Seyfarth Synopsis: On May 5, 2021, Seyfarth Shaw hosted a webinar entitled Passport to Normalcy: The Opportunities and Risks for Businesses in COVID Passports.

Speakers included: Andrea Serra, Project Lead with the World Economic Forum’s Mobility team, Marc Freedman, Vice President of Employment Policy with the Chamber of Commerce, Loren Gesinsky, Labor & Employment Partner with Seyfarth Shaw and Julia Gorham, International Partner with Seyfarth Shaw. The panel was moderated by Anne Dana, a Labor & Employment Partner with Seyfarth Shaw.

The panel discussed key topics related to vaccination documentation, or what has been popularly dubbed “COVID passports” or “COVID health passes” The topics included: what are COVID health passes and who is issuing them, why these passes are such a hotly debated topic, data privacy and technology concerns, and equality and accommodation issues. The discussion also included considerations employers should keep in mind, particularly as we see business capacity returning to ‘normal’ (at least here in the United States) and travel resuming.

  1. The Basics

The panel first addressed some of the basics of COVID health passes: what are they, who issues them, and where will they likely be used?

Currently, one of the biggest debates is exactly what form such a document will take and what information will be included.  At a high level—a COVID “passport” is an electronic or physical record of an individual’s health and / or immunity status which may include COVID-19 vaccine status, COVID test results, medical exemptions due to underling illness / disability, and/or antibody and/or immunity status. Some of these proposed forms also track movement and potential COVID exposure via enhanced check-in and track-and-trace mechanisms (which is particularly prevalent in Asia.

They also discussed the debate about how to properly refer to such documentation, particularly in light of the negative connotations that the term “passport” has. For the reasons discussed in the webinar, organizations such as the World Economic Forum have opted to refer to these documents more broadly as digital health credentials, digital health certificates, or digital health passes.

Also addressed was how these proposed COVID health passes are different than the World Health Organization’s (“WHO”) International Certificate of Vaccination, or the “Yellow Card,” namely:  the format they will take, the type of information included, and the purposes for which they will be used.

Finally, the current examples of COVID health passes that are in development were highlighted, which include: country/national approaches, regional approaches, and private, non-profit or industry-association solutions — as well as the World Economic Forum’s efforts on an initiative to develop a framework for COVID-19 health status verification.

  1. Why So Much Concern?

Next, the panel turned to discussing some of the reasons why COVID health passes have created so much debate. These range from arguments about personal autonomy and privacy, as well as concerns about the safety of the vaccines. They discussed how this debate is highlighted in the emerging legislative splits in the United States, with certain states like New York and Hawaii issuing and promoting such passes, versus a growing number of states like Florida, Texas, Utah, Missouri, and Idaho that have issued Executive Orders or legislation prohibiting use of such passes.  This of course was juxtaposed against insights about how businesses and employers actually feel: namely that they want to be able to make their own decisions about whether to require vaccine credentials and do not want the government dictating the rules. The panel also discussed the legitimate concern about the patchwork of rules and how this will affect multi-jurisdictional employers. Finally, they touched on the role of offering incentives and other benefits to encourage people to get vaccinated and considerations businesses should undertake in relation to business travel.

  1. Technology and Data Privacy

Obviously one of the most cited concerns when discussing digital health passes is the issue of data privacy and security.  Key factors include who is holding the data and what type of information is being asked for (such as underlying conditions or other sensitive health information). The panel discussed these concerns and how these issues are being addressed, particularly in light of varying data protection laws across countries.

Another key concern the panel discussed is forgery and authenticity of information, particularly across borders.

  1. Equity & Accommodation

Finally, the panel turned to one of the other key concerns COVID health passes raise: how to address inequality and accommodations for those who cannot (or will not) get the vaccine.

In terms of equity, the fact that many countries still do not have access to vaccines was examined. In addition, there is the concern of different vaccines having varying degrees of effectiveness and how that will play a role in requiring COVID health passes for travel and entry to other services. Highlighted was the fact that while vaccines have offered a way forward, they are not a silver bullet, especially with so many unknowns (such as variants and efficacy long term) are still out there.

In terms of accommodations, the panel addressed how employers are currently handling medical and religious exemptions, particularly here in the United States.  Obviously this is different than how business approach the issue of customers or independent contractors — and how this may change with the new patchwork of state laws being passed.

For those that were unable to join us for the live session, we hope you will tune in and watch this fantastic webinar. Don’t miss out!

Webinar Recording: Passport to Normalcy: The Opportunities and Risks for Businesses in COVID Passports

By Chuck Guzak

Seyfarth Synopsis: On May 4, 2021, Seyfarth attorneys convened a webinar entitled “The Biden Administration: Actions on Labor & Employment in the First 100 Days.”  A panel composed of Leon Rodriguez, Tracy Billows, Scott Mallery, Scott Hecker,, and Kyllan Kershaw addressed a number of labor, employment and immigration related actions taken by the Biden Administration since the beginning of its term.

The webinar kicked off by introducing the new leadership team at the Department of Labor, including Secretary Marty Walsh, Deputy Secretary Julie Su, and others. Tune in to find out who the Department’s shadow secretary might be (no spoilers)!

It then proceeded to a comprehensive account of the COVID-19 vaccine roll out under the Biden Administration, including its impressive success in achieving the goal of 200 million shots in 100 days. The Biden Administration’s new goal is to administer at least one dose of a vaccine  to 70% of American adults by July, which is extremely ambitious. Discussion of the vaccine rollout concluded with a briefing on recent CDC guidance regarding the activities in which fully vaccinated adults can engage and the restrictions that will still be in place.

The next topic was OSHA’s COVID-19 Emergency Temporary Standard, which is currently waiting to be cleared by the White House’s Office of Information and Regulatory Affairs. Although the text has yet to be seen, it is expected to include CDC guidance, OSHA guidance, and some components of state emergency standards, including possibly California’s pay and benefits provisions. Lastly, OSHA’s National Emphasis Program was outlined and OSHA leadership was introduced, including Cal/OSHA Chief Doug Parker, who was recently nominated to lead OSHA.

The panel then provided a detailed overview of spending bills proposed by the Biden Administration, beginning with the American Jobs Plan and its eye-popping trillion dollar price tag. That bill, the text of which has not yet been released, is also sometimes referred to as President Biden’s infrastructure plan. And although it does contain funding for traditional infrastructure like roads and bridges, it also provides money for other non-traditional infrastructure items, like broadband internet, and childcare. The pressing questions of whether that bill has any chance of passing the Senate and how to pay for it were addressed. Finally, the recently rolled out American Families Plan was discussed, which will provide $425 billion for childcare, 12 paid weeks of family leave, and funding to reform the unemployment insurance system.

Next was the status of labor relations under the (relatively) new Biden Administration. The priorities of the Acting General Counsel of the National Labor Relations Board, Peter Ohr, include expanding protected activity under federal labor law and making it easy for unions to organize. The panel also provided helpful advice on how employers can strengthen their current labor relations positions and avoid costly litigation.

Last but not least, the panel addressed COVID-19’s impact on immigration, the latest on travel bans, and the operational health of the Department of State and the United States Citizenship and Immigration Services. It also revealed something somewhat surprising: that reversing Trump-era policies and rules on workplace immigration has been a low priority thus far for the Biden administration.

For those that were unable to join us for the live session, we hope you will tune in and watch this fantastic webinar. Don’t miss out!

Webinar Recording – The Biden Administration: Actions on Labor & Employment in the First 100 Days

By Brent I. Clark, James L. Curtis, Adam R. Young, A. Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: On April 27, 2021, CDC announced updated recommendations for fully vaccinated people in non-healthcare settings (note that on the same day the CDC also posted Updated Healthcare Infection Prevention and Control Recommendations in Response to COVID-19 Vaccination).

Image from CDC.

Among other updates, the CDC: provided “guiding principles” for fully vaccinated individuals; explained that fully vaccinated people no longer need to wear masks outdoors (except in certain “crowded” settings and venues); and clarified that fully vaccinated folks, without symptoms, generally are not restricted from work following exposure to a known or suspected COVID-19 case.

Under the updated guidance, fully vaccinated people can:

  • Visit with other fully vaccinated people indoors without wearing masks or physical distancing.
  • Visit with unvaccinated people (including children) from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing.
  • Participate in outdoor activities and recreation without a mask, except in certain crowded settings and venues.
  • Resume domestic travel and refrain from testing before or after travel or self-quarantine after travel.
  • Refrain from testing before leaving the United States for international travel (unless required by the destination) and refrain from self-quarantine after arriving back in the United States.
  • Refrain from testing following a known exposure, if asymptomatic, with some exceptions for specific settings
  • Refrain from quarantine following a known exposure if asymptomatic
  • Refrain from routine screening testing if asymptomatic and feasible

For now, according to the CDC, fully vaccinated people should continue to:

  • Take precautions in indoor public settings like wearing a well-fitted mask
  • Wear masks that fit snuggly when visiting indoors with unvaccinated people who are at increased risk for severe COVID-19disease or who have an unvaccinated household member who is at increased risk for severe COVID-19 disease
  • Wear well-fitted masks when visiting indoors with unvaccinated people from multiple households
  • Avoid indoor large-sized in-person gatherings
  • Get tested if experiencing COVID-19 symptoms
  • Follow guidance issued by individual employers
  • Follow CDC and health department travel requirements and recommendations

Recognizing that fully vaccinated persons have a minimal risk of contracting or transmitting COVID-19 to others, the CDC states that the “level of precautions taken should be determined by the characteristics of the unvaccinated people present, who remain unprotected against COVID-19.” In other words the CDC is focusing on the risks to unvaccinated persons which the CDC assumes “remain unprotected against COVID-19.” An obvious gap in the CDC guidance is the role that natural immunity plays for persons who are unvaccinated. However, the CDC is silent on this issue. In other parts of its own guidance the CDC recognizes that natural immunity is sufficient to warrant modified quarantine and exclusion from work treatment, just like for vaccinated persons. Once the guidance is based on the risk to those who are “unvaccinated” it seems clear that all forms of immunity to COVID-19 possessed by those persons should be considered when evaluating the overall risk and therefore the appropriate precautions.

In indoor public spaces, the guidance states that fully vaccinated people should continue to protect themselves and others by wearing a well-fitted mask, covering coughs and sneezes, washing hands often, and following any applicable workplace or school guidance. Fully vaccinated people should still watch for symptoms of COVID-19, especially following an exposure to someone with suspected or confirmed COVID-19. If symptoms develop, all people – regardless of vaccination status – should isolate and be clinically evaluated for COVID-19, including SARS-CoV-2 testing, if indicated.

While the CDC’s guidance does not explicitly apply to workplaces, it mentions employers, and is moving in the right direction. We expect the CDC to continue to update its guidance, including addressing how increased vaccinations impact the risk mitigation protocols required at work. Hopefully, now that the CDC has implicitly accepted the significant immunity and protection provided by vaccination, and they are now focusing on the risk to OTHERS, the CDC will more thoroughly evaluate those risks including the role of natural immunity. Of course, other mandates from federal agencies like OSHA or those imposed by state and local governments must be followed, where applicable.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Sara Fowler

Seyfarth Synopsis: On April 21, 2021, the Chicago City Council unanimously passed an ordinance prohibiting retaliation against any employee who takes leave from work to get a COVID-19 vaccine, and requiring any employer that mandates its employees receive the vaccine to provide up to four hours of paid time off per dose.

Effective April 21, 2021, Chicago workers may take time off of work to receive a COVID-19 vaccine without fear of reprisal, pursuant to the City’s “Vaccine Anti-Retaliation Ordinance.” The Ordinance applies to individuals who perform work for an employer of any size, including work as an employee or as an independent contractor. The Ordinance has three key features:

  1. It prohibits any adverse action against a worker who takes off of work to get a COVID-19 vaccine. This applies even if a worker is voluntarily getting the vaccine. Further, employers cannot require that workers get vaccinated outside of their non-work hours.
  2. If an employer requires workers receive the COVID-19 vaccine, then the employer must provide paid leave to workers who get vaccinated during work hours. It requires compensation, up to four hours of paid time off per vaccination dose, at the worker’s regular rate of pay. Employers cannot require the worker to use other accrued and available paid time off, including sick leave.
  3. Workers must otherwise be allowed to use accrued and available paid time off for time spent getting the vaccine. This would apply when a worker is voluntarily getting vaccinated (e., not because of a work requirement, as described above). The Ordinance states that employers must allow such time off to be used upon a worker’s request, suggesting that workers may — but are not required — to use their paid time off for this reason.

Employers who are found to have engaged in retaliation in violation of the Ordinance may be held liable for monetary fines between $1,000 and $5,000. In addition, any worker who is subject to violations of the Ordinance may be eligible for reinstatement through a civil action, damages equal to triple their lost wages, actual damages, and attorneys’ fees and costs.

Chicago employers should ensure that managers and human resources professionals are aware of this new requirement, and modify any attendance or time off policies as needed to make sure that workers are not subject to discipline or other adverse consequences for taking time off to obtain a COVID-19 vaccine. Workers should be informed of their right to use accrued and available paid time off if they seek time off of work to get a vaccine.

By Brent I. Clark, James L. Curtis, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA this week issued an additional guidance addressing whether employers need to record adverse vaccine reactions on their 300 Logs.

Consistent with the OSHA regulations, OSHA’s guidance explains that an adverse reaction to the COVID-19 vaccine is recordable if the reaction is: (1) work-related, (2) a new case, and (3) meets one or more of the general recording criteria in 29 CFR 1904.7 (e.g., days away from work, restricted work or transfer to another job, medical treatment beyond first aid).” The FAQ adds an additional requirement: (4) the vaccine is required for employees.

Accordingly, adverse reactions are only potentially recordable on the OSHA 300 log where the employer mandates the vaccine; where the vaccine is voluntary, OSHA is exercising “enforcement discretion to only require the recording of adverse effects to employer required vaccines at this time.” Employers “do not need to record adverse effects from COVID-19 vaccines that [they] recommend, but do not require.” For the record-keeping exception to apply, the vaccine must be voluntary in the sense that employees face no material adverse employment consequences for choosing to remain unvaccinated.

For mandatory vaccines, OSHA does not define what reactions would be considered to be “work-related,” or how employers should conduct the analysis. Aside from anaphylaxis during the medical review period after the vaccine, employers may lack the information to know whether a vaccine contributed to the alleged symptoms, and would need to rely on the report of a physician. Based on OSHA’s prior vaccination recordkeeping advice, we recommend further analyzing whether the vaccine was administered at work, whether the adverse reaction occurred at work, and whether the employee was required to get the vaccine because the employer reasonably expected exposure to active COVID-19 cases at work (such is in a hospital, nursing home, or correctional institution).

OSHA’s guidance also does not address reporting of serious illnesses, meaning the requirement for employers to call OSHA and report an adverse vaccine reaction that results in a death within 30 days or an in-patient hospitalization for medical treatment within 24 hours.  Presumably, OSHA would exercise the same discretion for voluntary vaccinations, but the issue is not entirely clear.

Also, 23 OSHA state plans regulate private employers in their respective states. Those states may offer guidance that is more restrictive on the record-keeping of adverse vaccine reactions. If your company operates in California or another aggressive OSHA state plan, check with qualified outside OSHA counsel as to whether record-keeping of adverse vaccine reactions is required for voluntary vaccines.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Ada W. Dolph

Seyfarth Synopsis: Seyfarth has been working closely with the Illinois Chamber of Commerce to advance Illinois House Bill 559, sponsored by House Representatives Jim Durkin, Dan Caulkins, and Thomas M. Bennett.  The bill has advanced out of Committee and is anticipated to be up for a vote this week.  Seyfarth and the Chamber urge companies who operate in Illinois to contact their Illinois House Representative to urge passage of this bill. 

House Bill 559 contains several key amendments to BIPA that clarify the ambiguities that have caused it to deter innovation in Illinois, but keeps intact its protections around the collection and retention of sensitive biometric information.  The bill’s key provisions include:

  • Allowing companies 30 days to cure any reported violations and implement policies governing the collection and storage of biometric information, quickly and efficiently achieving the goal of protecting biometric information.
  • Removing the automatic statutory penalties that have deterred Illinois companies from litigating these cases through judgment.
  • Requiring a plaintiff to show she was actually damaged by the alleged collection or dissemination of the biometric information.
  • Clears up perplexing ambiguities in the statute, for example, the provision that could be read to require that employers terminate employees who refuse to consent to providing biometric information (requiring that an employee sign a release “as a condition of employment”).
  • Ensures sensitive policies governing biometric information are shared only with parties who have reason to know.
  • Makes clear that collectively bargained resolutions to these issues should be honored.

The full text of Illinois House Bill 559 is available here. To locate your Illinois House Representative, you can access a directory of legislators by address here.

If you have any questions, please contact Ada Dolph, a partner in Seyfarth’s Chicago office.

By Kevin Young and Anne Dana

Seyfarth Synopsis: Similar to mask mandates, COVID-19 passports—a means to prove one’s vaccination status—are becoming a political lightning rod in the United States. Where states like New York have viewed such passports as a viable tool for promoting safe in-person interactions, others, like Florida and Texas, have viewed them as an affront to privacy and individual liberties. For multi-state employers considering a passport solution, these developments command attention.

Despite entering a period of hope in the COVID-19 pandemic saga, the path leading back to normalcy remains a source of heated debate. Few topics highlight that better than the latest area of dispute: COVID vaccine passports.

Indeed, a world that spent nearly a year waiting and hoping for a COVID-19 vaccine got its wish in the waning months of 2020. But with that development came questions. Among them: whether businesses or governments can or should require individuals who seek to enter their domain to prove their vaccination status—and if so, how?

Governments and entrepreneurs around the world have responded with the concept of so-called “vaccine passports.” If you live in the United States and have recently been on Facebook, Instagram, or Twitter, you’ve likely seen selfies of friends posing with a paper card inscribed with the vaccine they received and when they received it. The tech community, as it often does when it sees lots of paper, has since set out to craft more elegant, technology-driven solutions. Debate lingers about the best medium and format for a passport solution.

Crafting a viable passport is only part of the equation, however. The question remains how the private and public sectors might work together to sanction and utilize passport technology in a way that meets the needs the passport intends to serve. Driven by concerns about individual rights and privacy, the answer in some U.S. jurisdictions is shaping up to be: they won’t.

New York jumped in head first to develop and roll out a passport program—its Excelsior program is already available to the public. Other states like Hawaii are in the process of rolling out their own programs, while governors in other states, like New Jersey, Illinois, and Pennsylvania, have cautiously voiced support for the concept.

Meanwhile, a growing caucus of governors have taken steps to curb the use of COVID-19 passports in their respective states. The most extreme example is Florida, where Governor DeSantis’s executive order prohibits the use of COVID passports not just in the public sector, but in the private sector as well. That order could be on a crash course with some private businesses’ reopening plans, including, for example, members of the cruise line industry planning to require proof of vaccination for all passengers and crew.

Employers considering requiring employees, customers, or other individuals to provide vaccination proof as part of a reopening plan will need to monitor these developments. If nothing else, the splintering of states will make it difficult to institute a universal policy that applies throughout the United States.

The following is an overview of where the opposition to vaccination passports stands at the state level. We expect additional states to enter the fray in the coming weeks.

  • Idaho. On April 7, 2021, Gov. Brad Little signed an executive order to ban the state from mandating or issuing COVID passports, citing concerns that passports would “violate Idahoans’ medical privacy rights, prejudice those unable to receive the vaccine, slow our economic recovery, cause division … , and, ultimately, be counterproductive to the widespread administration of the COVID-19 vaccines … ” The order bars government entities from creating or issuing a passport, providing proof of an individual’s vaccination status to any other person, or requiring proof of COVID vaccination to receive public services.
  • Texas. On April 6, 2021, Gov. Greg Abbott signed a similar executive order, noting that receiving a COVID vaccine “is always voluntary in Texas” and that “vaccination status is private health information” for which “no governmental entity should compel disclosure … ” The order bans state agencies, as well as any recipient of public funding, from requiring any individual to provide proof of vaccination as a condition of receiving any service or entering any place. The order allows, however, nursing homes, state-supported living centers, assisted living facilities, and long-term care facilities to require proof of a resident’s vaccine status.
  • Florida. On April 2, 2021, Gov. Ron DeSantis signed an even broader executive order, citing similar concerns to those noted above, as well as his view that requiring vaccination proof to “tak[e] part in everyday life—such as attending a sporting event, patronizing a restaurant, or going to a movie theater—would create two classes of citizens based on vaccination.” Not only does the order prohibit government entities from issuing passports, it prohibits private businesses in Florida from “requiring patrons or customers to provide any documentation certifying COVID-19 vaccination … to gain access to, entry upon, or service from the business.”
  • Utah. In February 2021, Gov. Spencer Cox signed a new law that bans state government entities from, among other things, requiring an individual to receive a vaccine as a condition of employment or to attend events hosted by the entity. The order does not apply, however, to government employees in a public health or medical setting or who are required to receive a vaccine in order to perform their assigned duties.
  • Missouri. Missouri lawmakers are proposing prohibiting vaccine passports. The state senate gave final approval last week to a proposed bill that would prohibit transportation systems from requiring documentation of vaccine status, including air travel, buses, taxicabs or any other public transportation or “prearranged rides.”
  • Georgia, Iowa, Nebraska, and Tennessee. While the governors of these four states have not (yet) issued orders on the topic, each has expressed opposition to COVID vaccination passports.

At the federal level, the Biden Administration has indicated that it does not intend to implement a COVID passport, nor will it create a vaccinations database. Notwithstanding that announcement, Rep. Andy Biggs (AZ) recently introduced federal legislation to preemptively ban federal agencies from creating a vaccination passport.

Where COVID passports will go in the weeks and months to come remains to be seen. In some parts of the world, from New York to Israel, they are already being used. But they are also running into steep challenges in other jurisdictions. For employers assessing a vaccine passport program, this is yet another important and evolving layer of consideration.

For more information on COVID passports, you can see our earlier alerts (here, here, and here), which also focus on aspects outside the US. You can of course feel free to contact the authors or your favorite Seyfarth Shaw attorney to discuss further.

By Cary Reid Burke and Stan Hill

Seyfarth Synopsis: The Eleventh Circuit Court of Appeals recently provided several reminders to employers regarding their obligations under the Family and Medical Leave Act (FMLA), in vacating summary judgment for the employer in Ramji v. Hospital Housekeeping Systems, Inc., Case No. 19-13461 (11th Cir. April 6, 2021).

First, an employer cannot get around its FMLA obligations by offering workers’ compensation benefits to the employee. Second, employers must provide notice to the employee of their rights and responsibilities under the Act within five days of receiving information that the employee may qualify for leave. And third, an employer cannot force an employee to take a light duty position in lieu of FMLA leave.

Factual Background

The plaintiff in Ramji injured her knee when working. Defendant employer handled the injury as a workers’ compensation claim, and did not provide her with any notice that she may be eligible for FMLA leave. After taking a few days off work, Plaintiff was given a temporary light duty assignment while continuing her recovery. Not long thereafter, she received medical clearance to go back to regular duty.

However, before allowing her to go back to regular duty, Defendant required her to pass an essential functions test. The test was primarily made up of physical activities, such as deep squats and knee bends. While performing the test, Plaintiff began to experience pain in her knee, and was not able to finish all required exercises. As a result, she failed the essential functions test, and she was discharged. Defendant never advised Plaintiff of her rights under the FMLA or provide her with the opportunity to take 12 weeks of leave to care for her knee injury before terminating her employment.

Plaintiff subsequently filed suit, alleging interference with her FMLA rights. The district court granted summary judgment to Defendant. On appeal, the Eleventh Circuit reversed, and remanded the case for trial. The Court’s opinion provides several important reminders to employers regarding their FMLA obligations, including the following:

Employer Takeaways

  1. Ensure compliance with notice obligations

Where an employee provides notice to the employer that they are suffering from a serious health condition and may require continuing treatment from a health care provider, the employer must provide the employee with notice of their FMLA rights. The employee’s burden is not onerous: the employee need not mention the FMLA to meet her notice obligation. Rather, she must only provide enough information to allow the employer to understand that she may qualify for FMLA protections.

Once the employer has enough information to understand that the employee may qualify for FMLA leave, the employer has five days to provide the employee with notice of both her eligibility for FMLA leave and her rights and responsibilities under the FMLA. More specifically, the notice must advise the employee 1) that any leave may be counted against her annual FMLA leave entitlement; 2) of her rights to substitute paid leave for unpaid leave (if applicable); and 3) that she has the right to maintain benefits during FMLA leave, and that she can be restored to the same or an equivalent role when returning from FMLA leave.

  1. Workers compensation benefits are not a substitute for FMLA leave

An employer cannot get around its FMLA obligations by offering workers compensation benefits to an injured employee. The two statutory schemes may overlap, but complying with one set of obligations does not relieve the employer of complying with the other as well. (And, the employer may have a third set of obligations under the Americans With Disabilities Act.) Indeed, the FMLA regulations make clear that a workers’ compensation absence and FMLA leave may run concurrently. So here, even though Defendant provided Plaintiff with workers’ compensation benefits and several days off from work, it was still required to fulfill its obligations under the FMLA, which it did not do.

  1. Employees cannot be required to take light duty work instead of FMLA leave

Where an employee is entitled to FMLA leave, the employer may not require the employee to take light duty work instead of going on FMLA leave. Certainly, the employer is free to offer the employee a light duty position, but the employee need not accept that offer. She can choose to remain on FMLA leave instead until either she can return to the same or an equivalent role, or until her 12-week FMLA leave entitlement is exhausted.

Conclusion

This decision is yet another reminder that employers must take great care to comply with their FMLA obligations. Where an employer suspects an employee may require FMLA leave, the employer must timely inform the employee of her eligibility for FMLA leave, as well as her rights and responsibilities under the Act.  And providing other benefits to the employee, like workers compensation benefits, does not relieve an employer of their obligations under the FMLA.

For more information on this or any related topics, please contact the authors, your Seyfarth attorney, or any member of Seyfarth Shaw’s Employment Law group.

By Brent I. Clark, James L. Curtis, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The CDC recently updated its Guidance on Domestic Travel During the COVID-19 Pandemic. The guidance also provides domestic travel recommendations for unvaccinated people.

Image from CDC.

The CDC recently issued updated guidance regarding travel. It is important to recognize that the CDC’s guidance on COVID-19 is not a law or regulation. However, various agencies and public health authorities have adopted some or all of the CDC recommendations, including recommendations regarding travel. Consequently, employers should consult actual laws and regulations regarding travel for their specific jurisdictions to understand requirements versus recommendations and guidance, especially employers who are considering their own travel policies.

As COVID-19 vaccinations in the United States continue, the CDC and other authorities will likely adjust their requirements and guidance to address the vaccinated population. Employers should be sure to closely track developments and make adjustments to their own policies as the risks associated with COVID-19 and travel change over time.

Domestic Travel Recommendations for Vaccinated People

According the CDC’s updated guidance, people who are fully vaccinated with an FDA-authorized vaccine can travel safely within the United States. People are considered fully vaccinated:

  • 2 weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or
  • 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine

Individuals who have not completed the 2-week period are not fully vaccinated, so the CDC recommends continuing to take all precautions until they are fully vaccinated. The CDC also cautions that immuno-compromised individuals may need to limit travel, even if vaccinated.

During Travel

The CDC recommends that fully vaccinated travelers still wear a mask over their nose and mouth while traveling. Masks are required by federal law on airplanes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in U.S. transportation hubs such as airports and stations.

Fully vaccinated individuals should also avoid crowds and physically distance, staying at least 6 feet from anyone who is not traveling with them, and should continue good hygiene practices, washing hands often or using hand sanitizer (with at least 60% alcohol) according to the most recent guidance.

After Travel

The CDC advises that vaccinated travelers should self-monitor for COVID-19 symptom, and to self-isolate and get tested if they develop symptoms. They must also abide by state and local requirements, even if it differs from the CDC’s guidance.

The CDC does not advise that vaccinated individuals (and those who had COVID-19 in the past 3 months) self-quarantine after travel.

Domestic Travel Recommendations for Unvaccinated People

If individuals are not fully vaccinated and must travel, the CDC recommends:

1. Before Travel

Get tested utilizing an FDA approved viral test 1-3 days before their trip.

2. During Travel

Wear a mask over their nose and mouth. Masks are required by federal law on planes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in U.S. transportation hubs such as airports and stations.

Avoid crowds and stay at least 6 feet from anyone who is not traveling with them.

Wash hands often or use hand sanitizer (with at least 60% alcohol).

3. After Travel

Get tested utilizing an FDA approved viral test no sooner than 3-5 days after travel AND stay home and self-quarantine for a full 7 days after travel.

  • Even if the individual tests negative, they should stay home and self-quarantine for the full 7 days.
  • If the test is positive, the individual must self-isolate to protect others from getting infected.
  • If the individual decides not to get tested, they should stay home and self-quarantine for 10 days after travel.

Regardless of whether the traveler seeks a test after travel or not, they should avoid being around people who are at increased risk for severe illness for 14 days, self-monitor for COVID-19 symptoms (isolate and get tested if symptoms develop), and follow all state and local recommendations or requirements. Some state and local requirements do not allow travelers to test-out of self-quarantine.

Visit your state, territorial, tribal or local health department’s website to look for the latest information on where to get tested.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Loren Gesinsky and Julia Gorham

Seyfarth Synopsis: For many private employers around the world, it might be too soon to know what COVID-19 passports, if any, they will recognize, encourage, or even require. They see far more risks than benefits in being early adopters given fast-evolving variations in infections, the availability of tests and vaccines, government guidance and requirements, and worker and public sentiments about balancing public health with privacy and personal autonomy. COVID passports are only one piece of the jigsaw puzzle of getting our societies back on track and are not a panacea. They need to go hand-in-glove with other measures of safety, health, and good practices.

Still it is far from too soon for employers to begin considering the potentially relevant issues, which we previewed in the first-in-the-series post here. Even if your employees are not required to travel internationally for work, we anticipate that day-to-day business and social interactions and in-country travel, access to certain locations, or attendance at events, for example, will become subject to verification checks via COVID passport systems in many jurisdictions and industries. Therefore, we recommend beginning now to assess your pressure points and identify where a COVID passport requirement may overlap with your business needs and workforce management.

  1. Understanding the issues

What is a COVID passport?

A COVID passport is an electronic or physical record of an individual’s COVID-19 vaccine, test, medical exemptions, antibody and/or immunity status. Some of these passports also track movement and potential COVID exposure via enhanced check-in and track-and-trace mechanisms, as has been common in much of Asia for the past year.

The COVID passport systems are, in the main, being driven by two key areas: (i) government requirements for access to specific countries and services within them; and (ii) transport regulators / providers. But remember that not all vaccines are created equal. Governments have already begun to indicate they may not recognize certain vaccines based on where they were produced, scientific data, efficacy, etc.

There is already a proliferation of different systems and applications in use or development. Israel’s Green Badge system has already been implemented nationwide for multiple uses. Sweden and other countries are considering similar nationwide proposals. Systems / applications in development include EU Green Pass, Verifly, Travel Pass, CommonPass, Excelsior Pass, and IBM’s Digital Health Pass. Reports suggest that the World Economic Forum and the Commons Project are cooperating on developing a system to document COVID-19 vaccination records. A growing number of private organizations around the world have announced plans to require anything from simple checks of status verified by paper or handheld devices to more elaborate systems / applications still under development.

Across the board there are calls for standardized COVID passport approaches to be adopted globally or at least more broadly across jurisdictions and industries to promote consistency and clarity. It remains to be seen to what extent, if any, that will happen through agreement between governing bodies and/or organically.

What issues should private employers consider first?

At this stage there is generally no obligation for private employers to require COVID passports. That said, employers may already be expected to track the test status and safety of their workers to ensure that they know if any staff are affected, who is working onsite or at third-party locations, etc. Where private employers are most involved at this stage is where they want / need workers to be back onsite, interact with members of the community, and/or travel. Where staff can work safely and effectively from home / remotely, the issue of COVID passports is less pressing. For now we recommend that private employers promptly begin considering where their business may be subject to expectations or requirements to implement COVID passports arising from:

(i) government guidance and mandates;
(ii) travel-provider guidance and mandates;
(iii) approaches coordinated by industry / sector;
(iv) business needs; and
(iv) workforce expectations.

What are the key legal / compliance / risk issues employers should consider?

  • Practically the first question is can or must you mandate that your staff comply with or participate in any relevant COVID passport scheme operated by the stakeholders listed above? If so, what are the employment law issues? Is consultation with employees or collective bodies required? Private employers may be able to mandate COVID passports where it is impossible to fulfill certain business functions without the passports due to changing requirements. However, in the main, we think it will be challenging to mandate staff to utilize one. What will you do for employees who refuse? Can they be reallocated to roles where the requirement falls away?
  • Do any of your employees have medical, religious, or other reasons for being exempted from vaccination? If so, what is the impact on that exempt status from any passport requirements?
  • The issues around data privacy, data collection and usage and data security, managing liability / insurance are also key facets of any risk assessment that will be addressed in more detail later in this series. And colleagues have already begun addressing the immigration issues related to COVID passports here.
  • In some areas we have already seen great resistance to participating in these schemes due to perceived unwarranted encroachment on privacy and personal autonomy and fears of an excessive surveillance culture. These and other strongly-held concerns likely warrant careful consideration before implementation. Surveying employees and other stakeholders and communicating respectfully and transparently with them about their concerns can go a long way towards counteracting potential perceptions of heavy-handedness. Not acting with too much impatience may also help. As sports and other live-entertainment venues indicate they may require some form of passport to access events and as people may wish to travel on holiday, there is a likelihood that COVID passports will eventually become more common, accepted, and part of the social compact.
  • Increased risk of identify and data theft and fraud should be built into company contingency plans.
  • Are there any jurisdictions where liability might be passed on to the company for failure to mandate staff utilization of COVID passports?

Is wait and see a legitimate approach?

Yes, potentially. We get it. No one in top-flight business wants to be a follower. However, depending on the nature and location of your business, there are some advantages in waiting for the factors relevant to passports to coalesce and the potential diminishing relevance or irrelevance of passports once true herd immunity is reached and/or the effects of the virus are otherwise weakened. We are likely years away from having the global population at herd immunity, so a wait-and-see approach may be impossible from a cross-border, multi-national perspective for those of you with truly global operations. On the other hand, taking a viewpoint more focused on a single country like the U.S. or China, herd immunity might be reached for worker populations that only or mostly interact domestically much sooner and at a point in time when the wider consensus on COVID passports might not have been reached across the board, potentially meaning that the urgency for passports may fall away in some locales.

  1. Understanding others’ perspectives

Do you have the data you need to make informed decisions about what is required and what your staff think of any proposals? Serious consideration should be given to surveying at least your staff, and perhaps other stakeholders, corporate peers, and/or industry bodies about what they are doing, want, and are concerned about in connection with COVID passports. Once you are confident you understand these perspectives, you are better positioned to make an informed decision on what COVID passport approach, if any, is right for your organization. All too often we see employers, out of fear of being left behind or perceived as out of touch, pursuing an approach simply because other organizations are doing so, rather than because the approach is practical and right for them.

  1. Creating a roadmap

After carrying out an initial review / risk assessment of the above issues with your business, we recommend:

  • Identifying the areas of the business where COVID passports are most likely to be first encouraged or mandated.
  • Reviewing business impact, including by asking:
    • Does cooperating with COVID passport processes give you a competitive advantage and help increase business activity? Or the opposite?
    • If your employees work across jurisdictions, can you get comfortable with some divergence in approach to COVID passports across jurisdictions or can you drive towards adopting a more standardized approach across different jurisdictions?
  • Considering if there are alternative and less intrusive measures to appropriately manage the health and safety of your workforces and those with whom they interact.
  • Reviewing your workforce composition by segment, including by asking:
    • Are there categories of workers where a COVID passport is mandated by relevant authorities or strongly urged by stakeholders?
    • For which staff is in-person interaction essential or non-essential?
    • What workers are required to visit third-party sites and/or interact with members of the public?
    • Do we have staff who need to travel across jurisdictions domestically and/or internationally for work?
  • Considering which operational policies and procedures — e.g., travel, data privacy, insurance, and benefits — might be impacted or touched by the rollout of COVID passports (which will be covered in more detail later in this series).
  1. Identifying pressure points

Being realistic about what your organization can do and operationalize is key. There is little worse than rolling out a high-touch system and then abandoning it and/or experiencing it as ineffectual. Can you use existing programs in the market or satisfy yourself that individuals’ compliance with government- or other-third-party-mandated COVID passports is sufficient to ensure adequate protection for your business?

Are your HR teams briefed and up to speed on the issues? Can they answer questions from your workforce?

Data under COVID passports will be heavily regulated in most jurisdictions. Are your data-management processes and policies up to date and do you have internal stakeholders who understand the unique issues with personal-health-related data that will arise from COVID passports? Do you know where your data is and how it is stored and secured?

Are your third-party providers on top of the issues and have you agreed with them on desired and/or necessary changes to your working arrangements?

  1. Developing a flexible and nimble approach

Conceptions of COVID passports, the global approach to them, and the individual and societal perceptions of them are in flux and likely to evolve significantly over the coming weeks and months. Among other factors, the emergence of new COVID-19 variants and resistant strains, as well as the availability of, and science behind, the vaccines, will likely require adaptations.

It is essential that you continually reevaluate and update your understanding of others’ perspectives and your internal roadmap to ensure your approach remains flexible and nimble enough for you to adapt as changing circumstances warrant. Each organization’s unique circumstances will need customization and continual revision based on sector, jurisdiction, workforce makeup, and status of personnel.

You should accept that there will be significant differences in standards and acceptable levels of intervention by private employers between jurisdictions and industries, including both domestic and international. This is unlikely to be an area for a one-size-fits-all solution. At the high watermark, encouraging, rather mandating, employees to adopt all COVID passport options available to them or recommended by their local government authorities seems likely to be the most adopted approach.

Throughout the process, keep an eye to equity. The WHO is not recommending the use of COVID passports on the primary basis that travel should not be restricted for those without access to vaccines. Always remember that, across your organization, there may be different levels of access to vaccines, healthcare, and other relevant factors often impacted by socio-economic status and politics. Making assumptions can be dangerous, while striving to understand the perspectives of your staff on COVID-passport issues and communicating actively with them about these perspectives can go a long way in helping you manage employee relations positively.

Keep an eye out for the next installment in this series, which we expect to post within a couple of weeks. And please do not hesitate to reach out to the authors or your favorite Seyfarth counselors to discuss these issues in a more personalized manner.