Update: January 19, 2022
As explained here and here, last week, the Supreme Court of the United States issued two significant rulings about portions of the Biden administration plan to combat the pandemic. The Court permitted the Centers for Medicare & Medicaid Services (CMS) to enforce its interim final rule, requiring that health care workers at facilities receiving federal funding be vaccinated against COVID-19, but halted enforcement of the Emergency Temporary Standard issued by the U.S. Department of Labor’s (DOL’s) Occupational Safety and Health Administration (OSHA). Both programs, as well as President Biden’s executive order requiring federal contractors to be fully vaccinated, remain subjects of litigation, but the decisions signal that the Supreme Court is prepared to uphold executive branch initiatives only when their scope is limited to what Congress intended the law to cover. The sweeping OSHA rule, which would apply to all businesses nationwide that employ 100 or more people, is unlikely to survive the litigation on the merits. OSHA may choose to narrow the scope of its rule to workplaces with demonstrable risk, and employers remain subject to state laws and regulations with respect to COVID-19 and free to implement their own requirements that are compliant with federal and state law. Facilities that are covered by the CMS rule should bear in mind that the first compliance deadline is January 27, 2022. On January 14, 2022, DOL’s Job Accommodation Network (JAN) released new guidance for employers with employees subject to a vaccination mandate or policy who receive requests for reasonable accommodations for a disability. The publication, entitled Processing Vaccination Accommodation Requests under the Americans with Disabilities Act, outlines a sample process for determining whether an employer is required to grant a vaccination exception (or delay) as a reasonable accommodation under the Americans with Disabilities Act. The guidance cites the Equal Employment Opportunity Commission’s guidance on vaccinations and also links to JAN’s FAQs about COVID-19-related issues concerning workers with disabilities.
State & Local News
On January 10, 2022, the Los Angeles County Department of Public Health issued an order, revising isolation and quarantine guidance to align with updated state guidance for the general public. Significantly, the order requires employers to provide employees who work indoors and in close contact with other workers or the public with medical-grade masks, surgical masks, or higher-level respirators, such as N95, for use at all times while workers are indoors or at the worksite, as soon as possible, and no later than January 17, 2022.
In 2020, voters approved a referendum amending the city’s minimum wage ordinance, which, effective January 1, 2022, required Portland employers to pay at least 1.5 times the current minimum wage during a state of emergency, i.e., $19.50 instead of $13.00. To sidestep the economic burdens of this so-called “hazard pay” provision, on January 3, 2022, the city council voted to rescind the COVID-19 state of emergency order, which had been in place since the start of the pandemic. Accordingly, as of January 13, 2022, employers are relieved from paying the enhanced minimum wage. During the same session, the city council also amended the city code to institute a public face-covering mandate. The ordinance, which went into effect January 4, 2022, with limited exceptions, requires the use of face coverings over the mouth and nose by anyone aged two or older while inside a public building (i.e., a building accessible to the general public), or while using public transportation. Masks may be temporarily removed for eating or drinking, but only if at an “isolated location” such as a table or booth. The face-covering requirement does not apply to a person who is alone or who has been shown proof of vaccination as a requirement and condition for entry into the building.
On January 13, 2022, Governor Kathy Hochul announced that the federal government would be providing assistance to help the state manage the health care system’s response to a surge of COVID-19 cases fueled by the Omicron variant. Military medical teams will supplement hospitals and other health facilities in New York City beginning January 24, adding to teams deployed by the U.S. Department of Health and Human Services to assist upstate with 911 calls and patient load balancing. On December 26, 2021, Governor Hochul issued an executive order declaring a disaster emergency caused by the rapid spread of the Omicron variant, to remain in effect through January 25, 2022.
On January 15, 2022, the New York State Department of Health extended its designation of COVID-19 as a serious risk, requiring employers to continue maintaining safety plans under the HERO Act until at least February 15, 2022.
Pursuant to an order issued by Mayor Muriel Bowser on December 22, 2021, the District of Columbia has launched “VaxDC.” Starting on January 15, 2022, VaxDC requires many businesses to check for proof of vaccination against COVID-19 prior to permitting access to their indoor premises. The rules apply to most dining and drinking establishments, entertainment and recreation facilities, and meeting and event venues in the District of Columbia. Guidance published on January 14, 2022, provides that covered businesses must ensure that all patrons aged 12 or older show proof of at least one dose of a vaccine prior to entering their premises (starting on February 15, 2022, two doses will be required). The requirement includes exemptions for brief entry into a facility (such as to use a restroom or pick up a takeout order), as well as for those medically exempt or unable to take the vaccine due to a sincerely held religious belief. Patrons with medical or religious exemptions must show documentation of such exemption as well as a negative COVID-19 test result received within the prior 24 hours. Proof of vaccination must be accompanied by a photo identification for all persons aged 18 or older. The Mayor’s order does not extend to employees of covered facilities or businesses, and specifically excludes certain public businesses and organizations, such as grocery stores, retail shops, houses of worship, hotels, health care facilities, and government offices, unless such facilities are used as venues for non-exempt activities (such as a concert held in a church or library). Businesses are required to post advisory notices, which can be downloaded from the city’s VaxDC website. The guidance explains that District agencies will use staff to spot-check for compliance, and that businesses found to be lacking good faith compliance may be subject to penalties, including civil fines of up to $1,000 and/or summary suspension or revocation of business licenses.
The White House
United States Congress
United States House of Representatives
United States Senate
United States Government Agencies
Update: January 12, 2022
On December 27, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a statement regarding the status of the Emergency Temporary Standard (ETS) for health care workers. The statement acknowledged that because a superseding permanent standard has not been prepared, OSHA will withdraw the non-recordkeeping portions of the ETS. Reporting provisions that were adopted as emergency regulations remain in effect. On December 27, 2021, and again on January 9, 2022, the Centers for Disease Control and Prevention (CDC) updated its quarantine and isolation protocols. The new guidance allows individuals who are asymptomatic to end isolation after 5 days and individuals who have received a timely booster or who are not yet eligible for a booster to avoid quarantine. Individuals who are not fully vaccinated (or not boosted, if eligible) are only required to quarantine for 5 days, instead of 10 days. Since then, many states and localities have adopted these new shortened guidelines.
State & Local News
On January 5, 2022, the California Department of Public Health (CDPH) extended the statewide requirement for universal mask-wearing indoors. The mask order requires that a face covering be worn in all indoor public settings by all persons, irrespective of vaccine status, until February 15, 2022. This order continues to exempt certain individuals, including anyone younger than two years of age or with a medical condition or disability that contraindicates usage of a mask. Other grounds for exemption include circumstances where communicating with a person who is hearing impaired requires an ability to see the mouth, and those for whom wearing a mask would create a workplace hazard.
On December 22, 2021, CDPH issued an order that continues a prior mandate requiring health care workers to become vaccinated against COVID-19 and further requires that all such workers receive a booster shot when eligible. The vaccine order effectively redefines the term “fully vaccinated” to mean having received a timely booster in addition to the original dosage schedule of any of the COVID-19 vaccines currently available under emergency use or full authorization from the U.S. Food and Drug Administration. This order includes a table summarizing immunization requirements for covered workers, all of whom must receive their booster no later than February 1, 2022.
As a reminder, the updated Cal/OSHA ETS, which changes requirements during an outbreak, goes into effect on January 14, 2022. While the ETS did offer changes to return to work protocols after isolation or quarantine, updated FAQs explain the interplay with the CDC’s new guidance.
Mayor Keisha Lance Bottoms issued an executive order on December 21, 2021, requiring that masks or cloth face coverings be worn by all individuals while indoors in a public place, including private businesses and establishments. According to a press release from the mayor’s office, the requirement is in response to a rising number of COVID-19 infections and the impact of the highly transmissible Omicron variant, and in accordance with CDC guidance. The mayor’s order requires all persons aged 10 or older to wear a facial covering or mask over the mouth and nose at all times when indoors within a public place, unless an exception applies (e.g., alone in enclosed spaces or while eating or drinking).
As of January 3, 2021, a City of Chicago order (“Order 2021-2”) requires many private businesses, such as dining establishments, bars, gyms, and other entertainment and recreation venues, to check for proof of vaccination before allowing patrons to enter indoor facilities. Order 2021-2 excludes locations in Chicago’s airports as well as locations in residential or office buildings used only by residents, owners, or tenants, and food service establishments providing only charitable food services, such as soup kitchens. This order contains a number of exemptions, such as for people who enter premises for a brief purpose (e.g. to use a restroom or pick up an order) and visiting professional artists or athletes. Order 2021-2 also exempts individuals with a medical or religious exemption, as long as they can show proof of a negative COVID-19 test professionally administered within the prior 72 hours. Lastly, entities covered by Order 2021-2 must conform to the vaccine-or-test rules provided by the OSHA ETS, regardless of the number of employees.
A Cook County Order requiring proof of vaccination for patrons of public dining and entertainment establishments likewise has been in effect since January 3, 2021, and also requires covered employers to conform to the OSHA ETS requirements for submitting proof of vaccination or regular testing.
The Massachusetts Department of Public Health has added a number of updates to its COVID-19 Public Health Guidance and Directives, in response to the U.S. Centers for Disease Control and Prevention’s amended guidance for quarantine and isolation and the surge in coronavirus cases driven by the Delta and Omicron variants. Among the changes in Massachusetts rules are updates to isolation and quarantine guidance for health care personnel, which now provide that asymptomatic health care providers and health care personnel, if fully vaccinated, may return to work five days following a positive COVID-19 test.
On December 21, 2021, Massachusetts adopted a mask advisory for all residents, urging them to wear a mask or face covering when indoors in a setting other than their own home, regardless of vaccination status.
The City of Boston has instituted a program, called B-Together, requiring employees and patrons at various public dining, entertainment, and recreation venues to show proof of vaccination prior to entry. The program takes effect January 15, 2022.
On January 3, 2022, the Minnesota Occupational Safety and Health Administration (MNOSHA) formally adopted the federal OSHA ETS requiring employers with 100 or more employees to implement policies either mandating vaccination or requiring unvaccinated workers to submit to weekly COVID-19 testing. Because the ETS for health care workers, which it had likewise adopted, expires on January 19, 2022, MNOSHA announced that, to help protect health care employees, it will enforce employers’ obligations under the Occupational Safety and Health Act’s general duty clause and other current standards, such as the personal protective equipment and respiratory protection standards, while federal OSHA works towards a permanent regulatory solution.
Effective January 6, 2022, an emergency regulation issued by Mayor Jacob Frey requires any individual older than two years of age and medically able to tolerate a face covering to use one over the nose and mouth when indoors within spaces of public accommodation, regardless of the person’s vaccination status. Covered employers must require all employees, whether vaccinated or not, to wear a medical-grade mask or cloth face covering whenever they are in face-to-face contact with the public. The regulation explicitly excludes athletes, performers, and their supporting staff.
Mayor Frey issued two additional pandemic-related proclamations on January 7, 2022. Emergency Regulation No. 2022-02 authorizes expedited processing of applications by licensed bars, restaurants, and other places of public accommodation for the temporary expansion of their facilities, to allow such businesses to operate more safely during the continuing public health emergency. This regulation provides for a waiver of any fees associated with applications for temporary expansions. Emergency Regulation No. 2022-03 authorizes a new COVID-19 vaccination and testing alternative policy and procedures for all city employees. The city had previously adopted a policy regarding proof of vaccination or regular testing, but the MNOSHA action of adopting the federal ETS required certain modifications to the city’s rules.
On January 3, 2022, Mayor Melvin Carter issued an executive order renewing rules requiring face coverings to be worn indoors in all city-controlled facilities and city-licensed businesses. Effective January 6, 2022, masks are required whenever social distance of at least six feet cannot be maintained, but may be temporarily removed during eating and drinking. Although the mayor’s order applies only to businesses licensed by the city (such as bars and restaurants), it strongly encourages all businesses to require face coverings indoors.
New York City
In addition, as of December 24, 2021, New York City employers must provide leave for parents or guardians of a child under 18 to receive and recover from a vaccination against COVID-19. The statewide mask mandate was extended through February 1, 2022.
Update: December 22, 2021
As explained in detail here, the U.S. Equal Employment Opportunity Commission updated its continuing guidance for employers regarding compliance with the Americans with Disabilities Act (ADA) and other federal equal employment opportunity laws in light of special issues created by the ongoing pandemic. A new section (“Section N”) of the guidance addresses the potential for long-term effects of COVID-19 (“long COVID”) to qualify as a “disability, as defined by the ADA. Noting the need for an individualized analysis, the guidance sets forth considerations for employers whose employees may require reasonable accommodations for a disability due to long COVID. Additional updates on December 20, 2021, were made to incorporate gender-neutral terms and add internal references to other sections.
State & Local News
On December 16, 2021,the Occupational Safety and Health Standards Board of Cal/OSHA, the state agency that provides federally required occupational safety and health oversight, met and approved revisions to its Emergency Temporary Standard. As explained in detail here, the revisions did not address the statewide mask mandate announced the previous week by the California Department of Public Health. The revisions address protocols for employees who have come into close contact with known cases of COVID-19, depending on various circumstances, and also note that employers are required to pay for testing, to be made available during an employee’s work time, in most circumstances.
District of Columbia
Mayor Muriel Bowser announced new measures on December 20, 2021 to combat the continuing pandemic and an upward trend in cases due to both the Delta variant and the newer Omicron strain. Importantly, Mayor’s Order 2021-147 (“Order 2021-147”) creates a mask mandate (with no exceptions) from December 21, 2021, through January 21, 2022. Additionally, Order 2021-147 includes numerous initiatives, including expanded testing and a vaccine mandate for city employees and contractors, with no “test out” option. Order 2021-147 also delays the reopening of public schools after the year-end recess to allow for staff and families to be tested for COVID-19 prior to returning to school.
Governor Brian P. Kemp issued an executive order on December 17, 2021, renewing the State of Emergency for Continued COVID-19 Recovery, first instituted on June 30, 2021. Unless modified by further action, the state of emergency will be in effect through January 26, 2022.
On December 10, 2021, Governor JB Pritzker issued Executive Order 2021-32 (“EO 2021-32”), declaring a disaster to exist in all counties of Illinois and extending prior COVID-19-related executive orders through January 8. 2022. EO 2021-32 cites an expected continuing spread of COVID-19 and ongoing health and economic impacts, mentioning in particular the food supply chain, including meat and poultry facilities and livestock management facilities, as matters of concern.
Governor Kimberley K. Reynolds issued a proclamation on December 10, 2021, extending Iowa’s state of public health disaster emergency until January 9, 2022, unless terminated sooner or further extended in writing. Generally, the proclamation extends provisions of previous disaster emergency proclamations, with the addition of a new provision, permitting retired public hospital workers to return to employment during the pendency of the health emergency without foregoing payment of retirement benefits, as would ordinarily be required. The Iowa Hospital Association requested the provision.
The Attorney General’s Fair Labor Division published updates to its guidance on COVID-19-related issues for employers and employees. The Frequently Asked Questions now clarify that if an employee takes an option to test for COVID-19 as an alternative to becoming vaccinated under an employer policy, and the employer’s policy does not dictate when, where, and how a test result is obtained, then the employer is not required to pay for such testing. Further, time taken by an employee to be tested under such circumstances is unlikely to be considered compensable.
Also, Governor Charlie Baker announced that he activated the National Guard on December 21, 2021, to assist with a staffing shortage affecting acute care hospitals across the Commonwealth. Guard personnel will assist with patient transportation and nonclinical support starting December 27, 2021. As of that date, Massachusetts hospitals must also postpone or cancel all nonessential elective procedures likely to result in inpatient admission, pursuant to guidance issued by the Massachusetts Executive Office of Health and Human Services’ Department of Public Health (DPH). DPH also released an updated mask advisory, recommending that everyone wear a face covering while indoors in public spaces. The use of masks has been and remains mandatory in certain public locations, including on transportation and in other high-risk settings.
The New Mexico Department of Health issued a public emergency order (“Order”) on December 10, 2021, requiring, among other things, that all individuals aged two or older to wear a mask in any public indoor setting, unless medically contraindicated. The Order also requires businesses and organizations serving the public to report to the New Mexico Environmental Department when one or more employees test positive for COVID-19, i.e., a “Rapid Response” initiative. Failure to comply with the Order is punishable by fines of up to $5,000 per violation.
As explained here, on December 15, 2021, New York State extended its designation of COVID-19 as a serious risk, requiring employers to continue maintaining safety plans under the HERO Act until at least January 15, 2022.
Also on December 15, New York City released information and guidance regarding a new mandate for private employers to ensure that “workers”—in the broadest sense of the word—get vaccinated against COVID-19.
On December 15, 2021, Governor Dan McKee announced new measures to combat COVID-19. Effective December 20, 2021, pursuant to an executive order issued on December 16, new rules regarding mandatory mask usage at places of employment (whether in the public or private sectors) as well as in public venues will take effect:
- In venues with a capacity of 250 or more, all individuals will be required to wear a mask, regardless of vaccination status. Covered venues include recreation and entertainment facilities, historical and cultural establishments, all religious and faith-based organizations, and all retail or service businesses conducting operations in indoor venues.
- Venues with a capacity of less than 250 must also require masks, but may exempt fully vaccinated individuals who provide proof of vaccination.
Businesses have options to implement more stringent requirements at their discretion. Employers will likewise need to require all persons on their premises to either show proof of vaccination or wear a mask at all times, subject to limited exceptions explained in Frequently Asked Questions. The Rhode Island Department of Health has also updated its Information for Workplaces to explain the new requirements.
The Texas Workforce Commission (TWC) issued a letter to employers on December 8, 2021, reiterating Governor Greg Abbott’s Executive Order No. GA-40 (“EO GA-40”), issued on October 11, 2021, prohibiting Texas employers and all other entities from compelling individuals to become vaccinated against COVID-19 if they object to the vaccine based on personal conscience, religious belief or medical reasons, including prior recovery from COVID-19. The letter, signed by all three TWC Commissioners, reminds employers that any vaccine requirements must be accompanied by information about “necessary exemptions.” Attached to the letter is a form that employees could use to request such exemptions, based on “medical reasons, including prior recovery from COVID-19” or “reasons of personal conscience or religious belief.” The letter also states that employees discharged due to a failure to receive the vaccine would be unlikely to be disqualified from receiving unemployment benefits, noting that such separations could affect employers’ expenses related to the unemployment insurance fund. Also, the letter provides information about where workers can lodge a complaint about vaccine mandates that violate EO GA-40, a point emphasized in a statement about the letter issued by Governor Abbott.
Update: December 15, 2021
The Biden administration’s regulatory efforts to promote universal vaccination against COVID-19 continue to face numerous legal challenges, resulting in their suspension pending the outcome of various motions. As we have reported, enforcement of the Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard, mandating vaccines or weekly testing for employees of private employers, has been placed on hold. Initially stayed by the U.S. Court of Appeals for the Fifth Circuit, the Sixth Circuit, which was selected by lottery to hear consolidated cases contesting the Biden administration’s authority, declined to expedite proceedings.
Two other key vaccine mandates have since also been placed on hold. The Centers for Medicare & Medicaid Services’ interim final rule requiring Medicare- and Medicaid-certified providers to be fully vaccinated was stayed by two federal trial courts, as fully explained here. More recently, another federal court issued a nationwide preliminary injunction against enforcement of President Biden’s Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, which would require certain government contractors and subcontractors to comply with vaccination and other health and safety requirements. Accordingly, the December compliance deadlines previously announced appear moot.
State & Local News
On December 13, 2021, the California Department of Public Health (CDPH) announced that masks would be mandatory in all indoor public settings regardless of vaccination status (subject to limited exceptions) from December 15, 2021 until at least January 15, 2022. Updated guidance for mask use requires everyone over the age of two, unless exempt for disability-related reasons, to wear a mask in indoor public settings. The guidance does not clarify whether “indoor public settings” includes private offices, but it notes that the COVID-19 Prevention Emergency Temporary Standard (ETS) issued by the California Division of Occupational Safety and Health (Cal/OSHA) remains in effect for California workplaces. Current guidance regarding the Cal/OSHA ETS requirements for workplace use of face coverings continues to require employers to ensure that employees who are not fully vaccinated wear masks while indoors or in vehicles, and ensure all employees to wear face masks when required by orders from the CDPH. On December 16, 2021, the Cal/OSHA Occupational Safety and Health Standards Board is scheduled to vote on a revised ETS that presently does not include a universal mask mandate, but this may be modified in light of CDPH’s order.
CDPH also issued a new travel advisory, recommending that all visitors and residents returning from other states or countries be tested for COVID-19 within three days of their arrival in California. Further, the agency updated its guidance and requirements for those attending “mega events,” such as sporting events and large concerts. Attendees will be required to show either proof of vaccination or a negative COVID-19 test result. If a COVID-19 test is a PCR test, it must have been taken no earlier than two days prior to the event. An antigen test must be taken within one day of the event. Like the other updated rules, the new requirements for mega events take effect December 15, 2021.
On December 1, 2021, the Nevada Board of Health (BOH) issued a proposed regulation that would require all state contractors, as well as employees working for state contractors in institutions serving vulnerable populations, to provide proof of full vaccination against COVID-19 within 90 days of adoption. On December 9, 2021, the BOH published a revised proposed regulation, which, among other things, adds language acknowledging the federal requirements for reasonable accommodations under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.
On December 2, 2021, Governor Michelle Lujan Grisham issued Executive Order 2021-066, requiring all state employees to be fully vaccinated and to have taken a booster shot, if eligible, by January 17, 2022, or within four weeks of eligibility for the booster as determined by the U.S. Food and Drug Administration. State employees who do not meet these requirements or who are unwilling to be vaccinated will need to provide weekly proof of a negative COVID-19 test and will be obligated to wear a face covering at all times while working, except when eating or drinking or if otherwise instructed by a health care provider. The governor’s order also provides protocols for unvaccinated employees who test positive for COVID-19, including a 90-day waiver of the weekly testing requirement. State employees who fail to comply with the order will be subject to discipline, up to and including termination.
As of December 13, 2021, pursuant to a determination issued on December 10, 2021, by Acting Commissioner of Health Dr. Mary T. Bassett, New Yorkers are required to comply with a statewide mandate to wear face coverings inside any “indoor public place” (defined as anywhere other than a private residence, including offices) that does not require proof of vaccination as a condition of entry.
The state has posted guidance, including signage and “Frequently Asked Questions” (FAQs). The FAQs emphasize that masks are required at all times in all covered indoor spaces, except during active eating and drinking, unless the venue requires proof of vaccination as a prerequisite to entry. In offices, individuals may also remove their masks if they are alone inside an enclosed room. The FAQs also specify that masking obligations must be uniformly enforced—if a facility permits entry by any individuals who do not provide proof of vaccination, then it must require all persons to wear a mask inside that facility, even those who are fully vaccinated. If a facility requires proof of vaccination for entry but permits patrons who have received only one dose of a two-dose vaccination course (as allowed under the “Key to NYC” program until December 27), then that facility must also require all patrons to wear masks except while actively eating or drinking. Fines for noncompliance may be imposed by local health departments against businesses or private individuals, to a maximum of $1,000 per violation. The mask mandate will remain in effect until at least January 15, 2022, at which time it will be re-evaluated.
Update: December 8, 2021
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced an extension of the comment period for its COVID-19 Vaccination and Testing Emergency Temporary Standard. Stakeholders have been given an additional 45 days to provide comments, which are due by January 19, 2022, and can be submitted electronically via the federal e-Rulemaking portal.
State & Local News
On November 29, 2021, Governor Jared Polis signed two executive orders amending and extending prior COVID-19-related orders. Executive Order D 2021 138 (“EO 138”) declares that a surge of COVID-19 cases, attributed to the Delta variant and the failure of 20 percent of the state’s population to become vaccinated, has caused a strain on the capacity of intensive care units and commercial hospitals in general, rendering them out of compliance with certain state insurance law requirements. The law requires health care provider networks to maintain sufficient resources such that all persons covered by the network’s plan would have access to care without unreasonable delay. EO 138 directs providers with insufficient resources to comply with those provisions of the law that require them to refer patients to out-of-network providers, at no extra cost to covered persons.
Executive Order D 2021 139 (“EO 139”) reallocates state funds from the Colorado Department of Labor and Employment to the Colorado Department of Public Health and Environment for COVID-19-related uses. In addition, to assist businesses affected by the pandemic, EO 139 temporarily suspends a statute and a regulation that set a $7 million taxable sales threshold for businesses to renew a permit for direct payment of state sales and use taxes.
District of Columbia
District of Columbia employers must now provide up to two hours of paid leave, per injection (including boosters), for the vaccination of employees or their children. The amendments to the District of Columbia’s Accrued Sick and Safe Leave Act (“the Act”), which went into effect on November 18, 2021, and will expire after 90 days unless otherwise extended, also require that employers provide up to eight hours of paid leave after each injection to allow for recovery. Such leave is in addition to existing paid leave required under the Act, and is capped at a total of 48 hours per employee.
Governor J.B. Pritzker issued Executive Order 2021-30 (COVID-19 Executive Order No. 94) on November 12, 2021, reissuing and extending portions of nearly two dozen prior orders related to the pandemic. Among those, the executive order relating to vaccination and testing requirements for licensed day care workers was modified to expand the definition of persons covered by that order’s vaccine mandate to include any person who performs services within a licensed day care center in close contact with others at least once a week.
On November 23, 2021, Governor Laura Kelly approved a bill requiring employers with a vaccination mandate to exempt any employee who submits a written waiver request stating that compliance with the requirement would either (1) endanger the life or health of the employee or an individual who resides with the employee or (2) violate the employee’s sincerely held religious beliefs. The request must be accompanied by evidence in the form of a written statement, either signed by a physician or related party concerning requests based on medical reasons, or a statement regarding religious beliefs signed by the employee. The law, which became effective upon enactment, requires employers to accept the employee’s statement of religious belief and prohibits “inquiring into the sincerity of the request.”
Employers may not take any punitive action against the employee for submitting the waiver. The definition of punitive action goes beyond termination of employment to include: dismissal, demotion, transfer, reassignment, suspension, reprimand, warning of possible dismissal, withholding of work, or assessing any monetary penalty or unreasonable charge. The law permits aggrieved employees to file a complaint with the state’s Secretary of Labor. Employers found in violation must be provided an opportunity to cure (i.e.,by reinstating a terminated employee with back pay to the date a complaint was filed). If an employer does not cure, the law requires the Secretary of Labor to file a civil suit to seek remedies, including fines up to $10,000 per violation for employers with fewer than 100 employees and up to $50,000 per violation for larger employers.
On the day after Thanksgiving, Friday, November 26, 2021, Governor Kathy Hochul issued her 11th executive order (“EO 11”), declaring a disaster emergency based on COVID-19 transmission rates at levels last seen in April 2020 and an increasing rate of related hospital admissions, effective through January 15, 2022. Most significantly, EO 11 notes that the declaration provides authority for the state to use its so-called “Surge and Flex” system, which, among other things, allows for the postponement of nonessential elective procedures in the event that health care resources must be strategically allocated due to the continuing pandemic.
New York City
On December 6, 2021, Mayor Bill de Blasio announced new measures to combat COVID-19 transmission in the city, expanding the Key to NYC program to include children under the age of 12 and also announcing a new universal vaccine mandate for private-sector workers. The requirement that children ages 5-11 be required to show proof of vaccination to gain entry to most New York City indoor dining and entertainment establishments, along with a requirement that such children be fully vaccinated in order to participate in certain high-risk extracurricular activities, begins on December 15, 2021.
During a press briefing, the Mayor explained that the city health commissioner would issue an order for all private-sector employers in New York City. While such order was not yet released (and still has not been issued as of midday December 7, 2021), the Mayor indicated that the order would apply to the employees of some 184,000 private businesses, if the employees worked in contact with at least one other individual. The mandate would not apply to fully remote workers. The commissioner’s order is expected to require that all covered employees receive at least one dose of a vaccine against COVID-19 by December 27, 2021. However, details regarding the new vaccination requirements, as well as how the requirements will be implemented and enforced, will not be made available until December 15, 2021.
The City of Philadelphia announced on November 19, 2021, that all of its employees and contractors must be fully vaccinated by January 14, 2022. Employees and contractors may request exemptions, but must do so by December 20, 2021. Exempted individuals must submit to regular testing and either wear an N95 or double mask while at work.
On November 24, 2021, Governor Jay Inslee issued a proclamation further extending Washington’s pandemic-related state of emergency. Proclamation 21-14.3 reiterates the vaccine mandate set forth on August 20, 2021, which prohibits covered workers from engaging in work for a state agency, in an educational setting, or for any health care provider unless fully vaccinated. The proclamation notes employers’ obligations to provide disability-related and religious-belief-related accommodations to the extent required by law, but prohibits employers from providing accommodations based on “false, misleading, or dishonest grounds or information . . . [or] personal preference . . . and not on an inability to get vaccinated because of a disability or a conflict with a sincerely held religious belief, practice, or observance.” The proclamation prohibits employers from “rubber stamping” accommodation requests and emphasizes the employer’s obligation to conduct an individualized assessment and determination of each request for accommodation.
Update: November 24, 2021
On November 17, 2021, the Equal Employment Opportunity Commission (EEOC) added new information to its online guidance entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. A new section, Section M, addresses the prohibitions on retaliation and interference under the federal laws enforced by the EEOC. The seven FAQs identify the concepts of protected activities in which employees may engage without retribution by employers, providing several examples. The guidance notes, at M.5, that even actions that have no tangible effect on employment or take place only outside of work could be deemed unlawful retaliation if they might deter a reasonable person from opposing discrimination or otherwise exercising their rights under equal employment opportunity laws. Employee protections notwithstanding, the guidance also points out that an employer may take non-retaliatory, non-discriminatory actions to enforce COVID-19 health and safety protocols, even if such actions follow a protected activity, such as a request for an accommodation.
On November 18, 2021, the Centers for Medicare and Medicaid Services (CMS) updated its guidance regarding its recently promulgated and more recently challenged Interim Final Rule, requiring Medicare- and Medicaid-certified providers to ensure that its employees are vaccinated against COVID-19. The updates add new information to the Q&As regarding potential scenarios, clarifying that staff who work in multiple facilities are covered by the CMS Interim Final Rule, even if some of their workplaces are not regulated by CMS. In addition, emergency medical services workers are not covered by the rule unless they are providing services to a covered provider. The new materials also state that the rules apply only to employees of covered facilities—not visitors—and further clarify what documentation of vaccination status is acceptable.
State & Local News
In a special session, the Florida legislature passed a package of four bills, under a joint legislative agenda labeled “Keep Florida Free,” which Governor Ron DeSantis signed on November 18, 2021. Though technically still permitting mandatory vaccination policies, as a practical matter, the laws, which became immediately effective, create extensive exemptions that substantially undercut such policies and otherwise stymie mandatory vaccination efforts in the state.
Specifically, HB 1B prohibits private employers from implementing COVID-19 vaccination mandates without permitting employees to request exemption based on any of the following:
- Medical reasons, as determined by a physician, advanced practice registered nurse, or physician assistant, including pregnancy or expectation of pregnancy;
- Religious reasons, based on a sincerely held belief;
- Immunity, based on prior COVID-19 infection, as documented by a lab test;
- Periodic testing, agreed to by the employee and at no cost to the employee;
- Compliant use of employer-provided personal protective equipment (PPE), agreed to by the employee.
Employers that receive a “completed exemption statement” must allow the requesting employee to “opt out” of the employer’s vaccination requirements. The Florida Department of Health has posted approved exemption forms, which can be found at:
- Medical Exemption from COVID-19 Vaccination
- Religious Exemption from COVID-19 Vaccination
- Exemption from COVID-19 Vaccination Based on COVID-19 Immunity
- Exemption from COVID-19 Vaccination Based on Periodic Testing
- Exemption from COVID-19 Vaccination Based on Employer-Provided Personal Protective Equipment
Employers that fail to provide exemptions or that terminate employees based on vaccination status face significant fines: employers with fewer than 100 employees could be fined $10,000 per violation, while larger employers face penalties of $50,000 per violation.
The law requires state agencies to develop forms and emergency regulations for enforcement purposes, and provides $5 million in funding to the state’s Department of Legal Affairs for the administration of complaints brought under the law, including the costs of investigation and to underwrite the state’s legal action to stop the enforcement of federal vaccination mandates.
The other three laws are as follows:
- HB 3B shields employees who complain to state officials about an employer’s COVID-19 vaccination policies by exempting information about such complaints and related investigations from the state’s public records disclosure law, which would otherwise apply after an investigation has closed or ceased being active.
- HB 7B rescinds the Florida Surgeon General’s authority to order vaccinations during a public health emergency.
- HB 5B authorizes state authorities to undertake development of a state plan for occupational safety and health. Currently, Florida is subject to the federal Occupational Safety and Health Administration (OSHA). Although HB 5B contemplates asserting “state jurisdiction” over occupational safety and health issues for all government and private employees, all state plans are subject to OSHA approval.
On November 15, 2021,Governor Pedro R. Pierluisi issued Executive Order No. 2021-075, requiring all private sector employers with 50 or more employees to require their workers to receive a COVID-19 vaccine or to test for the virus at least weekly, unless the employee presents certified proof of recovery from COVID-19 within the last three months. By November 30, 2021, all persons working for covered employers must submit proof of having initiated the process of becoming fully vaccinated by receiving a first dose. The order does not provide for religious or medical exemptions.
In addition, the order incorporates the governor’s prior COVID-19-related executive orders addressing requirements that patrons of restaurants, entertainment venues, recreational facilities, salons, spas, and other such establishments show proof of vaccination or negative test results received within the prior 72 hours in order to enter. Finally, the order lists penalties for violations, which include fines of up to $5,000 or imprisonment for a period not to exceed six months. A repeat violation within one year could result in a doubling of the maximum fine.
Governor Bill Lee signed SB 9014 on November 12, 2021, prohibiting most Tennessee employers from requiring proof of a COVID-19 vaccination from current or prospective employees, as well as patrons and clients. While the new law does not create an outright ban on employer vaccine mandates, it does prohibit adverse action against individuals who object to providing proof of vaccination “for any reason,” and, among other things, creates a private right of action under which individuals can seek remedies that include injunctive relief, damages, and attorneys’ fees. In addition, the law provides that anyone whose employment terminated due to a refusal to receive a vaccine against COVID-19 is eligible for unemployment benefits, including retroactive payments if an individual who was discharged due to vaccination status was previously denied benefits.
The Tennessee law does not apply to health care providers subject to CMS regulations that are contrary to the new law’s provisions, nor to nursing homes, assisted living centers, or residential hospice facilities. It also excludes entertainment venues, which remain permitted to request either proof of vaccination, proof of COVID-19 antibodies, or a recent negative COVID-19 test. Further, businesses may seek an exemption from the state’s comptroller if compliance with the Tennessee measure would result in lost federal funding, due to, for example, conflict with requirements for federal contractors and subcontractors, pursuant to President Biden’s Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.
On November 16, 2021, Governor Spencer Cox signed legislation, prohibiting employers from taking adverse action against unvaccinated workers, requiring any employer that requires its employees to receive a COVID-19 vaccine to permit exemptions for several broadly worded reasons, and requiring employers to pay for workplace COVID-19 testing.
The new law, which became effective upon signing, mandates that Utah employers that require their workers to be vaccinated against COVID-19 “relieve” any individual employee or prospective employee from the requirement upon receipt of the individual’s statement that having the vaccine would:
(i) be injurious to the health and well-being of the individual;
(ii) conflict with a sincerely held religious belief, practice, or observance of the individual; or
(iii) conflict with a sincerely held personal belief of the individual.
The measure also requires employers to pay for all COVID-19 testing an employee receives in relation to or as a condition of an employee’s presence at the workplace. Further, it prohibits Utah employers from keeping or maintaining a record or copy of an employee’s proof of vaccination, unless necessary under an established business practice or industry standard, or “otherwise required by law.” Note that OSHA’s recently issued, and currently stayed, Emergency Temporary Standard, would require all employers of 100 or more employees to obtain and maintain records regarding employees’ vaccination status.
The law carves out an exception, permitting employers with fewer than 15 employees to require vaccination without providing workers the “relief” from the mandate applicable to larger employers, so long as the employer can establish a nexus between the vaccine requirement and the employee’s assigned duties and responsibilities.
On November 12, 2021, Governor Mark Gordon signed HB 1002, which prohibits public entities from enforcing any mandate or standard of the federal government that requires an employer to require its employees to receive a COVID-19 vaccination. While the law expressly states that it will not be enforced after the federal law, regulation, rule, standard, or order takes legal effect, the law bans enforcement during any period in which the federal law or regulation is subject to a judicial stay or otherwise declared unenforceable.
Update: November 17, 2021
The Safer Federal Workforce Task Force updated its guidance for federal contractors on November 10, 2021. Of note is the extension of the deadline for federal contractors to comply with the executive order mandating vaccination against COVID-19 from the original December 8 date to January 18, 2022.
State & Local News
On October 31, 2021, Governor Jared Polis signed two executive orders related to the management of health care resources in the face of continuing increases in COVID-19 cases in the state. Executive Order D 2021 135 (“Order 135”) permits hospitals to manage capacity issues by transferring patients and refusing admittance to new patients. Order 135 prohibits providers from considering patients’ insurance status in determining whether to admit or transfer patients or deny them admission, and releases providers from liability for any action taken in accordance with Order 135. Order 135 took effect immediately and remains in effect until at least November 30, 2021.
Executive Order D 2021 136 (“Order 136”) relaxes regulatory requirements of health care providers to address staffing shortages, and clarifies that crisis standards of care, as revised by the Governor’s Expert Emergency Epidemic Response Committee, may be implemented during the ongoing disaster emergency. In addition, on November 9, 2021, Colorado’s Department of Public Health and Environment and the State Emergency Operations Center announced the activation of those crisis standards for health care systems to address a scarcity of resources, particularly staffing.
District of Columbia
On November 16, 2021, Mayor Muriel Bowser announced that Washington, DC, will lift its indoor mask mandate for most public settings starting November 22. District residents, workers, and visitors will be advised to follow risk-based guidance, to be made available at the city’s coronavirus resources webpage. In announcing the policy shift, Mayor Bowser presented data indicating that vaccination has been highly effective in preventing severe illness and death from COVID-19, and that 88.6 percent of all District residents 18 and older have received at least one dose of the vaccine.
Instead of a general mask mandate, the city’s public health agency, DC Health, will issue guidance based on risk levels, which will be primarily tied to vaccination status, according to the mayor’s presentation. However, masks will still be required, regardless of vaccination status, in the following circumstances:
- At any private business that wants a mask requirement;
- On public transport like buses and trains, inside train stations, in airports, and while in ride share vehicles;
- Inside schools, childcare facilities, and libraries;
- In congregate facilities, such as nursing homes/assisted living facilities, shelters, dorms/residences, and correctional facilities; and
- In DC Government facilities where there is direct interaction between employees and the public (e.g., DMV service center; DHS service center, etc.).
On November 2, 2021, Governor David Y. Ige issued an executive order, effective November 12, limiting the number and nature of indoor gatherings permitted in the state of Hawaii. Specifically, the order prohibits indoor social gatherings of more than 10 persons and outdoor social gatherings of more than 25 persons. The limits apply to restaurants, where patrons are required to remain in their own groups, maintain social distance from others, and wear masks except while actively eating and drinking. Bars, restaurants, gyms, and social establishments are required to limit their occupancy to 50 percent of capacity. This order is to remain in effect until at least November 30, 2021.
On November 8, 2021, Governor J.B. Pritzker signed a bill that amends the Illinois Health Care Right of Conscience Act (the “Act”), a law that permits health care providers to refrain from participating in care that conflicts with personal conscience and prohibits health care employers from discriminating against health care personnel who rely on the Act. The amendment, which takes effect June 1, 2022, adds a new provision to the Act, creating a carve-out for any treatments, measures, or requirements related to the prevention of COVID-19 transmission. The measure eliminates a means for Illinois health care workers to circumvent employer policies related to vaccination against or testing for COVID-19, permitting Illinois health care employers to make compliance with COVID-19-related safety protocols a condition of employment.
In an executive order dated October 29, 2021, Governor Eric J. Holcomb renewed, for the 20th time, the state’s Public Health Emergency Declaration for the COVID-19 Outbreak until at least December 1, 2021.
Governor John Bel Edwards issued a proclamation on October 26, 2021, relaxing prior rules requiring face coverings in public spaces. While recognizing the statewide health emergency continues, the proclamation lifts the requirement for the use of face coverings by people inside public locations. Masks remain mandatory on public transportation, however. The proclamation will remain in effect through November 24, 2021, unless superseded by subsequent action.
Governor Phil Murphy issued an executive order on October 20, 2021, requiring all state contractors and subcontractors to enforce a policy that all covered workers either be fully vaccinated or submit at least once or twice per week to testing for COVID-19. The governor’s order, effective upon issuance, applies to all employees working under new and extended contracts for services, construction, repairs, and other such work, but not to contracts solely for the provision of goods or financial assistance, nor to employees working outside of the state. The order lists a variety of documentation that covered workers may present to prove their vaccination status, and specifies that unvaccinated workers must submit to either an antigen or a molecular test at least once a week during any week during which they report to a covered worksite. Bidders for state contracts must have in place policies and procedures that comport with these requirements, and must further certify compliance with the order’s requirements when submitting invoices for payment.
By an executive order issued on October 29, 2021, Governor Daniel McKee extended the state’s disaster emergency for COVID-19 variants, first issued on August 19, 2021. The state of emergency, which was set to expire on November 13, has been extended through at least November 27, 2021.
Update: November 10, 2021
Last week, the Biden administration issued details on two major initiatives affecting millions of American workers. As explained in detail here, the Centers for Medicare & Medicaid Services (CMS) issued an interim final rule (IFR) outlining requirements for all participating Medicare and Medicaid providers to have all eligible staff become fully vaccinated as a condition of participation in the programs.
Simultaneously, as analyzed here, the Occupational Safety and Health Administration (OSHA) released the long-awaited Emergency Temporary Standard (ETS), providing details on national COVID-19 health and safety rules for employers with 100 or more employees. In contrast to the CMS IFR, which does not allow for a testing option in lieu of vaccination, the ETS allows employers to establish policies that permit workers to choose to submit to weekly testing and masking (with certain exceptions) if they are not fully vaccinated. Both went into effect November 5, 2021, and, among other things, contain deadlines for workers to become fully vaccinated by January 4, 2022. However, as explained here, the ETS was met almost immediately with multiple legal challenges, and, on November 6, a federal court temporarily stayed the mandate pending further proceedings.
In addition, at a background press briefing held on November 3, 2021, White House officials announced that the December 8, 2021, deadline for compliance with the executive order mandating vaccination for federal contractors would be pushed back to January 4, 2022, to align with the deadlines in the OSHA ETS and the CMS IFR. Read more about the mandate for federal contractors here.
State & Local News
In anticipation of OSHA’s ETS requiring covered employers to enforce a mandatory vaccination policy, on November 4, 2021, the legislature of Alabama passed a bill, authorized the next day by Governor Kay Ivey. The new law requires Alabama employers to permit their employees to claim an exemption from COVID-19 vaccines for medical reasons or sincerely held religious beliefs (something already required under federal law). The measure also requires employers to use a standard form for exemption requests, which, contrary to current guidance from the Centers for Disease Control and Prevention (CDC), includes having had a COVID-19 diagnosis within the past 12 months as a medical reason for exemption. The law affords “aggrieved employees,” whose exemption requests were denied, with a right of appeal to an administrative law judge and then to civil courts, and entitlement to full pay while a decision is pending. The week before, in response to President Biden’s executive order requiring covered federal government contractors to enforce a mandatory vaccination policy, Governor Ivey issued an executive order declaring protections for state employees and contractors. The Alabama executive order prohibits state actors from including a provision in any agreement that imposes a duty or obligation on a private entity with respect to the vaccination status of any individual.
Arkansas enacted a measure in response to the recent federal vaccination mandates. A bill sent to Governor Asa Hutchinson on October 7, 2021, expressly states that the legislation is intended to protect Arkansas employees from federal “overreach.” The law requires Arkansas employers to provide a specific exemption process, including allowing workers to test no more often than weekly for COVID-19 or submitting evidence of “proof of immunity,” with no testing costs to be borne by workers. The law also ensures unemployment benefits for workers who are terminated for reasons related to “exercising their right to refuse a vaccination,” and went into effect on October 13, 2021, without the governor’s signature. Under Arkansas’ legislative process, if the governor takes no action on a bill within five days of its receipt, it may become law without gubernatorial endorsement.
The Division of Occupational Safety and Health (Cal/OSHA) has proposed revisions to the state’s COVID-19 Prevention Emergency Temporary Standard (“Cal ETS”). A version showing the proposed changes is available here. The state’s Occupational Safety & Health Standards Board is slated to consider the proposed modifications at its next meeting, on November 18, 2021. In contrast to the federal OSHA ETS effective nationwide as of November 5, 2021, the Cal ETS requires employers to pay for COVID-19 testing of employees and mandates a 14-day quarantine period in many cases where the CDC guidance recommends 10 days.
Cal/OSHA is also considering a permanent rule, a draft of which is now under review. Cal/OSHA is a state plan approved by OSHA and managed under the auspices of California’s Department of Industrial Relations. As such, Cal/OSHA must advise OSHA of its intention to either adopt the new COVID-19 Vaccination and Testing ETS or keep its own standard, which must be “at least as effective” as the federal rule, by November 22, 2021. Presently, the Cal ETS does not include a vaccination mandate. If Cal/OSHA decides to develop its own plan, it must complete it by December 4, 2021.
On October 29, 2021, Iowa enacted a new law broadening the acceptable medical and religious exemptions from mandatory vaccination policies. The measure requires all employers that require employees to become vaccinated to provide an exemption to anyone who submits a statement that receiving the vaccine would be either (i) “injurious to the health and well-being of the employee or an individual residing with the employee,” or (ii) would “conflict with the tenets and practices of a religion of which the employee is an adherent or member.” The law appears to require acceptance of all such exemption requests without further inquiry (as would otherwise be permitted under federal law), and also provides that any employee discharged for refusing to become vaccinated will be qualified to receive unemployment insurance benefits.
In West Virginia, a bill signed into law by Governor Jim Justice on October 22, 2021, requires employers to exempt employees from compulsory immunization against COVID-19 as a condition of employment for various specified reasons. They include an employee’s submission of a certified statement from a licensed physician or advanced practice registered nurse that a vaccine is contraindicated for reasons that include prior exposure to COVID-19, or an employee’s submission of a notarized certification that their religious beliefs prevent them from having the COVID-19 immunization. The law prohibits employers from taking adverse employment action against any current or prospective employee for exercising their “exemption rights.”
Alabama, Arkansas, Iowa, and West Virginia, along with at least 23 others, have filed federal lawsuits challenging the OSHA ETS.
Update: November 3, 2021
As explained in detail here, the U.S. Equal Employment Opportunity Commission added additional details to its guidance for employers responding to issues caused by the pandemic. The agency’s latest update to its Frequently Asked Questions (FAQs) provides considerations for employers responding to requests for accommodations based on religious objections to COVID-19 vaccine mandates.
State & Local News
On October 13, 2021, the City and County of San Francisco Health Officer, Dr. Susan Philip, issued a revision of her order Encouraging COVID-19 Vaccine Coverage and Reducing Disease Risks (Safer Return Together), relaxing mask requirements in certain settings for “stable groups” that are fully vaccinated. The stable groups described in the order include religious gatherings, certain fitness and recreational facilities, and offices, subject to specific requirements, including appropriate ventilation. For indoor offices, masks may be removed when only regular personnel and service providers are present and fully vaccinated, and masks must be worn by all if visitors (other than intermittent delivery persons) are present, irrespective of vaccination status.
The order’s updates also disclose the benchmarks by which indoor universal mask requirements will be lifted, in coordination with other Bay Area jurisdictions. Those benchmarks are as follows:
- The case count in the County is at or below the CDC level of moderate transmission for at least three weeks;
- The total number of patients hospitalized in the County due to COVID-19 is 65 or fewer; and
- The earlier of the following occurs:
- 80 percent of the total population in the County (including children of all ages) have received their final dose of a vaccine, subject to the Health Officer’s consideration of the equitable distribution of the vaccine among children ages five to 11 years living in communities in the County that are vulnerable and highly impacted by COVID-19, or
- Eight weeks after the Food and Drug Administration grants emergency use authorization of any COVID-19 vaccine for children ages five to 11 years.
After the Commonwealth extended its COVID-19 Temporary Emergency Paid Sick Leave law beyond its initially slated expiration date of September 30, 2021, it released updated guidance regarding the program. A new answer (at Q9 of the FAQs) addresses the question of whether employers are required to offer state-mandated paid leave if they had already provided 40 hours of paid leave under the federal Emergency Paid Sick Leave program. The guidance explains that employers are not required to offer additional leave, but may elect to do so, and may seek reimbursement from the state for such additional leave. In addition, the state issued an updated notice for posting at workplaces. The new notice reflects the program’s extended expiration date, which will be April 1, 2022, unless the program’s funds are exhausted sooner.
The New York State Department of Labor (NYSDOL) updated its guidance on the state’s law, requiring employers to provide paid leave to allow employees to obtain a vaccination against COVID-19. NYSDOL’s FAQs now include a new question and answer, clarifying that Labor Law 196-C covers booster shots.
The Commissioner of the New York Department of Health has extended the designation of COVID-19 as a serious risk of harm to public health under the NY HERO Act until December 15, 2021, at which point the designation will be reviewed. Accordingly, the requirement to implement airborne infectious disease exposure prevention plans under the HERO Act, explained in detail here, must be kept in place through at least December 15, 2021.
Update: October 27, 2021
On October 19, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued warning letters to leaders of three state plans regarding their continuing failure to adopt the COVID-19 Emergency Temporary Standard (ETS) for health care workers, which has been effective since June 21, 2021. State plans, of which 22 cover private sector workplaces, operate under the authority of federal OSHA certification, the terms of which require state plans to adopt standards at least as stringent as those issued at the federal level. After the health care ETS was issued, state plans were supposed to adopt such standards within 30 days. Issued almost four months after the health care ETS took effect, the letters warn state OSHA administrators in Arizona, South Carolina, and Utah that OSHA is beginning the process that could lead to the revocation of their plans. Failure to substantially comply with the requirement that health and safety standards enforced by the state be at least as effective as federal standards promulgated by OSHA is a basis for decertification, as provided in OSHA’s State Plan Policies and Procedures Manual. The enforcement effort was announced as the nation awaits a new ETS, applying to employers with 100 or more workers, in response to President Biden’s mandate, announced on September 9, 2021, that large employers require vaccines or regular testing.
State & Local News
New York City
On October 20, 2021, Mayor Bill de Blasio announced that New York City employees would be required to have at least one dose of a vaccine against COVID-19 by October 29, 2021. The mayor’s announcement promises an incentive of $500, to be issued via city paychecks, for every New York City worker who receives their first dose by that deadline. As set forth in an order issued by the Commissioner of Health and Mental Hygiene, city workers must provide proof of at least a first dose of a COVID-19 vaccine by 5:00 p.m. on Friday, October 29, or else be subjected to an unpaid leave of absence. The order includes exceptions for corrections officers assigned to certain facilities, giving them until November 30, 2021, to become vaccinated, providing unvaccinated officers are tested weekly for COVID-19.
Significantly, the commissioner’s order extends to all employees of contractors and subcontractors that provide social services through city agencies. These include providers of day care, foster care, home care, health or medical services, housing and shelter assistance, preventive services, youth services, senior centers, employment training and assistance, vocational and educational programs, legal services, and recreation programs. City agencies are required to contact all contractors and obtain certification that they are requiring proof of vaccination from covered employees. A person whose work under the contract does not include physical interaction with city employees or members of the public is excluded from the definition of a “covered employee.” That definition applies to any person (i) employed by a contractor or subcontractor holding a city contract, (ii) whose salary is paid in whole or in part from funds provided under a city contract, and (iii) who performs any part of the work under the contract within the City of New York. The October 29 deadline for city workers to submit proof of an initial vaccine dose, with a second dose within 45 days, applies to contractors’ workers as well.
On October 6, 2021, the Philadelphia Department of Health announced an extension of its deadlines for compliance with mandates that originally called for health care workers and people at institutions of higher education to be fully vaccinated by October 15, 2021. Philadelphia health care staff in hospitals and long-term care facilities and “everyone in higher education” are now required to have received their first dose of a two-dose vaccine by the original deadline, and then must submit to twice-weekly testing for COVID-19 until they receive their second dose. The deadline for a second dose by such health care workers and university staff, students, and faculty is now November 15, 2021. All other health care workers received an extension of the deadline for a first dose until October 22, 2021, with a second dose required by November 22, 2021. The new deadlines are described as an “accommodation for institutions that would like it” to “ensure that our healthcare system and colleges aren’t shorthanded because someone missed a deadline by a few days.”
On October 7, 2021, Mayor Muriel Bowser issued Mayor’s Order 2021-119, extending the ongoing COVID-19 public emergency first declared on March 11, 2020, until January 7, 2022. In its recitations of background information, the Mayor’s Order notes that the District of Columbia’s vaccination campaign has achieved higher-than-average vaccination rates in the District, with more than 79 percent of residents aged 12 and older, and almost 92 percent of residents aged 65 and older, having received at least one dose of an approved vaccine. Nevertheless, the Mayor’s Order cites ongoing impacts of COVID-19, including risk of new variants and recovery efforts. The extension of the public emergency enables the mayor’s administration to expedite public safety and economic welfare measures.
Update: October 20, 2021
On October 13, 2021, the Equal Employment Opportunity Commission (EEOC) modified some of the language—but not the substance—of its guidance document entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. Specifically, the EEOC updated the document’s Section K, which contains Frequently Asked Questions (FAQs) regarding vaccinations, primarily by revising language with non-substantive changes. For example, the text now refers to being “vaccinated against COVID-19” as opposed to “vaccinations for COVID-19,” as referenced in the previously published version. The EEOC also added new and updated references to other federal resources, such as the Workplace Vaccination Program guidance provided by the Centers for Disease Control and Prevention (CDC).
Among the more substantive updates to the EEOC guidance is the addition of new advice at FAQ K.4, which now includes a new paragraph stating that employers should provide their workforce with contact information for a management representative who can assist with requests for “a reasonable accommodation due to a disability or religious belief, practice, or observance, or to ensure nondiscrimination for an employee who is pregnant.” Nevertheless, there were no changes made to FAQ K. 12, which addresses the process for handling reasonable accommodation requests made on the basis of sincerely held religious beliefs pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). There were also no updates to any of the FAQs addressing reasonable accommodations for those entitled to them under the Americans with Disabilities Act (ADA) [K.5, K.6, & K. 11]. However, the discussion of employees’ decisions to refuse vaccination due to pregnancy, provided at K.13 in the context of Title VII, was modified. The updated version references recent CDC recommendations that pregnant people, as well as those breastfeeding or seeking to become pregnant, be vaccinated against COVID-19. It also notes that employers should take care to avoid disparate treatment of employees seeking accommodations due to pregnancy, linking to specific guidance for accommodating pregnant workers during the pandemic.
State & Local News
The Assembly of the state’s largest city, Anchorage, drew national attention when it passed an emergency ordinance requiring almost everyone over the age of two to wear a mask while at indoor public locations as of October 12, 2021. Alaska health care providers have been adhering to crisis care standards since September 21, 2021, when the state’s Department of Health and Social Services issued a Public Health Emergency Order, citing “unprecedented stress on the entire healthcare infrastructure.” As explained in an announcement issued by the Anchorage Assembly, the masking rules will remain in effect for up to 60 days, or until the public health emergency is deemed to have ended. The ordinance provides that the public health emergency will not end until (1) crisis standards of care are ended at two of three local hospitals for 14 consecutive days, or (2) there is no longer substantial or high community transmission per the CDC for 14 consecutive days. According to the state’s COVID-19 summary dashboard, Alaska remains on high alert. Alaska employers are required by the law to provide masks for its employees, and are permitted to allow fully vaccinated workers who present proof of vaccination to forego wearing masks while in a room that is separate from the public and from unvaccinated workers.
Update: October 13, 2021
On October 4, 2021, the U.S. Departments of Health and Human Services, Labor, and the Treasury issued joint guidance in the form of Frequently Asked Questions (FAQs), addressing, among other things, the permissibility of incentives as well as health care plan surcharges.
Referencing several relevant laws, including the Employee Retirement Income Security Act (ERISA), the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and the Affordable Care Act (ACA), the guidance confirms that group health plans and health insurance issuers may offer a premium discount for participants who receive a COVID-19 vaccination, or impose a surcharge on those who remain unvaccinated (see the FAQs document under Q3). Such incentives or surcharges are permitted under HIPAA if the plan complies with regulatory requirements for activity-only, health-contingent wellness programs. Those requirements include limiting the amount of the health plan surcharge or incentive generally to 30 percent of the health plan’s total cost of coverage and providing a waiver or reasonable alternative means of obtaining the incentive to any individual for whom a vaccine is medically inadvisable. The guidance, under Q4 in the FAQs, also notes that group health plans and health insurance issuers may not condition eligibility for benefits or coverage otherwise available upon a participant’s, beneficiary’s, or enrollee’s vaccination status. Such a condition would violate ERISA’s prohibitions on discrimination based on individualized health factors.
The Office of Management and Budget released a memorandum on September 30, 2021, advising personnel responsible for federal procurements how to comply with President Biden’s executive order mandating vaccinations against COVID-19 for all federal contractors and subcontractors. The memo provides federal agencies that award contracts pursuant to the Federal Acquisition Regulation (FAR) with guidance, including language drafted by the FAR Council that must be included in any new contracts awarded on or after November 14, 2021. The required clause must also be included in any extensions or renewals of, or options on, existing contracts, as well as in all new solicitations made on or after October 15, 2021. Federal contractors should note that the substance of the new clause—which contains a promise that essentially the contractor will comply with all federal guidance related to COVID-19 as issued by the Safer Federal Workforce Task Force—must also be included in all agreements with subcontractors. Furthermore, the memo reiterates that agencies should broadly apply the clause to all contracts, even those federal contracts not expressly covered by the executive order, except for (1) contracts and subcontracts with Indian Tribes under the Indian Self-Determination and Education Assistance Act, and (2) solicitations and contracts that require performance outside the United States or its outlying areas.
State & Local News
The state enacted Assembly Bill 654 (AB-654) on October 5, 2021, effective immediately. The measure modifies legislation enacted last year, which requires employers to report workplace COVID-19 outbreaks, and for such reports to be published on the California Department of Public (CDPH) website. AB-654 clarifies the deadline for employers to submit notice of an outbreak to the local public health agency. Employers are now required to submit notice within 48 hours or one business day after notification of exposure, whichever is later. The new measure requires CDPH to tabulate statistics regarding outbreaks and report them by industry.
The bill also exempted more California employers from the reporting requirement. Employer exemptions had already included health care employers, and now also include adult day health centers, residential and community care facilities, and child day care facilities. A requirement that employers advise employees of any COVID-19-related benefits available under federal, state, or local law was also narrowed. The statute now requires that such advice be given to those employees who were on the premises of the same worksite as the COVID-positive individual within the “infectious period,” as defined by CDPH. Likewise, the new legislation clarifies that worksites covered by the law include neither locations where an employee identified as a source of COVID-19 exposure worked alone or worked remotely, nor locations (including floors of a building) that the employee did not enter. Unless amended, these new rules will remain in effect until January 1, 2023. CDPH is expected to add an update to its guidance for employees and workplaces soon.
Los Angeles, California
The cityexpanded vaccination rules, voting at its October 6, 2021, meeting to enact an ordinance then approved by Mayor Eric Garcetti. The new law requires covered businesses to start displaying notices on October 21, 2021, advising patrons that, beginning on November 4, 2021, proof of full vaccination against COVID-19 will be required in order to enter any indoor facilities at covered locations or controlled by the City of Los Angeles. The ordinance’s definition of “covered locations” includes:
- drinking and dining establishments, such as coffee shops, breweries, wineries, tasting rooms, banquet halls, fast food and other restaurants, bars, cafeterias, and food courts;
- gyms and other fitness venues, including dance studios and hotel fitness centers;
- recreation and entertainment venues, including malls, arcades, arenas, theaters, museums, and convention centers; and
- personal care facilities, such as spas, salons, non-medical massage parlors, tattoo and piercing parlors, and barbershops.
Patrons may be exempted for medical reasons, or due to sincerely held religious beliefs, but will be required to provide a self-attestation as well as proof of a negative COVID-19 test within the prior 72 hours in order to enter a covered facility.
The new ordinance also requires operators of large outdoor ticketed events, defined as having 5,000–9,999 attendees, to verify proof of vaccination or proof of a negative COVID-19 test at controlled points of entry, prior to permitting any patron to enter. These requirements do not apply to non-resident performers or competitors appearing at indoor facilities or at large events. The ordinance will remain in effect until the Declaration of Emergency issued by the mayor of Los Angeles on March 4, 2020, is lifted.
The New York State Department of Labor released updated guidance on employers’ obligations to implement workplace safety plans under the HERO Act, as reported in detail here. As announced last week, employers will remain obligated to comply with the HERO Act until at least October 31, 2021.
Update: October 6, 2021
The U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights released guidance on September 30, 2021, addressing the COVID-19 vaccination and privacy rules as they relate to workplaces. Presented in the form of questions and answers (“Q&A”), the guidance addressed employers’ obligations under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), which includes a privacy rule that regulates usage and disclosure of individuals’ protected health information. The guidance emphasizes that HIPAA applies to specific covered entities, such as health care providers and health plans.
The Q&A states that the HIPAA Privacy Rule does not apply to employment records, or what information can be requested from employees as part of the terms and conditions of employment. Accordingly, the HIPAA Privacy Rule does not prohibit employers from inquiring about any individual’s vaccination status, nor does it preclude any individual from disclosing their own vaccination status. However, consistent with guidance from the U.S. Equal Employment Opportunity Commission (“EEOC”), employers must treat any documentation of vaccination as a confidential medical record, separate from personnel files.
Vaccination and Pregnancy
On September 29, 2021, the Centers for Disease Control and Prevention (“CDC”) Health Alert Network (“HAN”) distributed a new health advisory recommending urgent action to promote vaccination rates among those who are pregnant, recently pregnant, trying to become pregnant, or who might become pregnant in the future. Citing accumulating data and recommendations from various medical organizations that serve pregnant patients or provide services for pregnancy-related conditions, the advisory states that the CDC encourages vaccination against COVID-19 for all people aged 12 and over, including those who are currently pregnant or lactating. The CDC “strongly recommends” vaccination against COVID-19 before or during pregnancy because the benefits outweigh known or potential risks of remaining unvaccinated against the virus.
The CDC’s position regarding vaccination of individuals who are, may become, or recently were pregnant has not triggered any changes to existing guidance from the EEOC. Issues related to an employee’s pregnancy can implicate both the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended by the Pregnancy Discrimination Act, as explained in Frequently Asked Questions (“FAQs”), here. However, with respect to vaccination-related issues, the EEOC’s guidance focuses on vaccination status in relation to pregnancy through the lens of Title VII, at FAQ K.13. That guidance urges employers to avoid disparate treatment of pregnant individuals, meaning to the extent that job modifications are available as reasonable accommodations for other employees, they should be equally available to those who are pregnant or lactating.
“Long COVID” as a Potential Disability
On September 9, 2021, the EEOC announced that it is recognizing that “long COVID” may be a “disability” under the ADA and Section 501 of the Rehabilitation Act in certain circumstances, echoing joint civil rights guidance (“joint guidance”) articulated by the U.S. Departments of Justice (“DOJ”) and HHS. The joint guidance addresses those portions of the ADA that govern state and local government (ADA Title II) and public accommodations (ADA Title III), regulatory enforcement of which is primarily vested with the DOJ. The EEOC enforces Title I of the ADA, which applies to private employers with 15 or more employees, as well as to government employers, employment agencies, and labor unions.
The EEOC is currently preparing technical assistance for workers and employers about long COVID as a disability in the employment context, as regulated under Title I of the ADA.
State & Local News
Citing the ongoing COVID-19 pandemic and the rise of the highly transmissible Delta variant, on September 26, 2021, Mayor Keisha Lance Bottoms issued Executive Order 2021-116, (“Order”), declaring a city-wide state of emergency. Except for certain enumerated exceptions, the Order requires persons age 10 and over to wear face coverings in indoor public places, regardless of vaccination status. The Order calls for violators to be given verbal and written warnings and other assistance (such as free masks) prior to the issuance of penalties. Violations of the masking order that continue after an opportunity to cure (either by donning a mask or by leaving premises where masking is mandatory) are subject to civil penalties, with fines of $50 for repeat offenders. In addition, the Order continues prior measures that have been in placed, including that city facilities remain open to the public in limited capacity for the provision of certain in-person services transactional facilities.
On September 13, 2021, the Massachusetts Department of Revenue provided new guidance for remote workers, announcing the expiration of an emergency rule that required employees working remotely to treat earned income as though it were earned at the location where the employee usually worked prior to the COVID-19 pandemic. Starting on September 14, 2021, wages paid to a non-resident employee will generally be sourced based on where the employee’s work is actually performed. Massachusetts employers are required to withhold Massachusetts personal income tax from any employee who does not reside in Massachusetts but does perform work within the state. However, employers do not need to begin withholding from non-residents who telecommute from outside the Commonwealth, even if that employee had previously worked in Massachusetts prior to the pandemic. Employers may be required to withhold if a non-resident performs work within Massachusetts on a part-time basis, and should consult the Department of Revenue’s FAQs regarding these changes.
On September 27, 2021, the Massachusetts Legislature approved legislation to extend the Commonwealth’s COVID-19 emergency paid sick leave. Such leave was originally set to expire on September 30, 2021, but will now be available through April 1, 2022.
Governor Gretchen Whitmer signed the state’s budget bill on September 29, 2021, but used her authority to veto line items that would have limited her authority or the authority of local government officials to manage the ongoing COVID-19 pandemic. In a letter to the legislature, Governor Whitmer justified her vetoes of items that would limit the ability of local health departments and officials to require masks, vaccinations, testing, or quarantine as contrary to the state’s constitution. The vetoed items also include provisions that would have permitted broad exemptions from vaccination to students in public schools.
On September 27, Governor Kathy Hochul issued Executive Order 4 (“EO 4”) declaring a statewide disaster emergency, based on anticipated health care staffing shortages. The Order permits, inter alia, physicians, nurses, and physician assistants licensed in other states or Canada to practice medicine in New York State without a state license until at least October 27, 2021.
EO 4 temporarily suspends and/or modifies numerous provisions of the New York State Education Law, Public Health Law, State Finance Law, Economic Development Law, and Insurance Law, as well as implementing regulations. Among EO 4’s provisions are those that allow:
- current medical students (classes of 2021 and 2022) accepted into a residency program to begin practicing medicine (under supervision);
- nursing students to enter employment immediately after graduation;
- emergency medical technicians (“EMTs”) to provide services in hospitals and other locations usually beyond their authority;
- retired physicians and nurses in good standing to re-register through an expedited process that waives registration fees;
- EMTs to exercise broader discretion and provide care beyond usually authorized settings (including in hospitals);
- midwives and other non-nursing staff, upon completion of training, to administer vaccinations against COVID-19 and influenza;
- modifications to state health regulations governing patient discharge and transfers, to help hospitals manage overcrowding; and
- suspension of preauthorization as well as review requirements related to scheduled surgeries, hospital admissions, and inpatient and outpatient services.
EO 4 was effective immediately as of its signing for a duration of 30 days, subject to extension by further order.
Update: September 29, 2021
The Biden administration’s Safer Federal Workforce Task Force (“Task Force”), established on President Biden’s first day in office, recently issued several updates to its guidance materials. In addition to providing model safety principles for federal agencies, updated COVID-19 Workplace Safety guidance (“Agency Model Safety guidance”) issued on September 13, 2021, addresses the president’s recent executive orders that federal employees as well as federal contractors will be required to be vaccinated. On September 24, 2021, the Task Force issued additional instructions in a 14-page guidance document for federal contractors and subcontractors (“Contractor Guidance”).
The Agency Model Safety guidance instructs federal agencies how to manage contractor employees who are not yet contractually required to be vaccinated, as well as visitors to federal buildings who are not yet fully vaccinated (or who decline to disclose their vaccination status). Such individuals (except for visitors seeking a public benefit or service) will be required to provide proof of a negative COVID-19 test from no later than three days prior to entry to a federal building. On September 16, 2021, the Task Force also updated its Frequently Asked Questions (“FAQs”) about vaccinations. Notable information provided by these FAQs include the following points:
- The vaccination mandate for federal employees applies to all members of the federal workforce covered by the president, even those working remotely.
- Proof of vaccination status is required of employees, and any information offered as proof must be certified by the submitting employee as true and correct under penalty of perjury.
- Visitors need not submit proof of vaccination but must attest to their vaccination status using a Certification of Vaccination form. This same form will be required of contractor employees not yet subject to a contractual requirement to be vaccinated.
- Exceptions to the vaccination requirement will be permitted where legally required and guidance on such requirements is forthcoming.
Employers are now awaiting action by the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”), which has been tasked with the development of guidance for employers with 100 or more employees subject to a vaccine mandate issued by the president as part of his COVID-19 Action Plan. OSHA is expected to issue an Emergency Temporary Standard (“ETS”) for private employers. OSHA updated its website recently with a statement that the ETS for Healthcare workplaces, released on June 10, 2021, remains necessary “to address the grave danger of COVID-19 in healthcare.”
State & Local News
On September 22, 2021,Governor Ron DeSantis, state Surgeon General Joseph Ladapo, and state Education Commissioner Richard Corcoran announced the issuance of a new Florida Department of Health “Emergency Rule,” vesting Florida parents with authority to decide whether or not their children may attend school after a known exposure to the COVID-19 virus. Based on a conclusion that cites “the evolving nature of this novel disease and the potential for adverse impacts on school children resulting from the unnecessary exclusion of healthy children from in-person learning,” the Emergency Rule sets forth general protocols for school settings, as well as protocols for COVID-19-positive students and those students with exposure to COVID-19. Exposure is defined as having been within six feet of a COVID-19-positive individual for at least 15 minutes. The Emergency Rule directs schools to ensure that symptomatic or COVID-19-positive students are not permitted to attend school or school activities until after receiving a negative test result, written permission from a licensed medical professional, or 10 days since the onset of symptoms or positive test results and at least 24 hours without a fever. However, schools have no such authority over asymptomatic students who have been exposed to COVID-19. Rather, the Emergency Rule directs schools to allow parents or guardians to decide. They may choose to quarantine the student for a maximum of seven days from the date of last contact with the COVID-19-positive individual, or they may allow their child to attend school without restrictions or disparate treatment, so long as the child remains asymptomatic. Florida law does not require employers to provide employees with leave to care for family members, and federal emergency provisions for expanded family medical leave that included care for dependents in quarantine expired on December 31, 2020.
On September 23, 2021, the New York State Department of Labor (“NYSDOL”) updated its model airborne infectious disease exposure prevention plan (“general model safety plan”) for employers’ use in complying with the HERO Act. Specifically, the NYSDOL modified the general model safety plan’s language regarding face coverings and physical distancing. See the Epstein Becker Green blog post titled “New York State Updates General Model Form of HERO Act Safety Plan” for details about these updates.
King County, which includes the city of Seattle, is joining other major metropolitan areas in requiring patrons of certain entertainment venues and recreational facilities, such as bars and theaters, to provide proof of vaccination prior to entry. By order of county Health Officer Dr. Jeff Duchin, starting on October 25, 2021, patrons and customers 12 and older must provide verification of being fully vaccinated before entering indoor restaurants, bars, or taverns with a seating capacity of 12 or more. Proof of vaccination will also be required for access to all indoor entertainment venues and recreational establishments, such as movie theaters, sports arenas, clubs, concert halls, museums, and convention centers, as well as for outdoor recreational and entertainment events with more than 500 people. Effective December 6, 2021, smaller indoor restaurants, bars, and taverns will also be required to screen patrons. Patrons will be required to show verification of vaccination status. In the alternative, patrons will be required to provide digital or printed documentation of either a negative result for a polymerase chain reaction test approved by the federal Food and Drug Administration (“FDA”), administered within the previous 72 hours, or a negative result for an FDA-approved rapid test administered at the event site. The county order does not permit medical or religious exemptions, but it does require that reasonable accommodations be provided for those with disabilities who attest to having been fully vaccinated but are unable to provide proof due to their disability.
The order strongly recommends, but does not require, that employers independently require their employees and volunteers at public venues and establishments to be fully vaccinated, and includes the following specific exclusions:
- Youth sporting events, where participants are K–12 children, whether indoors or outdoors. Spectators at such events are also excluded.
- Outdoor dining
- Take-out from restaurants, taverns, and bars
- Indoor dining in buildings primarily serving non-dining purposes, such as mall food courts, school cafeterias, and airports
- Religious gatherings, unless held at a public indoor establishment otherwise subject to the order
- Weddings, unless held at a public indoor establishment otherwise subject to the order
- King County Election Vote Centers
The order will remain in effect for six months, pending reevaluation.
Update: September 22, 2021
State & Local News
On September 16, 2021, the Idaho Department of Health and Welfare (“DHW”) announced a statewide declaration of crisis standards of care (“CSC”) because the “massive” increase in the number of COVID-19 patients requiring hospitalization has exhausted the supply of health care resources necessary to provide the usual standard of care to people who need it. The declaration authorizes hospitals and other health care providers to follow CSC guidelines to prioritize and ration available health care services, facilities, and equipment. The DHW press release explains that people who need medical care while the crisis standards are in effect may not get the care they expect, including the possibility of not being prioritized, because the goal of the CSC is to save as many lives as possible. “[S]omeone who is otherwise healthy and would recover more rapidly may get treated or have access to a ventilator before someone who is not likely to recover.”
The state’s webpage of COVID-19 resources includes guidance on patient care strategies for medical providers as well as FAQs and other information. According to data gathered by the U.S. Centers for Disease Control and Prevention, Idaho has one of the lowest rates of vaccination for those eligible (ages 12 and older) in the United States.
On September 1, 2021, Governor Eric J. Holcomb issued Executive Order 21-24 (“the Order”), continuing limited provisions to address the impact and spread of COVID-19. The Order shares data gathered by the Indiana Department of Health (“IDOH”), showing that by mid-August, despite vaccination programs and efforts, “only 52.9% of eligible Hoosiers” were “fully vaccinated” and that unvaccinated individuals comprised 98 percent of new COVID-19-related hospital admissions, 97 percent of COVID-19 patients in intensive care units and 94 percent of COVID-19 fatalities. The Order extends prior executive orders through September 30, 2021; calls on all individuals residing in or otherwise within Indiana to take appropriate preventative measures; and strongly encourages all who are vaccine-eligible to get vaccinated. The Order also requires anyone who tests positive for COVID-19 to isolate according to IDOH guidelines and those who have had close contact with a COVID-19-infected individual to quarantine (if unvaccinated) or, if vaccinated, to wear a mask in public “at all times” until testing “negative 3-5 days after exposure or until 14 days have passed.” The Order permits local Indiana authorities to issue local declarations of emergency and to impose greater restrictions, if needed.
Governor Steve Sisolak issued a further Declaration of Emergency with Directive 050, signed on September 2, 2021, extending most emergency orders provided in prior directives related to the ongoing public health emergency, including the previous Directive 049, which relaxed mask rules for vaccinated individuals attending large-scale events. The newer directive specifically includes events like large conventions and trade shows, even if held in areas with substantial or high levels of community transmission. Under these directives, fully vaccinated staff and attendees at qualifying conventions, trade shows, or other large indoor events may forego wearing masks, even in locations otherwise subject to face covering requirements, if the event:
- is held at a venue with a fixed seating capacity of at least 4,000;
- will have at least 4,000 individuals in attendance;
- requires tickets and pre-registration, and is only open to those who have duly registered or acquired tickets;
- has access controls that prevent unticketed or unregistered individuals from entering; and
- requires all attendees to provide proof of at least one dose of a COVID-19 vaccine, unless they are ineligible due to age (all unvaccinated children over the age of two must wear face coverings at the event, even if they would otherwise be exempting from a masking requirement due to their age).
Directive 050 requires event operators to use a reliable, accurate, and effective method of verifying vaccination status and to have adequately trained staff in sufficient numbers to implement the system effectively. The exemption from face covering requirements applies only to those who are fully vaccinated. However, if the event allows any unvaccinated individuals who claim exemption from vaccines or masking for any reason other than age, all event attendees must wear face coverings.
Event organizers wishing to allow fully vaccinated staff and attendees to go maskless at their events must submit required paperwork to the state Department of Business and Industry as well as to local health authorities, including a certification that they will comply with all requirements outlined in the governor’s directives and state guidance.
In the first days of September, Governor Daniel J. McKee issued a series of executive orders related to COVID-19. Executive Order 21-95, issued on September 3, 2021, extends the state’s Declaration of Disaster Emergency through October 2, 2021, unless renewed, modified, or terminated. Executive Order 21-94 (“EO 21-94”) sets forth an Amended Quarantine and Isolation Order for those diagnosed with COVID-19 and those known to have been in close contact with anyone infected with COVID-19. Pursuant to EO 21-94, patients with confirmed COVID-19 must self-isolate in accordance with Rhode Island Department of Health guidance.
Fully vaccinated individuals known to have been in close contact with a person diagnosed with COVID-19 must be tested three to five days after exposure and must wear a mask in public indoor settings for 14 days or until they receive a negative test result. Those who are not fully vaccinated must be tested immediately, and even if asymptomatic, must quarantine for 10 days unless the test was taken five or more days after exposure, in which case quarantine may be limited to seven days after a negative result. Even if the first test result is negative, however, individuals who are not fully vaccinated must test a second time, either five to seven days after exposure or immediately, if COVID-19 symptoms develop.
Specific exemptions to these rules are set forth in EO 21-94, allowing shorter isolation periods for:
- those who have been previously diagnosed with COVID-19 within 90 days prior to the close contact, and
- for cases involving exposure of a pre-K–12 student by another pre-K–12 student, if both students were masked and separated by at least three feet during their close contact.
Unvaccinated persons living in a congregate care setting who are close contacts of an individual diagnosed with COVID-19 must quarantine for 14 days.
Update: September 15, 2021
The White House published President Joe Biden’s COVID-19 Action Plan (“the Action Plan”), entitled “Path Out of the Pandemic,” a six-point program of initiatives designed to combat the ongoing pandemic, as transmission rates of the coronavirus surge throughout the nation.
A prominent component of the Action Plan is its first point: “Vaccinating the Unvaccinated.” To that end, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) is developing a new rule. All employers with 100 or more employees will be required to ensure that their workforce is fully vaccinated, or else require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (“ETS”) to implement this requirement. The ETS is expected to include a requirement that employers of 100 or more employees provide paid time off for workers to receive the vaccine.
In addition, President Biden signed two executive orders, both dated September 9, 2021. One requires all federal employees to be vaccinated against COVID-19, directing every federal agency to implement a vaccination program. A second order will require all federal contractors and subcontractors to agree to comply with workplace safety guidance. The Action Plan describes mandatory vaccination as a safety standard “to be extended to employees of contractors that do business with the federal government.”
Additional furtherance of this strategy is forthcoming from the U.S. Centers for Medicare & Medicaid Services (“CMS”), which announced on September 9, 2021, that the Biden-Harris administration is mandating COVID-19 vaccination of all staff at Medicare- and Medicaid-certified facilities nationwide. The move is a continuation of efforts announced on August 18, 2021, when CMS advised that it was collaborating with the Centers for Disease Control and Prevention (“CDC”) to develop an emergency regulation requiring staff vaccinations at nursing homes participating in Medicare and Medicaid.
State & Local News
On September 8, 2021, Governor Ralph Northam approved revised amendments to the Virginia Occupational Safety and Health Standard for Infectious Disease Prevention of the SARS-CoV-2 That Causes COVID-19 (16 VAC 25-220, adopted August 26, 2021), also known as “theVOSH Standard.” The amendments are aimed at shifting the VOSH Standard’s primary focus away from exposure risk levels toward mitigation strategies designed to protect workers who are unvaccinated, not fully vaccinated, or otherwise at high risk from COVID-19.
The VOSH Standard requires all Virginia employers in higher-risk workplaces to effect compliant policy, protocols, and written infectious disease prevention/preparedness and response plans by October 8, 2021, and to train employees on such polices by November 7, 2021. Higher-risk workplaces include those with high-volume public traffic as well as those with employees who are not fully vaccinated and otherwise at-risk employees who (i) work close to one another, (ii) often have prolonged closeness to coworkers or potential frequent contact with members of the public who may not be fully vaccinated, (iii) work in enclosed indoor spaces with inadequate ventilation where other coworkers or members of the public are present, (iv) may be exposed to COVID-19 through respirator droplets or aerosols in the air when working next to others, and/or (v) are exposed to other distinctive factors that may increase risk.
Regardless of whether the site constitutes a higher-risk workplace, all Virginia employers are required to comply with the following requirements:
- Ensure compliance with the VOSH Standard by having a written policy to address the below requirements.
- Implement policies/procedures for employees to report when they are experiencing symptoms of COVID-19 or have tested positive for COVID-19, excluding suspected and confirmed cases from the workplace, including notification to state authorities if two or more employees test positive of COVID-19 within a 14-day period.
- Develop return-to-work policies and procedures for workers with suspected or confirmed COVID-19 cases, including paying for any COVID-19 test used for return-to-work determinations.
- Require employees who are not fully vaccinated and otherwise at-risk employees to observe physical distancing.
- Close, or control access to, common areas, breakrooms, or lunchrooms.
- Mitigate hazards caused by employees occupying vehicles or other forms of transportation with other persons for work purposes.
- Require face coverings or surgical masks while indoors for employees who are not fully vaccinated or otherwise at risk, and of all people, even those fully vaccinated, in areas of substantial or high community transmission.
- Implement sanitation and disinfecting protocols.
- Provide personal protective equipment when engineering, work practices, and administrative controls are not feasible or do not provide sufficient protection.
Importantly, the VOSH Standard now contains a new safe harbor. Employers that comply with a recommendation contained in current CDC guidelines, whether mandatory or non-mandatory, to mitigate COVID-19-related hazards or job tasks addressed by the VOSH Standard will be considered in compliance with the VOSH Standard’s requirements and will be considered evidence of good faith in any enforcement proceeding. In other words, employers have the choice to comply with a provision of the VOSH Standard or instead demonstrate that they have actually complied with the mandatory and non-mandatory recommendations and considerations in a current CDC publication addressing the same hazards, issues, or requirements in the VOSH Standard.
The updated VOSH Standard took effect on September 8, 2021. In conjunction with the revised VOSH Standard, VOSH issued updated Frequently Asked Questions, which, among other things, confirm that Virginia adopted the federal OSHA ETS that covers health care services and health care support services, and during the pendency of the OSHA ETS, the VOSH Standard will not apply to these industries.
On September 9, 2021, Governor Jay Inslee announced that an indoor mask mandate issued in August would now extend to large outdoor events, effective September 13, 2021. The state already requires vaccination of its employees and contractors, as well as educators and health care providers, who must be fully vaccinated by October 18, 2021, and prohibits workers from claiming an exemption or accommodation on false, misleading, or dishonest grounds.
Update: September 1, 2021
State & Local News
On August 20, 2021, Boston’s Acting Mayor, Kim Janey, announced a new citywide mask mandate requiring that face coverings be worn in all indoor public settings starting at 8:00 a.m. on August 27, 2021. Citing the anticipated arrival of more than 50,000 college students from around the nation and the return to school of some 50,000 local children, the mayor shared an order, issued by the Boston Public Health Commission, which requires anyone over age two to be masked while indoors in a public setting, unless actively eating or drinking. The mayor’s announcement, which offers a link to Frequently Asked Questions, specifically notes that masks must be worn during all indoor public activities, “including ordering at a bar or dancing.” The order does not apply to places of worship or to private settings, including private work spaces inaccessible to the public.
On August 25, 2021, the California Division of Occupational Safety and Health issued a news release encouraging California employers and workers to follow the California Department of Public Health (“CDPH”) Guidance for the Use of Face Coverings and to refer to the CDPH poster for specifics about recommendations and requirements for mask usage. The state encourages everyone to wear masks indoors, regardless of vaccination status, and requires those who are not fully vaccinated to wear masks in all indoor public spaces. Further, a universal mask mandate remains in place for high-risk facilities, including public transportation, schools, shelters, correctional facilities, and health care settings. The CDPH guidance notes that local governments may have stricter requirements.
- Los Angeles: The city council adopted an ordinance on August 16, 2021, requiring all city employees to be fully vaccinated, or to request exemption, by October 19, 2021. The new municipal ordinance provides that, as of October 20, 2021, COVID-19 vaccination and reporting requirements will be conditions of city employment and of contracts with the city, apart from accommodations for medical or religious exemptions. All employees will be required to report their vaccination status, whether or not an exemption is granted. City employees must receive a first COVID-19 vaccine dose by September 7, 2021, and a second dose no later than October 5, 2021. All requests for exemption are due by September 7, the day after Labor Day.
On August 26, 2021, Governor J.B. Pritzker announced vaccination requirements for individuals in high-risk settings, including health care facilities, nursing homes, and all educational institutions from pre-K to colleges and universities, whether public or private. Employees and eligible students are now required to receive the COVID-19 vaccine, and must receive the first dose of a two-dose vaccination series or a single-dose vaccination by September 5, 2021. Second doses of the vaccine must be received by 30 days after the first dose. Employees in all of these settings and higher education students who are unable or unwilling to receive the vaccine for medical reasons or based on a sincerely held religious belief are required to be tested for COVID-19 at least weekly. Health care and school workers, as well as higher education personnel and students attending in-person classes who lack proof of vaccination will be prevented from entering health care and educational facilities unless they follow the required testing protocol.
In addition, the governor announced a new statewide indoor mask mandate for all Illinois residents over the age of two regardless of vaccination status, effective August 30. The announcement applies to “all indoor settings” in the state. Masks are not required outdoors, but are strongly encouraged in crowded outdoor settings, like festivals and concerts, as well as for activities that require close contact with people who are not vaccinated.
Governor Larry Hogan announced that, effective August 18, 2021, Maryland’s Department of Health requires that all employees, contractors, volunteers, and other workers at state-run residential and correctional facilities be at least partly vaccinated by September 1, 2021. Workers at covered state-run facilities, including nursing homes and hospitals, who do not show proof of full vaccination are subject to mandatory testing for COVID-19 at least weekly, and must wear personal protective equipment while at the facility, as directed by administrators. The rules provide that reasonable accommodations will be made for those who provide sufficient documentation of a bona fide medical or religious reason for exemption, subject to review.
The New York State Department of Health (“NYSDOH”) issued emergency regulations codifying the statewide mandate requiring health care workers at covered entities—including hospitals, diagnostic and treatment centers, nursing homes, and home health care providers—to be vaccinated. The regulations define “personnel” to include all employees and volunteers, including medical and nursing staff, contract staff, students, volunteers, and anyone who could potentially expose patients, residents, or co-workers to COVID-19 if they became infected.
The regulations, as initially released on August 23, 2021, explicitly stated that covered entities are permitted to terminate any unvaccinated employee who lacks a valid medical exemption if they cannot be sure such personnel would not engage in patient/resident care or any other job that could expose other workers. The regulations also stated that limited exceptions would be made for those with religious reasons, consistent with then-Governor Andrew Cuomo’s August 16 announcement about the mandate. Updates to the regulations, however, issued August 25, removed any references to employee religious exemptions. The rules currently require all hospital and nursing home personnel to have received at least the first dose of a COVID-19 vaccination by September 27, 2021. Workers at other covered entities, such as diagnostic or treatment centers and home health care agencies, have until October 7, 2021, to comply by receiving the first dose. Covered entities will be required to develop and implement compliance policies, and must be prepared to report totals and rates of personnel vaccination, including the number and percentage of those granted medical exemptions. The NYSDOH also requires that health care employers keep records of all personnel’s vaccination or valid medical exemptions in a manner consistent with applicable privacy laws. Covered entities should be prepared to provide the NYSDOH with such documentation—including records of any reasonable accommodations made for those with valid medical exemptions.
- New York City: Mayor Bill de Blasio announced a new vaccine mandate on August 23, 2021, requiring all city school employees to provide proof of a first vaccine dose no later than September 27, 2021. The announcement was made shortly after the U.S. Food and Drug Administration announced it had granted full approval to the first COVID-19 vaccine, which had been previously made available under an Emergency Use Authorization. Department of Education (“DOE”) employees are required to upload proof of vaccination to a Vaccination Portal. At the time of the mayor’s announcement, only 63 percent of the 148,000 DOE employees had received at least one dose of a COVID-19 vaccine.
On August 25, 2021, the Oregon Health Authority (“OHA”) issued a rule requiring health care providers and staff to present proof of full COVID-19 vaccination by October 18, 2021, or else proof of a medical or religious exception. A medical exception must be corroborated by an independent medical provider (health care professionals may not self-certify) certifying that the individual has a physical or mental impairment that limits the individual’s ability to receive a COVID-19 vaccine, and must specify whether the inability is permanent or temporary. A religious exception must include a statement describing the way in which the vaccination requirement conflicts with the individual’s religious observance, practice, or belief. Both submissions must use OHA-prescribed forms. The rule applies to all health care settings in Oregon, including hospitals, surgical facilities, birthing centers, acute care and rehabilitation facilities, nursing home and assisted living centers, outpatient care facilities, vehicles (e.g., ambulances), counseling offices, offices that provide alternative medicine (e.g., acupuncture and chiropractic care), and pharmacies.