As employers in healthcare settings prepare to administer the vaccine to healthcare personnel, they are likely grappling with new practical considerations.  Undoubtedly, one of the most widespread challenges is how to manage employees with potential post-vaccination systemic signs and symptoms (“signs and symptoms”), without unnecessarily imposing work restrictions to the detriment of patient care demands.  Towards these ends, the CDC has issued a series of considerations healthcare employers should review as they develop policies to balance these competing concerns.  Below is an overview:

  1. Vaccinate HCP preceding 1-2 days off from work.
  2. Stagger both doses of the vaccine. Don’t vaccinate an entire department or unit at the same time.
  3. Educate HCP about potential signs and symptoms and options to mitigate them.
  4. Assess HCP exhibiting signs and symptoms consistent with the CDC’s recommended approaches.
  5. Encourage HCP to report signs and symptoms by offering non-punitive paid leave.

For assistance drafting your institution’s COVID-19 vaccination policy generally, or specifically addressing HCP with signs and symptoms, please contact Sarah Skubas, Mary McCudden, or the Jackson Lewis attorney with whom you usually work.

On December 9, 2020, Pittsburgh Mayor Peduto signed a new ordinance granting COVID-19 Sick Time to certain employees working within the City.

Interaction with Pittsburgh Paid Sick Days Act

This ordinance supplements the Pittsburgh Paid Sick Days Act (“PSDA”), which took effect earlier this year in March.  The ordinance also amends the PSDA by expressly permitting employees to take sick time under the PSDA before it is accrued, if the reason for use arises directly from COVID-19.

Temporary COVID-19 Emergency Paid Sick Time

Pittsburgh employers with more than 50 employees must provide paid COVID-19 Sick Time to their employees for COVID-19-related reasons.  The law applies to employees who are (a) working for that employer within Pittsburgh after the effective date of this ordinance, (b) normally work for that employer within the City of Pittsburgh but are currently teleworking from any other location as a result of COVID-19, or (c) work for that employer from multiple locations or from mobile locations, provided that 51% or more of such employee’s time is spent within the City of Pittsburgh.

An employee may take up to 80 hours of leave, and this time is in addition to time under the PSDA.  COVID-19 Sick Time is also in addition to any paid leave or sick time provided by the employer, with a few caveats. An employee is to provide notice to the employer of the need for COVID-19 Sick Time as soon as practicable.

Eligible employees may take COVID-19 Sick Time leave for the following reasons, if they are unable to telework:

  1. Determination by a public official or public health authority, a health care provider, or an employee’s employer that the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to COVID-19 or because the individual is exhibiting symptoms that might jeopardize the health of others, regardless of whether the individual has been diagnosed with COVID-19;
  2. Care of a family member of the employee due to a determination by a public official or health authority, a health care provider, or the family member’s employer that the presence of the family member on the job or in the community would jeopardize the health of others because of the family member’s exposure to COVID-19 or a determination by the employer that the employee is a danger to the health of others because they are exhibiting symptoms that might jeopardize the health of others, regardless of whether the family member has been diagnosed with COVID-19;
  3. An employee’s need to: (a) self-isolate and care for oneself because the employee is diagnosed with COVID-19; (b) self-isolate and care for oneself because the employee is experiencing symptoms of COVID-19; or (c) seek or obtain medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19; or
  4. Care of a family member who: (a) is self-isolating due to being diagnosed with COVID-19; (b) is self-isolating due to experiencing symptoms of COVID-19; or (c) needs medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19.

COVID-19 Sick Time Leave Entitlement

Employees who work 40+ hours a week.  For employees who work 40 hours or more per week, their leave entitlement is 80 hours, unless the employer designates a higher limit.

Employees who work less than 40 hours a week.  Employees who work fewer than 40 hours in a week are entitled to leave in an amount equal to the amount of time the employee is otherwise scheduled to work or works on average in a 14-day period, whichever is greater and unless the employer designates a higher limit.  In the case of an employee whose schedule varies from week to week, the employer can use a number equal to the average number of hours that the employee was scheduled over the past 90 days of work, including hours for which the employee took leave of any type.

COVID-19 Sick Time must be provided to employees immediately, without any waiting period or accrual requirements, once they have been employed by the employer for the previous 90 days.  If an employer provided paid leave prior to the effective date of this ordinance, the COVID-19 Sick Time is in addition to that paid leave.  An employer may not change such paid leave after the ordinance’s effective date to avoid providing leave under the ordinance.

Interaction With Other Laws & Employer Policy

To the extent that federal or state law requires employers to provide paid sick leave or paid sick time related to COVID-19, employers may substitute leave under the federal or state law to meet the obligations under this ordinance to the extent they coincide and such concurrent use is permitted.  However, employers are required to provide additional COVID-19 Sick Time under the ordinance to the extent the ordinance exceeds the requirements of the federal or state law.

Similarly, to the extent that an employer has adopted a policy subsequent to the March 13, 2020 Pennsylvania COVID-19 Declaration of Emergency which provides its employees with additional paid sick time specifically for use during COVID-19, employers may substitute leave under its employer policy for the leave required under this ordinance to the extent they coincide. However, employers must provide additional COVID-19 Sick Time under the ordinance to the extent the ordinance exceeds the requirements of the employer’s COVID-19 specific paid sick policy.

The ordinance is in effect immediately now that the Mayor has signed.  Further guidance is anticipated from the City.

A link to the full text of the ordinance can be found here. The ordinance is in effect until the Pennsylvania COVID-19 Declaration of Emergency or the Pittsburgh COVID-19 Declaration of Emergency ends, whichever is sooner.  Employees may use COVID-19 Sick Time until 1 week following the official end of the public health emergency.

Surging COVID-19 cases, COVID-19 vaccination considerations and post-election impacts are just a few of the many evolving issues facing healthcare employers as we head into the end of 2020. If you missed our recent Healthcare Industry Key Trends webinar, please consider watching as our Jackson Lewis colleagues touch on many of these issues and more. Also, our colleague’s recent post on COVID-19 vaccination considerations is a helpful tool as healthcare employers will likely be the first to navigate employee COVID-19 vaccinations as we near the end of 2020.

Additionally, COVID-19 fatigue is a real concern facing many healthcare employers. More than ever, employees are balancing work and personal demands with limited time and increased stress. Merely providing an Employee Assistance Program (EAP) referral is not enough. There are several resources for healthcare employers to consider as they navigate employee fatigue, including:

As we head into the end of 2020, now is a good time for healthcare employers to review these top issues facing the industry, including COVID-19 fatigue and vaccination considerations. Reach out to your Jackson Lewis attorney, who can provide additional best practices and resources as the healthcare industry navigates these developments together.

By now, employers likely have heard the news that the Centers for Disease Control and Prevention (CDC) has reduced the length of time that individuals should quarantine after an exposure to COVID-19. The old adage “Don’t believe everything you read” turns out to be true in this case. Although the CDC has stated that shortened quarantine periods may be an option in certain circumstances, the agency continues to recommend quarantining the full 14 days, absent local health authorities determining that a shorter period is appropriate.  Read our full article here.

On December 2, 2020, the Ninth Circuit Court of Appeals upheld preliminary injunctions blocking USCIS from enforcing the “new” Public Charge Rule in 18 states and the District of Columbia.

The Court found the rule was inconsistent with any reasonable interpretation of the statute which requires long-term dependence on government support, not temporary resort to supplemental non-cash benefits. It opined that:

Until recently, the judicial and administrative guidance has reflected the traditional concept—rooted in the English Poor Laws and immortalized by Dickens in the workhouse of Oliver Twist—of incapacity and reliance on public support for subsistence.

The Court also found the new rule was “arbitrary and capricious” because the Administration failed to adequately consider:

  • The financial effects of the new rule not only on legal immigrants, but also on the states to which they would turn after withdrawing from federal programs to protect their immigration statuses;
  • The effects on public safety, health, nutrition, hospital resources, and vaccination rates especially in this time of COVID-19; and
  • The abrupt change from the original 1999 guidance that focuses on long-term dependence.

The new Public Charge Rule has been controversial since it was first proposed by the Trump Administration. Characterized as a “wealth test” by immigration advocates, the rule has been the subject of litigation in various jurisdictions. There have been injunctions and stays of injunctions. This has led to a situation where one month, the rule was effect in some jurisdictions, but the next, it was not, and then a little later, it was in effect again. This endless back and forth has meant that applicants for Adjustment of Status and nonimmigrant visas are never quite sure whether the new Public Charge Rule will apply to their applications or not. This uncertainty has been particularly impactful in a year when immigrant visas became available for certain heavily backlogged categories and a significant number of applicants have been able to file Adjustment of Status applications beginning in October. As of November 4, 2020, USCIS was applying the new Public Charge Rule to all petitions postmarked or submitted electronically on or after February 24, 2020. But, USCIS has not yet reacted to the Ninth Circuit’s ruling.

The 18 plaintiff states (plus the District of Columbia) that are affected by the Ninth Circuit’s ruling are: California, Colorado, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Washington and Virginia.

We await the Administration’s review and reaction to the ruling and will provide updates as they become available.

Shortly before Thanksgiving, California’s Department of Industrial Relations Occupational Safety & Health Standards Board (“Board”) adopted a general safety order that creates an emergency temporary standard specific to potential workplace COVID-19 exposures (“Rule”). The Rule was quietly approved by the Office of Administrative Law without detailed analysis on November 30th and went into effect upon approval. While this gave little time for employers to come into compliance with the new requirements, the Division of Occupational Safety & Health (“Cal OSHA”) has maintained that many of the requirements are not entirely new and align with guidance previously issued on measures to address COVID-19 hazards in connection with employers’ Injury Illness and Prevention Program. Cal OSHA has also informally conveyed that the agency will work with employers to achieve compliance with the Rule, particularly in situations where employers are making a diligent effort to comply.

At a high level, the Rule imposes certain minimum requirements on covered California workplaces:

  1. Implementation of written COVID-19 Prevention Program
  2. Implementation of COVID-19 Preventive Measures
  3. Reporting and Recordkeeping Requirements
  4. Worker exclusion when employees have COVID-19 or have been exposed
  5. Management of COVID-19 infections and outbreaks
  6. Investigation of COVID-19 cases and outbreaks

Note that some workplaces, such as those subject to Cal OSHA’s Aerosol Transmissible Disease Standard (e.g., healthcare facilities), are exempt from the Rule’s requirements.

To help employers comply with the Rule, Cal OSHA released a Frequently Asked Questions page on December 1st that details their expectations for how employers can comply with the new regulations. The page provides insight into many of the new requirements, including components of a written COVID-19 Prevention Program, systems to communicate with employees on COVID-19 matters, dealing with COVID-19 hazards in the workplace, and measures for managing a COVID-19 case.

Several areas of note in the FAQs, are Cal OSHA’s guidance on new requirements for testing, notifications, and employee training. For testing, Cal OSHA specifically states that employers should “offer testing to potentially exposed employees at no cost and during working hours” as well as inform employees of testing resources. In addition, employers must “provide periodic” COVID-19 testing for employees in an “exposed workplace” during an outbreak or major outbreak. To comply with these requirements, employers may need to vet and line up a third party testing resource. Cal OSHA’s FAQ also indicates that employers must notify “employees of any potential exposures within one business day,” creating a notification obligation that is distinct from the notification required following the passage of Assembly Bill 685.

In addition to the FAQ, Cal OSHA also released a fact sheet summarizing the new requirements for employers, a Model COVID-19 Prevention Plan, and guidance communicating the agency will release further resources for employers to use to comply with the Rule, such as training resources. While the Model Plan provides substantial detail, employers should be aware that the Rule provides a “performance-based” requirement, so the Plan needs to be carefully tailored to address business, industry, and operational needs. Because of the layers of regulatory requirements applicable to COVID-19 issues, employers should also ensure their plan adheres to all federal and state laws, including relevant state and local health department orders and requirements.

If you have questions, would like additional information, or need assistance, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

As the COVID-19 pandemic continues, employees who took leave earlier in the year may be requesting additional COVID-19-related leave. Employers covered by the Families First Coronavirus Response Act (FFCRA) are again seeking guidance in determining which employees qualify for the emergency sick leave and family leave portions of the FFCRA. In September 2020, the federal Department of Labor (DOL) issued revised regulations that limited the scope of the “health care provider” exemption of the FFCRA, so many healthcare employers must revisit their position on employee eligibility for FFCRA leave.

In particular, employers being asked to provide Paid Sick Leave (PSL) under the FFCRA should determine whether the employee in question has already taken their 80 hours of PSL – whether working for the employer OR whether the employee in question was working for another entity at the time of that paid leave. Most employers realize that employees to whom they granted 80 hours of PSL last spring or during the summer of 2020 are not entitled to a second allowance of PSL now. However, many do not realize that employees who took 80 hours of PSL while working for a previous employer have exhausted their PSL entitlement as well.

The DOL’s regulations provide under 29 C.F.R. Sec. 826.160(f) – titled “One time use” – that “Any person is limited to a total of 80 hours of Paid Sick Leave. An Employee who has taken all such leave and then changes Employers is not entitled to additional Paid Sick Leave from his or her new Employer.” Employers can and should ask employees hired over the past several months whether they have already taken their PSL with a previous employer, before granting PSL.

Of course, providing unnecessary PSL to an employee beyond their maximum entitlement under the FFCRA also will have tax credit implications.

Please contact a Jackson Lewis attorney with any questions.

On December 1, Judge Jeffrey S. White granted the plaintiffs’ request to set aside two separate rules issued by the Trump Administration that would have drastically undermined the ability of employers to utilize both the H-1B and PERM visa programs. In Chamber of Commerce of the United States v. United States Department of Homeland Security, Judge White held that the Administration violated the Administrative Procedures Act (APA) when it enacted two rules: the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Rule (the “Wage Rule”) and the Strengthening of the H-1B Nonimmigrant Visa Classification Rule (the “H-1B Visa Classification Rule”). Both were issued as Interim Final Rules and without the usual Notice and Comment required by the APA.

The new rules threatened to upend the H-1B and PERM labor certification programs by changing statutory definitions, targeting staffing and consulting firms with onerous requirements, and hiking required wages by 35% to 200%. The Wage Rule has been in effect since October 8, 2020, and the H-1B Visa Classification Rule was to go into effect on December 7, 2020.

Judge White stated that he was “once again confront[ing] a challenge to the Administration’s assertion that the H-1B program adversely affects American Workers to such a degree it must take immediate action.” He was not persuaded by the Administration’s arguments that the COVID-19 pandemic created a situation that justified dispensing with “due deliberation” required by the APA, or that giving more notice would have hindered the Department of Labor’s ability to solve the problem it alleged. He found that the Administration could not rely on the pandemic to invoke exceptions to the APA for several reasons, including:

  • The new rules have been on the Administration’s Regulatory Agenda since 2017 – well before the COVID-19 national emergency; and
  • The unemployment rate in the sectors that typically use H-1B visas was only 4.8%, not the skyrocketing rates that have been seen in other sectors during the pandemic.

Judge White had previously enjoined the DHS’ implementation of a new rule that would have increased the USCIS filing fees for many business-related immigration petitions and naturalization and asylum fees, as well as the Presidential Proclamation that suspended the entry of certain individuals in H, L, and J status. These rules have one thing in common: they would disrupt the immigration process in one way or another.

The Administration has not yet responded to Judge White’s new ruling. Jackson Lewis attorneys will provide updates as soon as they become available.

OSHA has issued guidance on personal protective equipment (“PPE”) and respiratory protection use in nursing home and long term care facilities (collectively “LTCFs”) to protect against COVID-19. In its recently issued guidance, OSHA sets forth additional detail about the strategies it believes LTCFs should consider when protecting employees from COVID-19.  As a preliminary reminder, although a guidance document issued by OSHA, this guidance document has not undergone the rigorous rulemaking process required for a regulation under the Administrative Procedures Act, and merely serves as guidance for the pertinent industry.

In the latest issued LTCF guidance OSHA follows its usual hazard assessment and hierarchy of control framework provided in the PPE Standard (29 C.F.R. § 1910.134), stating that LTCFs should first conduct a risk assessment to identify which workers are at risk of exposure to any airborne hazards, which includes (per OSHA’s definition) COVID-19, as a result of their job duties. After a thorough risk assessment is completed, the LTCF must determine how to protect employees from the identified hazards pursuant to OSHA’s long-established hierarchy of controls. The LTCF must engage in engineering controls (e.g. ventilation) to reduce the hazard wherever possible. Next, the LTCF must apply administrative controls (i.e. hand hygiene, physical distancing, and cleaning and disinfection protocols). As a third step of hazard prevention, LTCFs should determine appropriate PPE and make sure it is available to each employee who needs it.

OSHA suggests that respiratory protection, such as an N-95 respirator, may be appropriate for any individual who provides patient care while working within six feet of individuals who are a suspected or confirmed positive for COVID-19. This includes while performing tasks such as bathing, dressing, and toileting, in addition to clinical care. However, for each of the examples mentioned, it is unlikely that the employer could be using a form of source control, such as requiring the patient to wear a mask, or be behind a protective barrier. As a result, respirators may not be needed in these situations when other engineering or administrative controls are being used effectively. This is further complimented by the fact that guidance from the Centers for Disease Control and Prevention (“CDC”) requires only surgical masks for direct care of patients with confirmed or suspected COVID-19, unless the care provided involves aerosol generating procedures or surgeries with risk of transmission through infectious material splashes or sprays. Any LTCF engaging in a hazard assessment should document its decision-making, following the best and most up-to-date infectious disease guidelines, industry best practices, and recommendations from the CDC, and guidance from state and local health departments.

Note that whenever an LTCF does conduct a hazard assessment and determines that filtering facepiece respirators (such as N-95s) are necessary PPE, OSHA’s respiratory protection standard (29 C.F.R. § 1910.134, the “RPP”) will apply. OSHA’s RPP regulations require a lengthy written job hazard analysis and task hazard analysis for use of respirators; a lengthy written respirator program with detailed, individualized procedures for each separate location, job, or task (depending on what the hazard analyses require); the selection of a Program Administrator, who has specific duties; medical evaluations; initial-use and then annual fit-testing; lengthy storage, cleaning, and mask-replacement procedures; and other detailed requirements.

OSHA’s guidance further details various “source control” measures, in categories recommended as follows:

  • Cloth face coverings – to be worn by patients and visitors but not by healthcare providers if protection against exposure to splashes and sprays, or respiratory protection against airborne hazards is needed. All patients and visitors should be offered a surgical mask, face mask, or cloth face covering by the LTCF if they do not provide their own, and if supplies allow.
  • Facemasks – these include KN95 respirators with ear loops instead of head straps, as well as other masks that do not provide fluid resistance.
  • FDA-cleared or authorized surgical masks – these masks, authorized for emergency use by the FDA, are regulated by OSHA under the PPE standard (at 29 CFR 1910.132) or the Bloodborne Pathogens standard (29 CFR 1910.1030). OSHA prefers that healthcare providers use these rather than face masks or cloth face coverings, as they provide source control and protection for the wearer against splashes and sprays. As they are loose-fitting and do not provide a seal for the user, these masks are not effective at protecting against potential airborne hazards.
  • Respirators (including FDA-cleared or authorized surgical N95 FFRs), which must be subject to fit-testing, medical evaluations, employee training, specific cleaning and storage procedures, and all of the other myriad requirements under OSHA’s RPP standard at 29 C.F.R. § 1910.134. OSHA also refers employers to the CDC guidelines for extending the use of N95s as necessary during the shortages presented by the pandemic, and cautions against accidental purchase of counterfeit N95s. N95 FFRs remain in short supply, as are most alternative respirators, including P100s and N99s, reusable rubber respirators, and powered air purifying respirators (“PAPRs”).

OSHA reminds employers that employees wearing N95s must be sure that any additional required PPE, such as eye or face protection, will fit with the N95 so that all pieces can safely be worn together.

If you have questions or need assistance in managing your response to OSHA’s guidance here or the pandemic in general, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

Along with extending its flexibility in allowing virtual Form I-9 employment verification until December 31, 2020, USCIS is also continuing its flexibility with regard to long-pending Employment Authorization Document (EAD) applications. USCIS expected that this interim solution would only be necessary through December 1, 2020, but the delays in producing EAD cards have continued.

As a result, USCIS announced that certain individuals may continue to present Form I-797, Notices of Approval, for I-9 purposes until February 1, 2021.  New employees and those needing to reverify their employment authorization may continue to present Form I-797 EAD approval notices instead of EAD cards if:

  • The Form I-797 indicates that the EAD has been approved for at least three months;
  • The Form I-797 has a Notice Date between December 1, 2019 and August 20, 2020; and
  • The employee can present (or has previously presented) an acceptable List B identity document.

The approval notice should be entered on the Form I-9 as a List C document with USCIS as the issuing authority and the 13-digit receipt number as the document number. The expiration date should be listed as February 1, 2021 and reverification should be conducted by that date or sooner if the employee receives their EAD card. Absent any further extensions, by February 1, 2021, the employee will need to present either a List A or a new List C document.

For any employees verified or reverified on the basis of the earlier USCIS guidance who still do not have EAD cards, an extension until February 1, 2021 should be noted in the Additional Information box in Section 2 of Form I-9.

For any questions regarding the Form I-9 process including best practices regarding flexibility in the E-Verify or electronic I-9 database context, Jackson Lewis attorneys are available to provide assistance and guidance.