Archive
Biden Administration Announces Public Vaccine Mandates That Require Action by Large Private Employers, Federal Contractors, and Healthcare Employers
By: Matthew Mitchell & Amanda Thibodeau
On September 9, 2021, the Biden Administration announced the Path Out of the Pandemic – a strategic plan to respond to the continued spread of COVID-19 (the “Plan”). In general, the Plan outlines a broad-brush approach to combating the continued ill-effects of the pandemic, including:
- Strategies to increase vaccination rates;
- Strategies to maintain school operations;
- Strategies to implement additional safety regulations; and
- Strategies to implement additional economic stimulus programs.
The widely reported-on, cornerstone of the Plan is a mandate that, when implemented, will require large employers, federal contractors, and healthcare employers to adopt mandatory vaccination policies for their employees (the “Vaccine Mandate”).
The basic elements of the Vaccine Mandate can be found in our COVID-19 Alert.
The CDC Revises COVID-19 Mask Recommendations For Fully Vaccinated Individuals: Implications For Massachusetts Employers
On July 27, 2021, the Centers for Disease Control and Prevention (“CDC”) revised its COVID-19 mask guidance (the “Revised Guidance”), recommending that all individuals, regardless of COVID-19 vaccination status, resume wearing masks in “public indoor settings” in areas of the United States that exhibit “substantial” or “high” COVID-19 transmission rates. This announcement revises the CDC’s May 2021 mask guidance that indicated that fully vaccinated individuals could discontinue mask wearing and social distancing in most settings.
At present, there are five counties in Massachusetts that qualify as “substantial” or “high” transmission areas, under the Revised Guidance:
High Transmission:
- Barnstable County
Substantial Transmission:
- Bristol County
- Dukes County
- Nantucket County
- Suffolk County
The Revised Guidance does not specifically define the types of “public indoor settings” where masks should be worn. As such, it is unclear as to whether the Revised Guidelines are intended to apply to work environments.
Currently, Massachusetts requires masks only in the following settings: Public and Private Transportation; Healthcare Facilities; Congregate Care Facilities; Emergency Shelters; Houses of Correction; Health Care and Day Services Facilities. There is no general mask mandate in Massachusetts, and there are no rules that require masks or social distancing, generally, in work environments. This present Massachusetts standard is expressly based on the CDC’s prior May 2021 mask guidance. However, in recent public remarks, Massachusetts Governor Charlie Baker has indicated that the Commonwealth is now considering new general safety standards in light of the Revised Guidelines.
Employers should continue to monitor applicable regulations and reopening guidance, including masking requirements and recommendations, in jurisdictions where they are located.
See our complete COVID-19 Resource Collection for additional information, or contact a member of the Morse Employment Team.
COVID-19 Alert: OSHA Issues Emergency Temporary Standard for Healthcare Settings
By: Matthew Mitchell & Amanda Thibodeau
On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) directed at protecting frontline healthcare workers for the duration of the COVID-19 pandemic. As part of the Biden Administration’s directives, OSHA determined that its current standards and regulations, and OSHA’s General Duty Clause, were inadequate to protect workers in the healthcare sector, and issued this ETS. OSHA additionally updated its non-binding guidance for all other industries, which still remain subject only to OSHA’s regular regulations, standards, and General Duty Clause.
THE “NEW” REQUIREMENTS
The main section of the ETS requires employers to develop and implement effective COVID-19 plans, the control strategies of which should be very familiar to most employers at this point in the pandemic. However, now OSHA will require employers to use a number of familiar controls in a layered approach in order to protect employees. The key requirements of the ETS are:
- COVID-19 Plan. OSHA will now require every qualifying employer to develop and implement a COVID-19 plan for each workplace site. If the employer has more than 10 employees, the plan must be in writing. The Plan must be developed in conjunction with management and non-management and must be clearly communicated to employees.
- Patient screening and management. Employers must limit points of entry in direct care patient settings, screen and triage all visitors, clients, patients, and others entering the setting, and encourage telehealth services when appropriate.
- Standard and transmission-based precautions. Employers must develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
- PPE. Employers must provide facemasks to be worn by each employee when indoors or when sharing a vehicle for work purposes, with some exceptions.
- Aerosol-generating procedures on a person with suspected or confirmed COVID-19. Employers must limit employees present for the procedure to only those essential, and perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
- Physical distancing. Employers must keep people at least 6 feet apart when indoors, unless not feasible (such as for hands-on medical care).
- Physical barriers. Employers must install cleanable or disposable barriers installed at fixed work locations in non-patient areas where social distancing is not possible.
- Cleaning and disinfection. Employers must engage in standard practices for cleaning and disinfection for patient care areas, resident rooms, and medical devices and equipment, and in all other high-touch areas, in accordance with CDC guidelines.
- Ventilation. Employers must ensure that all HVAC systems are used in accordance with the manufacturer’s instructions, and that all air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher, or the highest compatible with the system.
- Health screening and medical management. Employers must screen each employee daily, which may be done through self-monitoring by the employee. Each employee must report COVID-19 confirmed and suspected illness, or symptoms to the employer. The Employer must also notify all employees who were not wearing respirators and/or required PPE of any COVID-19 exposure at the workplace.
- Vaccination. Employers must provide support and paid leave for employees to receive a COVID-19 vaccination, and to recover from any side effects.
- Training. Employers must train and educate employees on COVID-19 transmittal, hygiene, and other prevention policies and procedures.
- Anti-retaliation. Employers must inform employees of their rights to the protections required by the ETS, and employers must not discharge or discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the ETS.
- Recordkeeping. Employers with more than 10 employees must establish a COVID-19 log of all employee COVID-19 infections and follow requirements for making records available to employees and union representatives.
- Reporting requirements. Employers must comply with OSHA’s reporting requirements for work-related COVID-19 fatalities and in-patient hospitalizations.
Will these changes under OSHA’s new ETS affect your business? Learn more in our COVID-19 Alert.
New Massachusetts Law Provides COVID-Related Emergency Paid Leave To Employees
By: Matthew Mitchell & Amanda Thibodeau
Massachusetts Governor Charlie Baker signed into law the Massachusetts COVID-19 Emergency Leave Act (the “Act”) on May 28, 2021.
Under the COVID-19 Emergency Leave Act:
- Massachusetts employers are required to provide COVID-19 Emergency Paid Leave benefits (up to $850) to employees who are unable to work for certain specified reasons related to COVID-19.
- A $75 Million fund (the “Trust Fund”) is created to reimburse employers for financial costs related to compliance with the Act.
All Massachusetts employers, regardless of size, are subject to the Act, and all Massachusetts employees, regardless of full-time or part-time status, are eligible to receive paid leave benefits under the Act.
Employer obligations under the Act commence on June 7, 2021, and remain in effect through September 30, 2021, or until the Trust Fund is exhausted. The Massachusetts Executive Office of Labor and Workforce Development is expected to publish clarifying regulations in coming weeks.
The key aspects of the Act are summarized in our COVID-19 Alert.
Federal EEOC Issues New Workplace Guidelines Related to Employee Vaccinations and Employee Safety
By: Matthew Mitchell & Amanda Thibodeau
On May 28, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) published two guidelines intended to assist employers and employees transition to “post-COVID” work environments:
- The Technical Assistance provides instruction that applies the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”) to employer policies that either mandate or incentivize employee vaccinations.
- An Employee Resource provides a basic overview of federal anti-discrimination laws that apply to employees in need of leave or job modification due to COVID-19 illness.
The EEOC’s new COVID-19 guidelines highlight complexities that are attendant to the management of worksites and employees, that employers are now facing. An overview of these new guidelines can be found in our COVID-19 Alert.
Massachusetts Employers Prepare to Re-Open Their Workplaces
By: Matthew Mitchell & Amanda Thibodeau
On May 17, 2021, Massachusetts Governor Charlie Baker announced that the Commonwealth’s COVID-19 Phased Economic Re-Opening Plan will terminate on May 29, 2021. The City of Boston, and most municipalities around the Commonwealth, have indicated their intent to align with the Governor’s announcement, and have taken steps to rescind the various municipal COVID-19 regulations and restrictions. As such, for Massachusetts employers, this means, effective May 29, 2021:
- Almost all worksites are permitted to re-open without limitations.
- Employee facial covering mandates are rescinded.
The Governor’s announcement emphasizes that employers must continue to adhere to practices that are consistent with their fundamental obligation to provide a safe work environment for their employees.
A detailed summary of Governor Baker’s announcement can be found in our COVID-19 Alert.
COVID-19 Alert: The American Rescue Plan Act Of 2021: What Employers Need to Know
By: Joe Hunt, Matthew Mitchell, & Amanda Thibodeau
On March 11, 2021, President Biden signed into law the American Rescue Plan Act of 2021 (“ARPA”). ARPA provides $1.9 trillion in stimulus, and establishes new, significant employee rights and employer obligations, to address the economic fall-out of the COVID-19 pandemic.
The key ARPA provisions that affect employers include the following:
- Consolidated Omnibus Budget Reconciliation Act
- Families First Coronavirus Response Act Leave
- Short-Time Compensation Programs
- Employee Retention Credits
Read more in our latest COVID-19 Alert.
Massachusetts Advances To Step 1 Of Phase IV; Replaces Travel Order With Travel Advisory: What Employers Need To Know Now
On March 22, 2021, Massachusetts Governor Charlie Baker implemented “Step 1 of Phase IV” of the Commonwealth’s phased economic re-opening plan – authorizing several previously closed business sectors, such as performance venues and exhibition halls, to recommence limited operations. The transition to Step 1, Phase 4 is triggered by the recent decrease in COVID-19 infection and hospitalization rates, and the recent increase in public access to vaccines, across the Commonwealth.
Coincident with the implementation of the Step 1, Phase 4 plan, the Commonwealth has issued revised COVID-19 standards that apply to employee safety, including adjustments to worksite social distancing and hygiene standards, and a scaling-back of travel restrictions.
Read our full COVID-19 Alert for a summary of these new regulations.
EEOC Issues New Employer Guidance on COVID-19 Vaccines – Private Employers Poised To Play Front Line Role in Government’s Mass Vaccination Effort
By: Matthew Mitchell & Amanda Thibodeau
On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance to employers related to mandatory COVID-19 vaccination programs for employees (the “Guidance”). In broad terms, the Guidance instructs that, subject to certain limits:
- Federal law does not prohibit mandatory employee COVID-19 vaccination programs; and
- Under certain circumstances, employers may bar employees who refuse COVID-19 vaccinations from the workplace.
A summary of what employers need to know about the “Guidance” can be found in our COVID-19 Alert.
DOL Updates FAQs on FFCRA Leave as a New School Year Approaches
This week the U.S. Department of Labor (DOL) updated its Frequently Asked Questions (See Questions #98-100) on leave eligibility under the Families First Coronavirus Response Act (FFCRA), in anticipation of a significant shift to remote school programs across the U.S. As a new school year approaches, employers should familiarize themselves with this new development as they begin to field new requests for FFCRA leave from their employees.
The DOL addressed how the FFCRA applies to several school program scenarios including fully remote programs, hybrid arrangements, and what happens if a parent chooses a remote option over in-person schooling.
The DOL clarified that if a school does not permit the child to attend school in-person and is instead only permitting remote learning, the school is effectively “closed” for purposes of the FFCRA, and the parent may take leave to care for the child. Likewise, if a school is operating on a hybrid basis with some days in-person and other days remote, the FFCRA leave would apply to those remote days where the child is not permitted in school. This would effectively allow an employee to be eligible for FFCRA leave on an intermittent basis.
If a school is offering in-person attendance (either fully in-person or on a hybrid basis), but a parent elects to keep the child home and engage in remote learning, the parent would not qualify for FFCRA leave. The DOL reasons that because the school is open for in-person learning, it would not be covered under the regulations. If, however, the child is home on a remote basis because of another COVID-19-related reason, such as a quarantine order from a health professional, then the parent may be eligible for FFCRA leave.
It is important to note that when evaluating such leave requests, the employee must still supply certain information, including the child’s name (who is under the age of 14), the name of the school that is closed, and that there is no other suitable person available to care for the child. It is unlikely, then, that both parents of a child engaged in remote learning would qualify for FFCRA leave. And, of course, employers should continue to keep such written documentation in order to take advantage of the available tax credit.
See our complete COVID-19 Resource Collection for additional information, or contact a member of the Morse Employment Team.
President Issues New Executive Order on Enhanced Unemployment Benefits
On August 8, 2020, President Trump issued four executive orders in response to the COVID-19 pandemic. One of the President’s executive orders (the “EO”) directs the Federal Emergency Management Agency (FEMA) to begin paying additional unemployment benefits from the Department of Homeland Security’s Disaster Relief Fund (DRF) at a rate of $400 per week on top of regular unemployment benefits. The enhanced unemployment benefits will be retroactive to August 1, 2020 and will continue until December 6, 2020 – or until the balance of the DRF drops to $25 billion – whichever happens first. According to the EO, there is currently about $70 billion in the DRF.
The DRF will cover $300 of the $400 weekly enhanced benefit – with states picking up the additional $100 per week from funds allocated to them from the Coronavirus Relief Fund (CRF) (created from the CARES Act).
Like the original benefits provided under the CARES Act, unemployed workers will be eligible for the new $400 per week if they otherwise qualify for regular unemployment compensation, Pandemic Emergency Unemployment Compensation (PEUC) under the CARES Act, Pandemic Unemployment Assistance (PUA) under the CARES Act, Extended Benefits, Short-Time Compensation, or several other discrete programs. However, unlike the previous Federal Pandemic Unemployment Compensation (FPUC) benefits, the EO disqualifies workers receiving less than $100 per week in unemployment benefits. Under the FPUC, workers who received at least $1 in unemployment benefits qualified for the additional $600 per week.
It is unclear when workers may see these enhanced unemployment benefits. While the EO makes clear that workers will be eligible for the enhanced benefits beginning the week ending August 1, 2020 (the FPUC benefits ended July 31, 2020), states will need time to get the new system set up and to receive funding. Once up and running, eligible workers will collect retroactive benefits, but that could be a matter of weeks, or months, in some cases. Like regular unemployment benefits, workers will apply through their individual state’s unemployment office and be subject to that state’s unemployment program requirements, such as any work search criteria.
There is also speculation that the President’s EO may be challenged on constitutional grounds. The EO invokes the President’s powers under the Stafford Disaster Relief and Emergency Assistance Act; however, constitutional scholars debate whether the invoked section can be used to fund unemployment benefits in this manner without the specific authorization of Congress. For now, however, eligible workers should continue to apply for their regular unemployment benefits through their state and comply with any state-specific eligibility requirements to remain qualified for the enhanced benefits.
See our complete COVID-19 Resource Collection.
The Complex Web of Employment Law Regulations Expands: The Latest COVID-19 Considerations for Massachusetts Employers
By: Matthew Mitchell & Amanda Thibodeau
In response to the COVID-19 outbreak, government regulators have created a web of legal requirements intended to promote employee safety and economic stability. The count, scope, issuance rate, and complexity of these new rules are unprecedented.
Compliance with this ever-expanding, and sometimes inconsistent, landscape of COVID-19 regulations is a clear and present challenge for employers.
We’ve prepared a summary of the most recent COVID-19 regulations that apply to Massachusetts employers, as of July 2020. It is critical that Massachusetts employers identify, understand, and comply with these standards.
Learn more in our COVID-19 Alert.
OSHA Publishes Guidance on Returning to Work
On June 18, 2020, the Occupational Safety and Health Administration (OSHA) published Guidance on Returning to Work (the “Guide”). The Guide, just as with other recent COVID-19-related OSHA publications, was published as recommendations meant to assist employers, and does not impose new regulations or standards.
The Guide supplements OSHA’s previously published Guidance on Preparing Workplaces for COVID-19, and expands on the three-phased re-opening approach articulated in the White House’s Opening Up America Again:
- Phase 1: Businesses should encourage telework where feasible. Where not feasible, businesses should consider limiting the number of people in the workplace to maintain proper social distancing. Flexibilities and accommodations for employees who are at high-risk of contracting the virus should be considered.
- Phase 2: Businesses should continue to allow telework but can begin to ease up on social distancing protocols at the workplace.
- Phase 3: Businesses may resume without restrictions at the workplaces.
The Guide then identifies nine key areas employers should assess when creating their re-opening plans, and provides examples to guide employers in each area:
- Hazard assessment
- Hygiene
- Social distancing
- Identification and isolation of sick employees
- Return to work after illness or exposure
- Controls
- Workplace flexibilities
- Training
- Anti-retaliation
The Guide is not meant to cover every scenario or to provide the only solution to the various challenges that businesses may encounter when re-opening. Employers reviewing the Guide should keep in mind that that the Guide provides recommendations that should be read in the context of local re-opening regulations and recommendations from the CDC. It is important to keep up-to-date with the state and local orders and implement those directives within this framework provided by OSHA.
For more information, please contact Amanda Thibodeau.
EEOC Updates COVID-19-Related Employer Guidance on Antibody Testing
The U.S. Equal Employment Opportunity Commission (“EEOC”) again updated its employer guidance related to COVID-19 late last week, this time with guidance related to employers requiring antibody testing before allowing employees to return to the workplace.
The EEOC previously released guidance allowing employers to conduct temperature checks on employees and to inquire about COVID-19-related symptoms as part of their outbreak mitigation strategies. The EEOC also advised employers that they could require employees to test for COVID-19 prior to returning to the workplace. These are temporary practices that are typically disallowed by the Americans With Disabilities Act (ADA).
The EEOC clarified now, however, that based on guidance from the Centers for Disease Control (CDC), employers cannot require antibody testing before allowing employees to return to the workplace. Antibody testing, the EEOC advises, is considered a medical examination under the ADA and does not meet the “business necessity” standard. Employers may still require viral testing to determine of an employee has an active COVID-19 case, but antibody testing is strictly disallowed.
Morse is focused on assisting our clients through these unprecedented and challenging times. Please contact the Firm should you have questions concerning this subject, or any other COVID-19 response matters.
EEOC Updates COVID-19-Related Employer Guidance
The U.S. Equal Employment Opportunity Commission (“EEOC”) again updated its employer guidance related to COVID-19 late last week, this time with guidance related towards warning employers against falling into traps related to age discrimination or age bias when bringing employees back to work facilities, as well as discrimination based on other factors such as race or national origin, and pregnancy and sex.
Learn about the EEOC’s specific guidance related to age discrimination, harassment and discrimination based on race or national origin, and pregnancy and sex discrimination in our COVID-19 Alert.
OSHA Updated Response Plan and Updated Reporting Requirements for COVID-19
The Occupational Safety and Health Administration (OSHA) issued updated guidance including an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), and updated reporting requirements for employers to report work-related cases of COVID-19. As employers begin re-opening and bring employees back to work (and for those essential businesses continuing to operate), employers should keep these updates from OSHA in mind in forming their COVID-19 response plans.
Learn about the OSHA updates in our COVID-19 Alert.
DOL Issues New Final Rule on Fluctuating Workweek Calculations
The U.S. Department of Labor (DOL) issued a final rule under the Fair Labor Standards Act (FLSA) allowing employers to offer bonuses, hazard pay, and other premium pay to employees whose hours, and regular rate of pay, vary from week to week. The final rule seeks to clarify the calculation of overtime pay for salaried, non-exempt employees who work hours that vary each week (known as the “fluctuating workweek”).
The DOL sought to clarify the rules around the fluctuating workweek now as employers bring employees back to work and implement new procedures for social distancing, such as with flexible or variable schedules.
Continue reading in our COVID-19 Alert.
EEOC Announces Delay in EEO Data Collections
The U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it will delay the collection of 2019 EEO-1 Component 1 data and the 2020 EEO-3 and EEO-5 data due to COVID-19. The EEOC stated that it recognizes the challenges that EEO filers are currently facing, and that delaying the collection will assist with the filers’ ability to provide accurate and timely data.
The EEOC expects that the collections may begin in March 2021, but will notify filers of the exact date when it is determined.
Morse is focused on assisting our clients through these unprecedented and challenging times. Please contact the Firm should you have questions concerning this subject, or any other COVID-19 response matters. You can find our complete COVID-19 resource collection here.
EEOC Issues Guidelines with Respect to COVID-19 “Higher Risk” Employees
The Centers for Disease Control and Prevention has identified certain groups of individuals as “higher risk” for severe illness from COVID-19.
A growing number of states have effected, or have announced, plans that relate to an easing of shelter-in-place and business closure orders. Many of these plans incorporate specific instructions that relate to higher risk employees, including instructions that exclude higher risk employees from worksites, under certain circumstances.
As emphasized in a recent federal Equal Employment Opportunity Commission (“EEOC”) guidance, state re-opening standards that relate to higher risk employees must be interpreted, and applied by employers, in accordance with federal Americans with Disabilities Act anti-discrimination standards.
Employment law attorneys Matt Mitchell and Amanda Thibodeau summarize the EEOC Guidance in our COVID-19 Alert.
CDC Recommends New Workplace Sanitation Standards
The Centers for Disease Control and Prevention (CDC) has issued new Guidance related to the re-opening of public spaces, workplaces, businesses, schools, and homes following COVID-19 shutdowns. Among other instructions, the Guidance offers very specific workspace sanitation standards that are designed to address continuing COVID-19 infection risks.
It is anticipated that this CDC Guidance will be a bedrock component of state and federal government policies related to the re-opening businesses following COVID-19 shutdowns. As such, it is critical that employers understand, and be in a position to execute on, the recommendations contained in the Guidance.
Of particular note, the Guidance instructs employers to:
- Develop formal sanitation plans that include strategies, that are customized for the specific elements of the employer’s workplace, for cleaning and disinfecting employee environments in preparation for, and following, business re-openings.
- Use specific, recommended disinfectant techniques for particular environments and surfaces.
- Adopt formal safe behavioral practices, including social distancing and employee hygiene and PPE standards.
- Consider changes to practice and procedures aimed at reducing infection risk, including changes to the way and frequency public spaces are used.
The Guidance includes a Cleaning and Disinfection Decision Tool that distills the advice into a form that may be incorporated into an employer policy document.
Morse is focused on assisting our clients through these unprecedented and challenging times. Please contact the Firm should you have questions concerning this subject, or any other COVID-19 response matters.
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