Jackson Lewis’ Martin Aron has co-authored, “The Impact of COVID-19 on Employment Claims and Litigation,” published by Claims Magazine, Jan./Feb. 2021 issue.  The article focuses on (1) the variety of pandemic-related claims and litigation that have emerged during the COVID-19 pandemic; (2) the role human resources professionals, in-house counsel, and insurance claims professionals can play in reducing the risks and costs associated with COVID-19-related employment claims and litigation; (3) the challenges of mitigating damages and negotiating settlements in the midst of the COVID-19 pandemic; and (4) how the filing of bankruptcy by employers and individuals can impact litigation and litigation strategy.  The article frequently cites Jackson Lewis’ COVID-19 Employment LitWatch when discussing important COVID-19-related litigation trends.

The full article, “The Impact of COVID-19 on Employment Claims and Litigation,” is available online here, or you can download the PDF here.

As employers continue to grapple with a safe return to the workplace, on January 21, the U.S. Center for Disease Control and Prevention (CDC) issued new guidance for businesses and employers on SARS-CoV-2 testing of employees, as part of a more comprehensive approach to reducing transmission of the virus in non-healthcare workplaces. While the CDC had already released some guidance on the matter of workplace testing (last updated in October), the CDC’s more recent guidance places a new emphasis on informed consent prior to testing and measures an employer can take to ensure employees are fully supported in their decision-making.

Specifically, the CDC’s guidance states:

Workplace-based testing should not be conducted without the employee’s informed consent. Informed consent requires disclosure, understanding, and free choice, and is necessary for an employee to act independently and make choices according to their values, goals, and preferences. (emphasis in original)

For employers that have required employees to submit to COVID-19 viral testing in order to enter the workplace consistent with EEOC guidance, the CDC’s reference to an informed consent may come as a bit of a surprise. However, while the CDC’s guidance appears to require informed “consent,” it does not appear to prevent employers from requiring testing as a condition of entering the workplace. The CDC’s guidance seems to clarify its position, recommending that employers provide employees:

complete and understandable information about how the employer’s testing program may impact employees’ lives, such as if a positive test result or declination to participate in testing may mean exclusion from work. (emphasis added)

When developing a SAR-CoV-2 testing program, according to the CDC, an employer should first address some basic considerations. For example – why is the employer offering the test to begin with, how frequently will employees be tested, how to effectively obtain employee consent, and what to do if an employee declines to be tested.

The CDC provides a list of key measures an employer should implement when developing an SAR-CoV-2 testing program in the workplace to ensure employee informed consent and a supportive environment:

  • Ensure safeguards are in place to protect an employee’s privacy and confidentiality.
  • As noted above, provide complete and understandable information about how the employer’s testing program may impact employees’ lives, such as if a positive test result or declination to participate in testing may mean exclusion from work.
  • Explain any parts of the testing program an employee would consider especially important when deciding whether to participate. This involves explaining the key reasons that may guide their decision.
  • Provide information about the testing program in the employee’s preferred language using non-technical terms. Consider obtaining employee input on the readability of the information. Employers can use this tool to create clear messages.
  • Encourage supervisors and co-workers to avoid pressuring employees to participate in testing.
  • Encourage and answer questions during the consent process. The consent process is active information sharing between an employer or their representative and an employee, in which the employer discloses the information, answers questions to facilitate understanding, and promotes the employee’s free choice.

In addition, in order to ensure informed consent, an employee must be provided certain disclosures regarding the workplace testing program. Of course, the disclosures must include those required in the U.S. Food and Drug Administration (FDA) emergency use authorization patient fact sheet external for the particular test, such as the type of the test, how the test will be performed, and known and potential risks.  Notably, these disclosures must be provided during the consent process, meaning employers will have to know this information and ensure it is provided employees prior to the employee agreeing to the test.

Employers will need to consider which aspects of the testing program may be more relevant than others to an employee’s decision whether to accept an offered test and include the appropriate disclosures. Areas to consider include the process for scheduling tests and how the cost of the tests will be covered, what employees should expect at the testing site (e.g., screening), recommended next steps if an employee tests positive, and what assistance is available should an employee be injured while the test is administered.

There are, of course, privacy and security issues to consider when implementing such a program. For example, an employer must consider what personal information the employee will need to provide to the test provider (e.g. name, DOB, insurance, etc.),  the test results to follow, and the myriad of issues that arise once that information is obtained. For example: Whether, where, and for how long the employer will retain the results? How will personal information be kept confidential and secure and how will the employer keep the results confidential and secure? Who will have access to the results?

The employee’s test results will be considered confidential medical information, and while not subject to HIPAA in the employer-employee context, this information still may have protections under state statutory and common law. Consider, for example, that several states, such as California and Florida, include “medical information” as part of the definition of “personal information” under their breach notification laws. Accordingly, if that information is breached, which could include access to the information by an unauthorized party, notification to impacted individuals and relevant state agencies may be required. Additionally, statutory and common law obligations exist requiring employers to safeguard employee personal information, which may include information about their physical health, such as test results or information provided by the employee before taking the test. Thus, maintaining reasonable safeguards to protect such information is prudent. This might include access management measures and record retention and destruction policies. It also may include having clear guidelines for making disclosures of this information and determining whether an authorization is needed before such information may be disclosed to, or accessed by, a third party.

The COVID-19 pandemic has completely reshaped workplace practices, and we have certainly entered a “new normal.”  Just earlier this week, we discussed on this blog the EEOC’s guidance on best practices for workplace identification of employees that have been vaccinated. And temperature and symptom screening protocols in the workplace have been mandated or recommended by nearly every state and city across the U.S. These measures are essential in halting the spread of the virus, and ensuring a safe and healthy workplace and workforce. Nevertheless, organizations must consider the legal risks, challenges, and requirements prior to implementation of such measures.

President Joseph Biden signed the Proclamation on Ending Discriminatory Bans on Entry to The United States (“Proclamation Ending Discriminatory Bans”) during his first hours in office, terminating the controversial Muslim Ban and its sequel, the Africa Ban.

The Muslim Ban was based on an Executive Order (EO) that former President Donald Trump signed almost four years ago during his first days in office. Litigation around that Executive Order kept the Muslim Ban from going into effect until June 2018, when the U.S. Supreme Court upheld the ban in a 5-4 vote. The new Proclamation Ending Discriminatory Bans also will terminate some previously instituted proclamations regarding extreme vetting.

The Muslim Ban affected individuals from seven countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. While there were some exceptions, the EO basically blocked entry of citizens from those countries as immigrants or nonimmigrants. (Venezuela’s ban was directed solely at government officials and their family members.) Although waivers were available, almost 75% of all waiver requests reportedly were denied. The Africa Ban, issued in early 2020, blocked individuals applying for immigrant visas from Eritrea, Kyrgyzstan, Myanmar, and Nigeria and individuals applying for Diversity Visas from Sudan and Tanzania.

The Proclamation Ending Discriminatory Bans does not affect other travel restrictions related to COVID-19, including the Presidential Proclamations blocking the entry for immigrants and certain nonimmigrants due to economic conditions brought on by COVID-19. The Presidential Proclamations related to travel restrictions from the UK, EU, and certain other countries due to COVID-19 contagion concerns  will also remain in effect, notwithstanding the Trump administration’s indications that these would be withdrawn as of January 26, 2021.

Under the new Proclamation Ending Discriminatory Bans, the Department of State (DOS) will provide a proposal for how to reconsider applications denied based on now-suspended restrictions, a plan for adjudicating pending waiver requests, and recommendations on how to improve the vetting and screening process, including an assessment of the benefits of using social media identifiers in that process, among other things.

If you have any questions regarding the web of travel restrictions terminated and those still in effect, please reach out to your Jackson Lewis attorney.

As 2021 begins, Jackson Lewis continues to work with employers to help them understand, prepare for, and handle the impact of COVID-19 on the workplace.  In addition to advising and counseling clients, Jackson Lewis attorneys are handling COVID-19-related litigation matters nationwide, and are tracking COVID-19 employment litigation trends with Jackson Lewis’ interactive COVID-19 Employment LitWatch.

Employers across the country face a variety of COVID-19-related lawsuits. Common claims include, but are not limited to:

  • Retaliation against an employee who raised health or safety concerns or requested time off or accommodations;
  • Failure to accommodate an employee’s alleged disability (or serious medical condition);
  • Violations of family and medical leave laws; and
  • Discriminatory treatment based on age, disability, gender, pregnancy, as well as race and national origin.

COVID-19-related employment lawsuits likely will increase in 2021, especially when employers begin recalling some (but not all) laid-off or furloughed employees, increasing hours or shifts for some (but not all) employees, or requiring more employees to report to work in-person.

Diving deeper into the data with Jackson Lewis’ COVID-19 Employment LitWatch, JL attorneys can identify trends that may play an important role in planning for the year ahead.  By way of example, as of January 13, 2021:

  • Approximately 1,360 COVID-19-related employment lawsuits have been filed in state and federal court since March 2020, including 70 class actions of the 1,360 cases, approximately 76% include allegations of wrongful termination.
  • Since Labor Day 2020, non-class action COVID-19-related employment lawsuits have more than doubled, with claims of discrimination and retaliation trending up. Disability leave claims have remained steady but declined as a percentage of overall claims.  Allegations of workplace safety are slowing down.
  • States with the most lawsuits to-date are California (298), New Jersey (184), Florida (115), New York (96), Ohio (80), Texas (77), and Michigan (54). Since December 1, 2020, however, states with the most lawsuits (in descending order) are California, New Jersey, New York, Florida, Texas, Ohio, and Pennsylvania.
  • Approximately 35% of all COVID-19-related employment lawsuits nationwide have been filed in California and New Jersey, and approximately 92% of those suits were filed in California and New Jersey state courts. Outside of California and New Jersey, approximately 48% of lawsuits were filed in federal court and 52% in state court.
  • Healthcare and manufacturing industries have been hit the hardest by single-plaintiff lawsuits, while hospitality, retail and consumer goods, and transportation have been hit the hardest by class action lawsuits.
  • Approximately 43% of class action complaints allege wage and hour violations, while approximately 38% allege workplace safety (24%) or disability leave violations (14%).
  • Of the 70 class actions filed to date, approximately 61% were filed in California (29) and Florida (14). Outside of California, 73% of class actions were filed in federal court. Only 21% of California’s class actions were filed in federal court.

In 2021, Jackson Lewis looks forward to working with employers to navigate the rapidly evolving world of employment law, including the new and uncharted territory of COVID-19 employment litigation.

As all eyes are on Washington, DC today with the inauguration of our 46th President. President Biden has laid out an “aggressive plan” to “change the course of the pandemic, build a bridge towards economic recovery, and invest in racial justice.” The 19-page plan the incoming administration published last week calls for legislation to fund, among other things, a national vaccination program, expanded testing, direct payments to individuals and to take other steps including increasing the minimum wage to $15 per hour. President Biden also seeks to reinstate and expand the paid leave provided by the Families First Coronavirus Response Act (FFCRA). The FFCRA’s mandatory paid leave provisions expired on December 31, however, Congress extended the tax credit for covered employers who voluntarily provide leave. Biden calls for legislation that would:

  • Reinstate the requirement that employers provide paid leave and expand coverage to virtually all employers including those with more than 500 and less than 50 employees and provide benefits to healthcare workers and first responders. According to President Biden’s plan, these measures would “extend emergency paid leave to up to 106 million additional workers.”
  • Expand paid sick and family medical leave to 14 weeks for the same reasons included in the FFCRA and for time off to get the vaccine.
  • Provide a maximum paid leave benefit of $1,400 per-week for eligible workers. “This will provide full wage replacement to workers earning up to $73,000 annually, more than three-quarters of all workers.”
  • Reimburse employers with less than 500 employees for the full cost of the leave by extending the tax credits and reimburse state and local governments for the cost of the leave. President Biden’s plan does not address tax credits for employers with more than 500 employees.
  • Extend emergency paid leave measures until September 30, 2021.

Our eyes will be fixed on Congress over the next weeks as we watch for legislation which is bound to be hotly contested and unlikely to pass in exactly this form after negotiations. In the meantime, state legislators are also considering new paid leave bills around the country. We are monitoring all of these developments.

While its rollout has been slow, the vaccine is being administered across the U.S. and in other countries. As of January 15, 2021, nearly 36 million doses of a COVID-19 vaccine have been administered, just over 11 million in the U.S. For a variety of reasons, organizations want to know whether their workforce members (employees, contractors, etc.) have been vaccinated. Some are trying to assess prospects for return to work, while others want to provide incentives to get the vaccine, and still others are managing customer demands to know if their vendor’s workforce has been vaccinated.

The EEOC has provided some guidance on the issue:

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply 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.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

So, based on the answer to the question posed above, we know the EEOC’s position is that asking or requiring employees to provide information on whether or not an employee was vaccinated is not a disability-related inquiry under the Americans with Disabilities Act (ADA). But that may not be the end of the inquiry. These are several considerations and best practices that organizations might consider before putting such requests to their workforce members.

  • Who wants the information, and why? As noted above, there could be several reasons for wanting to ask employees about their vaccination status. Those reasons can affect compliance and best practice considerations. For example, if an organization is working to accommodate customer demands for vaccination status of the organization’s employees who are performing services at the customers’ facilities, the organization might want to consider, among other things:
    • Does it need to provide the information to the customer?
    • Is consent/authorization necessary?
    • How should the information be transmitted?
    • Who at the customer would have access to that information?
    • Will the customer safeguard it?
  • What steps can be taken to limit compliance risk? If an organization decides to ask workforce members about their vaccination status, there are steps it can take to minimize compliance risk. For instance, an organization can minimize the chance of an ADA violation by (i) designing the request so it is not likely to elicit information about a disability, (ii) not asking why an individual did not receive a vaccination, and (iii) warning the employee not to provide any medical information as part of the requested proof of receipt of a COVID-19 vaccination. Similarly, employers that are subject to the California Consumer Privacy Act (CCPA) and wondering whether their notice at collection to California employees needs to cover vaccination information may decide to provide notice in the abundance of caution.
  • Is it necessary to even ask employees directly…couldn’t the organization look at its health plan’s claims information for vaccine-related administration charges? Aside from being arguably more administratively difficult, this method likely would be considered a violation of the HIPAA privacy rule. Plan sponsors may not use protected health information under HIPAA for an employment purpose without the employee’s authorization.  
  • Does the collection and processing of vaccination information raise data privacy and security risks? Even if making the request is not a disability-related inquiry, it may be considered a medical inquiry, and the employee’s response, confidential medical information. While not subject to HIPAA in the employer-employee context, this information still may have protections under state statutory and common law. Consider, for example, that several states, such as California and Florida, include “medical information” as part of the definition of “personal information” under their breach notification laws. Accordingly, if that information is breached, which could include access to the information by an unauthorized party, notification may be required.

Additionally, statutory and common law obligations exist to require employers to safeguard employee personal information, which may include information about their physical health, such as vaccination status. Thus, maintaining reasonable safeguards to protect such information is prudent. This might include access management measures and record retention and destruction policies. It also may include having clear guidelines for making disclosures of this information and determining whether an authorization is needed before such information may be disclosed or accessed by a third party.

These are just some of the issues organizations may find themselves grappling with as COVID-19 vaccinations become more available. Thinking them through carefully should help organization minimize their compliance and legal risks as they continue to manage their businesses through this pandemic.

Due to the global coronavirus (COVID-19) pandemic, land border travel between the United States and Canada has been restricted since March 21, 2020, and will likely continue through at least January 21, 2021. Individuals may not be admitted for tourism or other non-essential reasons. For the most part, work has been considered an essential activity. Until recently, however, the restrictions have not affected those flying between Canada and the U.S.

Starting January 7, 2021, due to the worsening of the COVID-19 pandemic, Canada’s new policy requires those flying to Canada to show a negative COVID-19 test. Passengers five and older will need to provide proof of a negative laboratory test result for COVID-19, taken within 72 hours of flight departure, prior to boarding a flight to Canada. Absent that documentation, individuals will be denied boarding. Once they have arrived in Canada, the travelers will be subject to Canada’s 14-day quarantine rules. Those showing indications of illness will be referred to the Public Health Agency of Canada for further assessment and screening. Canada aggressively enforces its quarantine rules and violations can result in possible jail time and up to $750,000 in fines.

Canada, like the United States, had banned travel from the United Kingdom based on the new strain of COVID-19 that was identified there. The U.S. Centers for Disease Control and Prevention (CDC) is expected to release a universal testing requirement like Canada’s by the end of January: all individuals flying in from abroad, including U.S. citizens, would have to present a negative COVID-19 test.

Other countries also have been strictly patrolling their borders due to the COVID-19 uptick. Following is a sample:

Travel restrictions are changing quickly to meet safety measures during the pandemic. Individuals should check relevant sources for travel updates prior to undertaking any travel, international or domestic, including embassy websites, Department of State travel pages, state COVID-19 websites, the CDC, and specific airline companies.

If you have questions regarding the panoply of travel and quarantine restrictions, Jackson Lewis attorneys are available to assist you.

The Virginia Safety and Health Codes Board enacted a Permanent Standard on COVID-19 in workplaces in a 9-4 vote on January 13, 2021.

On July 15, 2020, Virginia became the first state in the nation to promulgate an Emergency Temporary Standard to address COVID-19 in workplaces. Even with vaccine deliveries on the way, Virginia has enacted a Permanent Standard for consideration by the Virginia Safety and Health Codes Board (which includes author Courtney Malveaux).

To read the entire article, click here.

In March 2020, when Congress passed the Families First Coronavirus Response Act (FFCRA) with a sunset date of December 31, 2020, few anticipated the COVID-19 pandemic would be ongoing into 2021. Several similar state and local laws also sunset at the end of 2020. But the pandemic has not slowed, and requests for COVID-19-related leave (along with the corresponding tax credits) continue.

Here’s What We Know

The new stimulus bill (Consolidated Appropriations Act, 2021) passed on December 27 did not extend the FFCRA obligations. Employers who were covered under the FFCRA are no longer obligated to provide their employees leave.

However, while the FFCRA does not mandate an employer continue to provide COVID-19-related paid sick and paid family leave beyond December 31, 2020, it allows employers who are covered under the FFCRA to voluntarily decide to 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.

Please read our full article here.

U.S. Citizenship and Immigration Services (USCIS) announced that it is experiencing delays in issuing receipt notices for some applications and petitions filed at USCIS lockboxes that are located in Chicago, Illinois, Phoenix, Arizona, and Lewisville, Texas. This announcement does not come as a surprise to most filers, since delays have been experienced for some time and have become even longer since October 2020, when thousands of Form I-485 Adjustment of Status applications were filed.

Adjustments due to COVID-19 restrictions at USCIS are adding to the problems. Not only can it take more than two months for receipts to be issued, but filing fee checks (the cashing of which became a way to determine whether an application or petition was received) are not timely cashed. These delays also are seen with other cases filed at lockbox addresses, such as Form I-765 Applications for Employment Authorization and Form I-131 Applications for Travel Documents. The delays have been particularly long for students applying for EADs who, like others, are experiencing gaps in employment authorization.

USCIS confirmed that, despite any delay, once the receipt is issued, it will reflect that actual date of receipt. USCIS also maintains the delays will not result in payments going beyond their validity dates.

USCIS asks stakeholders to be patient and says it is working extra hours and redistributing workloads to deal with the backlogs.

In order to speed up the receipt-acknowledgment process, USCIS suggests that applicants complete and attach Form G-1145, E-Notification of Application/Petition Acceptance to their filings at lockboxes to request a text message or email upon receipt.

If you have questions about receipting delays, please reach out to your Jackson Lewis attorney.