On March 22, 2022, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) partially reopened the comment period to allow for additional public comment on specific topics covered by its proposed final standard to protect healthcare workers from workplace exposure to COVID-19.
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COVID-19
Supreme Court Blocks Enforcement of OSHA Vaccine-or-Testing Mandate
On January 13, 2022, the United States Supreme Court issued its highly anticipated decision blocking the Biden administration from enforcing an Occupational Safety and Health Administration (“OSHA”) rule mandating vaccine-or-testing for large businesses.
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In It For The Long Haul: Employer Obligations To Employees With Long COVID Symptoms
Some people continue experiencing COVID-19 symptoms for weeks or months after first developing COVID-19. The Centers for Disease Control and Prevention have defined “long COVID” as “new or ongoing symptoms that can last weeks or months after first being infected with the virus that causes COVID-19.” With the rise of long COVID, the U.S. Department of Health and Human Services (“HHS”) provided guidance on Long COVID and how it qualifies as a disability under the Americans with Disabilities Act (“ADA”).
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President Mandates COVID-19 Vaccination For Millions Of Employees
On Thursday, September 9, 2021, President Joe Biden announced new COVID-19 vaccine mandates requiring all employers with 100+ employees to ensure their workers are vaccinated or tested weekly.
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OSHA Announces COVID-19 Emergency Temporary Standard for Healthcare Industry
On January 21, 2021, President Biden issued an Executive Order on Protecting Worker Health and Safety. The order directed the Occupational Safety and Health Administration (OSHA) to take action to reduce the risk that workers may contract COVID-19 in the workplace. On June 10, 2021, OSHA announced a highly-anticipated Emergency Temporary Standard (ETS) setting forth steps that employers in the healthcare industry must take to protect workers from COVID-19 risks while the pandemic is ongoing. The ETS will become effective 14 days after it is formally published in the Federal Register.
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Is a “Vaccination Ambassador” a Good Idea?
The CDC has recently recommended that employers appoint “vaccination ambassadors” to encourage employees to get vaccinated. The EEOC has not commented on the CDC’s recommendation, but based on other pandemic-related guidance issued by the EEOC, employers should consider the employment risks associated with a vaccination ambassador. These risks include the following:
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OSHA Issues New Guidance on COVID-19
On January 29, 2021, OSHA posted new guidance intended to inform employers and workers in identifying risks of exposure to COVID-19. The new guidance applies to industries outside of healthcare. OSHA previously issued separate guidance applicable to healthcare and emergency response. The guidance does not create any new legal requirements or obligations, but is advisory only. OSHA intends for the guidance to assist employers with planning.
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OSHA Investigations and Employee Deaths and Cases of COVID-19
We have seen a significant number of OSHA investigations in recent weeks in response to reports of employee deaths and illnesses due to COVID-19. In the height of the pandemic, employers, including nursing homes, were unclear regarding their obligations to report employee incidents of COVID-19 to OSHA due to the difficulty in determining whether such cases were “work-related.” Below we have outlined OSHA’s reporting requirements and expectations regarding investigations into whether COVID cases are work-related, as well as some practices in responding to OSHA investigations. Going forward, we encourage employers to ensure they are meeting OSHA requirements and are prepared to timely respond to requests for information as penalties for such violations can be significant.
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EEOC Prohibits Covid-19 Antibody Testing
The Equal Employment Opportunity Commission (“EEOC”) has issued new guidance stating that employers cannot require employees to undergo antibody or serology testing to determine whether employees were previously infected with Covid-19 or are otherwise immune to the virus. Employers cannot require antibody testing before allowing an employee to return to work or in assigning job duties. The EEOC’s previous guidance allowing employers to test employees for current Covid-19 infection remains in effect.
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EEOC Releases Updated COVID-19 Guidance (Updated as of April 23, 2020)
On Friday, April 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance on COVID-19 issues and equal employment opportunity (EEO) laws. The easy to read Q&A format is necessary reading for essential employers whose physical workspaces remain open, and for employers contemplating re-opening plans or personnel changes. The EEOC’s guidance clarifies that EEO laws, such as the Americans with Disabilities Act (ADA), continue to apply during the pandemic, while recognizing that these laws should not interfere with applicable safety guidelines issued by the CDC and other agencies. Recent guidance addresses the following issues:
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