According to a new Quest Diagnostics Health Trends study published on October 8, 2020, the misuse of fentanyl, heroin and nonprescribed opioids has increased during the COVID-19 pandemic.

The study analyzed more than 872,000 de-identified lab results from all 50 states and the District of Columbia.  The researchers compared drug positivity rates before the pandemic (from January 1, 2019 to March 14, 2020) with positivity rates during the first few months of the pandemic (March 15, 2020 to May 16, 2020).  Compared to the period before the pandemic, the drug positivity rates increased by 35% for nonprescribed fentanyl and by 44% for heroin.  Nonprescribed opioids increased by 10%.  Moreover, the study identified a significant increase in the positivity rate of combining other drugs with nonprescribed fentanyl during the pandemic.  Specifically, positives for nonprescribed fentanyl increased among samples that were also positive for amphetamines (89%), benzodiazepines (48%), cocaine (34%), and opiates (39%).

Additionally, during the early months of the pandemic, the rate of drug testing declined while the rate of overall misuse held steady.  Quest Diagnostics reported a drop in the rate of orders for clinical lab tests by about 70% weekly.  Conversely, the rate of misuse remained about the same – 49.4% at the height of the pandemic versus 49.9% prior to the pandemic.

COVID-19 has created an environment rife with stressors, i.e., financial insecurity, isolation, depression, and decreased access to health care, impacting those most at-risk for substance abuse disorders.  The foregoing data calls attention to the ongoing opioid epidemic which remains persistent during these unprecedented times.

Business groups, universities, and technology consulting firms have filed suits seeking to enjoin the new rules on H-1B and PERM labor certification programs issued by the Department of Homeland Security (DHS) and the Department of Labor (DOL) on October 8, 2020.

Those rules, both issued as Interim Final rules and without the usual notice and comment, could 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%. To date, three separate lawsuits have been filed in federal district court, seeking to enjoin implementation of the new rules.

The complaint filed in California, Chamber of Commerce of the United States of America et al. v. the Departments of Homeland Security and Labor, et al., challenges both the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Rule and the Strengthening of the H-1B Nonimmigrant Visa Classification Rule.

The plaintiffs, which include the U.S. Chamber of Commerce, the National Association of Manufacturers, and a number of universities and associations, contend that the new rules will “substantially restrict, if not outright eliminate, the H-1B visa category.” Nonetheless, the government issued both rules without notice and comment rulemaking and without establishing “good cause,” in violation of the Administrative Procedures Act (APA). The plaintiffs’ additional arguments include:

  • An injunction is necessary to maintain employment-based immigration programs and preserve thousands of jobs that are essential to the economy;
  • COVID-19 is just a pretext for the adoption of these rules because both have been on the table since 2017 when the Trump Administration took office;
  • The new H-1B definitions are at odds with the relevant statutes;
  • There was no good cause for bypassing the usual notice and comment period, especially when the rules could cost employers as much as $200 billion;
  • The Administration’s contention that COVID-19 has created an unprecedented economic cataclysm that requires these interventions is contradicted by Trump’s tweets contending that the economy is booming;
  • There is no evidence these rules will protect U.S. workers because unemployment is low in high tech, the industry that uses the lion’s share of H-1B visas; and
  • The wages set by the DOL rule do not match reality and are just a poison pill meant to ruin the H-1B and PERM programs.

The Chamber plaintiffs further argue that the Administration once again has failed to adequately consider the reliance interests involved.

As of 2019, DHS estimated that there are 580,000 workers in H-1B status. Many of those have left their homes abroad, bought homes, and built families and lives in the United States in reliance on a stable immigration system that now could be turned upside down. Employers have built facilities and business strategies based on settled expectations about the U.S. immigration system.

The plaintiffs ask the court to enjoin implementation of both rules.

Jackson Lewis attorneys will follow these suits and provide updates as soon as they become available. The DOL Wage Rule has already gone into effect and, absent an injunction, the DHS H-1B Rule will go into effect on December 8, 2020.

E-Verify will no longer allow extensions for addressing Tentative Nonconfirmations (TNCs) beginning November 5, 2020.

After relaxing processing guidelines because of processing hardships due to COVID-19, E-Verify is again enforcing its requirement that employees choosing to contest TNC notifications must take action to contact the appropriate government agency within 10 federal government workdays.

TNCs are issued when the data entered in E-Verify does not match the available Social Security Administration (SSA) or Department of Homeland Security (DHS) records. A TNC does not necessarily mean an employee is not authorized to work in the United States. TNCs can be issued for many reasons, including typographical errors, legitimate name changes, mistakes in birth dates, incorrectly recorded passport or A-numbers, and immigration status changes. An employer should not terminate an employee based upon a TNC notification. Rather, it should follow the regulated steps for meeting with the employee as soon as possible to review the TNC notification and attempt to resolve the mismatch.

A TNC notification issued by E-Verify triggers regulated steps that must be followed to notify the employee immediately. If the employee chooses to “contest” the mismatch, the employer must note this choice in E-Verify. E-Verify will issue instructions to provide to the employee for how to contact SSA or DHS to resolve the problem. Then, within 10 federal workdays, the employee must follow the E-Verify instructions and contact the appropriate agency to keep the case working toward resolution. The employer will be notified when the issue has been resolved. The employee may remain working during this wait period, however long it lasts. When the issue is resolved, E-Verify will notify the employer and provide instructions for closing the E-Verify case for that employee.

If E-Verify cannot resolve the issue, or if the employee does not contact the agency as instructed, E-Verify will issue a Final Nonconfirmation (FNC), which advises the employer to terminate the employee. The employer will have to note in E-Verify whether the employee remains employed, despite the FNC, or whether the employee has been terminated.

If the employee decides to “not contest” the mismatch, the employer must note this choice in E-Verify. E-Verify will instruct the employer to terminate the employee and close the case.

Failure to close TNC cases in E-Verify suggests to the government that employers are not referring cases to SSA or DHS when employees chose to take action to resolve TNCs or closing cases in the system when employees chose not to take any action to resolve the problem.

It is critical that employers pay attention to timing requirements within E-Verify and close out cases in a timely manner. If you have questions about how to appropriately respond to TNCs or would like to arrange for an E-Verify training webinar, please reach out to your Jackson Lewis attorney.

As organizations aim to return to some type of normalcy, and help ensure a healthy and safe workplace, many have implemented COVID-19 screening programs that check for symptoms, and an employee’s recent travel and potential contact with the virus. Moreover, many states and localities across the nation are mandating or recommending the implementation of COVID-19 screening programs in the workplace, and beyond. In many cases, organizations have leveraged various technologies, such as social distancing bands, apps, and thermal scanners, to streamline their screening programs.

Despite the benefits of COVD-19 screening programs, organizations should proceed carefully to examine not only whether the particular solution will have the desired effect, but whether it can be implemented in a compliant manner with minimal legal risk, particularly regarding the privacy and security implications. Just last week Amazon was hit with a proposed class action lawsuit in Illinois state court, claiming the company’s COVID-19 screening program violated Illinois’s Biometric Information Privacy Act (BIPA).  According to the complaint, Amazon employees were required to undergo facial geometry scans and temperature scans before entering company warehouses, without prior consent from employees as required by law when collecting biometrics identifiers, such as a facial geometry scan.

The BIPA sets forth a comprehensive set of rules for companies doing business in Illinois when collecting biometric identifiers or information of state residents. The BIPA has several key features: • Informed consent prior to collection • Limited right of disclosure of biometric information • Written policy requirement addressing retention and data destruction guidelines • Prohibition on profiting from biometric data • A private right of action for individuals harmed by BIPA violations. Statutory damages can reach $1,000 for each negligent violation, and $5,000 for each intentional or reckless violation.

The complaint alleges that Amazon employees “lost the right to control” how their biometric data was collected, used and stored, exposing them to “ongoing, serious, and irreversible privacy risks — simply by going into work”.  In addition to claims of failure to notify employees and obtain express consent regarding their biometric data collection practices, the complaint also alleges that Amazon failed to develop and follow a publicly available retention schedule and guidelines for permanently destroying workers’ biometric data.

While this case is an important reminder of BIPA implications, implementing a COVID-19 screening program, or any type social distancing or contact tracing technology to help prevent/limit the spread of coronavirus for that matter, can have privacy and security implications that extend well beyond the BIPA. In addition to the BIPA, depending on the type of data being collected and who is collecting it, such practices may trigger compliance obligations under several federal laws, such as the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Health Insurance Portability and Accountability Act (HIPAA). In addition to BIPA, other state laws should be considered, if applicable, such as the California Consumer Privacy Act (CCPA) and state laws that require reasonable safeguards to protect personal information and notification in the event of a data breach. International laws, including the General Data Protection Regulation (GDPR) also can affected screening programs depending on their scope. In addition to statutory or regulatory mandates, organizations will also need to consider existing contracts or services agreements concerning the collection, sharing, storage, or return of data, particularly for service providers supporting the screening program.  Finally, whether mandated by law or contract, organizations should still consider best practices to help ensure the privacy and security of the data it is responsible for.

COVID-19 screening programs, as well as the extensive technology at our disposal and/or in development are certainly helping organizations address the COVID-19 pandemic, ensuring a safe and health workplace and workforce, and preventing future pandemics.  Nevertheless, organizations must consider the legal risks, challenges, and requirements with any such technology prior to implementation.

Due to the COVID-19 experience, some employers and employees are exploring the idea that work may be carried out remotely. Countries with economies that rely heavily on tourism (and hard-hit by the pandemic) are using this to their advantage.

In the United States, business advocacy groups and many companies have been urging the removal of the current COVID-19-related restrictions on immigrant and nonimmigrant visas based on Presidential Proclamations with little effect. They say the restrictions “disserve the interests of the United States by stifling the ability of U.S. businesses to attract the world’s best talent, drive innovation and further American economic prosperity.” Studies show that when employers are faced with constraints, they are more likely to outsource jobs than hire more U.S. workers. Outsourcing results in a reduction in the number of employees buying consumer goods and homes in the United States — delivering another blow to the economy.

“Digital nomads” or “location-independent” workers are not a new phenomenon, but the COVID-19 pandemic has increased their numbers. People who are working remotely, whether for specific employers or as “gig” workers, are seeing some advantages in working from countries that may have lower COVID-19 rates and lower living costs. Countries such as Barbados, Bermuda, and Georgia, among others, are catering to these constituencies and offering special visa programs.

The visa programs offer a variety of services, including high-speed, fiber optic internet, workspaces, and accommodations, at various budget levels, access to schools for families, and access to a vacation-like atmosphere. Lower COVID-19 infection rates is the added attraction.  Applicants must satisfy the eligibility requirements, including income levels, health insurance, and COVID-19 testing (and, perhaps, a quarantine period).

In response to the COVID-19 pandemic, Barbados was the first country to offer its 12-month Welcome Stamp program. Bermuda followed. The Republic of Georgia and Estonia offer similar programs. Others include:

Each country has its own requirements and application procedures – some quite complex – and counsel must consider the legal immigration, tax, employment law, and benefit implications, among other things. It is also important to review Department of State and Centers for Disease Control and Prevention Travel Advisories.

As remote work becomes more pervasive, more countries are opening their doors to location-independent workers. Please reach out to your Jackson Lewis attorney if you have questions about how your company might take advantage of some of these new options when the process of bringing foreign workers to the U.S. is being hampered by various travel restrictions.

As federal and state safety and health guidelines in response to the COVID-19 pandemic call for extensive use of personal protective equipment (PPE) in the workplace, employers should give their policies on “donning and doffing” a fresh look. Pandemic-related reopening orders issued by state and local governments may include requirements that will require employers to modify their current policies.

“Claims for compensation for time associated with donning and doffing often are brought on a classwide basis,” notes Jackson Lewis attorney Justin Barnes. He takes a look at the relevant issues and the steps employers can take to mitigate the risk of claims. Read his recommendations here.

Philadelphia workers who are not covered by federal sick leave laws, such as the Families First Coronavirus Response Act (FFCRA), are entitled to paid sick leave benefits under the new public health emergency leave bill (amending Chapter 9-4100 of the Philadelphia Code) signed by Mayor Jim Kenney. The new leave requirements remain in effect until December 31, 2020, unless renewed. Read our full article here.

New York and New Jersey release “COVID Alert NY” and “COVID Alert NJ,” apps designed to alert their users when they have been exposed to someone who tested positive for COVID-19. These apps follow those released in Pennsylvania and Delaware and are soon to be joined by Connecticut. The states hope to enhance their contact tracing efforts, but what about privacy?

According to New Jersey Governor Murphy,

The app is free and secure, and your identity, personally identifying information, and location will never be collected. The more phones that have the app, the better we can fight this pandemic.

Larry Schwartz, a former high-ranking aid to Governor Cuomo, explains privacy is achieved “not through location services tied to smartphones but through the device’s Bluetooth proximity detection.” More specifically, the apps use the Exposure Notification System technology developed by Google and Apple. By using Bluetooth instead of GPS, location tracking of individuals is not necessary and users can turn it off at any time.

According to state officials, the COVID Alert apps will notify users if they have been in “close contact” (within six feet for at least 10 minutes) with someone who has tested positive for COVID-19. In order for the apps to work between users in close contact, a few things have to happen.

First, both users must have downloaded the app on their mobile devices and opted-in to receive “Exposure Notifications.” For COVID Alert NY and NJ, the apps are free and available to anyone 18 or older who lives, works, or attends college in New York or New Jersey, and can be downloaded in multiple languages from the Google Play Store or Apple App Store. As with all apps, users should read the app’s privacy statement – here is New Jersey’s privacy statement.

Second, one of the users would need to have tested positive for COVID-19 and cooperated with the local health department by agreeing to anonymously enter a code into the user’s app.

Third, when the two users are in close contact, as described above, their devices will exchange codes via Bluetooth. Using Bluetooth Low Energy technology, a device can detect when another phone with the same app is within six feet. If a code matches with a list of codes associated with positive COVID-19 app users, the user will get an “Exposure Alert” together with recommendations on next steps to stay safe and prevent community spread like self-quarantining and getting tested.

With reports of data breaches and intrusive government surveillance of citizens, it is no wonder New York and New Jersey state officials are touting COVID Alert’s attention to privacy. However, app users are permitted to do a “COVID Check-In” and enter any symptoms they are having. As I write this post, there were 15,561 check-ins today, with 97% percent feeling good. When Checking-In, users are reminded that the app does not reveal the user’s identity, but the information, which could include race, gender, and ethnicity, can be useful for public health action. Users also are reminded that a record is kept of symptoms entered into the app for future reference.

According to reports, the app cost $700,000 to develop, a cost reportedly paid for by the Bloomberg Foundation. It remains to be seen whether the app will serve its intended purpose and will keep user data private and secure.

The Department of Homeland Security (DHS) has released yet another rule that will make it harder and more costly for U.S. companies to employ highly skilled workers.

As a companion regulation to the “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” rule, DHS has released the “Strengthening of the H-1B Nonimmigrant Visa Classification” rule. Like its companion, it is being published as an Interim Final Rule (IFR), but will go into effect after 60 days. DHS expects about one-third of petitions for H-1B visa classification will be denied under the new rule.

The H-1B Rule codifies policies USCIS has been pursuing over the past several years that made it more difficult to obtain H-1B approvals and resulted in more Requests for Evidence (RFEs) and petition denials — all without transparent legislative or regulatory changes. Employers sued the administration in federal court arguing that a number of these policies were “arbitrary and capricious” in violation the Administrative Procedures Act (APA). In response, USCIS settled the cases and agreed to withdraw a number of the most contentious agency policies. In response, DHS is now intending to reimplement many of those policies through the truncated Interim Final rulemaking process. DHS contends that this is necessary in order to protect U.S. jobs during the current COVID-19-related economic downturn. Companies that employ H-1B workers maintain that access to these skilled workers is essential to ongoing operations and benefits the U.S. economy.

Key takeaways of the new rule for employers:

  • The definition of a “specialty occupation” is revised to focus more specifically on the relationship between the degree requirements and the duties of the position. This will make it more difficult for those in new, innovative fields, where specific specialty degrees are not yet even available.
  • Petitioners will bear the burden of showing a specific bachelor’s degree is always a requirement, not just “normally” a requirement for the position, a near impossible task.
  • Contractors will no longer be specifically listed among those who qualify as U.S. employers, although they can still qualify as U.S. employers by proving a bona fide employer-employee relationship.
  • The definition of a bona fide employer-employee relationship will focus more heavily on a totality of circumstances standard, rather than any one factor, such as the right to control.
  • H-1B workers at third-party locations will be limited to one year, rather than the currently available three years, renewable annually. Petitioning employers intending to place H-1B workers at third-party worksites will have to provide corroborating evidence to prove that specialty occupation work will be available throughout the requested time period. These changes will greatly increase the costs and documentary requirements for certain petitioners who rely on third-party placements.
  • The H-1B Rule codifies the scope and potential consequences of USCIS Fraud Detection and National Security Officers (FDNS) worksite inspections. If the FDNS is not able to verify facts related to an H-1B petition or compliance with H-1B requirements due to the failure or refusal of the petitioner or third party to cooperate, such failure may be grounds for denial or revocation of a petition.

Because this far reaching rule is being issued as an Interim Final regulation without opportunity for full notice and comment, litigation seeking to enjoin implementation is likely.  In addition, the rule is likely to be challenged while the validity of Chad Wolf’s appointment as Acting Director of DHS is still being contested.

If you have any questions about how the H-1B Rule will affect your company, please reach out to your Jackson Lewis attorney.

As circumstances from the coronavirus (“COVID-19”) pandemic continue to evolve, the federal Occupational Safety and Health Administration (“OSHA”) has maintained reliance on Section 5(a)(1) of the Occupational Safety and Health Act (“OSH Act”), known as the General Duty Clause, and current standards to address workplace exposures to COVID-19.

Rather than engage in rulemaking, OSHA has continued to use guidance as its primary mechanism to communicate COVID-19 safety expectations to employers. In part a response to the perceived inadequacy in the current regulatory framework’s ability to address COVID-19 hazards, several states, such as Virginia and New Mexico, have already moved forward with temporary rulemaking for employer COVID-19 response measures.

Now, Oregon OSHA—who led the way in issuing industry specific COVID-19 response measures early in the pandemic and engaged in some emergency rulemaking initiatives—is the next state to move forward with plans to develop and implement a temporary standard for COVID-19. But unlike some of the other states that have focused rulemaking efforts on temporary response measures, Oregon OSHA is taking the additional proactive step of initiating rulemaking on a broader and permanent infectious disease control and prevention rule.

Oregon OSHA envisions the COVID-19 temporary rulemaking and permanent rule as two essentially different projects both in nature and scope.

Oregon COVID-19 Temporary Rulemaking

For the initial temporary rulemaking, Oregon OSHA intends to adopt an emergency rule that sets out requirements to protect against workplace exposures to COVID-19, with distinct but complimentary requirements for workplaces in the healthcare and general industries. In the near final draft COVID-19 Temporary Standard, released by Oregon OSHA on September 25, 2020, the agency identifies proposed COVID-19 requirements that will apply to all workplaces including:

  • Strict physical distancing requirements, under which employers must ensure that 6 feet of distance is maintained between “all individuals in the workplace” by redesigning the workplace and establishing administrative controls.
  • Required use of masks, face shields, and face coverings by all individuals in the workplace, with limited exceptions (g., children under the age of 5, while eating or drinking).
  • Enhanced sanitation measures, such that all common areas accessible to employees and high-touch surfaces are targeted to be cleaned and sanitized every 24 hours.
  • Increased communication on COVID-19 safety protocols through required postings, employee communications, and training.
  • COVID-19 incident response measures, including contact tracing procedures, notification processes to affected employees, medical removal of employees for quarantine and isolation when necessary, COVID-19 testing in certain circumstances, and protocols for coordinating with the Oregon Health Authority or local public health department when necessary.

Separately, Oregon OSHA’s draft COVID-19 Temporary Standard, if adopted as is, would require employers to conduct an exposure risk assessment as prescribed in the rule and designate at least one individual per establishment to act as a “distancing officer,” who will be responsible for implementing the employer’s COVID-19 safety protocols and procedures.

Following Oregon OSHA’s release of this draft, the agency’s rulemaking documents indicate that a further revised draft and complete set of appendices will be released for final review towards the end of October 2020. Oregon OSHA also plans to adopt the temporary rule with immediate effect by the end of October or early November 2020.

Oregon Permanent Rule on Airborne Infectious Disease in the Workplace

Once Oregon OSHA has finalized its COVID-19 Temporary Standard, the agency will focus its attention on a permanent Airborne Infectious Disease Rule, which will be have broader infectious disease control and prevention requirements. Throughout October and November 2020, Oregon OSHA plans to meet with rulemaking advisory committees to develop and produce a pre-proposal draft of the permanent rule.

Oregon OSHA expects to release the pre-proposal draft in late November 2020. The permanent rule will be subject to a formal notice and comment period beginning in November 2020 and extending through March 2021.

Key Take Away for Oregon Employers

If Oregon OSHA’s timeline proceeds as is, the agency will have a COVID-19 Temporary Standard in place by the end of this month and a permanent Airborne Infectious Disease Rule in place sometime in 2021, with Oregon OSHA’s current timeline identifying a potential effective date in April 2021.

Both the temporary and permanent rulemaking initiatives present significant implications for Oregon employers, with new administrative requirements, compliance obligations, and considerations for workplace design and operations. Employers in Oregon should therefore keep a close eye on these rulemaking activities and consider participating in stakeholder meetings and by public comment.

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.