By James L. Curtis, Adam R. Young, Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: Federal OSHA is warning Arizona, South Carolina, and Utah that they risk a federal takeover of their worker safety programs unless they adopt a federal emergency temporary standard (ETS) protecting health-care workers from COVID -19.

OSHA published its first COVID-19 ETS on June 21, 2021, which requires health care industry employers to provide masks, physical barriers, social distancing and proper ventilation to ensure their employees were protected from COVID -19. The ETS affected an estimated 10.3 million workers.

States that operate their own “OSHA State Plan,” with USDOL approval, were then required to adopt their own COVID-19 ETS for health care that was at least as protective by July 21. 22 state plans that cover private-sector workers: most states adopted the federal ETS verbatim. Arizona, Utah and South Carolina have not adopted any part of OSHA’s ETS or an equivalent despite the agency’s “good-faith” efforts to bring them into compliance, according to DOL.

OSHA sent courtesy letters to the states October 19, 2021 informing them that they face wholesale decertification of their OSHA state plans, for failure to protect employees with a health care ETS. The agency will publish a notice for each state in the Federal Register announcing its proposal to revoke approval of the State Plan. This will trigger a 35-day comment period by the state plans and other interested parties. OSHA then will determine how to move forward after publishing the notice and reviewing the comments. The decertification process is a lengthy one.  In the recent past, OSHA considered withdrawing its approval of Arizona’s state plan when OSHA determined that Arizona’s residential construction fall protection standard was not at least as effective as federal OSHA’s. After a number of years, Arizona avoided decertification by adopting OSHA’s residential construction standard.

Of course, the three state plans could do the same and adopt the federal COVID-19 ETS in the interim, which likely would resolve the dispute. Each of the states have Republican governors and have expressed opposition to elements of the COVID-19 health care ETS and/or proposed vaccination regulations.

Meanwhile, OSHA is currently preparing to release a second COVID-19 ETS, which would apply to all employers with 100 or more workers, and would require vaccination or regular surveillance testing. The agency sent a draft of the rule to OMB earlier this month, indicating that its release is imminent. OSHA’s proposed COVID-19 vaccination and testing ETS is the focus of ongoing meetings between the White House, business groups, and worker advocacy organizations. The White House’s Office of Information and Regulatory Affairs met with the HR Policy Association Thursday and is set to hold meetings Friday and next week, suggesting a delayed roll-out of the draft regulations.

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 Brent I. Clark, James L. Curtis, Benjamin D. Briggs, Adam R. Young, Patrick D. Joyce, Ilana R. Morady, Daniel R. Birnbaum, Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: On October 12, 2021, OSHA submitted to the White House’s Office of Information and Regulatory Affairs (“OIRA”) an emergency temporary standard requiring private employers with more than 100 employees to implement vaccine mandates or testing.

The emergency temporary standard seeks to implement President Biden’s directive, a piece of his COVID-19 Action Plan announced on September 9, 2021, for OSHA to issue a regulation requiring businesses with at least 100 employees to mandate workers receive the COVID-19 vaccine or be tested weekly.  President Biden’s Plan indicated that the ETS will “provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination.”  For additional information on the proposed contents of the ETS, see our prior blog on the President’s Plan.

OIRA’s regulatory reviews can take months, as it’s agency policy to meet with interested stakeholders in public meetings; OIRA held more than 40 such meetings when considering OSHA’s healthcare ETS published in June 2021.  However, we anticipate the OIRA will limit stakeholder input, perhaps eschewing the meetings altogether, so that OSHA can be cleared to push its rule on an expedited basis and meet the Administration’s goal to maximize vaccinations in the near term.

Once OIRA approves the vaccine ETS, OSHA likely will post an unofficial version of the text on its website, before the Federal Register publishes the final standard.  We expect legal challenges to the emergency standard (e.g., from State attorneys general), and would note that OSHA has had limited success clearing court challenges with regard to many past emergency standards.  Nonetheless, employers should evaluate their ability to comply with a vaccine mandate, including whether to allow for a testing option, how to handle accommodation requests, and what implications they may have vis-à-vis unionized workforces.

Under this new ETS, employers may implement a “hard” vaccine mandate with no testing option.  We have numerous materials to help employers develop and implement a vaccine program, including with regard to requests for religious and disability accommodations.

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

Seyfarth Synopsis: The Biden DOJ Civil Rights Division has been much more active than its predecessor in enforcing Title III of the ADA and supporting plaintiffs in pending litigation.

As we predicted in January, the Civil Rights Division at the Department of Justice (DOJ) under the Biden Administration has been very busy. In the nine months since President Biden took office, the DOJ has issued a guidance on “long COVID,” filed Statements of Interest (SOI) in three ADA Title III (public accommodation) cases and three ADA Title II (state and local government) cases, and renewed its effort, dormant under the prior presidential administration, to pressure businesses to make their websites accessible to users with disabilities through threats of enforcement actions. It is even piloting a new www.ada.gov website.

Not surprisingly, all of the SOIs the DOJ has filed this year have been in support of plaintiffs with disabilities. In the first SOI filed in the Western District of Pennsylvania, the DOJ took the position that – pursuant to the ADA obligation to make reasonable modifications to normal policies, practices, and procedures – places of lodging must provide lowered beds for people with disabilities who cannot transfer to high beds. Regrettably, DOJ failed to state in the SOI (or anywhere else, for that matter) what constitutes a lowered bed, making it very difficult for lodging facilities to know what sort of beds they need to purchase in case they need to make such a “reasonable modification.”

In the second SOI — filed in a case in the Northern District of Illinois — the DOJ took the position that blood plasma donation centers are “public accommodations” under Title III of the ADA, even though donors are compensated for their plasma. The DOJ stated that such centers are “service establishments” – one of the types of businesses listed under the definition of “public accommodation” under the Title III statute. The Third and Tenth Circuit Courts of Appeals have reached the same conclusion, but the Fifth Circuit has found such centers to not be places of public accommodation.

The third SOI filed by the DOJ was in a case brought against a health care provider that used self-service check-in kiosks that are inaccessible to the blind. The blind plaintiffs alleged that there were no employees to provide assistance so they had to seek the assistance of strangers. The health care provider argued that the kiosks had a function to notify employees to provide assistance. The DOJ did not find this solution satisfactory because “[r]elegating patients with disabilities who have scheduled appointments to the bottom of the walk-in waitlist because of a lack of auxiliary aids and services is treating those patients differently.”

Just last week, the DOJ filed an SOI in a case brought by the parents of school children with disabilities challenging Texas Governor Abbott’s Executive Order GA-38, which prohibits school districts from imposing mask requirements in school programs and facilities. Although the case was brought under Title II of the ADA, which applies to the programs and activities of state and local governments, some of the arguments DOJ made could prove helpful to public accommodations defending their own mask requirements in lawsuits brought under Title III of the ADA. For example, DOJ argued that the Executive Order denied the disabled plaintiffs who were at greater risk for COVID-19 complications access to school because the absence of masks created an unsafe environment for them. The DOJ also argued that the Executive Order prevented school districts from complying with their obligation to make reasonable modifications to policies and procedures (i.e., require masks to be worn) to ensure that the disabled plaintiffs have access to school facilities and programs. Under the right circumstances, a business might be able to make an analogous argument that to protect customers with disabilities who face a higher risk for COVID-19 complications and to ensure they can enjoy the business’ goods and services, the business must impose mask requirements for everyone seeking to enter its facility.

All four SOIs can be found at ADA.gov at https://www.ada.gov/enforce_activities.htm.

In stark contrast to the Trump’s Administration Civil Rights Division, which did not address any COVID-19 issues as they relate to Title III of the ADA, the Biden Civil Rights Division has also issued a joint statement with the Department of Health and Human Services stating that long COVID (i.e. new or ongoing symptoms caused by COVID-19 that can last for weeks or months after an infection) can be a disability, depending on whether the ongoing symptoms meet the definition a disability under the law.

On the investigation/enforcement front, we have seen greater activity by the DOJ in new and pending investigations. This is no surprise and businesses should expect to see much more action from DOJ in the coming years.

Edited by Kristina Launey

By Daniel I. Small and Robert S. Whitman

Seyfarth Synopsis: With little fanfare and no public reporting, the New York Commissioner of Health extended the designation of COVID-19 as highly contagious, thereby requiring employers to keep their safety plans activated through October 31, 2021. 

As previously reported (here, here, and here), New York State’s health commissioner designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health, requiring employers to activate their safety plans under the NY HERO Act.  The designation initially noted that it was to remain in effect until September 30, 2021 unless extended further.  With the designation in place, employers were required to activate their respective Disease Exposure Prevention Plan and put into place the various mitigation measures specified therein.

With no publicity, the health commissioner issued a revised designation under the NY HERO Act requiring employers to continue implementing their respective Disease Exposure Prevention Plan through October 31, at which time the commissioner will decide once again whether to extend the designation further.

Therefore, employers must continue to implement the various disease-prevention measures including daily health screenings and masking for workplaces where all individuals on premises are not fully-vaccinated, among other requirements.

Seyfarth will continue to monitor developments in this space and provide updates when available

Seyfarth Synopsis: If you’re feeling a little déjà vu regarding the issues your company is facing with returning to work, you are not alone. As the lingering global pandemic continues to wreak havoc on operations for companies across the Midwest, employers continue to face the daily challenges at each new stage of the pandemic.

Join our panel of COVID-19 task force specialists to discuss the toughest COVID-19 employment topics including:

  • Best practices for vaccine mandates;
  • The ups and downs of mask mandates;
  • Enforcement trends across agencies; and
  • Certain industry-specific issues that are emerging.

Our speakers will be Karla Grossenbacher, Partner, Seyfarth Shaw LLP, Daniel Klein, Partner, Seyfarth Shaw LLP, and David Rowland, Partner, Seyfarth Shaw LLP.

It is scheduled for:

Tuesday, October 5, 2021
10:30 a.m. to 12:00 p.m. Eastern
9:30 a.m. to 11:00 a.m. Central
8:30 a.m. to 10:00 a.m. Mountain
7:30 a.m. to 9:00 a.m. Pacific

Please REGISTER here.

If you have any questions, please contact Julianne Holdsberg at jholdsberg@seyfarth.com and reference this event.

By Ilana R. Morady, Brent I. Clark, James L. Curtis, Benjamin D. Briggs, Adam R. Young, Patrick D. Joyce, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: California Governor Gavin Newsom signed SB 606 into law on September 27, 2021. It creates two new categories of Cal/OSHA violations: “enterprise-wide” and “egregious”. It also provides Cal/OSHA with additional subpoena power during investigations, and expands on Cal/OSHA’s ability to seek an injunction.  The new law will go into effect on January 1, 2022.

Cal/OSHA’s enforcement power is soon-to-be radically increased. SB 606, which was co-authored by Senator Lena Gonzalez and Assemblywoman Lorena Gonzalez — both of whom have significant organized labor backgrounds — was signed by Governor Newsom on September 27, 2021. Although SB 606 does not directly relate to COVID-19, the bill’s co-authors leveraged the pandemic to push and ultimately succeed on these amendments to the Labor Code. When the bill was introduced, Senator Gonzalez announced that that the new legislation would “address the need for stronger enforcement measures to keep workers safe as the COVID-19 pandemic continues.”

Key provisions are as follows:

  • Creates a rebuttable presumption that an employer with multiple worksites has committed an “enterprise-wide” violation if Cal/OSHA determines that either of the following factors “is true”:
    • The employer has a non-compliant written policy or procedure.
    • Cal/OSHA “has evidence of a pattern or practice of the same violation or violations committed by that employer involving more than one of the employer’s worksites.”

This presumption will, among other things, have the effect of creating an enterprise-wide violation for any written policy and procedure violations unless an employer can show that its other worksites have different, compliant written policies and procedures. Appeal of an enterprise-wide violation will stay abatement, but if the violation is affirmed, abatement will be required across all of the employer’s California worksites. Enterprise-wide citations will carry the same penalties as willful or repeated citations, i.e. up to $134,334 per violation.

Federal OSHA has for many years used corporate-wide abatement agreements in negotiations with employers, but AB 606 goes much farther. Cal/OSHA’s ability to issue enterprise-wide citations obviates the need for Cal/OSHA to rely on negotiated settlements to achieve enterprise-wide abatement.

  • Authorizes Cal/OSHA to seek an injunction restraining certain uses or operations of employment if it has grounds to issue a citation. This is a massive expansion of Cal/OSHA enforcement power; currently, Cal/OSHA may only seek an injunction if “the condition of any employment or place of employment or the operation of any machine, device, apparatus, or equipment constitutes a serious menace to the lives or safety of persons about it.”
  • Establishes an “egregious violation” category. Cal/OSHA can issue an egregious violation if it finds that at least one of the following seven criteria “is true:”
    • (1) The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation.
    • (2) The violations resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses. For purposes of this paragraph, “catastrophe” means the inpatient hospitalization, regardless of duration, of three or more employees resulting from an injury, illness, or exposure caused by a workplace hazard or condition.
    • (3) The violations resulted in persistently high rates of worker injuries or illnesses.
    • (4) The employer has an extensive history of prior violations of this part.
    • (5) The employer has intentionally disregarded their health and safety responsibilities.
    • (6) The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties under this part.
    • (7) The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that may be in place.

The framework for issuance of repeat citations is applicable to egregious citations, in that the underlying conduct must have occurred within the past five years. Significantly, each employee exposed to an egregious violation will be considered a separate violation for purposes of the issuance of fines and penalties. This could result in breathtakingly large penalties for employers subject to alleged egregious violations.

  • Authorizes Cal/OSHA to issue a subpoena during inspection “if the employer or the related employer entity fails to promptly provide the requested information, and may enforce the subpoena if the employer or the related employer entity fails to provide the requested information within a reasonable period of time.” Apparently Cal/OSHA has the discretion to determine what constitutes a “reasonable period of time.”

The foregoing changes to the Labor Code are undoubtedly significant for employers in California, and will have the largest impact of companies with multiple locations, for example retailers and construction companies. Perhaps the only silver lining is that the original bill was even more expansive of Cal/OSHA’s authority. It is now more important than ever for California employers to ensure regulatory compliance across all worksites and carefully manage Cal/OSHA inspections.

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

By Christina Jaremus and William Hampshire

Seyfarth Synopsis: Seyfarth Shaw recently hosted a webinar entitled The Future of the World of Work. During part one of this special two-part series, Futurist Ross Dawson, who is one of the world’s leading thinkers on the future of work, discussed the big trends shaping the future of workforces. As a conclusion to the webinar, we compiled the highlights of Ross’s presentation—undoubtedly, the concept of flexibility was a thread throughout.

  1. Accelerating to the future of work

The COVID-19 pandemic fundamentally changed society and the working world as we know it.  While discussions about the future of work were already taking place, the pandemic has significantly accelerated the timeframes and has shifted the assumptions of work that we had in the past.

While limitations still remain and cannot be fixed overnight, according to Dawson, the pandemic has presented an opportunity for every organization to “create their own future of work, which is unique to their organization, their industry, and whatever it is they aspire to.”

  1. Technology will compliment human interaction

Leveraging technology can help companies create a collaborative culture while still allowing employees the flexibility to work outside of a traditional office space. Virtual video conferencing platforms allowed companies to survive during the pandemic, and the technology is continuously improving.

Dawson emphasizes the importance of data and explains that just as babies learn, machines learn from data. Now that we can gather more and more data from individuals everywhere, AI can exceed human performance, and in areas such as customer service, machines have already successfully taken on the role of humanlike representatives.

  1. Power shifting to individuals

As Dawson puts it, “society is fundamentally changing,” that is “power is shifting from institutions to individuals.” In evaluating what makes a company a valuable place to work, more than ever, workers have greater expectations of flexibility, autonomy, diversity, and privacy.

To draw talent, companies must balance the benefits necessary to make workers feel engaged, while simultaneously demanding and measuring high performance, especially for remote workers.

  1. Changes in the structure of business and the nature of work

Dawson explains, “the structure of business is changing, and this has come from the rise of the network economy.” In the past, businesses created and sold products and services, but now value is created by platforms connecting others outside the organization—whether that is arranging transportation, streaming movies and music, or more recently providing digital freelance work, management consulting, forensic analysis, and crowdsourcing innovation research and development. Rather than the work drawing in the talent, we are seeing a shift to the work going to wherever the talent is. All of this drives social change and shapes the economy.

A “negative” often associated with AI is that it will lead to mass unemployment. As Dawson points out, however, new technologies have always in the past created more jobs than they’ve destroyed, and as workplaces take advantage, humans have to leverage the three things that machines cannot offer: creativity, expertise, and relationships. We need to design work in a way that plays on these points.

  1. Distributed work is the new normal

Recent studies suggest only 10% of companies foresee a return to the 5-day, in-office model. While there is value created in people being physically present in the same place to engage and collaborate, Dawson says companies should embrace “distributed work.” This term is preferred to “remote work” as it suggests a greater level of inclusion—all employees, and not just those in the office, should be heard.

  1. Leadership steps to realize the potential benefits

Dawson identified four steps leaders should be taking:

  • Design a clear vision of your future of work.
  • Choose how you will integrate in-person and distributed work.
  • Evolve fluid, flexible structures.
  • Develop uniquely human capabilities in symbiosis with AI.

A lot of what happened with the pandemic was thrust upon companies. The real benefits will come through employers thinking carefully about what they want their own future of work to look like. The most successful organizations will take lessons learned by the pandemic and the availability of advanced technology to achieve a workplace “nirvana” of sorts—leveraging machine learning and automation to embrace a shift from rigid to fluid work—leaving humans with the role of exercising creativity, applying expertise, and building relationships.

This will not be an overnight change, and will need planning, not least around the legal  challenges this will present. However, what is clear is that employers that have the capability to offer this flexibility and autonomy, but nevertheless refuse to provide it, will be left behind.

A recording of the full presentation, The Future of the World of Work, is available here. Part two, which will be held in October, will focus on the legal implications and issues that organizations should consider as workplaces evolve.

By Marjorie Culver and Caitlin Lane

Seyfarth Synopsis: As employers around the globe consider what their organization’s post-pandemic return to work will look like, one thing is certain: hybrid and remote work arrangements will be part of the new normal.

Creating a sustainable flexible work environment requires consideration of nearly every facet of business operations. From HR and real estate, to health and safety and diversity initiatives, employers are faced with a multitude of issues to consider when developing a hybrid and remote framework that meets market demands, sustains company culture, and is legally compliant.

In fact, Seyfarth’s recent Future of Work pulse survey found that navigating remote and hybrid work was the number one concern in-house legal and business leaders have coming out of COVID-19.

Below are six tips to help guide global employers through this emerging area:

  1. Properly document working arrangements.

As employers begin to formalize hybrid and remote working arrangements, documenting the agreed upon location(s) of work is not only best practice, but may be legally required.

In particular, outside of the US amendments to existing employment contracts may be necessary, or in some cases, entirely new agreements may be required. For instance, in just the past year and a half, new telework/remote working laws have been passed in Spain, Colombia, and Mexico, among others, which impose specific employment documentation obligations in relation to the working arrangement.

For new employees, consider incorporating hybrid or remote working language into offer letters and employment contracts. This not only ensures legal compliance where necessary, but also clarifies working arrangement expectations with new hires from the start.

  1. Tread carefully when considering requests for cross-border remote working.

While the concept of being able to work from anywhere in the world may be appealing to employees, employers should be very cautious when considering such requests. Cross-border working raises a host of issues—from corporate and income tax implications, to work permit and data privacy considerations.

From an employment perspective, cross-border remote work can implicate the labor and social security/insurance remittance laws of both localities, potentially leaving an employer at risk of claims or fines if the proper laws have not been considered. The ability to protect intellectual property and confidential information can also be impacted where there is a dispute about which law applies to the employment relationship. To learn more about managing cross-border remote working, see our previous alert here.

  1. Understand the employer obligations regarding expenses for a home-working arrangement.

Employers must not only consider the business cost impact of hybrid and remote working, but also need to understand the legal obligations relating to expenses and equipment. In particular, employers should be aware of what home-working expenses must be borne by the employer and what expenses must or can be reimbursed. Similarly, an understanding of whether home office equipment must be provided is also essential.

The permissibility of stipends and allowances, as well as their impact on other compensation elements, should be taken into consideration. In certain jurisdictions, a stipend or allowance may need to be included in the calculation of other compensation such as bonuses, vacation pay, and severance, increasing overall costs.

  1. Evaluate occupational health and safety issues that are specific to hybrid and remote work.

Working from home, whether on a fully remote or hybrid basis, introduces new and distinct health and safety considerations for employers. As a starting point, consider the legal obligations. For instance, some countries have health and safety requirements that are specific to the remote working environment such as conducting audits of the workspace or providing certain equipment.

Then, consider other health and safety issues such as mental health and employee wellbeing from the remote working perspective. While there may be health and wellbeing initiatives in place for office workers, consider how these initiatives translate to remote workers. For example, remote workers may be more prone to feelings of isolation than those in the office. As such, mental health initiatives need to adapt and evolve to reflect the wellbeing issues that employees may face in a flexible working environment.

  1. Ensure diversity, equity, and inclusion efforts consider hybrid and remote working populations.

Diversity, equity, and inclusion efforts remain a top priority for many employers. As flexible working arrangements become a more standard offering, DEI policies and practices must take into account the impact of hybrid and remote working. For example, consider how mentoring and leadership training programs are best structured and delivered to hybrid and remote workers and ensure opportunities for all employees, irrespective of their work arrangement.

  1. Embrace hybrid and remote working as a recruitment tool.

Employees want flexibility and in the post-pandemic era; they will be expecting it as an option. If hybrid and remote working becomes the new norm as expected, companies that develop a more comprehensive flexible working plan can leverage that internal framework as a tool to attract talent. Being able to offer not only the option of flexibility, but a thoughtful and holistic business approach will help distinguish companies as employers of choice.

Marjorie and Caitlin are part of Seyfarth’s leading International Employment team and members of the ESG, Corporate Citizenship & Human Rights practice group. To find out more about developing a flexible working plan for hybrid and remote working arrangements, please reach out to them or anyone else on our specialist team.

By James L. Curtis, Benjamin D. Briggs, Adam R. Young, Patrick D. Joyce, A. Scott Hecker, Ilana Morady, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: President Biden announced a six-pronged, “comprehensive national strategy” to combat COVID-19, which will include a second OSHA Emergency Temporary Standard requiring vaccines or testing.

On June 21, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS), its first in decades, relating to COVID-19 that only applied to health care employers. On September 9, 2021, the Biden Administration announced the framework for a second OSHA ETS that will apply to all employers with 100 or more employees, and will mandate COVID-19 vaccination or weekly testing for employees who choose not to get vaccinated. The announcement explains:

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or 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. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

No draft regulations have been released, and employers have no indication of compliance dates.  When issuing an ETS, OSHA does not need to pursue notice-and-comment rulemaking; however, the White House’s Office of Information and Regulatory Affairs held over 40 stakeholder meetings (known as “12866 meetings,” after Executive Order 12866) prior to OSHA’s issuing its healthcare ETS, the development of which took approximately six months. OSHA state plans will have 30 days to adopt their own regulations that are similar or more restrictive than OSHA’s vaccine ETS. The new OSHA ETS will be part of a larger White House plan intended to address the ongoing COVID-19 pandemic and high rates of infection, hospitalization, and death.

The President noted that there are still nearly 80 million Americans eligible to be vaccinated who have not yet gotten their first shot. The President’s plan will reduce the number of unvaccinated Americans by using “regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements—these requirements will become dominant in the workplace.” In addition, the plan will provide “paid time off for vaccination for most workers in the country.” The regulations may put employers on the hook for those payments.

The six prongs of the White House Plan are:

  1. Vaccinating the Unvaccinated
  2. Further Protecting the Vaccinated
  3. Keeping Schools Safely Open
  4. Increasing Testing & Requiring Masking
  5. Protecting Our Economic Recovery
  6. Improving Care for those with COVID-19

Specifically, with respect to COVID-19 vaccines, the President’s plan will:

  • Require All Employers with 100+ Employees to Ensure their Workers are Vaccinated or Tested Weekly
  • Require Vaccinations for all Federal Workers and for Millions of Contractors that Do Business with the Federal Government
  • Require COVID-⁠19 Vaccinations for Over 17 Million Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings
  • Require Staff in Head Start Programs, Department of Defense Schools, and Bureau of Indian Education-Operated Schools to be Vaccinated
  • Call on Large Entertainment Venues to Require Proof of Vaccination or Testing for Entry
  • Require Employers to Provide Paid Time Off to Get Vaccinated

If you’re struggling with a company vaccine policy, see Seyfarth’s Vaccine Policy Playbook – An “essential resource in designing, communicating, and deploying your company’s vaccine policy.” The Playbook guides employers through types of mandates, policy creation and considerations, such as reporting, incentives, and local mandates, and perhaps most importantly, defining an accommodation strategy that reduces the risk of ADA and EEOC claims.

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 Daniel I. Small and Robert S. Whitman

Seyfarth Synopsis: The deadline for employers to distribute their airborne disease prevention safety plan and post the plan in the workplace is approaching. 

As previously reported, the New York Department of Labor has published general and industry-specific model disease prevention protocols under the New York HERO Act. Employers were required to either adopt one of the DOL’s models or create their own airborne disease prevention plan that meets or exceeds the minimum requirements of the law.

Now, employers must distribute the protocol to all of their employees. Technically, the statute calls for this to be done by September 4. But because that is a Saturday, and the next weekday (Monday, September 6) is Labor Day, employers arguably have until September 7 to distribute the plans.

Although the statute requires that the notice be in English and any other language identified by an employee as their primary language, employers can satisfy their obligation by distributing the English version until the DOL publishes non-English versions. Thus far, the only non-English version the DOL has published is Spanish (available here and here). As such, employers with Spanish-speaking employees should use those versions as appropriate.

Employers must also post the safety protocol at each worksite “in a visible and prominent location” within 30 days of adopting their respective safety protocol. Employers must include the protocol in any handbook it provides to its employees. (Doing so will presumably satisfy the need to provide the protocol to newly-hired employees if the employer provides the handbook to new employees at the time of hire.)

Finally, it remains important to bear in mind that that the current requirements pertain only to adoption and circulation of safety plans. Because no current airborne safety emergency has been declared (notwithstanding the continued threat posed by COVID-19 and the Delta variant), employers are not currently required to activate their plans.

Employers should continue working with counsel to ensure compliance with the provisions of the HERO Act, particularly regarding their distribution and posting requirements for workforces that speak languages other than English.

Seyfarth will continue to monitor developments in this space and provide updates when available.