COVID-19 Compliance Alerts

Federal

Posted on: April 17, 2023

Many employers may have questions and concerns about the impact of the anticipated May 11, 2023 end of the federal COVID-19 National Emergency and Public Health Emergency Orders. In response, on March 29, 2023, the U.S. Department of Labor (DOL), U.S. Department of Health and Human Services (HHS), and the U.S. Department of the Treasury issued frequently asked questions (FAQ) guidance to assist employers preparing for the end of these Orders. The FAQ guidance addresses questions related to the extended deadlines for COBRA, special enrollments and group health plan claims and appeals. The FAQ guidance also addresses coverage of vaccines. Click here for more information.

Next Steps

Review the FAQs for more details including what coverage of COVID-19 vaccines and preventive services, tests and treatment is required (or encouraged) after the Public Health Emergency Order expires.

Plan sponsors should be aware of the effect that the expiration of the two emergency periods will have on their benefit plans and will need to decide whether to continue to extend benefit plan deadlines. Regardless of any decision on continuing to extend deadlines, plan sponsors should consider how to communicate with participants about these issues.

Posted on March 10, 2021

The U.S. Occupational Safety and Health Administration (OSHA) has issued new guidance to help employers and employees identify risks of being exposed to and/or contracting COVID-19 at work.

COVID-19 Prevention Programs:

In the guidance, OSHA makes clear that implementing a workplace COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work.

The program should engage workers and their representatives in the program's development and implementation at every step, and include the following elements:

Details on each of these elements as well as other measures to prevent the spread of COVID-19 can be found in the guidance.

Compliance Recommendations:

While the guidance creates no new legal obligations and doesn't carry the same weight as a law or regulation, employers may find it helpful in identifying the risks of exposure to COVID-19 in the workplace and in determining appropriate control measures to implement. OSHA says it expects to continue to update the guidance over time to reflect developments in science, best practices, and standards.

Keep in mind that some states and local jurisdictions have established their own requirements for employers to prevent the spread of COVID-19 in the workplace, many of which are covered in our COVID-19 Resource Center.

Alabama

Posted on August 14, 2020

The Alabama Department of Labor has adopted an emergency rule that expands the state's unemployment insurance notice requirements. The rule takes effect immediately.

Background:

Under existing law, employers must post a notice about the availability of unemployment insurance benefits.

Emergency Rule:

Under the emergency rule, employers must also provide a notice at the time of separation about the potential availability of unemployment benefits. Employers may provide the notice by letter, email, text message, or flyer. The notice must include the following information:

Notice of Availability of Unemployment Compensation

Unemployment Insurance (UI) benefits are available to workers who are unemployed and who meet the requirements of Alabama UI eligibility laws. You may file a UI claim in the first week that employment stops or work hours are reduced.

For assistance or more information about filing a claim, visit www.labor.alabama.gov

You will need to provide the Alabama Department of Labor's UI divisions with the following information in order for the state to process your claim:

  1. Your full legal name;
  2. Your Social Security Number; and
  3. Your authorization to work (if you are not a US Citizen or resident).

To file a UI claim by phone, call: 1-866-234-5387.

To file a UI claim online, visit:

https://continuedclaims.labor.alabama.gov

If you have questions about the status of your UI claim, you can call the Alabama Department of Labor at 1-800-361-4524 or check your claim status online at:

https://uiclaimstracker.labor.alabama.gov

Compliance Recommendations:

Employers with employees in Alabama must ensure compliance with the emergency rule.

California

Posted on: July 11, 2023

The California Division of Occupational Safety and Health (Cal/OSHA) has clarified that the State Public Health Officer Order dated January 9, 2024 remains in place and continues to impact Cal/OSHA’s COVID-19 Prevention Non-Emergency Standards in particular with respect to isolation of COVID-19 cases.

The clarification was made at the time the California Department of Public Health (CDPH) retired its COVID-19 Isolation and COVID-19 Testing Guidance effective May 22, 2024. Cal/OSHA says that the retirement of those guidelines by the CDPH doesn’t impact Cal/OSHA’s COVID-19 Prevention Non-Emergency Standards.

The Details

As a result of the January 9, 2024 order remaining in place:

  • “Infectious period” for the purpose of cases in the Cal/OSHA COVID-19 Prevention Non-Emergency Standards, is still defined as:
    • For COVID-19 cases with symptoms, it is a minimum of 24 hours from the day of symptom onset:
      • Employees with COVID-19 cases may return if 24 hours have passed with no fever, without the use of fever-reducing medications; and
      • Their symptoms are mild and improving.
    • For employees with COVID-19 cases with no symptoms, there is no infectious period for the purpose of isolation or exclusion. If symptoms develop, the criteria above will apply.

Here are some other important provisions in the COVID-19 Prevention regulations that remain the same.

  • Employers must address COVID-19 as a workplace hazard under the requirements for an Injury and Illness Prevention Program (IIPP), and include their COVID-19 procedures to prevent this health hazard in their written IIPP or in a separate document.
  • Employers must take measures to prevent COVID-19 transmission and to identify and correct COVID-19 hazards in the workplace, including, but not limited to, remote work, physical distancing, reducing the density of people indoors, moving indoor tasks outdoors, implementing separate shifts and/or break times, and restricting access to the work area.
  • Employers must continue to make COVID-19 testing available at no cost and during paid time to all employees with a close contact, except for asymptomatic employees who recently recovered from COVID-19.
  • In workplace outbreaks or major outbreaks the COVID-19 Prevention regulations still require testing of all close contacts in outbreaks, and everyone in the exposed group in major outbreaks. Employees who refuse to test and have symptoms must be excluded for at least 24 hours from symptom onset, and can return to work only when they have been fever-free for at least 24 hours without the use of fever-reducing medications, and symptoms are mild and improving.
  • Employers must exclude employees with COVID-19 cases from the workplace during the infectious period.
  • Employees with COVID cases who return to work must wear a face covering indoors for 10 days from the start of symptoms or if the person did not have COVID-19 symptoms, 10 days from the date of their first positive COVID-19 test. Employees have the right to wear face coverings at work and to request and receive respirators from the employer when working indoors and during outbreaks. Employers must provide face coverings and ensure they are worn by employees when required by the Cal/OSHA COVID-19 Prevention Standard or CDPH.
  • Employers must report information about employee deaths, serious injuries, and serious occupational illnesses to Cal/OSHA, consistent with existing regulations.
  • Employers must notify all employees, independent contractors, and employers with an employee who had close contact with a COVID-19 case.
  • Employers must review CDPH and Cal/OSHA guidance regarding ventilation, including CDPH and Cal/OSHA Interim Guidance for Ventilation, Filtration, and Air Quality in Indoor Environments. Employers must also develop, implement and maintain effective methods to prevent COVID-19 transmission by improving ventilation.

Next Steps

California employers should continue to ensure compliance with Cal/OSHA’s COVID-19 Prevention Non-Emergency Standards. The standards will remain in effect through early February 2025, unless extended.

Colorado

Posted on June 1, 2023

Colorado’s Department of Labor and Employment has announced that a requirement for employers to provide public health emergency leave (PHEL) for COVID-19 will end June 8, 2023.

The Details

Colorado has a PHEL requirement that remains in effect until four weeks after any federal, state, or local declaration of a public health emergency has ended. The PHEL requirement has been in effect for COVID-19 since January 1, 2021. Since the state’s declaration for COVID-19 ended on April 27, 2023, and the federal declaration for COVID-19 expired on May 11, 2023, the state’s PHEL requirement for COVID-19 will end on June 8, 2023.

Employees with any PHEL remaining for COVID-19 may still take it through June 8, 2023. Employees are only eligible for up to 80 hours of PHEL once during the entirety of the public health emergency. If another public health emergency is declared in the future, a new PHEL requirement will be triggered for that declaration.

Keep in mind that a state requirement for employers to provide paid sick leave remains in effect. Under the law, paid sick leave must accrue at a rate of at least one hour for every 30 hours worked, up to a maximum of 48 hours. However, employers have the option of providing all the paid sick leave at the beginning of the year. Employees are entitled to carry over up to 48 hours of unused paid sick leave to the following year.

Next Steps

  • Review policies and procedures to plan for end of the PHEL requirement.
  • Let employees know the PHEL entitlement for COVID-19 is ending soon but they may use any remaining PHEL for COVID-19 through June 8, 2023.

Posted May 17, 2021

The Colorado Department of Labor and Employment has issued guidance that makes clear that all employers must provide paid leave to employees who need time off to receive the COVID-19 vaccination during the public health emergency.

Background:

In 2020, Colorado enacted the Healthy Families and Workplaces Act of 2020 (HFWA). The HFWA included various leave requirements, including:

Paid sick leave:

Effective January 1, 2021, employers with 16 or more employees must provide paid sick leave to their employees. Employers with 15 or fewer employees have until January 1, 2022 to comply. Paid sick leave must accrue at a rate of at least one hour for every 30 hours worked, up to a maximum of 48 hours.

Public health emergency leave:

In addition to the paid sick leave outlined above, all employers must provide public health emergency leave (PHEL) effective January 1, 2021. Employees who normally work 40 hours or more per week are entitled to at least 80 hours of PHEL. Employees who normally work fewer than 40 hours in a week are entitled to at least the greater of either the amount of time the employee is scheduled to work in a 14-day period or the amount of time the employee actually works during an average 14-day period.

Employees may use PHEL for the following purposes:

  • To self-isolate because they're diagnosed with, or experience symptoms of, the communicable illness that is the cause for the public health emergency;
  • To seek or obtain medical diagnosis, care, or treatment if experiencing symptoms associated with the communicable illness;
  • To seek preventive care concerning the communicable illness;
  • If local officials or the employee's employer determines that the individual's presence on the job or in the community would jeopardize the health of others because of the individual's exposure or because they're exhibiting symptoms of the communicable illness (regardless of diagnosis);
  • To care for a family member to whom any of the above applies;
  • To care for a child or other family member when the child's care provider is unavailable due to a public health emergency, or if the child's or family member's school or place of care has been closed due to a public health emergency, including if a school or place of care is physically closed but providing instruction remotely; or
  • If an employee is unable to work because the employee has a health condition that may increase susceptibility to or risk of the communicable illness.

Employees are only eligible for PHEL once during the entirety of the public health emergency, even if it is amended, extended, restated, or prolonged. Employees may use PHEL until four weeks after the official public health emergency.

Updated Guidance:

In updated guidance, the CDLE has clarified that seeking a diagnosis, treatment, or care of a communicable illness also includes preventive care, such as a vaccination. Therefore, all employees are entitled to use their PHEL for the purposes of COVID-19 vaccination.

Compliance Recommendations:

Colorado employers should review the guidance in full and ensure compliance.

Posted on July 28, 2020

Colorado has enacted legislation (House Bill 20-1415) that prohibits employers from taking adverse action against a worker who raises safety or health concerns related to a public health emergency or who voluntarily wears their own personal protective equipment (PPE). House Bill 20-1415 is effective immediately.

Coverage:

The law covers all Colorado employers and employees. The law also covers any business in Colorado with five or more independent contractors.

Anti-Retaliation:

Employers are prohibited from taking adverse action against a worker who in good faith raises a reasonable concern to the employer, a government agency, or the public about workplace violations of health and safety rules or a significant workplace threat related to a public health emergency.

Exceptions:

Workers aren't protected if they disclose information they know to be false or with reckless disregard of whether the information is true or false. The law also doesn't authorize a worker to share individual health information that is otherwise prohibited from disclosure under federal or state law.

PPE:

The law also prohibits employers from taking adverse action against a worker who voluntarily wears their own PPE, such as a mask, faceguard, or gloves, if it:

  • Provides a higher level of protection than the equipment provided by the employer;
  • Is recommended by a federal, state, or local public health agency with jurisdiction over the workplace; and
  • Doesn't render the worker incapable of performing their job or prevent them from fulfilling their duties.

Other Protections:

Employers are also prohibited from taking adverse action against a worker who:

  • Opposes any practice they reasonably believe to be unlawful under the law.
  • Files a complaint, testifies, assists, or participates in an investigation, proceeding, or hearing regarding a matter the worker reasonably believes to be unlawful under the law.

Employer Notice:

Employers must post a notice of workers' rights under the law. The notice is available in English and Spanish.

Compliance Recommendations:

Colorado employers should review policies, practices, and supervisor training to ensure compliance with House Bill 20-1415.

District of Columbia

Posted on November 25, 2020

The District of Columbia has enacted emergency legislation (B23-980) that requires employers to adopt certain worker protection policies and prohibits employers from retaliating against employees for certain COVID-19 related reasons.

Social Distancing Policies:

Beginning November 23, 2020 and during the public health emergency, employers in the District of Columbia must adopt and implement social distancing and worker protection policies that adhere to the requirements of Mayor's Order 2020-080 (which governs the use of masks), or subsequent Mayor's Order to prevent transmission of COVID-19 in the workplace.

Employers are prohibited from taking adverse employment action against an employee for their refusal to serve a customer or client, or to work within six feet of an individual who isn't complying with the workplace protections.

Privacy:

Employers may establish a workplace policy to require an employee to report a positive test for an active COVID-19 infection. Employers are prohibited from disclosing the identity of an employee who tests positive except to the Department of Health or another District or federal agency responsible for and engaged in contact tracing and the containment of community spread of COVID-19.

Retaliation Prohibited:

Effective immediately, employers are prohibited from taking adverse employment action against an employee because they:

  • Tested positive for COVID-19, provided that the employee didn't physically report to the workplace after receiving a positive test result;
  • Were exposed to someone with COVID-19 and need to quarantine;
  • Are sick and are waiting for a COVID-19 test result;
  • Are caring for or seek to provide care for someone who is sick with COVID-19 symptoms or who is quarantined; or
  • Take actions to secure any right or protection contained in the law or to prevent or stop a violation of the law.

Under the law, an adverse employment action means an action that an employer takes against an employee, including a threat, verbal warning, written warning, reduction of work hours, suspension, termination, discharge, demotion, harassment, material change in the terms or conditions of the employee's employment, or any action that is reasonably likely to deter the employee from attempting to secure any right or protection contained in the law or to prevent or stop a violation of the law.

Note: The law doesn't prohibit an employer from requiring an employee who has tested positive for COVID-19 to refrain from entering the workplace until a medical professional has cleared the employee to return to the workplace or until a period of quarantine recommended by the Department of Health or the U.S. Centers for Disease Control has elapsed.

Compliance Recommendations:

Employers in the District of Columbia should ensure their policies and practices comply with the law and ensure that supervisors receive training on its requirements.

Idaho

Idaho recently enacted legislation (Senate Bill 1130) that, with limited exceptions, prohibits employers from requiring employees to obtain a coronavirus vaccination. Senate Bill 1130 became effective immediately on April 6, 2023.

The Details

Under Senate Bill 1130, employers doing business in the state are prohibited from requiring coronavirus vaccination as a term of employment, unless:

  1. Required by federal law.
  2. The terms of employment include travel to foreign jurisdictions that require coronavirus vaccinations for entry into the jurisdiction.
  3. The terms of employment require entry into a place of business or facility in a foreign jurisdiction and it requires a coronavirus vaccination for entry into the jurisdiction.

If an employee is required to obtain a coronavirus vaccination related to business travel to a foreign jurisdiction (#2 and #3), the requirement must:

  • Be included in the written employment contract between the employer and the employee (if one exists); or
  • If an employment contract doesn’t exist, advance written notice must be provided to an impacted employee no less than 14 days prior to the employee being required to receive a vaccination.

The law also prohibits employers from providing or offering any different salary, hourly wage, or other ongoing compensation or benefits to an employee based on whether they have received a coronavirus vaccination. However, the law doesn’t prohibit an employer from offering one-time incentives related to coronavirus vaccinations as long as they don’t result in any different salary, hourly wage, or ongoing compensation or benefits being provided to an employee based on whether they have received a coronavirus vaccination.

Next Steps

Review all vaccination-related policies and procedures to ensure compliance with Senate Bill 1130. Consult legal counsel as needed.

Illinois

Posted on November 10, 2021

Illinois has enacted legislation (Senate Bill 1169) that clarifies that the state's Health Care Right of Conscience Act (HCRCA) doesn't prohibit employers from requiring COVID-19 vaccination and/or testing. Senate Bill 1169 takes effect June 1, 2022.

Background:

Enacted decades ago, the state's HCRCA generally prohibits discrimination against individuals because of their refusal to perform or receive healthcare services that are contrary to their conscience. Some employees were citing the law when objecting to employer COVID-19 requirements.

Senate Bill 1169:

Senate Bill 1169 amends the HCRCA to make clear that the law doesn't prohibit employers from taking any measures or imposing any requirements, including but not limited to, any measures or requirements that involve provision of services by a physician or health care personnel, that are intended to prevent contraction or transmission of COVID-19.

Compliance Recommendations:

Illinois employers should consult legal counsel to discuss the impact of Senate Bill 1169 on their vaccination policies and practices.

Posted on March 23, 2021

The Illinois Department of Labor (IDOL) has provided guidance on providing employees pay, leave, and flexibility so they can get the COVID-19 vaccination.

Employer-Mandated Vaccination Programs:

In the guidance, the IDOL says that when employers require employees to get vaccinated, the time employees spend meeting the requirement generally must be paid, even if it occurs during non-work hours. The IDOL says mandatory vaccination requirements should be combined with paid leave for employees to receive the COVID-19 vaccine, or the employer should otherwise provide compensation for the time taken by the employee to comply with an employer-mandated vaccine requirement.

Optional Vaccination Programs:

Employees that choose to obtain the vaccine voluntarily should be allowed to utilize sick leave, vacation time, or other paid time off so they can receive the COVID-19 vaccine, according to the guidance. Otherwise, employers should consider offering flex time to allow the employee to become vaccinated without losing pay. If the employer decides against both of those options, the employer should provide unpaid time off, the IDOL says.

Family Members:

The Illinois Employee Sick Leave Act (ESLA) requires employers to allow their employees to use employer-provided sick leave benefits for absences due to, among other things, medical appointments of the employee's child, stepchild, spouse, domestic partners, sibling, parent, mother-in-law, father-in-law, grandchild, grandparents, or stepparent. The leave must be provided on the same terms upon which the employee is able to use personal sick leave benefits for their own illness or injury.

An appointment to receive the COVID-19 vaccine would qualify as a permissible medical appointment for purposes of the ESLA if the employer allows the use of an employee's sick leave benefits for purposes of vaccinations, according to the IDOL. Therefore, employers should allow the employee to use sick leave benefits when taking a covered family member to receive the COVID-19 vaccine.

Compliance Recommendations:

The IDOL recommends that employers review and amend their leave and vaccination policies to help encourage employees to obtain the COVID-19 vaccine. Keep in mind that employers that provide paid leave so employees may receive the COVID-19 vaccine may be entitled to a tax credit under the Families First Coronavirus Response Act, as amended by the American Rescue Plan Act.

Chicago

Posted on April 30, 2021

The Chicago City Council has approved an ordinance that establishes protections for workers that take time off from work to receive the COVID-19 vaccine. The ordinance applies to both employees and independent contractors and takes effect immediately.

The ordinance prohibits employers from:

  • Taking any adverse action against a worker for taking time off to receive the vaccine.
  • Requiring workers to get vaccinated only during non-shift hours.

Under the ordinance, if an employer requires their workers to receive the vaccine, they must pay them at their regular rate of pay for up to four hours per dose, provided the vaccination appointment is during their shift. Employers that require that a worker be vaccinated are prohibited from requiring them to use paid time off or paid sick leave to fund the hours missed to get vaccinated.

If an employer doesn't require their workers to get the vaccine, they must allow workers that have accrued paid sick leave to use that time to receive the vaccine.

Compliance Recommendations:

Chicago employers should ensure compliance with the ordinance and train supervisors on the new protections for employees.

Posted on June 15, 2020

Chicago has published final rules, frequently asked questions, and a notice for employers covered by the city's Fair Workweek Ordinance, which takes effect July 1, 2020.

Background:

In 2019, Chicago enacted an ordinance requiring certain employers to notify employees of their schedules in advance and pay employees when they provide insufficient notice of schedule changes.

To be covered by the ordinance:

  • The employer must employ 100 or more employees globally (250 or more employees for not-for-profit corporations);
  • At least 50 of those employees must be considered covered employees (see below); and
  • The employer must be primarily engaged in one of the following covered industries:
    • Building Services;
    • Healthcare;
    • Hotels;
    • Manufacturing;
    • Restaurants;
    • Retail; or
    • Warehouse Services.

Under the ordinance, a covered employee is one who:

  • Performs work in the capacity of an employee, as distinguished from a contractor, or is a worker for temporary agency who has been on assignment to the employer for 420 hours within an 18-month period;
  • Spends most of their work time within the City of Chicago;
  • Performs most of their work in a covered industry for that employer; and
  • Earns $50,000 or less per year as a salaried employee, or $26.00 or less per hour as an hourly employee (these amounts will be adjusted for inflation).

The ordinance contains various provisions, including:

  • Posting Work Schedule: Employers must post covered employees' work schedules no later than 10 days before the first day of any new schedule. This deadline increases to 14 days beginning July 1, 2022. The schedule must include the shifts and on-call status of all current covered employees at that worksite. Additionally, it must be posted conspicuously within the workplace and readily accessible and visible to all covered employees or via the usual methods of communication. Additionally, upon written request, the employer must transmit the schedule electronically.
  • Right to decline unscheduled hours: Covered employees can decline to work unscheduled hours offered to them within 10 days of the beginning of the work schedule in which those additional hours are proposed.
  • Predictability pay: Covered employees receive one hour of additional pay when hours are added to a shift, or a shift's time or date is changed with no change to the number of hours, within 10 days of the beginning of the work schedule during which that shift takes place. Predictability pay also applies when hours are subtracted from a shift within 10 days of the start of the work schedule in which that shift takes place, but with more than 24 hours' notice from the beginning of that shift.
  • Pay for cancelled hours and shifts: Covered employees receive no less than 50% of their pay for any hours that are cancelled with less than 24 hours' notice from the beginning of the shift during which those cancelled hours were to take place.
  • Right to rest: Covered employees can decline shifts that begin less than 10 hours following the end of the previous day's shift. When covered employees agree to work such a shift, they are then paid at 1.25 time their base rate of pay.
  • Initial estimate of work schedule: Covered employees must receive an initial good faith estimate of their work schedule, including the days of the week they can be expected to work, and the start and end times of their shifts for those days.
  • Employer notice: Employers must post a notice advising covered employees of their rights under the ordinance. Employers must also provide a notice with each covered employee's first paycheck on or after July 1, 2020.

More information on the ordinance can be found here.

Final Rules, FAQs, and Notice:

The city recently published final rules, frequently asked questions, and the required notices under the ordinance.

Among other things, the final rules clarify that:

  • An employer may change a previously scheduled regular shift as posted by 15 minutes or less without being obligated to provide predictability pay.
  • Employers may add a covered employee to a work schedule with less than the required notice when they are returning from a leave of absence.
  • Employers must post the required notice through the employers' usual methods of communication for such notices, whether by paper posting or by electronic dissemination through the employers' internal communication channels. When posting a paper notice, the notice must be printed on and scaled to fill a sheet of paper that measures 11 inches by 17 inches.
  • The notice that employers must provide with the first paycheck advising the covered employee of their rights must be printed on and scaled to fit a sheet of paper that measures 8.5 inches by 11 inches. However, where covered employees are enrolled in direct deposit, employers may provide the notice through the employers' usual methods of electronic communication. This notice must also be provided with employee paychecks annually on or following July 1.
  • All notices must be posted in English and any language(s) spoken by employees at the facility who are not proficient in English and in which city has provided non-English language notices. As of June 9, 2020, the city has published the notices in English and Spanish.

The frequently asked questions address various issues, including COVID-19.  In the answer to one question, the city states that if COVID-19 causes a material change to an employer's operations that creates the need for a schedule change, the employer is exempt from certain provisions of the ordinance (right to decline, predictability pay, and pay for cancelled hours and shifts) for the work schedule during which the change takes place, as well as the following work schedule.

Compliance Recommendations:

Covered employers should read the ordinance, final rules, and frequently asked questions in full and ensure compliance by July 1, 2020. Anyone involved in scheduling employees should be trained as well.

Indiana

Indiana has enacted legislation (House Bill 1001) that prohibits employers from requiring employees to receive the COVID-19 vaccine, unless the employer provides certain exemptions. House Bill 1001 took effect immediately on March 3, 2022.

Covered Employers:

House Bill 1001’s restrictions on employer vaccine mandates apply to all employers except:
  • Federal contractors if vaccination is required for parties to the contract or if compliance with House Bill 1001 would result in a breach of contract or loss of funding.
  • A healthcare facility that is subject to a federal immunization requirement against COVID-19 for the healthcare facility's employees.
  • Professional sports organizations and entertainment venues if their employees work closely with live sports and entertainment at the venue.

The Details:

To require COVID-19 vaccination, covered employers must provide exemptions for:

  • Medical reasons. To claim this exemption, an employee must present an exemption statement in writing, dated and signed by a licensed physician, a licensed physician's assistant, or an advanced practice registered nurse, who has examined the employee. The statement must provide that, in their professional opinion. the immunization against COVID,19 is medically contraindicated for the employee.
  • Religious reasons. To claim this exemption, an employee must present to the employer an exemption statement in writing indicating that the employee declines the immunization against COVID-19 because of a sincerely held religious belief.
  • An employee who has immunity from prior infection. To claim this exemption, an employee must present to the employer the result of a laboratory test performed on the employee that has been approved by the federal Food and Drug Administration. An employer may request that an employee submit a new laboratory test result no more than once every three months.

If an employer receives a completed exemption statement in accordance with the requirements above for an exemption based on medical reasons or immunity, the employer must allow the employee to opt out of the employer's COVID-19 immunization requirement without further inquiry.

If an employer receives a completed exemption statement in accordance with the requirements above for an exemption based on religious reasons, the employer must make a religious accommodation in compliance with Title VII of the federal Civil Rights Act of 1964.

An employer may require COVID-19 testing up to two times per week for employees who receive an exemption.

Next Steps:

If you have employees in Indiana, consult legal counsel to discuss the impact of House Bill 1001 on your vaccination policies and practices.



Iowa

Posted on November 2, 2021

Iowa has enacted legislation (House File 902) that requires employers to grant waivers to their COVID-19 vaccination requirements under certain circumstances. House File 902 is effective immediately.

Waivers from COVID-19 Vaccination Mandates:

House File 902 states that if employers require employees to receive the COVID-19 vaccine, they must waive the requirement if the employee submits either of the following:

  • A statement that receiving the vaccine would be injurious to the health and well-being of the employee or an individual residing with the employee.
  • A statement that receiving the vaccine would conflict with the tenets and practices of the employee’s religion.

Unemployment Benefits:

The law also establishes that an employee isn’t disqualified from receiving unemployment benefits if they are terminated for refusing COVID-19 vaccination.

Compliance Recommendations:

Iowa employers should consult legal counsel to discuss the impact of House File 902 on their vaccination policies and practices.

Kansas

Posted on November 30, 2021

Kansas has enacted legislation (House Bill 2001) stating that employers that implement COVID-19 vaccination requirements must provide certain exemptions to employees. House Bill 2001 was effective immediately upon the Governor's signature on November 23, 2021.

Exemption Requests:

Under House Bill 2001, if employers adopt a COVID-19 vaccine requirement, they must provide an exemption to an applicant or employee who submits a written waiver request stating that complying with the requirement would:

  • Endanger the life or health of the individual, or someone who resides with them, as evidenced by an accompanying written statement signed by a physician or another person who performs acts pursuant to practice agreements, protocols, or at the order, direction, or delegation of a physician; or
  • Violate the sincerely held religious beliefs of the individual, as evidenced by an accompanying written statement signed by the applicant or employee.

The law states that an employer must grant an exemption based on sincerely held religious beliefs without inquiring into the sincerity of the request.

Employers must provide the above exemptions without taking punitive action, which is defined as any of the following:

  • Dismissal, demotion, transfer, reassignment, suspension, reprimand, or warning of possible dismissal;
  • Withholding of work; or
  • Assessing any monetary penalty or unreasonable charge.

Penalties:

Employers found by a court to have violated the law may face fines of up to $10,000 per violation if the employer has fewer than 100 employees and $50,000 per violation if the employer has 100 or more employees. See the text of the law for details on enforcement.

Compliance Recommendations:

Kansas employers should consult legal counsel to discuss the impact of House Bill 2001 on their vaccination policies and practices.

Louisiana

Posted on April 16, 2020

The Louisiana Workforce Commission (LWC) has adopted an emergency rule that expands the unemployment insurance (UI) notice requirements.

Background:

Under existing law, employers must post a notice about the availability of unemployment insurance benefits.

Emergency Rule:

The emergency rule adopts an additional requirement that employers notify each individual employee within 24 hours of separation that:

  • Employees that meet the requirements for eligibility may file a UI claim in the first week that employment ends or work hours are reduced;
  • A UI claim may be filed by phone or online;
  • The LWC's toll-free phone number is 1-866-783- 5567 and web address is www.louisianaworks.net/hire for filing a UI claim or for assistance with claims.
  • Employees must provide the LWC with their full name, social security number, and work authorization (if not a U.S. citizen or resident).

The notice must be provided to employees in writing either via flyer, letter, email, or text message.

Note: The LWC will post a sample notice on its website for employers to use.

Compliance Recommendations:

Employers with employees in Louisiana must ensure compliance with the emergency rule.

Massachusetts

Posted on May 5, 2021

The Massachusetts Attorney General's Fair Labor Division (FLD) has provided updated guidance to address leave and other issues related to the COVID-19 vaccine. The FLD's guidance is provided in the form of frequently asked questions and addresses various issues, including:

Q: Can my employer require me to get the vaccine in order to keep my job?

A: Maybe - unless you are not able to be vaccinated because of a protected legal right such as a disability or sincerely held religious belief. According to the EEOC, "the Americans with Disabilities Act allows an employer to have a qualification standard that includes "a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.'" In most cases, employers have an obligation to engage in a flexible, interactive process with an employee who informs them that they are not vaccinated due to a disability, sincerely held religious belief, or other legally-protected reason. For more information, visit the EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

Q: If my employer requires me to get the vaccine, is the time spent getting the vaccine compensable working time?

A: In Massachusetts, "working time" includes all time during which an employee is required to be on the employer's premises or at any other location. Therefore, if your employer mandates that you receive the vaccine at a specific location and/or on a specific date, this is likely to be considered "working time" and therefore is compensable. If your employer simply requires proof of a vaccine, but does not mandate when, where and how you obtain it, this is unlikely to be considered compensable time. For a formal opinion, please contact the Massachusetts Department of Labor Standards at dlsfeedback@state.ma.us.

Note: The guidance doesn't seem to address federal law. Even if the time spent getting the vaccine isn't ultimately considered working time under state law, it's possible pay is required by federal law when the employer requires vaccination. Consult legal counsel to discuss your rights and obligations under both state and federal law.

Q: Is my travel time to and from the vaccination site compensable time? Does my employer have to reimburse me for mileage?

A: If an employee who regularly works at a fixed location is required to report to a location other than his or her regular work site, the employee must be compensated for all travel time in excess of his or her ordinary travel time between home and work and must be reimbursed for associated transportation expenses. Therefore, if your employer mandates that you receive the vaccine at a specific location and/or on a specific date, travel time and travel expenses may be compensable. If your employer simply requires proof of a vaccine, but does not mandate when, where and how you obtain it, travel to and from the vaccination site is unlikely to be considered compensable time. For a formal opinion, please contact the Massachusetts Department of Labor Standards at dlsfeedback@state.ma.us.

Note: As with the previous FAQ, the guidance doesn't seem to address federal law. Consult legal counsel to discuss your rights and obligations regarding travel time under both state and federal law.

Compliance Recommendations:

Massachusetts employers should read the guidance in full and consult legal counsel as needed. The FLD continues to update the guidance as circumstances change, so employers should watch for developments and ensure they're considering the latest guidance.

Michigan

Posted on January 18, 2021

Michigan has adopted legislation (Senate Bill 1258) that amends the rules for returning to work after testing positive for COVID-19, displaying symptoms of COVID-19, or having close contact with someone who has COVID-19. Senate Bill 1258 is effective immediately.

Background:

In October 2020, Michigan enacted legislation (House Bill 6032) that prohibited:

  • Employees who test positive for COVID-19 or who display the principal symptoms of COVID-19 from reporting to work until certain conditions are met. Among other conditions, these employees had to wait until 10 days had passed since their symptoms first appeared or they received a positive COVID-19 test, whichever was later.
  • Employees who have close contact with an individual who tests positive for COVID-19 or with an individual who displays the principal symptoms of COVID-19 from reporting to work until 14 days have passed since the employee last had close contact with the individual or the close contact receives a medical determination that they didn't have COVID-19 at the time of the close contact with the employee.
  • Employers from discharging, disciplining, or otherwise retaliating against an employee who complies with the return to work conditions prescribed in the law, opposes a violation of the law, or reports health violations related to COVID-19.

Senate Bill 1258:

Senate Bill 1258 removes the specific timeframes (10 days and 14 days) from the return-to-work requirements for COVID-19 and makes other changes.

Employees Who Test Positive:

Employees who test positive for COVID-19 are prohibited from reporting to work until:

  • The employee is advised by a healthcare provider or public health professional that they have completed their isolation period; or
  • All of the following conditions are met:
    • If the employee has a fever, 24 hours have passed since the fever has stopped without the use of fever-reducing medications.
    • If the employee displays the principal symptoms of COVID-19, those symptoms have improved.
    • If the employee has been advised by a healthcare provider or public health professional to remain isolated, they are no longer subject to that advisement.
    • The isolation period has passed.

Under the law, the isolation period means the recommended number of days for an individual to be in isolation after they first display the principal symptoms of COVID-19 as prescribed in the Centers for Disease Control and Prevention (CDC)'s COVID-19 guidelines.

Symptomatic Employees:

The law also clarifies that an employee who displays the principal symptoms of COVID-19 but hasn't tested positive is prohibited from reporting to work until:

  • The employee receives a negative diagnostic test result; or
  • All of the following conditions are met:
    • If the employee has a fever, 24 hours have passed since the fever has stopped without the use of fever-reducing medication.
    • The symptoms have improved.
    • The isolation period has passed since the symptoms began.

Close Contact:

Employees who have had close contact with an individual who tests positive for COVID-19 are prohibited from reporting to work until one of the following conditions is met:

  • The quarantine period has passed since the employee last had close contact with the individual; or
  • The employee is advised by a healthcare provider or public health professional that they have completed their quarantine period.

Quarantine period means the recommended number of days for an individual to be in quarantine after they are in close contact as prescribed in CDC COVID-19 guidelines.

Senate Bill 1258 also establishes that the definition of close contact is how that term is defined in CDC COVID-19 guidelines at the time the contact occurred.

Exception:

There is an exception that allows certain types of employees who are otherwise subject to quarantine but aren't experiencing any symptoms and haven't tested positive for COVID-19 to participate in onsite operations. This only applies when strictly necessary to preserve the function of a facility in which ceasing facility operations would cause serious harm or danger to public health or safety. See the text of the law for details.

Compliance Recommendations:

Employers with employees working in Michigan should review their policies and practices to ensure compliance with Senate Bill 1258.

Posted on October 27, 2020

The Michigan Occupational Safety and Health Administration (MIOSHA) has adopted an emergency rule requiring employers to take certain steps related to COVID-19. The emergency rule is effective immediately.

Exposure Determination:

Employers must evaluate routine and reasonably anticipated tasks and procedures to determine whether there is actual or reasonably anticipated exposure to COVID-19. Employers must categorize job tasks and procedures into specified risk categories.

Preparedness and Response Plan:

Employers must develop and implement a written COVID-19 preparedness and response plan that is consistent with the current federal Centers for Disease Control and Prevention (CDC) guidance and recommendations in "Guidance on Preparing Workplaces for COVID-19" from the U.S. Department of Labor. The plan must include the employee exposure determination and the measures the employer will implement to prevent employee exposure, including any:

  • Engineering controls;
  • Administrative controls;
  • Basic infection prevention measures;
  • Personal protective equipment (PPE);
  • Health surveillance; and
  • Training.

The employer must make the plan readily available to all employees and their representatives, whether via the employer's website, internal network, or hard copy.

Basic Prevention Measures:

Employers must:

  • Promote hand washing. Promote frequent and thorough hand washing, including by providing employees, customers, and visitors with a place to wash their hands. If soap and running water aren't immediately available, employers must provide antiseptic hand sanitizers or alcohol-based hand towelettes containing at least 60 percent alcohol;
  • Require sick employees stay home. Require employees who are sick to stay away from work or work in an isolated location;
  • Prohibit sharing equipment. Prohibit workers from using co-workers' phones, desks, offices, or other work tools and equipment, when possible;
  • Increase cleaning. Increase facility cleaning and disinfection to limit exposure to COVID-19, especially on high-touch surfaces (e.g., door handles);
  • Develop disinfection protocols. Establish procedures for disinfection in accordance with CDC guidance if it is suspected or confirmed that an employee, visitor, or customer has a known case of COVID-19;
  • Use proper disinfectants. Use EPA-approved disinfectants that are expected to be effective against COVID-19 and follow the manufacturer's instructions for use, such as concentration, application method, and contact time; and
  • Allow remote work. Create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.

Health Surveillance:

Employers must:

  • Conduct daily self-screening. This is required for all employees or contractors entering the workplace, including, at a minimum, a questionnaire covering symptoms and suspected or confirmed exposure to people with COVID-19 and, if possible, a temperature screening;
  • Require symptom reporting. Direct employees to promptly report any signs and symptoms of COVID-19 to the employer before or during the work shift; and
  • Isolate. Physically isolate any employees known or suspected to have COVID-19 from the remainder of the workforce.

Known or suspected cases:

When an employer learns that an employee, visitor, or customer has COVID-19, the employer must:

  • Immediately notify the local public health department; and
  • Within 24 hours of learning of the case, the employer must also notify any co-workers, contractors, or suppliers who may have come into contact with the person with COVID-19.

The employer must allow employees with a known or suspected case of COVID-19 to return to the workplace only after they are no longer infectious according to the latest guidelines from the CDC and they are released from any quarantine or isolation order by the local public health department.

Workplace Controls:

Employers must:

  • Designate a safety coordinator(s). The safety coordinator(s) must implement, monitor, and report on the COVID-19 control strategies developed under these rules and must remain on-site at all times when employees are present;
  • Display health and safety posters. The posters must encourage staying away from the workplace when sick, cough and sneeze etiquette, and proper hand hygiene practices;
  • Ensure social distancing. Keep everyone on the worksite premises at least six feet from one another to the maximum extent possible. To reduce congestion, use ground markings, signs, and physical barriers, as appropriate to the worksite;
  • Provide face covering. Provide non-medical grade face coverings to employees at no cost to the employee;
  • Require employees wear face coverings. Require that face coverings be worn when employees can't consistently maintain six feet of separation from other individuals in the workplace. Face coverings are also required in shared spaces, including during in-person meetings and in restrooms and hallways; and
  • Consider face shields. Consider face shields when employees can't consistently maintain three feet of separation from other individuals in the workplace.

Personal Protective Equipment:

Employers must:

  • Provide PPE. Provide employees with the types of PPE for protection from COVID-19 appropriate to the exposure risk associated with the job, including respirators if necessary;
  • Follow government guidance. Follow current CDC and OSHA guidance for PPE; and
  • Ensure proper use. Ensure that the PPE is properly fitted and worn, used consistently, regularly inspected, maintained, and replaced, as necessary, and properly removed, cleaned, and stored or disposed of to avoid contamination of self, others, or the work environment.

Training:

Employers must provide training to employees on COVID-19. Any communications and training on COVID-19 must be provided in the primary languages common in the workplace.

The training must cover:

  • Workplace infection control practices;
  • The proper use of PPE;
  • Steps the employees must take to notify the business of any symptoms of COVID-19 or a suspected or confirmed diagnosis of COVID-19; and
  • How to report unsafe working conditions.

Employers must provide updated training if the employer changes its preparedness and response plan or new information becomes available about the transmission or diagnosis of COVID-19.

Recordkeeping Requirements:

Employers must maintain records of all the following for at least one year:

  • Training;
  • Screening protocols;
  • A record of screening for each employee or visitor entering the workplace; and
  • Notices provided to local health departments and those who may have come into contact with an infected person.

Industry-Specific Requirements:

The rule includes industry-specific requirements. For details, see the text of the rule.

Compliance Recommendations:

Michigan employers should read the rule in full and implement appropriate workplace measures to ensure compliance.

Posted on April 9, 2020

Michigan Governor Gretchen Whitmer has issued an executive order that expands protections for certain workers impacted by the coronavirus of 2019 (COVID-19). The executive order is effective immediately and will continue until the end of the states of emergency and disaster.

Background:

The Michigan Paid Medical Leave Act requires employers with 50 or more employees to provide paid leave to employees for the following reasons:

  • The employee's or a family member's mental or physical illness, injury, or health condition;
  • The employee's or a family member's medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or preventive medical care;
  • For medical care, counseling, obtaining legal services, or participating in a civil or criminal proceeding when the employee or a family member is a victim of domestic violence or sexual assault; and
  • The closure of the employee's primary workplace or their child's school or place of care due to a public health emergency, or when a health care provider has determined that the employee's or a family member's presence in the community would jeopardize the health of others.

Executive Order 2020-36:

Guidelines:

The executive order recommends that all individuals who test positive for COVID-19 or who display one or more of the principal symptoms (fever, atypical cough, or atypical shortness of breath) should remain home until:

  • Three days have passed since their symptoms have resolved; and
  • Seven days have passed since their symptoms first appeared or since they were swabbed for the test that yielded the positive result.

With limited exceptions (such as, healthcare professionals), the order also recommends that those who have had close contact with an individual who tests positive for COVID-19 or with an individual who displays one or more of the principal symptoms of COVID-19 should remain home until either:

  • 14 days have passed since the last close contact with the sick or symptomatic individual; or
  • The symptomatic individual receives a negative COVID-19 test.

Employee Protections (applies to all employees):

The executive order addresses the following:

  • Prohibits employers from taking adverse action against an employee for staying home from work while following the guidelines described above. Note: An individual who returns to work prior to the periods specified in the guidelines isn't entitled to this protection.
  • Requires employers to treat an employee following the guidelines as if they were taking leave under the Paid Medical Leave Act, even if the employer has fewer than 50 employees.
  • To the extent that the employee has no paid leave, the leave may be unpaid.
  • The length of leave, whether paid or unpaid, must be extended for as long as the employee remains away from work under the guidelines.
  • Prohibits employers from taking adverse action against an employee for failing to comply with a requirement to document that the employee or the individual with whom the employee has had close contact has one or more of the principal symptoms of COVID-19.

Compliance Recommendations:

Employers with employees working in Michigan should review their policies and practices to ensure compliance with the executive order.

Note: On March 18, 2020, the United States enacted the Families First Coronavirus Response Act (FFCRA), which requires employers to provide paid leave to certain employees impacted by COVID-19. The law took effect on April 1, 2020. FFCRA leave is in addition to other leave provided under federal, state, or local law; an applicable collective bargaining agreement; or the employer's existing company policy.

Minnesota

Posted on January 14, 2022

Minnesota OSHA (MNOSHA) has announced that it will suspend enforcement of the state's emergency temporary standard (ETS), which requires that employers with 100 or more employees ensure that employees either be vaccinated against COVID-19 or produce a weekly negative test.

The Details:

The state's ETS is identical to a federal ETS issued in late 2021. On January 13, 2022, the U.S. Supreme Court blocked the federal government from enforcing the federal ETS pending future court proceedings. Shortly after the U.S. Supreme Court's decision was released, MNOSHA announced it will suspend enforcement of the state ETS pending future developments.

Next Steps:

If you have 100 or more employees and fall within the requirements of the state ETS, watch for developments closely. For now, MNSOHA won't enforce the state ETS but strongly encourages employers to continue to implement the requirements of the ETS.

Posted on December 12, 2020

Minnesota has approved a stimulus package that will provide relief payments to certain businesses impacted by the COVID-19 pandemic and the subsequent executive orders issued by the governor in response to it.

The stimulus package includes:

  • $88 million in direct payments to restaurants, bars, gyms, and certain other businesses that saw at least a 30 percent drop in revenue. The payments will be based on the employer's workforce size, with a maximum payment of $45,000.
  • $14 million for grants to movie theaters and convention centers.
  • $114.8 million for counties to distribute to businesses, which must use the grants for operations expenses incurred during the COVID-19 pandemic.

Compliance Recommendations:

Minnesota employers should read the text of the stimulus package to see if they may be eligible for the direct payments and/or grants.

Montana

Posted on May 7, 2021

Montana has enacted legislation (House Bill 702) that prevents employers from discriminating against a person based on their vaccination status or possessing an immunity passport. House Bill 702 is effective immediately.

Prohibited Actions:

House Bill 702 prohibits employers from refusing employment to an individual or discriminating against an employee in compensation or other terms, conditions, or privileges of employment based on their vaccination status or whether they have an immunity passport.

It is also an unlawful discriminatory practice to refuse or deny the following based on vaccination status:

  • Local or state services;
  • Goods;
  • Facilities;
  • Licensing;
  • Educational opportunities; and
  • Health care access.

Note: Exceptions exist for certain industries. See the text of the law for further details.

A person, governmental entity, or an employer does not unlawfully discriminate under this section if they recommend that an employee receive a vaccine.

"Immunity passport" means a document, digital record, or software application indicating that a person is immune to a disease, either through vaccination or infection and recovery.

"Vaccination status" means an indication of whether a person has received one or more doses of a vaccine.

Compliance Recommendations:

Montana employers should review their policies and practices to comply with House Bill 702.

Nevada

Posted on April 30, 2021

The Nevada Office of the Commissioner of Labor issued guidance on whether employees should receive pay for the time they spend receiving COVID-19 vaccinations.

The Guidance:

The guidance follows the Fair Labor Standards Act, which states that if an employer requires an employee to get vaccinated, then the time an employee spends obtaining the vaccine, including during non-working hours, is likely to be compensable.

However, if an employer makes the vaccine optional or an employee receives the vaccine without a work-related requirement, the employer should allow the employee to use paid leave, regular leave, or flex time to obtain the COVID-19 vaccine.

Compliance Recommendations:

Employers in Nevada should review their policies, forms, practices, and supervisor training to ensure compliance with the state's guidance.

New Jersey

Posted on April 15, 2021

The New Jersey Department of Labor (NJDOL) has released guidance clarifying the circumstances in which employers may require their employees to receive the COVID-19 vaccination prior to returning to work.

April 2021 Guidance:

The guidance says employers may require that their employees receive COVID-19 vaccinations to return to the workplace, except under the following circumstances:

  • The employee has a disability or a sincerely held religious belief, practice, or observance that precludes them being vaccinated; or
  • The employee's physician has advised otherwise due to pregnancy, or need to breastfeed.

Reasonable Accommodation:

An employer must provide a reasonable accommodation from a mandatory vaccine policy for any of the reasons listed above unless doing so would impose an undue burden on their operations.

Employers must consider the safety of themselves, coworkers, clients, and customers when evaluating whether a potential accommodation would be reasonable. They must base all safety decisions regarding any potential safety hazard on objective, scientific evidence and not unfounded assumptions or stereotypes.

Reasonable accommodation may include:

  • Allowing an employee to continue to work remotely or otherwise work in a manner that would reduce or eliminate the risk of harm to other employees or the public; or
  • Providing an employee with personal protective equipment that sufficiently mitigates the employee's risk of COVID-19 transmission and exposure.

Compliance Recommendations:

New Jersey employers should review their policies and practices to ensure adherence to the new guidance.

Posted on November 2, 2020

New Jersey has enacted Executive Order 192, which establishes specific health and safety measures for employers during COVID-19. Executive Order 192 takes effect November 5, 2020.

Health & Safety Requirements:

Under the Order, employers must adhere to the following health and safety protocols:

  • Require social distancing. Individuals at the worksite must maintain at least six feet of distance from one another to the maximum extent possible, including but not limited to during worksite meetings, orientations and similar activities that would traditionally require individuals to be present in a single room or space, in common areas such as restrooms and breakrooms, and when individuals are entering and exiting the workplace. When the nature of an employee's work or the work area does not allow for six feet of distance, employers must ensure that employees wear a mask and install physical barriers between workstations wherever possible.
  • Provide sanitization. Employers must provide sanitization materials, such as hand sanitizer with at least 60% alcohol and EPA approved sanitizing wipes at no cost to employees and visitors.
  • Require face coverings for customers and visitors. Customers and visitors must wear a cloth or disposable face mask, except when the individual is under two years of age or when it's impractical for an individual to do so. Employers may deny entry to the worksite to any customer or visitor who declines to wear a face mask, except when doing so would violate state or federal law. When a customer or visitor cannot wear a mask because of a disability, an employer may be required to provide them with a reasonable accommodation.
  • Require face coverings for employees. Employers must require employees to wear a face covering and provide such coverings at the employer's expense. Employers may permit employees to remove face masks when the employees are situated at their workstations and are more than six feet from other individuals, or when an individual is alone in a walled office. Employers may deny entry to the worksite to any employee who declines to wear a face mask, except when doing so would violate state or federal law. When an employee cannot wear a mask because of a disability, an employer may be required to provide the employee with a reasonable accommodation. An employer may require an employee to produce medical documentation to support a claim that they are unable to wear a face mask because of a disability.
  • Enforce hygiene standards. Ensure that employees practice regular hand hygiene, particularly when interacting with the public, and provide employees break time for repeated handwashing throughout the workday and access to adequate hand washing facilities. Employers may adopt policies that require employees to wear gloves in addition to regular hand hygiene. Where an employer requires its employees to wear gloves while at the worksite, the employer must provide such gloves to employees.
  • Clean and disinfect. Routinely clean and disinfect high-touch areas, such as restrooms, handrails, door knobs, and safety equipment in accordance with Department of Health (DOH) and Center for Disease Control (CDC) guidelines.
  • Conduct daily health checks. Prior to each shift, employers are required to conduct daily health checks of employees, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires consistent with CDC guidance.
  • Send symptomatic employees home. Employers must immediately separate and send home employees who appear to have COVID-19 symptoms, as defined by the CDC, upon arrival at work or who become sick during the day.
  • Notify employees exposed to COVID-19. Employers are required to immediately notify all employees of any known exposure to COVID-19 consistent with confidentiality requirements of the Americans with Disabilities Act (ADA) and other applicable laws.

Training Requirements:

The New Jersey Department of Labor & Workforce Development (DOLWD) is directed to provide compliance and safety training for employers and employees, focused at least in part on the health and safety protocols outlined in the Order.

Enforcement:

The DOLWD is authorized to establish an intake mechanism to receive complaints from individuals working in the state and establish a process to address such complaints. Such a process, at minimum, must provide employers with an opportunity to correct the alleged or confirmed deficiency.

Compliance Recommendation:

New Jersey employers should read Executive Order 192 in full and ensure employees receive training on all workplace safety protocols.

Posted on April 28, 2020

New Jersey has enacted legislation (Senate Bill 2374) that amends the state's Family Leave Act (NJFLA) and the Temporary Disability Insurance (TDI) program. Senate Bill 2374 takes effect immediately and is retroactive to March 25, 2020.

Background:

In March 2020, New Jersey enacted SB 2304 to expand its earned sick leave, family leave act, and temporary disability insurance rules during a state of emergency in order to cover absences related to epidemics such as COVID-19.

Senate Bill 2374:

Senate Bill 2374 further expands on the NJFLA and TDI program as follows:

NJFLA Amendments:

Senate Bill 2374 amends the NJFLA to allow employees to use family leave in the event of a state of emergency or an order by the Governor or public health authorities that results in:

  • In-home care or treatment of a child whose school or place of care has been closed;
  • Mandatory quarantine because the presence in the community of a family member with known or suspected exposure would jeopardize the health of others; or
  • The recommendation of a health care provider or public health authority that a family member voluntarily undergo self-quarantine as a result of known or suspected exposure.

Certification:

The employer may request certification from the employee seeking leave for the above reasons, including:

  • The date and reason of closure (for their child's school or place of care closing)
  • Date and anticipated length of the order (for a family member's mandatory quarantine)
  • The date and probable length of recommended quarantine and medical or other facts that prompted the recommendation (for the family member's voluntary self-quarantine)

Intermittent Leave:

The amendments allow a covered employee to use NJFLA for the above reasons intermittently, provided the employee gives advance notice and attempts to schedule the intermittent leave in a way that does not disrupt normal business operations. Additionally, if possible, the employee should provide the employer with a regular schedule of the day or days of the week on which the intermittent leave will be taken.

TDI Amendments:

Senate Bill 2374 makes temporary disability and family temporary disability funds available to employees who take leave for pandemic-related reasons (covered above). The amendment also eliminates the seven-day waiting periods for benefits related to the above reasons.

Compliance Recommendations:

New Jersey employers should review their policies, forms, practices, and supervisor training to ensure compliance with Senate Bill 2374.

Posted on March 31, 2020

New Jersey has enacted legislation (SB 2304) to expand its earned sick leave, family leave act, and temporary disability insurance rules during a state of emergency.

Senate Bill 2304:

The expansions under Senate Bill 2304 are covered below.

Earned Sick Leave Law Expansion:

SB 2304 expands New Jersey's earned sick leave law to allow an employee to take leave due to an epidemic-related state of emergency declared by the Governor, a health official acting to contain a disease, or a determination by a health care provider, the Commissioner of Health or other public health authority that the employee's presence in the community, or the presence of an employee's family member in need of care, would "jeopardize the health of others."

Family Leave Act Expansion:

SB 2304 also amends the New Jersey Family Leave Act (NJFLA), which provides unpaid, job protected leave in the event an employee needs to care for a family member with a serious health condition (among other reasons for use). The NJFLA applies to employers with 30 or more employees and provides 12 weeks of unpaid, job-protected leave in a 24-month period.

SB 2304 expands the definition of "serious health condition" during a state of emergency to include an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease, which requires in-home care or treatment of an employee's family member.

The amendments also restrict an employer's ability to exercise the highly compensated exception (which ordinarily allows leave to be denied to certain highly compensated individuals to prevent substantial economic injury to the company) and require job reinstatement rights to individuals who take such leave during an epidemic.

Temporary Disability Insurance (TDI) Expansion:

The definition of a serious health condition under New Jersey's Family Leave Insurance and TDI is also amended to be consistent with the amended definition under the NJFLA, covered above. Additionally, the one-week waiting period for TDI benefits is removed for illnesses caused by an epidemic.

Compliance Recommendations:

New Jersey employers should review their policies, forms, practices, and supervisor training to ensure compliance with SB 2304.

Posted on March 30, 2020

New Jersey has enacted legislation (Assembly Bill 3848) to prohibit employers from retaliating against an employee for taking time off due to illness during the COVID-19 outbreak.

Assembly Bill A3848:

During the COVID-19 outbreak, an employer may not terminate or otherwise penalize an employee if: the employee requests or takes time off from work based on the written or electronically transmitted recommendation of a medical professional to do so for a specific duration because the employee has, or is likely to have, an infectious disease, which may infect others at the employee's workplace.

At the conclusion of leave, an employer may not refuse to reinstate the employee to the position held when the leave began with the same seniority, status, employment benefits, pay or other terms and conditions of employment.

Enforcement:

Employers found in violation of the law must reinstate the employee to the position previously held and may be subject to a penalty of $2,500 for each violation.

Compliance Recommendations:

New Jersey employers should review their policies and procedures, and train supervisors to ensure compliance with Assembly Bill 3848.

New York

The New York State Fiscal Year 2025 Budget will end the state’s paid COVID-19 quarantine and isolation leave requirement. The changes will take effect on July 31, 2025.

The Details

New York employees will no longer be entitled to paid time off COVID-19 leave for a mandatory or precautionary order of quarantine or isolation due to COVID-19. The changes under the New York State 2025 Budget take effect on July 31, 2025.

Note: Employees needing time off for COVID-19-related reasons may use other applicable paid leave, such as New York Paid Sick Leave.

Next Steps

Employers in New York should review their policies, forms, practices and supervisor training to ensure compliance with the changes to COVID-19 laws under the New York State Fiscal Year 2025 Budget by July 31, 2025.

Updated on September 9, 2021

New York Governor Andrew Cuomo signed the New York Health and Essential Rights Act, or "the NY HERO Act" (the Act), into law on May 5, 2021. The Act adds workplace health and safety protections for airborne infectious diseases and requires employers to establish a health and safety plan.

Update September 2021: Governor Kathy Hochul announced that the New York State Commissioner of Health has designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health, effectively requiring New York employers to implement their workplace health and safety plans.

Update July 2021: Governor Andrew Cuomo signed Assembly Bill 7477, which, among other things, extends the deadline to August 5, 2021 for employers to adopt a disease prevention plan. Within 30 days of adopting a plan, employers must also provide written notification of the plan to employees. The NYDOL also posted its model standards and will continue to update its website as needed.

Health & Safety Plan:

By August 5, 2021, employers are required to create a health and safety plan. The state has published a model plan in English and has indicated a Spanish version will be published shortly. Employers must either adopt the model plan that is relevant to their industry or develop an alternate that meets or exceeds the minimum requirements set forth in the model standards. Employers weren't required to implement their plans until an airborne infectious disease was designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health. This designation was announced on September 6, 2021.

The model plan includes best practices related to:

  • Cleaning and disinfecting of shared equipment and common-use surfaces;
  • Face coverings;
  • Health screenings;
  • Personal protective equipment;
  • Hand hygiene;
  • Physical distancing protocols;
  • Engineering controls;
  • Enforcement responsibility;
  • Employee notice requirements;
  • Verbal review of standards, policies, and employee rights; and
  • Anti-retaliation provisions.

Note: The state also published industry-specific plans for the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.

Covered Workers:

The rules apply to all employees, including part-time workers, domestic workers, home care workers, and other temporary and seasonal workers. It also covers independent contractors and individuals who work for staffing agencies or who deliver goods or transport people at, to, or from the worksite on behalf of the employer.

Notice and Posting Requirements:

Within 30 days of adopting a disease prevention plan, employers must provide written notification of the plan to employees in writing, in English, and in the language identified by each employee as their primary language (provided there is a model plan developed in that specific language). For example, if the employer adopts a plan on August 3, 2021, they must provide the notice to employees by September 2, 2021. The plan must also be provided to employees at the time of hire, within 15 days after reopening after a period of closure due to airborne infectious disease, and must be made available upon request.

The plan must also be posted in a visible and prominent location within each website and included in the employee handbook if the employer provides their employees with an employee handbook.

Workplace Health and Safety Committees:

Beginning November 1, 2021, employers who employ at least 10 employees must allow employees to establish a joint employer-employee workplace health and safety committee authorized to raise health and safety concerns and evaluate the worksite's health and safety policies. The committees must be comprised of at least two-thirds of non-supervisory employees, and non-supervisory employees must select the non-supervisory employees on the committees.

Employers are also required to allow these safety committee designees to attend training, without loss of pay, on the function of worker safety committees, their rights under the Act, and an introduction to occupational safety and health.

Authorized tasks:

Committee members are authorized to perform the following tasks, including but not limited to:

  • Raise health and safety concerns, hazards, complaints, and violations to their employer, that the employer must respond to;
  • Review any policy put in place at the worksite under the HERO Act and any provision of the workers' compensation law and provide feedback;
  • Review any policy their employer adopts in the workplace that is in response to a health or safety law, ordinance, rule, regulation, executive order, or another related directive;
  • Participate in any site visit by any governmental entity responsible for enforcing safety and health standards;
  • Review any report filed by the employer that relates to the health and safety of the workplace as required by law; and
  • Regularly schedule meetings during work hours at least once a quarter.

Employee Protections:

Employers are expressly prohibited from retaliating and discriminating against or threatening employees who exercise their rights under the Act. Employees are also protected if they:

  • Participate in workplace safety committees;
  • Refuse to work if, in good faith, they believe there's an unreasonable risk of exposure based on working conditions that are inconsistent with the HERO Act or other laws, rules, policies, or relevant government orders and they have notified their employer, and their employer failed to correct the conditions, or the employer had or should have had reason to know about the inconsistencies; or
  • Report violations or concerns to a state, local, or federal government entity, public officer, or elected official.

Compliance Recommendations:

New York employers should review Senate Bill S1034B as well as their policies, practices and training to ensure compliance. With the Commissioner of Health's recent designation, New York employers must now implement their infectious disease exposure prevention plan, follow all distribution and notice requirements, and include their plan in their employee handbook where applicable.

Updated on February 17, 2021

In March 2020, the State of New York enacted legislation (Senate Bill 8091) that provides paid or unpaid leave to employees subject to a quarantine or isolation order as a result of COVID-19. On February 2021, the state provided situational guidance for employees subject to multiple quarantine or isolation orders, for when an employee tests positive following their quarantine, and for when an employer mandates that an employee stay home due to potential exposure.

Background:

Senate Bill 8091 requires New York employers to provide leave to employees who are subject to a quarantine or isolation order as follows:

Impacted Employers:

Employer Size

Employer Requirements

10 or fewer employees with a net income less than one million dollars*

Provide employees with unpaid leave and job protection for the duration of the quarantine order and guarantee access to paid family leave and disability benefits (short-term disability), capped at $2,884.62 per week.

11-99 employees, or employers with 10 or fewer employees and a net income greater than one million dollars*

Provide at least five days of paid quarantine leave and job protection. After this leave is exhausted, the employee may apply for paid family leave and disability benefits, capped at $2,884.62 per week, for the duration of the quarantine order.

100 or More Employees

Provide employees with up to 14 days of paid quarantine leave and guarantee job protection for the duration of the quarantine order.

* Earned in the previous tax year.

Update February 2021:

The New York Department of Labor provided the following situational guidance:

Situation 1:

An employee who returns to work following a period of mandatory quarantine or isolation does not need to be tested before returning to work, except for nursing home staff. However, an employee who subsequently receives a positive COVID-19 test result must not report to work. In such cases, the employee will be subject to a mandatory isolation order from the New York Department of Health (DOH) and is entitled to quarantine leave, whether or not the employee already has received such leave for the first period of quarantine or isolation. The employee must submit documentation from a licensed medical provider or testing facility attesting that they tested positive for COVID-19, unless the positive result came from an employer-provided test.

Situation 2:

An employee who is subject to a quarantine or isolation order, but continues to test positive for COVID-19 at the end of their quarantine or isolation period must not report to work (though it's not recommended that an employee be tested in order to end isolation or quarantine). In such cases, the employee will be subject to a second mandatory isolation order from the DOH and is entitled to quarantine leave for the second period of isolation. The employee must submit documentation from a licensed medical provider or testing facility attesting that they tested positive for COVID-19 after completing the initial period of isolation, unless the positive result came from an employer-provided test.

Situation 3:

If an employer mandates that an employee who is not otherwise subject to a quarantine or isolation order to remain out of work due to potential exposure to COVID-19, the employer must continue to pay the employee at their regular rate of pay until the employer permits the employee to return to work or the employee becomes subject to a mandatory quarantine or isolation order. At that time, the employee must receive quarantine leave for the period of time the employee is subject to such an order.

Additional Information:

In no case does an employee qualify for quarantine leave for more than three orders of quarantine or isolation, and the second and third orders of quarantine or isolation must be based on a positive COVID-19 test. For more information, visit New York State's Department of Health and paid sick leave websites.

Job Protections:

Employees who return to work after a protected leave must be restored to the same pay, position of employment, and other terms and conditions of employment they had before taking their leave.

Employee Exemptions:

Senate Bill 8091 does not apply to quarantined or isolated employees who have returned to the U.S. after traveling to a country categorized as a level two or three by the Centers for Disease Control and Prevention (CDC) for non-work related reasons. For this exception to apply, the employee must have been made aware of this exception and of the CDC's warning.

Note: These employees are still eligible to use other accrued leave provided to them by their employer, after which the employee must receive unpaid sick leave until the end of any required or preventative order of quarantine or isolation.

Compliance Recommendations:

Employers in New York should review their policies, forms, practices, and supervisor training to ensure compliance with Senate Bill 8091 and subsequent guidance.

Posted on April 29, 2020

The New York State Department of Labor (NYSDOL) has adopted an emergency rule that requires employers to provide an unemployment insurance notice to employees whose work schedule and/or employment status is impacted by COVID-19.

The following information must be provided:

  • NYS Employer Registration Number
  • Federal Employer Identification Number
  • Employer Name
  • Employer Address

All relevant employees, including those who have already been impacted by COVID-19, must be promptly provided with this information. The NYSDOL recommends employers use Form IA 12.3 to help employees expedite the completion of their unemployment applications.

Compliance Recommendations:

Employers with employees in New York must ensure compliance with the new notification requirements.

Oregon

Posted on January 5, 2022

The Oregon Occupational Safety and Health Division has amended its rule (OAR 437-001-0744), which covers requirements for masks, physical distancing, and cleaning to combat COVID-19. The amended rule went into effect December 21, 2021.

The Details:

Cleaning Protocols:

Previous Rule: Employers were required to regularly clean and sanitize all common areas. In addition, employers must clean and disinfect common areas, high-touch-surfaces, and any shared equipment under the employer's control that a person who has COVID-19 either used or had direct physical contact with, depending on the timing of the exposure.

What's changed: The amended final rule now only requires employers in healthcare settings to regularly clean or sanitize all common areas. However, employers must provide employees time and supplies to clean more frequently than required, or if they use shared equipment. Employers are still required to clean and disinfect areas known to be infected with COVID-19.

Masks:

What's Changed: Employers must provide masks, face coverings or shields at no cost and allow an employee to wear a face covering even when it is not required. They must also implement the indoor mask requirements of OR. Admin. R. 333-019-1025, unless the person is:

  • Under 5 years of age (or under 2 years of age in public transportation or transport hubs);
  • Doing an activity that makes wearing a mask, face covering or face shield not feasible, for instance, while showering, eating, drinking, or sleeping;
  • Is in a room or vehicle that is shared solely with members of the same household; or
  • Is required to briefly remove their mask, face covering, or face shield because their identity needs to be confirmed, such as security checks at banks or with law enforcement. While the covering is removed, the person should limit their speaking.

Under the amended rule, healthcare employers must also ensure that all individuals in the workplace wear a mask, face covering, or face shield when:

  • Working inside and social distancing of six feet can't be consistently maintained; or
  • An employee shares a room with one or more others and the total square feet does not provide at least 100 square feet per person.

Social Distancing:

Existing rule: All employers must ensure social distancing of six feet from co-workers.

What's changed: Oregon OSHA only requires the implementation of social distancing in healthcare and transit settings. All healthcare employers must ensure that work activities and workflows eliminate the need for an employee to be within six feet of another person to perform their duties unless the employer determines and can show that social distancing is not feasible for certain work activities.

Protected Benefits for Medical Removal:

Existing Rule: Employees ordered to quarantine or isolate by a healthcare or local public official (medical removal) must be permitted to return to their previous duties, if still available, without any adverse action because they had to quarantine or isolate.

What's Changed: Certain healthcare employers with more than 10 employees must provide the following benefits to employees who are engaged in direct patient care or in direct support of such care if the employee undergoes medical removal:

  • The benefits the employee would normally be entitled to while working;
  • Employers with 500 or more employees: The same regular (non-overtime) pay the employee would have received had the employee not been absent from work, up to a maximum of $1,400 per week, until the employee is able to return to work; or
  • Employers with fewer than 500 employees: The same benefits as required by employers with 500 or more employees, but starting the third week of an employee's removal, an employer may reduce the pay to two-thirds of the same regular pay the employee would have received had they not been absent from work, up to $200 per day (generally $1,000 per week).

Note: Employers will only be responsible for compensating the amount they owe, less the amount of compensation for lost earnings that an employee receives from any other source.

Next Steps:

Oregon employers should train employees on the updated COVID-19 information and safety requirements and ensure that their health and safety policies align with the amended regulations.

Posted on July 1, 2021

Oregon's Occupational Safety and Health Administration (OSHA) has published a final rule that requires employers to follow certain safety protocols to stop the spread of COVID-19.

Background:

Previously, Oregon published a temporary rule to help control the spread of COVID-19. The temporary rule was in effect through May 4, 2021. The final rule adds and extends certain safety provisions from the temporary rule. The final rule will remain in effect until the state determines it is no longer necessary to address the COVID-19 pandemic and repeals it.

New requirements:

The final rule added several provisions, including but not limited to:

  • Clarification that employers who completed actions under the temporary rule, such as training, exposure risk assessments, infection control plans, or posting requirements, do not need to revise or repeat these actions if they had acted in compliance with the temporary rule;
  • Employees in quarantine or isolation for COVID-19 must be allowed to work at home if suitable work is available for them and their condition does not prevent it;
  • Employers must notify employees who quarantine or isolate of their right to return to their job (as long as it's available) when their quarantine or isolation period ends. This notification must be in writing;
  • Employers with more than 10 employees statewide and an existing HVAC system must certify in writing that they're operating that system in accordance with the rule. Such certifications can be made using the sample format provided by Oregon. This may be done using Oregon OSHA ‘s sample format or by other means.

Extended requirements:

Under the final rule, employers must continue the following protocols from the temporary rule:

  • Establish a process to notify their employees of potential workplace COVID-19 exposure within 24 hours;
  • Notify both employees who were within six feet of someone who tested positive for COVID-19 for a cumulative total of 15 minutes and employees who worked in the same facility or a well-defined portion of the facility. They may also continue to rely on Oregon OSHA's model policy for this purpose;
  • Continue to follow the exceptional risk workplace and industry-specific guidelines*

*Note: While the final rule also required employees and visitors to continue physical distancing and use face masks in the workplace, Oregon Governor Kate Brown recently signed Executive Order No. 21-15, which lifted the statewide mask mandate and requirements for physical distancing indoors, effective June 30, 2021. In following the Executive Order, OR OSHA lifted workplace rules that required masks and physical distancing on June 30, 2021.

Compliance Recommendations:

Oregon employers should review the final rule in full and ensure compliance with all applicable requirements.

Posted on October 5, 2020

Oregon has enacted Order BLI 7-2020 (the "Order"), which amends the Oregon Family Leave Act (OFLA) to permit employees to take leave to care for a child when their school or childcare provider closes due to COVID-19. The Order is effective immediately.

Background:

The OFLA requires employers with 25 or more employees in Oregon to provide eligible employees with job-protected leave for certain qualifying situations, including:

Leave type

Description

Employee eligibility

Duration of leave

Parental leave

Leave for the birth, adoption, or foster placement of a child.

Employees who have worked for their employer for at least 180 days.

Up to 12 weeks per year

Serious health condition

Leave for an employee's own serious health condition, or to care for a spouse, parent, parent-in-law, or child.

Employees who have worked for their employer for at least 180 days, averaging at least 25 hours per week during the 180 days before they start leave.

Up to 12 weeks per year

Pregnancy disability leave

Before or after the birth of a child or for prenatal care.

Employees who have worked for their employer for at least 180 days, averaging at least 25 hours per week during the 180 days before they start leave.

Up to 12 weeks per year (in addition to other types of leave)

Sick child leave

Leave to care for a child with a non-serious health condition that requires home care.

Employees who have worked for their employer for at least 180 days, averaging at least 25 hours per week during the 180 days before they start leave.

Up to 12 weeks per year (if an employee used all 12 weeks for parental leave, employees can take up to 12 more weeks for sick child leave)

Military family leave

Leave if an employee's spouse is a service member who's been called to, or is on leave from, active duty.

Employees who have worked for their employer for at least 180 days, averaging at least 25 hours per week during the 180 days before they start leave.

Up to 14 days per year

Bereavement leave

Leave following the death of a family member.

Employees who have worked for their employer for at least 180 days, averaging at least 25 hours per week during the 180 days before they start leave.

Up to 2 weeks

Temporary Rules:

Under a temporary administrative order, effective March 18, 2020, Oregon employees may be absent for up to 12 weeks, on a continuous or intermittent basis, because the employee's child's school or place of care has been closed by public authorities, including out of concerns related to the COVID-19 outbreak.

Amendment:

In September 2020, the Labor Commissioner made the temporary administrative order expanding sick child leave permanent. Order BLI 7-2020 amends the OFLA by permitting employees to take up to 12 weeks of job protected leave per year to care for a child whose school or childcare provider closes due to COVID-19. This leave may be taken intermittently.

School closures:

If access to the physical location where the employee's child receives instruction or care is closed due to COVID-19 precautions, the school or childcare provider is considered "closed" for purposes of OFLA sick child leave. This is true even if instruction is being provided online or through another format such as "distance learning," and the child is still expected or required to complete assignments.

Documentation:

Employers may require employees to provide documentation demonstrating the need for such leave, including:

  • The name of the child receiving the care;
  • The name of the childcare provider or school that is unavailable or closed; and
  • A statement that no other family member is available to provide care.

Employers may require an additional statement from an employee explaining the special circumstances that necessitate care when the child is over 14 years old.

Compliance Recommendations:

Employers with employees in Oregon should review their policies and practices to ensure compliance with the Order.

Note: The Family and Medical Leave Policy for Oregon employees in the HR411® Employee Handbook Wizard has been updated to reflect the changes made by Order BLI 7-2020. Check the Alerts section of the Employee Handbook Wizard home page to incorporate these changes into your handbook.

Posted on March 24, 2020

Oregon has enacted a temporary rule that expands the Oregon Family Leave Act (OFLA) to cover certain situations that may arise as a result of COVID-19. The rule is in effect from March 18, 2020 through at least September 13, 2020.

Background:

The OFLA requires employers with 25 or more employees to provide eligible workers with unpaid, job protected leave to care for themselves or family members in certain circumstances. Generally, to be eligible for leave, an employee must be employed for the 180 day calendar period immediately preceding the leave and have worked at least an average of 25 hours per week during the 180-day period, though there are some exceptions.

Under existing rules, OFLA permits eligible employees to use up to 12 weeks of sick-child leave to care for a child with a non-serious health condition who requires home care and certain other reasons.

Temporary Rule:

The temporary rule permits eligible employees to also use sick-child leave to care for a child whose school or place of care has been closed in conjunction with a statewide public health emergency declared by a public health official.

Compliance Recommendations:

Employers in Oregon should review their policies, forms, practices, and supervisor training to ensure compliance with the temporary rule.

Pennsylvania

Posted on April 21, 2020

Pennsylvania has enacted legislation (House Bill 68) that eases unemployment eligibility rules and requires employers to provide employees with an unemployment notice. House Bill 68 takes effect immediately.

Unemployment eligibility:

House Bill 68 eases unemployment compensation eligibility requirements for employees who become unemployed due to COVID-19.

Waiting periods:

House Bill 68 waives the one-week waiting period and requirement for employees to actively look for work for the duration of the COVID-19 emergency declared by the Governor. Employees must still meet certain other conditions in order to qualify.

Employer Assistance:

Where permitted by federal law, an employer's unemployment account will not be charged if employees are filing unemployment claims for certain reasons related to COVID-19.

Unemployment notice:

When an employee separates from an employer, the employer must provide the employee with a notice containing the following information:

  • Employees may be eligible for unemployment payments;
  • That information on filing unemployment claims may be found on the state's website or by calling the Department: (888) 313-7284;
  • Employees will need to provide information such as their full legal name, social security number, and work authorization (if not a U.S. citizen or resident); and
  • Employees may file unemployment claims during the first week that their employment ends, or their hours are reduced.

Note: The employer notice requirement will be required beyond the COVID-19 outbreak.

Compliance Recommendations:

Pennsylvania employers should review and adjust their policies and procedures to ensure compliance with House Bill 68.

Tennessee

Posted on May 18, 2022

Tennessee has enacted legislation (Senate Bill 1823) that requires employers that mandate COVID-19 vaccinations to allow certain exemptions. Senate Bill 1823 is effective immediately.

Background:

Tennessee had previously enacted legislation (Senate Bill 9014) that, among other things, prohibited employers from compelling a person to provide proof of their vaccination from COVID-19 if the person objects to receiving the vaccine.

The Details:

Senate Bill 1823 amends Senate Bill 9014 to require employers that mandate workers to receive, or provide proof of a COVID-19 vaccination, to enact an exemption process for medical and religious reasons.

An employer may not take longer than 10 business days to grant or deny the person's request for an exemption, and they must provide a written statement that explains their decision to deny a request for exemption.

Medical Exemptions:

To claim an exemption based on medical reasons, an individual must provide a valid medical reason that is supported by a signed and dated statement from a licensed healthcare provider.

Religious Exemptions:

To claim a religious exemption, a person must state that they have a religious belief.

Note: Employers cannot require proof beyond the initial statement to grant the exemption.

Non-retaliation:

Under the law, an employer cannot discharge, threaten to discharge, or reduce the compensation of a person because that individual received an exemption.

Enforcement:

Employers that are found to have violated the law may face penalties of up to $10,000.

Next Steps:

Tennessee employers should review their policies and procedures and train supervisors to help ensure compliance with Senate Bill 1823.

Posted on December 13, 2021

Tennessee has passed legislation (Senate Bill 9014) that adds protections for employees who refuse to provide proof of COVID-19 vaccination. Senate Bill 9014 is effective immediately.

The Details:

Under the law, employers are prohibited from compelling a person to provide proof of their vaccination from COVID-19 if the person objects to receiving the vaccine. The law also provides that a person who is terminated because of their refusal to receive a COVID-19 vaccine is eligible for unemployment benefits.

Unemployment Benefits:

The law additionally prohibits an individual from being disqualified from unemployment benefits if a claimant left their employment because the claimant’s employer required its employees to receive a COVID-19 vaccine and the claimant failed or refused to receive a COVID-19 vaccine.

Retaliation prohibited:

Under the law, employers cannot take adverse action to compel a person to provide proof of vaccination if the individual objects to receiving a COVID-19 vaccine for any reason. This includes denying employment or discharging, threatening, or otherwise discriminating against an employee in any manner that affects their employment, including compensation, terms, conditions, locations, rights, immunities, promotions, or privileges.

Next Steps:

Tennessee employers should consult with legal counsel to discuss the impact of the mandate on their vaccination policies and practices.

Texas

Texas has enacted legislation (Senate Bill 7) that bans certain COVID-19 vaccine mandates. Senate Bill 7 takes effect on February 6, 2024.

The Details

The law prohibits a private employer from adopting or enforcing a mandate that requires an employee, contractor or applicant to be vaccinated against COVID-19 as a condition of employment or a contract position.

Note: The law applies to employer actions that occur on or after February 6, 2024.

Exceptions

Under Senate Bill 7, healthcare facilities and providers may establish and enforce a policy to help prevent the spread of COVID-19. The policy may include requiring an individual who is an employee or contractor of the facility, or a provider or physician, that is not vaccinated against COVID-19 to use protective medical equipment (based on the level of risk the individual presents to patients from their routine and direct exposure to patients).

Nonretaliation

The law prohibits an employer from taking an adverse action that would punish, alienate, or otherwise adversely affect an employee, contractor, or applicant for refusing to be vaccinated against COVID-19.

Enforcement

Employers that are found to have violated the law may be fined $50,000 per violation, unless the employer:

  • Hires the applicant for employment or the contract position; or
  • Reinstates the employee or contractor and provides them with back pay from the date of the adverse action and makes every reasonable effort to reverse the effects of the adverse action. This includes reestablishing employee benefits that the employee or contractor would have been eligible for, if the adverse action had not been taken.

Next Steps

Texas employers should consult legal counsel to discuss the impact of Senate Bill 7 on their vaccination policies and practices.

Posted on October 18, 2021

Governor Greg Abbott has issued an executive order (the Order) that prohibits employers in Texas from requiring individuals to receive a COVID-19 vaccine. The Order is effective immediately.

The Order:

Employers in Texas are prohibited from compelling an employee or any other individual to receive a COVID-19 vaccination if the individual objects to such vaccination:

  • For any reason of personal conscience;
  • Based on a religious belief; or
  • For medical reasons, including prior recovery from COVID-19.

Employers who do not comply with the Order may face fines.

Compliance Recommendation:

Texas employers should consult legal counsel to discuss the impact of the Order on their vaccination policies and practices.

Utah

Posted on: April 20, 2023

Utah has enacted legislation (House Bill 131), which prohibits most private employers from discriminating on the basis of vaccination or immunity status in employment decisions. House Bill 131 takes effect on May 3, 2023.

The Details

House Bill 131 prohibits many employers from taking the following actions on the basis of an individual's vaccination status or whether the individual has an immunity passport:

  • Refusing or barring them from employment; or
  • Discriminating in compensation, or in a term, condition or privilege of employment.

The law defines an immunity passport as a document, digital record or software application that indicates an individual is immune to a disease (through vaccination or infection and recovery). Vaccination status is defined as an indication of whether an individual has received one or more doses of a vaccine.

Exceptions

The law does not cover the following:

  • Employers that establish a link between a vaccination requirement and the employee's assigned duties and responsibilities or identify an external requirement for vaccination (not imposed by the employer) that relates to the employee's duties and responsibilities;
  • Employees that are directly exposed to human blood, human fecal matter or other potentially infectious materials that may expose them to hepatitis or tuberculosis (as determined by the employer);
  • Certain childcare programs that require vaccinations under the law;
  • Federal contractors;
  • A regulated entity where compliance with the law would violate binding, mandatory regulations or requirements that affect funding issued by the Centers for Medicare and Medicaid Services or the U.S. Centers for Disease Control and Prevention; or
  • A contract for goods or services that is entered into before May 3, 2023, if:
    • It would result in a substantial impairment of the contract; and
    • The contract is not between the employer and their employee.

Requesting Proof of Vaccination

Existing law allows employers to request proof of a COVID-19 vaccination from employees or prospective employees, but they must exempt the employee or prospective employee from the requirement if the individual:

  • Provides a statement that receiving the COVID-19 vaccination would be injurious to their health and well-being or conflict with a sincerely held personal belief, or religious belief, practice or observance; or
  • Has a letter from a primary care provider that states they had previously contracted COVID-19.

House Bill 131 does not repeal existing law and does not appear to expressly prohibit employers from requesting vaccination status or proof of immunity from employees. However, the law prohibits employers from discriminating against employees or prospective employees by using their vaccination status or whether they have an immunity passport as the basis for hiring decisions, termination or making other decisions related to terms and conditions of employment.

Existing law also prohibits employers from keeping or maintaining records or copies of an employer's proof of vaccination unless a legal requirement, established business practice, or industry standard requires otherwise. House Bill 131 does not appear to alter this existing prohibition.

Next Steps

Review all vaccination policies and procedures and make any necessary changes.

Posted on November 30, 2021

Utah has enacted legislation (Senate Bill 2004) that adds a COVID-19 vaccination exemption process and requires employers to pay for testing. Senate Bill 2004 is effective immediately.

Vaccination Exemption Process:

Utah employers who require an employee or candidate to receive, or provide proof of, COVID-19 vaccination as a condition of employment must provide an exemption to the requirement if the individual submits a statement that receiving the vaccine would:

  • Harm their health and well-being; or
  • Conflict with a sincerely held personal or religious belief, practice, or observance.

Exempt Employers:

Federal contractors; certain individuals subject to the Centers for Medicare and Medicaid Services’ COVID-19 vaccine regulations, and employers with fewer than 15 employees who can establish a nexus between the requirement and the employee's assigned duties are not covered by the exemption requirement.

COVID-19 Testing Costs:

Senate Bill 2004 also requires employers to cover all costs of COVID-19 testing that relate to, or are required for, the employee's presence at the workplace.

Recordkeeping Requirements:

Employers may record whether or not an employee is vaccinated, but employers generally may not maintain an employee's proof of vaccination, unless required by law or industry standards.

Non-Retaliation:

Senate Bill 2004 prohibits Utah employers from taking adverse action (such as refusing to hire, terminating, demoting, or reducing wages) against an employee who complies with the law, but employers may reassign or terminate an employee if reassignment is impractical.

Compliance Recommendations:

Utah employers should consult legal counsel to discuss the impact of the law on their vaccination policies and practices.

Posted on December 15, 2020

Utah Governor Gary Herbert has issued Executive Order 75, which requires employers to follow certain COVID-19 related safety requirements for the duration of the public health emergency.  The Order is effective immediately.

General Requirements:

Under the Order, businesses must require each:

  • Employee and contractor to wear a face mask while at work;
  • Patron who enters a business premise to wear a face mask, including at doors and entrances; and
  • Separate household group at a business, or each separate party at a bar or restaurant, to maintain at least six feet of physical distance from others, including at doors and entrances.

Employee Mask Requirements:

An employee's mask must cover their nose and mouth, be made of synthetic or natural fabrics and rest snugly against an employee's nose, sides of the face, and under the chin. The Order expressly prohibits face masks made of web-like materials (mesh, lace, and crochet) or masks with openings, such as vents, exhalation valves, or other gaps.

Employees may remove their masks in the following circumstances:

  • While actively eating or drinking;
  • While solely occupying a room, cubicle, or similar enclosure;
  • When communicating with a person who is deaf or hard of hearing, if communication cannot be achieved through other means and the speaker wears a face shield or uses alternative protection such as a plexiglass barrier;
  • While obtaining or providing a service that requires the temporary removal of the mask;
  • While swimming or on duty as a lifeguard;
  • While giving a religious, political, media, educational, artistic, cultural, musical, or theatrical presentation for an audience;
  • When engaging in work in which wearing a mask would create a risk to the person, while following government safety guidelines;
  • When it's necessary to confirm a person's identity;
  • When federal or state laws or regulations prohibit wearing a face mask; and
  • If they're prevented from wearing a mask due to a medical or mental health condition or an intellectual or developmental disability.

Sign Requirements:

Employers must post signage in a conspicuous location that:

  • Provides notice of face mask and physical distancing requirements;
  • Asks employees and customers experiencing COVID-19 symptoms to stay home; and
  • Lists COVID-19 symptoms.

Compliance Recommendations:

Employers should update their health and safety policies, procedures and training to comply with the Order.

Virginia

Posted on July 27, 2020

The Virginia Safety and Health Codes Board enacted a temporary workplace safety standard in response to the COVID-19 pandemic. The Emergency Temporary Standard is effective July 27, 2020.

Below is an overview of the standard. To read the standard in full, click here.

Assessment and Classification:

Employers must conduct an assessment of the workplace for hazards and job tasks that potentially expose employees to COVID-19. Employers must also classify each job task according to the risk of exposure.

Self-Monitoring:

Employers must notify employees of the methods of exposure and transmission of COVID-19 and encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure or are experiencing signs of an oncoming illness.

Notification Requirements:

Employee Notification:

Employers must develop and implement policies and procedures for employees to report when they are experiencing symptoms consistent with COVID-19.

Employer Notification:

Generally, if an employer receives a report of an individual who has tested positive for COVID-19, the employer has 24 hours to notify individuals who may have been exposed, the building or facility owner, and the Virginia Department of Health. When notifying the building or facility owner and other individuals, employers must keep the identity of the infected person confidential. Employers must also notify the Virginia Department of Labor and Industry (DOLI) within 24 hours of the discovery of three or more employees within a 14-day period testing positive for COVID-19.

Return to Work (Infected Employees):

Employers must develop and implement policies and procedures for employees with known or suspected cases of COVID-19 and may not permit employees known or suspected to be infected with COVID-19 to report to, or remain at, the work site until they're cleared to return to work (using a symptom- or test-based strategy). A symptom-based approach excludes employees from the workplace until at least three days have passed since recovery and at least 10 days have passed since symptoms first appeared. A testing approach excludes infected employees until they have a negative COVID-19 test result. If an employer elects to require employees to test negative for COVID-19 before returning to work, the employer must pay for the tests.

Employers are not permitted to use anti-body testing when making return to work decisions.

Workplace Controls:

Social Distancing:

Employers must ensure that employees observe physical distancing at all times and leverage verbal announcements, signage, or visual cues to promote physical distancing. Access to common areas, breakrooms, or lunchrooms must be closed or controlled.

Sanitation and Disinfecting:

Employees that interact with customers or other persons, must be provided with and immediately use supplies to clean and disinfect surfaces contacted during the interaction.

All common spaces, including bathrooms, frequently touched surfaces and doors must, at a minimum, be cleaned and disinfected at the end of each shift. All shared tools, equipment, workspaces, and vehicles must be cleaned and disinfected prior to transfer from one employee to another. Employers must ensure that cleaning and disinfecting products are readily available to employees.

Personal Protective Equipment (PPE):

When engineering, work practice, and administrative controls are not feasible or do not provide sufficient protection, employers must provide PPE to their employees and ensure its proper use in accordance with VOSH laws, standards, and regulations. Employers must also ensure compliance with respiratory protection when the nature of an employee's work or work area doesn't allow physical distancing. When multiple employees are occupying a vehicle for work purposes, the employer must ensure compliance with respiratory protection and PPE standards applicable to its industry.

Very High and High Risk of Exposure:

The following requirements for employers with hazards or job tasks classified as "very high" or "high" exposure risk also apply:

  • To the extent feasible, employers must install physical barriers, such as clear plastic sneeze guards, where such barriers will aid in mitigating the spread of virus transmission.
  • Prior to the start of each shift, prescreen or survey each covered employee to ensure they do not have signs or symptoms of COVID-19.
  • Limit non-employee access to the workplace or restrict access to only certain areas to reduce the risk of exposure.
  • Where feasible, postpone non-essential travel and implement telework, staggered shifts, phone and video conferencing, and curbside pickup.
  • Develop an infectious disease preparedness and response plan (this requirement also applies to employers with hazards or job tasks classified as "medium" if the employer has 11 or more employees) by August 26, 2020. The plan must address the level(s) of risk associated with the hazards employees are exposed to, and the engineering, administrative, and PPE controls necessary to address those risks.

Examples of high and very high risks tasks include healthcare and mortuary services. Medium risk job tasks involve certain specialty work, like meat processing and commercial transportation, as well as tasks that involve frequent interaction with the public, like stores and restaurants. Traditional office work tasks are classified as lower risk.

Training:

Employers with hazards or job tasks classified as "very high," "high," or "medium exposure" risk must provide training to all employees working at the place of employment regardless of employee risk classification by September 25, 2020. Employers must prepare and maintain a written certification of training completed for each employee. Lower risk employers do not have to provide formal training but must distribute information to employees about hazards and characteristics of COVID-19.

Anti-Retaliation Provisions:

Employers may not retaliate against an employee for exercising their rights under the standard, voluntarily providing and wearing their own PPE, or raising a reasonable concern about infection control.

Additional Information:

The DOLI plans to provide supplemental materials on infectious disease preparedness and response plans, training, and more here.

Compliance Recommendations:

Employers should review the standard in full as well as DOLI guidance to ensure their policies, procedures, and training comply.

Washington

Posted on June 22, 2021

Washington Governor Jay Inslee has signed Senate Bill 5115, also known as the Health Emergency Labor Standards Act (or HELSA). The HELSA expands worker protections during a public health emergency and requires employers to follow certain notice requirements. Senate Bill 5115 is effective immediately.

Covered Employees:

The Act covers frontline workers in various industries, including but not limited to:

  • Restaurants;
  • Retail stores;
  • Hotel, motel, or transient accommodations;
  • First responders (enforcement and paramedics);
  • Food processing and distribution;
  • Maintenance, janitorial, and food service workers at facilities treating patients with infectious or contagious disease subject to a public health emergency;
  • Childcare facilities;
  • Home care aides;
  • Education; and
  • Nursing homes.

Employee Protections:

For workers' compensation and other benefit purposes, employees are assumed to be exposed to infectious or contagious diseases through the transmission of respiratory droplets, aerosols, or contact with contaminated surfaces at work, unless an employer can show that the exposure occurred outside of work.

Benefits:

Frontline employees who are exposed to infectious or contagious diseases at work are eligible to receive workers' compensation benefits, including time loss or temporary disability benefits the day after the employee contracts the occupational disease. This is defined as the earlier of the date that the employee:

  • First missed work due to their symptoms;
  • Was quarantined by a medical provider or a public health official; or
  • Received a positive test result.

Note: Frontline employees are ineligible for temporary disability if they meet a federal or state program's requirements for paid sick leave benefits during a public health emergency.

Reasonable Accommodations:

The HELSA prohibits employers from discriminating against a high-risk employee who asks for an accommodation to shield them from being exposed to the infectious disease. If no reasonable accommodation exists, employers must provide employees with all available leave options, including leave without pay and unemployment insurance, until completion of the public health emergency or accommodation is made available.

Employer Notice Requirements:

Under the HELSA, if an employer receives a notice of potential exposure during a public health emergency, the employer must follow the steps outlined below:

  • Provide written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite that an individual has a positive confirmed case of the infectious or contagious disease. Employers have one business day to provide such notice.
  • The notice must be in English and in the language understood by the majority of the employer's workforce.
  • The notice must be made in a manner the employer normally uses to communicate employment-related information, which may include e-mail, text message, personal service, or other methods, if the employer can reasonably anticipate the notice to be received by the employee within one business day.

Note: Health care facilities (hospitals and clinics) are subject to different rules.

Reporting Requirements:

An employer with more than 50 employees at a workplace or worksite must report outbreaks to the Washington Department of Labor and Industries within 24 hours. Reporting is required if the employer has confirmed 10 or more of their employees at the workplace or worksite in the state have tested positive for the infectious or contagious disease.

Compliance Recommendations:

Employers should review their reporting policies and procedures to ensure compliance with Senate Bill 5115.

Seattle, WA

Posted on April 2, 2020

Effective immediately, Seattle has expanded the reasons employees may take leave under its Paid Sick and Safe Time (PSST) Ordinance.

Background:

Under Seattle's paid sick leave ordinance, an employee may take leave to care for themselves or a family member due to:

  • A physical or mental health condition, including a doctor's appointment;
  • Domestic violence, sexual assault or stalking;
  • Their child's place of care or school was closed due to the order of a public health official for a health-related reason; or
  • When a public official ordered their place of business to close.

Amendments:

The City Council amended the ordinance to allow employees to take leave when any family member's (not just their child's) school or place of care has been closed for any reason. For employers with 250 or more full-time equivalent employees, employees can also take leave when their place of business has been closed for any health or safety reason.

Compliance Recommendations:

Seattle employers should review their policies, forms, practices, and supervisor training to ensure compliance with the Ordinance as amended.

West Virginia

Posted on November 12, 2021

Governor Jim Justice has signed legislation (House Bill 335) that requires employers to provide an exemption process as an alternative to COVID-19 vaccination mandates. House Bill 335 takes effect on January 18, 2022.

House Bill 335:

West Virginia has enacted legislation that requires employers who mandate vaccination for an employee or candidate to provide an alternative exemption process. House Bill 335 requires employers to exempt those who present one of the following certifications:

  • A medical certification signed by a physician or advanced practice registered nurse who has conducted an in person examination stating:
    • The COVID-19 immunization is contraindicated;
    • A specific precaution to the mandated vaccine exists; or
    • The individual has antibodies from exposure to the COVID-19 virus or has suffered and recovered from the COVID-19 virus.
  • A notarized certification by the current or prospective employee stating that their religious beliefs prevent them from receiving COVID-19 immunization.

Nonretaliation:

Employers are prohibited from penalizing or discriminating against current or prospective employees for their exercising exemption rights under the law. This includes benefits decisions, hiring, firing, or withholding bonuses, pay raises, or promotions.

Compliance Recommendations:

West Virginia employers should consult legal counsel to discuss the impact of House Bill 335 on their vaccination policies and practices.