID-19 Supplemental Paid Sick Leave. It includes information on:

  • Coverage
  • Reasons for Taking Leave
  • Start Date and End Date of the Statute
  • Requesting Leave from an Employer
  • Calculating Leave Entitlement
  • Credits Against Entitlement
  • Record-keeping and Paystubs
  • Enforcement
  • Relation to Other Laws

Jackson Lewis continues to track issues related to employee leave and COVID-19. If you have questions about California’s new supplemental paid sick leave or related issues, contact a Jackson Lewis attorney to discuss.

Employee Snooping: Your Employees' Temptations = Your LiabilityAs we noted in late January 2020, the spread of infectious disease raises particular concerns for healthcare workers who want to do their jobs and care for their patients, while also protect themselves and their families. Perhaps the desire to protect one’s self and family is what motivated a California state healthcare worker to access COVID-19-related health records of more than 2,000 current and former patients and employees over a ten-month period.

Regardless, this data breach should be a reminder for all organizations that (i) compromises to personal information of whatever kind are not only caused by criminal hackers, and (ii) considering all the personal health information being collected by organizations in connection with COVID-19 screening, testing, and vaccination programs, this is not a problem limited to health care employers.

In the healthcare sector, as with prior contagious disease outbreaks, fears about contracting the virus could lead to impermissible “snooping” and sharing of information by healthcare employees. According to a press release and published FAQs, an employee of Atascadero State Hospital with access to the hospital’s data servers as part of the employee’s information technology job duties improperly accessed approximately 1,415 patient and former patient, and 617 employee names, COVID-19 test results, and health information necessary for tracking COVID-19. The hospital discovered the breach on February 25, 2021, and, evidently, the employee’s improper access had been ongoing for 10 months.

Of course, HIPAA covered entities and business associates should be taking steps to address this risk. Such steps include, for example, continually reminding workforce members about access rights and the minimum necessary rule, which are required under HIPAA’s privacy and security regulations. At times, unauthorized access may be difficult to identify, particularly where employees have a need for broad access to information. In the case noted above, the breach was discovered as part of the hospital’s annual review of employee access to data files. Reviewing system activity generally is a good idea for all organizations, taking into account relevant threats and vulnerabilities to shape frequency, scope, and methodology.

The Office for Civil Rights has issued bulletins addressing HIPAA privacy in emergency situations, such as one in November 2014, during the Ebola outbreak, and one in February 2020 for the coronavirus. These bulletins provide good resources and reminders for health care providers when working in this environment.  They also convey helpful considerations for all organizations handling sensitive personal health information.

During the past 12 months, organizations have collected directly or through third party vendors massive amounts of data about employees. Examples include data collected during daily temperature and symptom screenings, COVID-19 test results for contact tracing purposes, and now vaccination status. Some organizations have used thermal imaging cameras that leverage facial recognition technology to screen, while others have rolled out newly developed devices and apps to manage social distancing and facilitate contact tracing efforts. We now are seeing systems being rolled-out to track and incentivize vaccinations. All of these activities involve the collection and storage of personal information at some level.

Organizations, whether covered by HIPAA or not, engaged in these activities should be thinking about how this information is being safeguarded. This includes assessing the safeguards implemented by third party vendors supporting the systems, devices, and activities. Again, these efforts should not be focused only on systems designed to prevent hackers from getting in, but what can be done internally to prevent unauthorized access, uses, and disclosures of such information by insiders, employees.

Effective immediately, New York State employers must provide employees with up to four hours of paid time off per COVID-19 vaccination. The new law sunsets on December 31, 2022.

The new law provides that:

  1. All New York employees must receive a paid leave of absence for “a sufficient period of time” not to exceed four hours per vaccine injection. In other words, employees may be entitled to up to eight hours of paid time off if receiving a two-injection COVID-19 vaccine;
  2. This leave must be paid at the employee’s regular rate of pay; and
  3. Employers cannot require employees to use other available leave (such as sick leave or vacation time) before providing this leave.

The new law applies to both public and private employers, with potential carveouts for employees subject to a collective bargaining agreement.

In addition to the paid time off requirement, the new law prohibits discrimination or retaliation against any employee who exercises their rights under the law.

The new law is silent as to any retroactive effect, if any. It is also silent as to the types of documentation employers can request from employees seeking this leave.

While some employers already voluntarily provide paid time off to employees for COVID-19 vaccination, New York employers should:

  1. As a best practice, ensure policies are updated to reflect this additional leave entitlement, although the law does not have a policy or specific recordkeeping requirement;
  2. Confirm that no one is required to use available time off under company policy before using this leave;
  3. Communicate this paid time off entitlement to employees;
  4. Decide whether to request proof of vaccination, keeping in mind confidentiality and privacy issues; and
  5. Ensure managers are aware of this leave right and the relevant non-discrimination and retaliation provisions.

As similar time-off-to-vaccinate legislation are pending in many jurisdictions, employers are encouraged to reach out to the Jackson Lewis attorney with whom they work for additional information.

Jackson Lewis attorneys are closely monitoring updates and changes to legal requirements and guidance and are available to help employers weed through the complexities involved with state-specific or multistate-compliant plans.

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.