By Brent I. Clark, James L. Curtis, Benjamin D. Briggs, Mark A. Lies, II, Adam R. Young, A. Scott Hecker, Ilana Morady, Patrick D. Joyce, Daniel R. Birnbaum, Matthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: On June 9, 2021, at the tail end of prepared remarks before the House Education and Labor Committee, Secretary of Labor Marty Walsh announced – not with a bang, but with a whimper – that OSHA would publish its long-anticipated COVID-19 emergency temporary standard (“ETS”) on June 10, and that the ETS would focus only on the health care industry.

When OSHA sent the ETS to the White House’s Office of Information and Regulatory Affairs on April 26, 2021 (more than a month after President Biden’s initial deadline for doing so), observers anticipated a broad rule, covering the full breadth of OSHA’s jurisdiction. Focusing solely on health care, OSHA’s June 10 ETS likely disappoints unions and worker advocates who continued to champion the ETS well after science – and CDC guidance – pointed to a lack of necessity. In addition to the actual ETS, OSHA has developed supplemental ETS-related resources, including a helpful flowchart to determine coverage.

ETS Requirements

For those employers who fall into covered categories, including hospitals, nursing homes, and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care settings where suspected or confirmed coronavirus patients are treated, the ETS requires:

  • Developing and implementing a COVID-19 plan, including worksite-specific hazard assessments, to mitigate virus spread;
  • Limiting and monitoring entry points, and screening and triaging all clients, patients, residents, delivery people and other visitors, and other non-employees entering the setting;
  • Developing and implementing policies and procedures to adhere to Standard and Transmission-Based Precautions in accordance with CDC’s “Guidelines for Isolation Precautions”;
  • Providing and ensuring employees wear facemasks, with certain exceptions. Under certain circumstances, N95 respirators or other personal protective equipment must be provided by the employer to employees. Where N95s are used, but not required, employers must follow the new mini respiratory protection program included as 29 CFR 1910.504 (yes, it’s actually called a “mini respiratory protection program”);
  • Following specific protocols when an aerosol-generating procedure is performed on a person with suspected or confirmed COVID-19;
  • Physical distancing, i.e., ensuring six feet of distance between workers where feasible. Where physical distance is not feasible, the employer must ensure that the employee is as far apart from all other people as feasible, and must install barriers in fixed work locations outside of direct-care areas;
  • Cleaning and disinfection;
  • Ventilation;
  • Employee screening and notification of COVID-19 exposure;
  • Training;
  • Recordkeeping; and
  • Reporting COVID-19 fatalities and hospitalizations.

The standard also requires covered employees to provide workers with paid time off to get vaccinated and to recover from side effects. Employees who have coronavirus or who may be contagious must work remotely or be separated from others, or they must be provided paid time off, up to $1,400 per week.

Employers must advise employees that employees cannot be retaliated against for exercising rights under the ETS, and employers must implement the ETS with no cost to employees.

In well-defined areas where there is no reasonable expectation that any person will be present with suspected or confirmed coronavirus, the ETS exempts fully vaccinated workers from its masking, distancing, and barrier provisions.

Updated Guidance for Non-Health Care Sectors

OSHA’s revised guidance covering non-health care workplaces focuses its risk mitigation protocols on unvaccinated workers. Referring to CDC guidance, OSHA notes that fully vaccinated individuals do not need not take all of the same precautions that unvaccinated people should. Further, OSHA advises that most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure, unless stricter state or local laws apply.

OSHA appears to have finally reached the conclusion that it cannot demonstrate the need and gravity necessary to warrant an all-industry ETS. But employers should expect the updated guidance to serve as fodder for additional citations under OSHA’s COVID-19 National Emphasis Program, including pursuant to the General Duty Clause of the OSH Act. Maintaining required protocols and following all applicable guidance – as well as any stricter state and local rules – remains paramount in the enforcement arena.

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 Lorie E. Almon, Meredith-Anne Berger, Anne R. Dana, and Glenn J. Smith

Seyfarth Synopsis: With no fanfare or effective means of publication, New York adopted an emergency regulation, effective May 26, 2021, implementing the latest CDC guidance on face coverings, with certain key exceptions. Notably, face coverings are required for unvaccinated food service workers at all times, regardless of proximity from others. While employers have been expecting revised industry-specific guidance to incorporate the new social distancing and mask mandates, instead, on June 7, 2021, Governor Cuomo announced that upon reaching a 70% vaccination rate for adults state-wide, most restrictions currently in place will be lifted.

New York State recently published emergency regulations (66-3.1—66-3.5) regarding mandatory face coverings in the wake of COVID-19 and the State’s adoption of the CDC’s recent guidance, which we previously discussed here, allowing fully vaccinated individuals to go without a face covering under most circumstances. They also address non-essential gatherings and penalties.

The emergency regulations provide, in sum:

  • Individuals over age two and who are medically able must wear a face covering in a public place when not maintaining a social distance, unless the individual is fully vaccinated (i.e., 2+ weeks after the final dose of any COVID-19 vaccine), in which case a face covering is not required. Exceptions to this rule include: a pre-kindergarten to twelfth grade school, public transit, homeless shelter, correctional facility, nursing home, health care setting, or other setting where mask use is otherwise required by federal or state law or regulation.
  • Employees in any workplace who are not fully vaccinated must wear a face covering when “in direct contact with customers or members of the public, or when unable to maintain social distance.” Notably, employees of food service establishments who are not fully vaccinated must wear a face covering at all times while at the workplace. Businesses must provide such face coverings at no cost to employees.
  • Businesses and building owners may require all individuals who enter their premises to wear a face covering, and are entitled to deny admittance to any person who does not comply. Note, this particular provision is subject to conformance with the Americans with Disabilities Act, New York State, and New York City Human Rights Laws.
  • Businesses cannot deny services or discriminate against any individual on the basis that they choose to wear a mask for purposes of protection against COVID-19, but which is not designed to otherwise obscure the identity of the individual.
  • Non-essential gatherings are prohibited under certain circumstances, i.e., over capacity limitations provided by relevant Executive Orders or on sidewalks, streets or other public property within 100 feet of a food service establishment or a business holding a liquor license. Any non-essential gatherings must comply with social distancing protocols and cleaning and disinfection guidelines. This prohibition does not apply to essential businesses as defined by Empire State Development.
  • Fines for violation of the emergency regulations are $1,000 per violation, except for violating capacity limits on non-essential gatherings or for a business or individual who promotes a non-essential gathering, which has a maximum fine of $15,000.

While it was expected that New York’s industry-specific guidance would be updated to address the new mask and social distancing rules, it now appears that is unlikely. Instead, during a press conference on June 7, 2021, Governor Cuomo announced that “most remaining COVID restrictions will be lifted when 70% of adult New Yorkers have received at least one dose of the COVID vaccine.” At the time of the announcement, the percentage was at 68.6%.

The announcement included the following:

  • “The State’s New York Forward industry specific guidelines — including capacity restrictions, social distancing, cleaning and disinfection, health screening, and contact information for tracing — will become optional for retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and personal care services, among other commercial settings. Large-scale event venues, pre-K to 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, and healthcare settings must continue to follow the State’s guidelines until more New Yorkers are vaccinated.”
  • Unvaccinated individuals will still be responsible for maintaining proper social distancing of six feet and wearing a mask. In addition, large-scale event venues, Pre-K to 12 schools, public transit, homeless shelters, correctional facilities, nursing homes and health care settings will be exempt from the restriction lift, and New York State’s existing COVID-19 health protocols will remain in effect. (Notably, the requirement that unvaccinated food service workers continue to mask at all times was not mentioned as a restriction that will remain in place, but this may have been an oversight).

It is also unclear whether the emergency regulations cited above are intended to work in tandem with the lifting of the industry-specific guidance upon reaching the 70% threshold, or will once again be amended in accordance with same. This likely depends on whether the rollback of the industry-specific guidance is effectuated through a broader lifting of the COVID-19 disaster emergency declaration.

Seyfarth will continue to track what has become a rather confusing lifting of restrictions across New York. Please contact your Seyfarth attorney with any questions you may have.

By Coby Turner, Patrick D. Joyce, Ilana Morady, Adam R. Young, and Elizabeth M. Levy

Seyfarth Synopsis: The California Occupational Safety & Health Standards Board (OSHSB) was supposed to consider changes to the COVID-19 Emergency Temporary Standard (ETS) on May 20, 2021. But after the CDC published a May 13, 2021 guidance saying that fully vaccinated individuals could resume pre-pandemic activities without masks, Cal/OSHA asked the OSHSB to delay its consideration of the proposed ETS revisions until Cal/OSHA could “revisit the proposed COVID-19 prevention emergency regulation in light of this new guidance.” Cal/OSHA has now published its new draft regulations, which appear to be more strict than the prior proposal. The OSHSB will consider the new proposal at its June 3, 2021, meeting.

Background

In the fast-paced and ever-changing environment of COVID-19 regulation, the story of Cal/OSHA’s ETS is becoming more and more convoluted. If you read our May 12, 2021, blog, you know that earlier this month Cal/OSHA published proposed revisions to its ETS. The proposed revisions were a significant move in the right direction, relaxing some of the more burdensome aspects of the ETS in light of the improving state of the pandemic. The OSHSB was scheduled to consider and vote upon the proposed revisions at its May 20, 2021 meeting.

But then, on the eve of the meeting, Cal/OSHA submitted a memorandum to the OSHSB asking that consideration of the proposed revisions be deferred. Cal/OSHA cited the CDC’s May 13, 2021 guidance allowing fully vaccinated individuals to forego masks in most situations, as well as the May 20, 2021 California Health & Human Services announcement that California plans to implement the updated CDC guidance starting June 15, 2021. The memorandum explained, “The Division is thus requesting that the Board not vote to approve the current proposal before it, and instead allow us to present a new proposal at a future meeting. The Division will limit any potential changes to consideration of the recent guidance, in order to make possible a targeted effective date of June 15, 2021.”

The new proposal has now been published (and here is a redline to the prior proposed changes), and the OSHSB is scheduled to consider it, and vote, at the upcoming June 3, 2021 meeting.

What Has Changed from the May 20 Proposal?

The revised proposal misses many of the most sought-after updates related to mask usage, and in fact appears stricter on many measures than the last proposal, despite relaxed measures recommended by the CDC. Changes from the earlier proposal include:

  • Employers cannot immediately eliminate physical distancing requirements for fully vaccinated worksites—they must keep these measures in place until at least July 31, 2021.
  • Employers would be immediately required to offer free COVID-19 testing to unvaccinated symptomatic workers during paid working time, even if there is no indication that the exposure was work related (the previous iteration did not start this requirement until July 31, 2021).
  • Fully vaccinated workers who test positive for COVID-19 would still have to be excluded from work for 10 days after the positive test, even if they are asymptomatic.
  • After July 31, 2021, employers would have to provide respirators to all employees who are not fully vaccinated for voluntary use.
  • Employers would not be able to eliminate cleanable solid partitions in fully vaccinated worksites.

The revisions also include provisions aimed at maintaining mitigation measures for employees at “outdoor mega events,” which is an outdoor event with over 10,000 participants or spectators. Finally, OSHSB added a provision requiring employers to notify employee of the benefits of the COVID-19 vaccine, including that the vaccine has been effective at preventing serious illness or death (in addition to the information required in the prior proposal related to testing accessibility and proper respirator use).

The revisions do not require blanket vaccine-verification, of employees or third parties, along the lines of the onerous requirements we have seen in Oregon and Santa Clara, as many employers thought may be included.

But to be “fully vaccinated” for purposes of the limited changes in the new proposed ETS, it “means the employer has documentation showing that the person received, at least 14 days prior” either the second dose of a two-dose regimen, or a single dose of an FDA approved or emergency authorized vaccine. This is also a departure from the CDC definition of “fully vaccinated,” which includes World Health Organization approved or emergency authorized vaccines. So, if you have employees coming in from abroad that have received the AstraZeneca or Sinopharm vaccines, they technically do not meet the qualifications under the proposed ETS and would have to be treated as if they were unvaccinated.

What’s The Same?

Unfortunately, OSHSB appears to have missed its biggest opportunity to align with CDC’s May 13 guidance: employees who are fully vaccinated still must wear face coverings while indoors and in mixed company with employees who are not fully vaccinated. This restriction is contrary to CDC’s May 13 guidance.

But various items from the prior proposed version of the ETS remain in place, including:

  • Fully vaccinated or naturally immune workers would not need to be excluded from work after a close contact so long as they remain symptom-free.
  • Employers still can provide employees who are not fully vaccinated with respirators for “voluntary use” to avoid having to enforce six-feet physical distancing for those individuals.
  • Employers would no longer need to offer COVID-19 testing to workplace close contacts if the potentially exposed employees were fully vaccinated or had natural immunity (previously infected within the prior 90 days).
  • The definition of a sufficient face covering would include only a medical, surgical, or two-fabric layer mask, or respirator—meaning many of the fancy masks that employees may have personally purchased will no longer meet the safety standard.
  • “Outbreak testing” would no longer be required when the local public health department identifies the workplace as the location of an outbreak—which could eliminate the challenge many employers have faced with inconsistency in how local public health departments identify outbreaks.
  • Individuals wearing a respirator under a Cal/OSHA-compliant respiratory protection program would be exempt from individuals identified under the definition of a “close contact.”
  • Notifications related to close contacts or outbreaks would be required to be given in a language the employee understands, and verbal notice would be permissible.

What Else Do I Need to Know?

Remember that Cal/OSHA continues to update its interpretive guidance on the ETS via its Frequently Asked Questions page.

The full text of the proposed revision to the ETS can be found here and a comparison with the May 20 proposal can be found here. It’s likely the Standard Board will vote on June 3, 2021. It’s anticipated that the revised ETS would become effective on or around June 15, 2021, to align with the State’s “re-opening.”

Workplace Solutions

Remember to check in with your Seyfarth counselors regularly, as this is a rapidly developing area of law. If you need any assistance with your workplace safety planning, or have questions about requirements related to testing, quarantine, or how to pay workers that are out sick with COVID-19, please feel free to reach out to the authors of this post. Seyfarth can also assist with compliance counseling if you are considering implementing mandatory vaccination programs or creating incentives for your employees to be vaccinated

By Karla Grossenbacher and Jean Wilson

Seyfarth Synopsis: The EEOC has updated its Technical Assistance Guidance (“Updated Guidance”) related to COVID-19 and, in particular, what employers are permitted to do with respect to vaccination programs and incentives for employees to get vaccinated. The EEOC’s Guidance was prepared prior to the CDC’s updated guidance for fully vaccinated individuals and does not specifically address employer questions related to the treatment of unvaccinated and vaccinated employees in the workplace. The EEOC indicated that it is currently considering any impact the CDC’s guidance might have on the guidance it has provided to date. Although the EEOC leaves much of its guidance from December 2020 in place, here are the key changes and additions in the Updated Guidance.

Mandatory Vaccination Programs

Although the majority of employers in the U.S. have not mandated that their employees get the vaccine, the Updated Guidance confirms that employers can require that employees be vaccinated in order to physically enter the workplace, subject to reasonable accommodations required for individuals with disabilities or religious objections, as previously discussed. The Updated Guidance provides additional examples of reasonable accommodations that an employer can consider that would allow an unvaccinated employee to come into the workplace, including wearing a face mask, maintaining social distance from others, working a modified shift, periodic COVID-19 testing, being allowed to telework or, as a last resort, reassignment to another position.

The EEOC recommends as a “best practice” in the Updated Guidance that an employer introducing a mandatory COVID-19 vaccination policy notify all employees that the employer will consider requests for reasonable accommodation based on disability or religious objection and that such requests will be considered on an individualized basis. The Updated Guidance also affirmatively states that employees who cannot get vaccinated because of disability or religious objection are responsible for notifying their employer of the need for an exemption from the mandatory vaccine requirement. In this regard, the EEOC recommends that employers train managers responsible for communicating with employees about the employer’s vaccine requirement on how to recognize a request for an accommodation and to whom in the organization they should refer the accommodation request for full consideration.

In addition to these accommodation issues, the Updated Guidance instructs employers to assess whether a vaccine requirement may have an adverse impact on or disproportionately exclude employees based on their race, color, religion, sex, national origin, or age. Specifically, the Updated Guidance states that “[e]mployers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.” This assessment will likely differ from workplace to workplace and region to region.

Also, in the Updated Guidance, although the EEOC maintains the distinction it drew in the December guidance between mandatory programs in which an employee receives the vaccine from a third party and those in which the employer administers the vaccine, it slightly restates the standard.  In the December guidance, the EEOC required a showing that a mandatory vaccine program was job-related and consistent with business necessity where the employer or a third party under contract with the employer administers the vaccine.  In the wake of the December guidance, questions arose about what type of contractual relationship triggered this heightened justification for a mandatory vaccine policy.  In the Updated Guidance, the EEOC clarifies that the relationship must rise to the level of agency, stating that the heightened showing applies if the vaccine is administered by the employer or its agent.

Voluntary Vaccine Programs

The Updated Guidance clarifies that employers who do not require that employees get the vaccine may still opt to have employees disclose their vaccine status, reaffirming that, as long as questions are limited to whether or not an employee is vaccinated (including the type of vaccine and dates administered) and do not inquire as to why an employee may have chosen not to get the vaccine, this inquiry is not considered a “disability-related” inquiry under the ADA.  Also, even where an employer provides the vaccine directly or through an agent, the pre-vaccination questions are permissible under the ADA, provided that an employee’s decision to answer the questions are voluntary.

Request for Accommodation from Vaccinated Employees

The EEOC addresses in the Updated Guidance that fully vaccinated employees may still be entitled to reasonable accommodation based on an underlying medical condition, instructing that employers must consider requests from fully vaccinated employees with a disability who request an accommodation because of a continuing concern that the employee faces a heightened risk of severe illness from a COVID-19 infection. The Updated Guidance explains that there are some employees who are immunocompromised and, as a result, the vaccine may not offer them the same measure of protection as other vaccinated individuals. In this situation, employers must engage in the interactive process with such employees and provide an accommodation, absent undue hardship.

Vaccine Requirements for Pregnant Employees

The EEOC Guidance also addresses requests for accommodation from employees who may request an exemption from a COVID-19 vaccine requirement because of pregnancy. In addressing these requests, the EEOC states that employers must ensure “that the employee is not being discriminated against compared to other employees similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work.” This portion of the Guidance seems to impose a duty on an employer to accommodate pregnant employees who do not get the vaccine in the same manner that the employer is accommodating employees who cannot get the vaccine because of disability or religious objection. The Guidance specifically directs employers to ensure managers and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII. Employers will want to carefully assess any such request and keep in mind accommodations that have been provided to other employees who are unable to get the vaccine.

Confidentiality of Proof or Confirmation of Vaccination

The EEOC makes clear in its updated guidance that documentation concerning proof or confirmation of vaccination is a medical record subject to the strict confidentiality requirements of the ADA.

In its prior December 2020 guidance, the EEOC had stated employers could ask for proof of vaccination status from employees and further instructed employers to caution employees not to include “medical information“ with their proof of vaccination. This raised questions about whether proof of vaccination itself was considered confidential medical information within the meaning of the ADA. The EEOC has now answered that question in the affirmative.

This pronouncement means that employers must treat proof or confirmation of vaccination as a confidential medical record under the ADA, which requires that such documentation be stored separately from the employee’s personnel file and once collected by Human Resources only shared as follows:

(i) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

(ii) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and

(iii) Government officials investigating compliance with this part shall be provided relevant information on request.

29 CFR § 1630.14.  Employers who have already collected this information should move quickly to make sure that it is being stored and/or shared in a manner consistent with these requirements and update their policies and procedures accordingly.

Vaccine Incentives

The EEOC also confirmed the applicability of its wellness regulations under the ADA regarding vaccine incentives.  The EEOC’s updated guidance confirms that, under the ADA, if the employee receives the vaccine by a third party, i.e., not the employer or its agent, the employer can offer an incentive of any kind and require proof of vaccination form the employee before providing the incentive.  If, however, the employee receives the vaccine from the employer or its agent, then there are limits on the type of incentive that may be offered.  Specifically, it must not be “so substantial as to be coercive,” according to the EEOC’s update guidance.  This is consistent with the voluntariness requirement contained in the EEOC’s wellness rules under the ADA as we explain in our prior blog about the applicability of the EEOC’s wellness rules to vaccine incentives.  Although the EEOC explained in its updated guidance that a “very large incentive” could make employees feel pressured to disclose protected medical information (by responding to medical pre-screening questions when getting the vaccine from the employer or its agent), the EEOC did not give examples or set any specific parameters for what is or is not a “very large incentive.”  Employers who plan to provide the vaccine directly or through an agent, and are also offering vaccine incentives that might be considered “very large,” will want to reconsider their approach.

Employers need to review their current practices and policies regarding mandatory vaccinations programs, collection of proof of vaccination and vaccine incentives, as well as their accommodation processes to ensure compliance with the Updated Guidance.  Please reach out to your Seyfarth relationship attorney or the authors of this blog for assistance.

By: Jennifer L. Mora and Jeffrey A. Berman

The National Labor Relations Board’s sole Democrat, Chairman Lauren McFerran, has issued two new dissents that portend how a Biden Board likely will reverse precedent established by the Trump Board. This update is our fourth in a multi-part series discussing how Chairman McFerran’s dissents are likely to become the law once President Biden appoints new Board members and the Democrats are in the majority (see here regarding confidentiality in arbitration agreements, here regarding implementation of employee handbooks, and here regarding investigative confidentiality rules). The latest examples appear in separate Board decisions issued on April 30, 2021 (The George Washington Univ. Hospital) and May 3, 2021 (AT&T Mobility, LLC).

In George Washington , the Republican majority dismissed a complaint alleging that the employer had engaged in surface bargaining (e.g., going through the motions of negotiating a collective bargaining with no intent of actually reaching a deal). In sum, according to the majority:

The [employer] met with the Union for 30 bargaining sessions, made many of its initial proposals at the outset of the negotiations, solicited counterproposals from the Union, made concessions in response to the Union’s bargaining positions, and never refused to bargain over any mandatory bargaining subject—and all the while it calmly answered the Union’s bellicose conduct by continuing to bargain.

Noting that the Board “does not sit in judgment of a party’s bargaining proposals,” and faced with this evidence, the majority rejected the administrative law judge’s reliance on the substance of the employer’s proposals (primarily an initial request for substantial concessions) in finding bad faith bargaining, pointing to the fact that “not one of the … proposals was unlawful in and of itself.”

McFerran disagreed, pointing to the substance of the employer’s proposals, especially as they related the management rights clause, the no-strike provision, union security, and the grievance and arbitration process. What the majority described as a permissible “wish list, throw-in-the-kitchen-sink” proposal, McFerran dissent characterized as an “attempt to disrupt the process to reach an agreement.”

On this critical point, McFerran argued that “employer proposals which, taken as a whole, would leave employees with fewer rights than they would have without a contract are clearly designed to frustrate the collective-bargaining process.” She would have found a violation based solely on the employer’s presentation of its proposals relating to management rights, strikes, and grievance and arbitration procedures.

McFerran also would have found a violation based on the employer’s proposal to remove union security and dues-checkoff clauses from the agreement. And while the Board faulted the union for not responding to certain employer proposals (opining that the union had decided early on that the employer wasn’t interested in reaching a deal), McFerran stated that the majority was improperly “giv[ing] out points for politeness” and engaging in victim blaming.

The George Washington decision provides a good example of the stark contrast between how Republican and Democrat members view the same facts. It also serves as a reminder to employers to work with experienced labor counsel to develop a bargaining strategy that will withstand scrutiny under the soon-to-be Biden Board.

In AT&T Mobility, LLC, the Republican majority dismissed part of the complaint alleging that the employer violated the National Labor Relations Act by maintaining a work rule stating that employees “may not record telephone or other conversations they have with their co-workers, managers or third parties unless such recordings are approved in advance by the legal department.” Applying the Board’s 2017 Boeing decision, the Board balanced the employer’s justification for a policy the Board deemed to be neutral on its face against employees’ Section 7 rights. The Board upheld the policy concluding that, “[a]lthough the policy may prevent recording of some protected conversations, the vast majority of conversations covered by the policy bear no relation to Section 7 activity.”

In dissent, Chairman McFerran signaled that the analytical framework for analyzing handbook policies under Boeing is likely to be jettisoned by the Biden Board. Specifically, she described the rule as “unlawfully overbroad” and asked the Board to “reject the analytical framework of Boeing,” stating that it was “so forgiving to employers that it cannot be reconciled with the Act’s guarantees to employees.”

The fundamental flaw with Boeing, according to McFerran, “is that it permits employers to maintain rules that reasonably tend to chill employees in the exercise of their rights under the Act, while failing to require that employers narrowly tailor their rules to serve demonstrated, legitimate interests.” In comparing the standard for considering work rules before and after Boeing, she wrote:

Until Boeing, an employer was required to tailor workplace rules so that workers would understand that they were free to engage in activity protected by the NLRA without subjecting themselves to discipline or discharge. After Boeing, workers must not only be brave enough to engage in protected activity, but they must also be brave enough to knowingly violate workplace rules and so subject themselves to the threat of discipline. A clearer recipe for stifling protected activity is hard to imagine. (Emphasis in original.)

It is extremely like that, consistent with McFerran’s dissent, the Biden Board will overturn Boeing and return to the Obama Board’s framework for considering employee work rules. According to McFerran, the no-recording rule in AT&T Mobility would have been unlawful under pre-Boeing precedent. As such, employers, including those with non-union workforces, would be well-advised to review their handbook policies in anticipation of a possible dramatic shift in Board law.

Seyfarth Synopsis: On Monday, May 24th at 12:30 p.m. Eastern, Seyfarth attorneys Adam Young, Scott Hecker, and Patrick Joyce will present a webinar entitled Evolving Landscape: OSHA and CDC COVID-19 Guidance.

During his first full day in office, President Biden issued an Executive Order directing OSHA to consider a COVID-19 emergency temporary standard (ETS). OSHA drafted an ETS, which is in White House review, and its imminent release has been reported for weeks. Meanwhile, since President Biden’s executive order, OSHA issued new COVID guidance and announced a COVID-19 National Emphasis Program that DOL is aggressively enforcing.  With new CDC guidance for fully vaccinated individuals announced on May 13, and OSHA playing catch up, the federal landscape is as slippery as ever.

In this mini-webinar, members of Seyfarth’s Workplace Safety & Environmental Practice Group will provide a status on the ETS and its contents. We will also discuss OSHA’s guidance, National Emphasis Program, and employer liabilities related to continued COVID precautions in the workplace. We will provide recommendations for how companies can respond to the new ETS and apply new guidance from the CDC for vaccinated employees.

Registration is free, but attendees are limited, so please Register Here.

If you have any questions, please contact Kelly Sokolowski at ksokolowski@seyfarth.com and reference this event.

Learn more about our Workplace Safety & Environmental practice.

This webinar is accredited for CLE in CA, IL, NJ, and NY. Credit will be applied for as requested for TX, GA, WA, NC, FL and VA.  The following jurisdictions accept reciprocal credit with these accredited states, and individuals can use the certificate they receive to gain CLE credit therein: AZ, CT, ME, NH.  The following jurisdictions do not require CLE, but attendees will receive general certificates of attendance: DC, MA, MD, MI, SD.  For all other jurisdictions, a general certificate of attendance and the necessary materials will be issued that can be used in other jurisdictions for self-application. If you have questions about jurisdictions, please email CLE@seyfarth.com.

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

Seyfarth Synopsis: On May 18, 2021, OSHA adopted (by reference) CDC’s May 13, 2021 guidance for fully vaccinated individuals in many non-healthcare settings. Specifically, OSHA announced that employers should “refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”

According to the May 13, 2021 CDC “Interim Public Health Recommendations for Fully Vaccinated People,” which OSHA adopts by reference, individuals who are fully vaccinated against COVID-19 may stop wearing masks or maintaining social distance in the vast majority of indoor and outdoor settings, regardless of crowd size.

Under the Biden administration, federal OSHA has taken an aggressive position with regard to ramping up COVID-19 workplace health and safety enforcement, which often appears to conflict with CDC guidance. OSHA has not yet issued specific regulations relating to COVID-19 or infectious diseases more generally. OSHA supposedly has drafted a COVID-19 emergency temporary standard (ETS), which has not yet been released. As of May 17, 2021, we understand that the ETS is moving forward and will apply to all general industry worksites.

After the transition to the Biden administration, OSHA issued COVID-19 Guidance on January 29, 2021. With respect to vaccinated employees, OSHA explains that “workers who are vaccinated must continue to follow protective measures, such as wearing face covering and remaining physically distant, because at this time, there is not [sic] evidence that COVID-19 vaccines prevent transmission of the virus from person to person.” This prior guidance from OSHA appears to conflict with CDC’s May 13, 2021 update.

Until today, the probability of OSHA enforcement under two seemingly contradictory sets of guidance was an open question. Though the OSHA website still requires vaccinated employees continue to mask and social distance, OSHA has added a banner at the top of the webpage indicating that the CDC’s May 13, 2021 guidance will trump OSHA’s vaccinated employee guidance while OSHA reviews its own measures, and that new guidance from OSHA is forthcoming.

With respect to enforcement, OSHA looks to its guidance to determine whether hazards are “recognized” and whether employers’ health precautions are sufficient to abate the hazards. Due to OSHA’s adoption by reference of CDC’s May 13, 2021 update, we do not anticipate OSHA to try to establish liability based on alleged exposures from vaccinated, asymptotic employees.

As we previously blogged, the CDC’s May 13, 2021 guidance cautions that fully-vaccinated individuals must continue to abide by existing state, local, or tribal laws and regulations, and applicable workplace guidance. Further, they must follow rules put in place by businesses. CDC indicates that 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

Non-safety considerations employers may want to take into account include how to internally enforce the requirement that only fully vaccinated individuals can go mask-less, whether employers’ policies may lead to disparate treatment or negatively impact morale, and maintained uniform corporate protocols.

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, Adam R. Young, A. Scott Hecker, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: On May 13, 2021, CDC announced further updated recommendations for fully vaccinated people in non-healthcare settings.

In an unexpected turnabout from previous guidance, the CDC updated its “Interim Public Health Recommendations for Fully Vaccinated People” to recognize that individuals who are fully vaccinated against COVID-19 may stop wearing masks or maintaining social distance in the vast majority of indoor and outdoor settings, regardless of crowd size.

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

In deference to local authorities, fully vaccinated individuals must continue to abide by existing state, local, or tribal laws and regulations, and applicable workplace guidance. Further, they must follow rules put in place by businesses. Many state and local jurisdictions currently have mandatory rules requiring masking and social distancing, mostly while indoors. Given this updated guidance, it is likely that state, local, and tribal governments, as well as businesses, will update mask requirements and guidance in the near future. We had previously blogged on the CDC’s updates allowing fully vaccinated individuals to remove masks outdoors, with certain restrictions.

The CDC new position can be summed up as follows: if you are fully vaccinated, you are protected, and you can start doing the things that you stopped doing because of the pandemic. But the new guidance comes with caveats. Even vaccinated individuals must cover their faces and physically distance when going to doctors, hospitals, or long-term care facilities like nursing homes; when traveling by bus, plane, train or other modes of public transportation, or while in transportation hubs like airports and bus stations; and when in prisons, jails or homeless shelters.

Specific updates in the new guidance include:

  • Fully vaccinated people no longer need to wear a mask or physically distance in most settings, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.
  • Fully vaccinated people can refrain from quarantine and testing following a known COVID-19 exposure unless they are residents or employees of a correctional or detention facility or a homeless shelter, or unless they start showing COVID-19 symptoms after exposure.

For now, if you’ve been fully vaccinated:

  • You will still need to follow guidance at your workplace and requirements put in place by businesses.
  • If you travel, you should still take steps to protect yourself and others. You will still be required to wear a mask 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. Fully vaccinated international travelersarriving in the United States are still required to get tested within 3 days of their flight (or show documentation of recovery from COVID-19 in the past 3 months) and should still get tested 3-5 days after their trip.
  • You should still watch out for symptoms of COVID-19, especially if you’ve been around someone who is sick. If you have symptoms of COVID-19, you should get testedand stay home and away from others.

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 Leon Rodriguez and Emily J. Miller

Seyfarth Synopsis: On Monday, the Department of Health and Human Services (“HHS”) announced that the prohibition against discrimination “on the basis of sex” under Section 1557 of the Affordable Care Act (“Section 1557”) once again includes gender identity and protects transgender patients from discrimination by covered entities.[1]

Section 1557 prohibits discrimination on the basis of race, color, national origin, disability, age, and sex in health programs and activities that receive federal financial assistance.[2]  The statute itself is a patchwork of nondiscrimination laws – it borrows prohibitions against discrimination on specific bases from existing civil rights laws. The prohibition against sex discrimination under Section 1557 flows from its reference to Title IX of the Education Amendments of 1972 (“Title IX”).[3]

At its inception in 2010, Section 1557 protected against discrimination based on gender identity.  The law was challenged in 2016, and in 2019, HHS issued a notice of proposed rulemaking pertaining to Section 1557.[4]  In June 2020, HHS issued its final rule, scrapping health care protections based on gender identity on the grounds that the protections stretched “the plain meaning of the underlying civil rights statutes” too far.[5]

But just three days before HHS issued its final rule, the Supreme Court had issued its decision in Bostock v. Clayton County, holding that the prohibition against discrimination “on the basis of sex” under Title VII includes sexual orientation and gender identity.[6]  HHS’s announcement yesterday resolves the “accordion-like quagmire” we described in a June 2020 legal update under which “on the basis of sex” included gender identity and sexual orientation under Title VII – but was interpreted by at least one executive branch agency to exclude the same under Section 1557 vis-à-vis Title IX.[7]

In March 2021, by memorandum to Federal Agency Civil Rights Directors and General Counsels, the U.S. Department of Justice (“DOJ”), Civil Rights Division shared its view that the Supreme Court’s analysis of Title VII in Bostock also applies to Title IX.[8]  In short, Title IX’s prohibition against discrimination “on the basis of sex” also prohibits discrimination based on sexual orientation and gender identity.[9]

Citing the Bostock decision, a string of case law since, and the DOJ memorandum, HHS said that it would interpret and enforce the prohibition against sex discrimination under Section 1557 to include sexual orientation and gender identity.[10]  HHS said that “[t]his interpretation will guide OCR in processing complaints and conducting investigations.”[11]  And like the Supreme Court did in Bostock, HHS acknowledged the Religious Freedom Restoration Act – and said it would continue to comply with that law “and all other legal requirements.”[12]

We can expect  HHS to now begin in earnest to enforce Section 1557 consistently with the Bostock decision.  In future updates,  we will discuss various fact patterns and scenarios which we anticipate as subject of potential complaints as well as enforcement actions by HHS.

[1] Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, https://www.hhs.gov/sites/default/files/ocr-bostock-notification.pdf (last accessed May 11, 2021).

[2] Section 1557 of the Patient Protection and Affordable Care Act, Nondiscrimination Requirements, 45 C.F.R. § 92.2 (2020).

[3] Id.

[4] HHS Finalizes Rule on Section 1557, June 12, 2020, https://www.hhs.gov/about/news/2020/06/12/hhs-finalizes-rule-section-1557-protecting-civil-rights-health care.html (last accessed May 11, 2021).

[5] Final Rule, June 12, 2020, https://www.federalregister.gov/documents/2020/06/19/2020-11758/nondiscrimination-in-health-and-health-education-programs-or-activities-delegation-of-authority (last accessed May 11, 2021)

[6] Bostock v. Clayton County, 590 U.S. __ (2020), https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf (last accessed May 11, 2021).

[7] HHS Issues Final Rule on Section 1557, https://www.seyfarth.com/news-insights/hhs-issues-final-rule-on-section-1557.html (last accessed May 11, 2021).

[8] Memorandum to Federal Agency Civil Rights Directors and General Counsels, https://www.justice.gov/crt/page/file/1383026/download (last accessed May 11, 2021).

[9] Id.

[10] Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, https://www.hhs.gov/sites/default/files/ocr-bostock-notification.pdf (last accessed May 11, 2021).

[11] Id.

[12] Id.

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