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Questions on COVID-19 Vaccines?
The roles of various players in the COVID-19 vaccine rollout continue to evolve among government, public companies, and private entities. Employers, pharmaceutical and supply manufacturers, healthcare service providers, educators, advertisers, transportation and logistics providers, and many others are continuously evaluating the potential implications of vaccine distribution for their industries and organizations worldwide. Morgan Lewis breaks down what opportunities, regulatory considerations, and legal obstacles still lie ahead.
Insights
The COVID-19 pandemic brought multiple temporary changes for ERISA-governed group health and welfare plans. Certain coverage mandates apply for only the duration of the COVID-19 public health emergency (the Public Health Emergency), while certain ERISA deadline relief applies only during the COVID-19 outbreak period (the Outbreak Period). This LawFlash provides an overview of these two similar—but not identical—legal COVID-19 emergency periods, as well as practical guidance for plan sponsors and administrators anticipating the announced end of the special COVID-19 rules.
The US Equal Employment Opportunity Commission updated its guidance on employer COVID-19 testing programs on July 12. The update reinforces that the evolving circumstances of the COVID-19 pandemic require an individualized assessment to determine whether testing is lawful in a given scenario.
As the COVID-19 landscape continues to evolve, multinational employers face many questions, challenges, and opportunities when considering how to resume global business travel. To help interested parties plan for Asia-Pacific travel, we’ve outlined current entry bans and vaccination and quarantine requirements in China, Hong Kong, Japan, and Singapore. This guidance is subject to rapid change based on the global and local pandemic situation.
In response to the spread of the COVID-19 omicron variant, Shanghai implemented a general lockdown in April 2022. This LawFlash provides multinational companies with operations in Shanghai, People’s Republic of China with guidance on the epidemic control measures, as well as on salary, termination, and resumption of operations issues.
California’s Occupational Safety and Health Standards Board met on April 21 and approved the third and final readoption of the COVID-19 Emergency Temporary Standard. This third readoption relaxes some of the prior COVID-19 workplace health and safety requirements in California and takes effect on May 5.
The UK Home Office has announced new identification document validation technology for right-to-work checks due to take effect from April 6, together with an extension of the COVID-19 temporary right-to-work check measures. In addition, there has been a further easement of travel restrictions for nonvaccinated travelers arriving in the United Kingdom.
The Centers for Disease Control and Prevention (CDC) announced a new framework on February 25 providing that mask wearing is optional in low- and moderate-risk settings.
Japan will implement new border measures designed to allow business purpose entries of foreign nationals, which will require improved, light prenotification procedures.
New York State lifted its mask mandate applicable to businesses on February 10, and the New York State Department of Labor subsequently issued new guidance that the New York HERO Act does not require employers to enforce mask requirements.
The California State Legislature Senate Bill 114, signed by Governor Newsom on February 9, requires employers with 26 or more employees to provide up to 80 hours of supplemental paid sick leave for qualifying COVID-19 related reasons. Although the law is similar to Senate Bill 95, which expired on September 30, 2021, there are some significant differences.
Faithful to the historically employee-friendly nature of laws and courts in the region, most regulators in Latin America are adopting policies to protect remote workers and their constitutional rights to make unpressured health-related decisions. However, the approach differs throughout the region. This LawFlash outlines the varying teleworking and vaccine regulations across Latin America.
The UK government has announced further relaxation of travel restrictions for fully vaccinated individuals arriving in the United Kingdom. The new rules include the removal of all testing requirements for fully vaccinated travellers. The easing of testing requirements will not apply to unvaccinated travellers.
The US Departments of Labor, Health and Human Services, and the Treasury (collectively, the Departments) on January 10 published much-anticipated FAQs implementing President Joseph Biden’s announcement last month to expand free at-home COVID-19 testing for all Americans during the continued period of public health emergency.
The Japanese government has extended the restrictions on the entry of foreign nationals into the country until the end of February.
The US Supreme Court issued two decisions on January 13, 2022 in cases challenging the Occupational Safety and Health Administration’s (OSHA’s) Emergency Temporary Standard (ETS) on Vaccination and Testing and the Centers for Medicare & Medicaid Services (CMS) Interim Final Rule (IFR) on COVID-19 Health Care Staff Vaccination. The Supreme Court decided to reimpose the stay on enforcement of the ETS while staying the preliminary injunctions against the CMS IFR pending further litigation.
The UK government has announced the relaxation of travel restrictions for fully vaccinated individuals arriving in the United Kingdom. The new rules include the removal of pre-departure tests and the use of lateral flow tests following arrival in the country, and will not apply to unvaccinated travellers.
On January 7, the US Supreme Court debated a range of complex issues in a pair of oral arguments over challenges to two federal regulations requiring workplace COVID-19 precautions. Although it is unlikely the Court will issue definitive opinions for several days or weeks, the Court could quickly issue a temporary “administrative” stay while it deliberates, or an unreasoned order with opinions to follow.
In response to the rapid spread of the COVID-19 Omicron variant, effective January 6, the LA County Department of Public Health revised its Health Office Order to include several notable updates, the most significant being a requirement that employers operating in cities and unincorporated areas in Los Angeles County—excluding Long Beach and Pasadena—provide select employees with high-quality masks when working indoors and in close contact with co-workers or members of the public.
On December 17, 2021, a divided panel of the US Court of Appeals for the Sixth Circuit granted the federal government’s emergency motion to dissolve the US Court of Appeals for the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s Emergency Temporary Standard. With the Sixth Circuit’s ruling, the standard is effective again for the first time since the day after it was published, although for how long remains to be seen.
In response to the widespread rise in cases of the COVID-19 Omicron variant around the globe, the UK government has removed all 11 remaining countries from its “red list.”
New “Key to NYC” guidance for private sector employers was released on Wednesday following New York City Mayor Bill de Blasio’s December 6 announcement that employees (1) not previously covered under the existing Key to NYC vaccination requirements and (2) who perform in-person work for private businesses in the city must receive at least one dose of a COVID-19 vaccine by December 27.
The Cal/OSHA Standards Board on December 16 voted to approve the second readoption of the California COVID-19 Prevention Emergency Temporary Standards (ETS) during its monthly public meeting. The revised ETS will not adopt the federal OSHA ETS or include a mandatory vaccination requirement for employers, but will include stricter requirements for employers than the current version.
The California Department of Public Health on December 13 announced that it will require all people—regardless of COVID-19 vaccination status—to wear face masks in all “indoor public settings” from December 15 through at least January 15, 2022, noting that increased infection and hospitalization rates have triggered this new requirement. Since Thanksgiving, the statewide seven-day average case rate has increased 47%, and hospitalizations have increased 14%.
New York Governor Kathleen Hochul announced a mandate requiring that all businesses and venues require employees and patrons in public indoor spaces to wear masks, unless the business or venue requires all individuals on the premises to be fully vaccinated. The mandate, which applies to private businesses, will go into effect on December 13, and last until January 15, 2022, at which time it will be reevaluated.
A federal judge in Georgia issued a preliminary injunction prohibiting the federal government from enforcing its COVID-19 vaccine mandate for federal contractors and subcontractors nationwide. This decision follows a November 30, 2021 order from a federal judge in Kentucky granting a preliminary injunction barring enforcement of the contractor mandate in Ohio, Kentucky, and Tennessee. Challenges to the Executive Order are still pending in federal courts in Louisiana, Texas, Missouri, Arizona, and Florida. Decisions in those cases are expected in the coming weeks.
New York City Mayor Bill de Blasio announced on December 6 that employees (1) not previously covered under the existing “Key to NYC” vaccination requirements and (2) who perform in-person work for private businesses in the city must receive at least one dose of a COVID-19 vaccine by December 27. The “Key to NYC” requirements currently in place for restaurants, fitness facilities, and entertainment venues have also been expanded to require proof of two doses (for individuals receiving a two-dose series) by that date, where previously only proof of an initial dose was required.
In response to the newly identified COVID-19 variant, Omicron, the UK government has moved 10 countries to the “red list” and reintroduced stringent rules for international travel.
The Japanese government has again tightened its restrictions on new entries of foreign nationals and on activities for COVID-19 vaccination certificate holders due to the rapid expansion of the Omicron variant infection around the world. These changes fully went into effect as of December 1, 2021, as one-month temporary measures valid until the end of 2021, to determine the degree of danger the Omicron variant presents. This restriction could be extended depending on infection status.
The fate of the Occupational Safety and Health Administration’s landmark Emergency Temporary Standard on COVID-19 vaccination is in the hands of the Sixth Circuit—for now. In this LawFlash, we walk businesses through the legal challenges to the Emergency Temporary Standard, how they may unfold, and what businesses may wish to do in the interim.
National Labor Relations Board General Counsel Jennifer A. Abruzzo issued a memorandum explaining her view of employers’ bargaining obligations in response to the US Department of Labor Occupational Safety and Health Administration’s Emergency Temporary Standard to Protect Workers from Coronavirus. According to Abruzzo, any issue involving employer discretion is subject to decision bargaining. The Emergency Temporary Standard may also trigger effects bargaining obligations for non-discretionary issues.
The Japanese government has relaxed its restrictions on new entries of foreign nationals and on activities for holders of COVID-19 vaccination certificates. These changes went into effect as of November 8, 2021.
The Fifth Circuit temporarily stayed the Occupational Health and Safety Administration’s Emergency Temporary Standard on COVID-19, placing it in legal limbo. In addition, state governments continue to take actions related to employer vaccine mandates that merit attention. In the past month, state legislatures in Alabama, Arkansas, Tennessee, West Virginia, and Iowa passed bills purporting to limit the ability of employers to mandate COVID-19 vaccination, and Florida will consider similar measures in a special session starting November 15. Illinois, in contrast, passed an amendment limiting the effect of a statute used by plaintiffs to challenge vaccine mandates.
The CMS Healthcare Staff Vaccination Rule takes aim at ensuring that eligible healthcare workers are soon vaccinated against COVID-19. The interim final rule requires providers and suppliers to fully implement the IFR as a condition of participation/condition of coverage in the Medicare and Medicaid programs, and to establish policies effecting “full vaccination” of staff by January 4, 2022.
After long anticipation by US companies and their employees, the US Department of Labor’s Occupational Safety and Health Administration (OSHA) published its 490-page Emergency Temporary Standard (ETS) and preamble on COVID-19 vaccination. The ETS establishes binding requirements on large employers (i.e., those with 100 or more employees) to help protect employees from contracting COVID-19 in the workplace. Covered employees must have received their final dose of a vaccine series by January 4, 2022, or be subject to weekly COVID-19 testing. The ETS contains many other requirements, including implementing a written vaccine policy, verifying and maintaining records of the vaccination status of the workforce, offering paid time off for vaccination, and more. Employers must comply with all ETS provisions by December 5, 2021, with the exception of the January 4 vaccination or testing deadline. This milestone ETS is expected to cover 84 million employees.
Under a newly signed executive order in New Jersey, all state contractors and subcontractors entering agreements with the state must include a clause that requires all covered workers to either provide adequate proof to the contractor that they are fully vaccinated or submit to at least weekly COVID-19 testing.
US restrictions on international travel will be lifted November 8 for fully vaccinated international visitors and temporary workers, including those from nearly three dozen nations who have been barred from entering the country since the start of the pandemic. US citizens and permanent residents remain subject to current COVID-19 testing requirements.
The US Equal Employment Opportunity Commission (EEOC) recently updated its COVID-19 guidance, detailing its view of employer obligations under Title VII when evaluating religious objections to COVID-19 vaccination mandates. The EEOC also added guidance on requests for accommodation based on pregnancy under the Americans with Disabilities Act and the Pregnancy Discrimination Act. Together, these comprise the second significant update to EEOC’s COVID-19 guidance since the FDA and CDC authorized COVID-19 vaccines.
A proposed Arkansas bill that would require employers to offer testing options as an exception to employer COVID-19 vaccine mandates became law on October 13, 2021. Governor Asa Hutchinson refused to sign the law, deeming it “unnecessary,” but he also did not veto the legislation, allowing it to be enacted. The law will take effect on January 13, 2022. According to the law’s preamble, the Arkansas General Assembly found that the US government is mandating that employers force employees to be vaccinated “against the employee’s will” and that “vaccination mandates are an overreach of authority.”
A new travel policy requiring foreign nationals traveling to the United States to demonstrate proof of full vaccination against COVID-19 will take effect November 8, as announced by the White House on October 15. The accepted vaccines will include FDA-approved or authorized vaccines and WHO emergency use vaccines. In light of this announcement, many US consular posts are no longer processing National Interest Exceptions except in emergency situations.
Texas Governor Greg Abbott issued Executive Order No. GA-40 (EO GA-40) on October 11, 2021, which purports to prohibit vaccine mandates, but in reality expands the scope of mandatory exemptions to such mandates. The order, which became effective immediately, states that no entity, including a private business, may compel any employee or consumer to obtain a COVID-19 vaccine if that person “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.”
Senior attorney Pierce Blue and associate Alana Genderson authored an article for Bloomberg Law discussing how the rollout of COVID-19 booster shots can create potential legal issues for employers implementing vaccine policies.
The Safer Federal Workforce Task Force issued guidance on September 24 detailing the requirements that covered federal contractors and subcontractors must follow to comply with Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” Covered contractors and subcontractors have until December 8 to ensure that covered employees—including those working from home—are fully vaccinated or qualify for a medical or religious accommodation.
In our latest Fast Break session and on the heels of recent announcements from the Biden-Harris administration and the US Food and Drug Administration’s (FDA’s) granting of full authorization for the Pfizer vaccine in August, we were joined by Dan Kadish, a Morgan Lewis labor and employment associate and one of the leaders of our Morgan Lewis COVID-19 vaccine task force, to discuss how these updates may impact employers in the healthcare industry.
The UK government has announced a new, simplified system for international travel. The current red, amber, and green traffic light system will be replaced by a single red list and simplified measures for the rest of the world.
The Biden-Harris administration plans to lift travel restrictions on visitors from most European countries, including the United Kingdom and Ireland, and other countries that have been in place since the start of the coronavirus pandemic.
President Joseph Biden on September 9 announced his new Path Out of the Pandemic: President Biden’s COVID-19 Action Plan, which describes the president’s six-pronged strategy to fight the pandemic. This sweeping action plan relies heavily on employer vaccine mandates and testing programs, including mandatory vaccination for federal employees and contractors and vaccination or weekly tests for private employers with 100 or more employees.
New York State Governor Kathy Hochul announced on September 6, 2021 that the New York State Department of Health designated COVID-19 a highly contagious communicable disease that presents a serious risk of harm to public health under the New York State Health and Essential Rights Act (HERO Act). Under the Act requirements, businesses must promptly review their worksite exposure prevention plans; activate the protective measures in the plan, including mandatory screening, social distancing, and masking; and provide employees with verbal and written notice of their exposure prevention plans.
As summer ends, many companies are hoping to resume business travel. To help interested parties plan for the next Asia-Pacific (APAC) trip, this LawFlash outlines current entry bans and quarantine requirements in popular APAC locations. These rules are subject to rapid change based on the global and local pandemic situation.
The US Centers for Disease Control and Prevention (CDC) recently announced a new policy under which all applicants for a green card must be fully vaccinated against COVID-19. As part of the green card application process, all individuals are required to undergo a medical exam by a civil surgeon. This surgeon will assess a full medical history, conduct a physical examination, ensure attainment of all required vaccinations, and screen for mental health, sexually transmitted diseases, and various other illnesses that have been determined to be adverse to the interests of the general public.
New York City Mayor Bill de Blasio issued Executive Order 225 (the Order) and related guidance on August 16 regarding the “Key to NYC” vaccination requirements for indoor entertainment/recreation, dining, and fitness settings. Under these requirements, individuals age 12 and older will be required to show proof that they have received at least one dose of an approved COVID-19 vaccine before being admitted to certain covered indoor facilities. The requirements took effect on August 17 but will not be enforced until September 13, 2021.
The Occupational Safety and Health Administration (OSHA) recently updated its nonbinding COVID-19 guidance applicable to all industries not otherwise covered by its Emergency Temporary Standard (ETS).
Partner Leni Battaglia and associate Dan Kadish authored an analysis of the recent New York City indoor vaccine mandate, providing practice guidance for retailers on how to prepare for the new requirements.
Due to increased COVID-19 positivity and hospitalization rates stemming from the Delta variant, including a rising number of breakthrough cases, public health officers in seven Bay Area counties—Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and Sonoma— and the City of Berkeley all issued face covering orders on August 2, 2021. The orders became effective on August 3, 2021.
Despite initial ambiguity over the legality of an employer-imposed COVID-19 vaccine mandate in 2020, 2021 has brought a series of decisions and opinions from federal authorities and the judiciary clarifying that an employer vaccine mandate is legal, provided employers accommodate those who are unable to be vaccinated.
The UK government has waived quarantine requirements for visitors from Europe and the United States who have been fully vaccinated—and who have not been in France or a Red List country in the 10 days prior to arriving in the United Kingdom—as part of a range of new measures designed to continue reopening international travel.
After reviewing the updated CDC Interim Public Health Recommendations for Fully Vaccinated People and in response to the recent surge in COVID-19 rates and hospitalizations, particularly in areas with lower vaccination rates, the California Department of Public Health (CDPH) on July 28 revised its Guidance for the Use of Face Coverings (Guidance) to recommend that all persons, regardless of vaccination status, wear face masks in indoor public settings across California.
The Centers for Disease Control and Prevention (CDC) has released updated guidance recommending that fully vaccinated persons in areas with substantial or high rates of COVID-19 transmission resume wearing masks in public indoor settings. The guidance also encourages all fully vaccinated persons who are exposed to COVID-19 to take a COVID-19 test three to five days after exposure, and to wear masks in public indoor settings for 14 days or until receiving a negative COVID-19 test. The guidance also recommends universal indoor masking for all teachers, staff, students, and visitors to schools, regardless of their vaccination status.
The Los Angeles County Department of Public Health issued a press release on July 15 indicating that on July 16 it will post a modified county Health Officer Order requiring everyone, regardless of vaccination status, to wear a mask in indoor public settings and businesses beginning Saturday, July 17, at 11:59 pm. With this order, Los Angeles County will be more restrictive than the guidance from the Centers for Disease Control and Prevention, the California Department of Public Health, and Cal/OSHA, all of which allow fully vaccinated individuals to forgo wearing a mask in most indoor settings.
The UK government, in line with its roadmap out of lockdown, has announced that travelers who have been vaccinated with an NHS-administered vaccine in the United Kingdom (plus 14 days), or are on a formally approved UK vaccine clinical trial, will no longer need to quarantine on their return to the United Kingdom from an amber list country.
Santa Clara County, California issued a health officer order on June 21, 2021, to phase out its May 18 health officer order, which required businesses to ascertain the vaccination status of all personnel working in the county and to follow up every two weeks with those who had not yet indicated they were fully vaccinated. The county also lifted its other COVID-19-related requirements for businesses, replacing them with recommendations that businesses are encouraged to follow.
The Cal/OSHA Standards Board voted on June 17 to “readopt” the COVID-19 Prevention Emergency Temporary Standards (ETS) with several revisions that brought the ETS rules for fully vaccinated employees more in line with the Centers for Disease Control and Prevention (CDC) and California Department of Public Health’s (CDPH) guidance. Later that day, Governor Gavin Newsom issued Executive Order N-09-21 that eliminated 10 days of administrative review so that the ETS could take effect immediately.
Governor Andrew Cuomo announced on June 15 that the State of New York reached its goal of 70% of adult New Yorkers receiving at least one dose of a COVID-19 vaccine.
In another reversal, on June 9 the California Division of Occupational Safety and Health (Cal/OSHA) Standards Board unanimously voted to withdraw the “Readopted” Emergency Temporary Standards that it had approved just six days earlier, while the California Department of Public Health (DPH) previewed new face mask guidance that aligns with the Centers for Disease Control and Prevention’s (CDC’s) face mask guidance and will take effect June 15. In addition, the health department from Los Angeles County—the county with the largest population and with the highest number of COVID-19 cases and deaths in the state since the pandemic began—announced that it will adopt the state DPH guidance except that employers must adhere to Cal/OSHA standards.
The Occupational Safety and Health Administration (OSHA) issued important updates to its COVID-19 guidance for employers on June 10. To start, the long-awaited COVID-19 Emergency Temporary Standard (ETS) is effective immediately, but it only applies to employers in healthcare and healthcare support services settings. Employers covered by the ETS have 14 days (from the date that the ETS is published in the Federal Register, which could be any day now) to comply with most provisions, and 30 days (also from the date of publication in the Federal Register) to comply with the provisions related to physical barriers, ventilation, and training.
On June 8, 2021, the New York State Department of Health released updated interim guidance for office-based workplaces that removes significant prior restrictions. This new guidance comes on the heels of Governor Andrew Cuomo’s recent announcement that once 70% of adult New Yorkers have received at least the first dose of the COVID-19 vaccine, almost all applicable guidance will become optional, except that unvaccinated individuals still need to wear face coverings and maintain social distancing. According to Governor Cuomo, New York is expected to hit the 70% threshold during the week of June 14, if not earlier.
The California Division of Occupational Safety and Health (Cal/OSHA) on May 28 released much-anticipated updated text for its proposed “Readoption” of COVID-19 Prevention Emergency Temporary Standards. Perhaps the biggest surprise was what Cal/OSHA did not change.
The US Equal Employment Opportunity Commission (EEOC) released a long-awaited update to its technical assistance guidance on COVID-19 and the Americans with Disabilities Act (ADA), the Rehabilitation Act, and other federal equal employment opportunity (EEO) laws on May 28, 2021. The document addresses frequent employer questions related to requiring vaccines for employees and providing incentives to employees to encourage vaccinations under the ADA, Title VII, and the Genetic Information Nondiscrimination Act (GINA).
New guidance will allow employees in New Jersey, Oregon, and Washington to go maskless and stop social distancing if they provide their employers proof of vaccination against COVID-19.
Massachusetts Governor Charlie Baker announced on May 17 that Massachusetts will rapidly accelerate the commonwealth’s reopening process by adopting the Centers for Disease Control and Prevention’s (CDC’s) Interim Public Health Recommendations for Fully Vaccinated People. Effective May 29, all businesses can open at 100% capacity, with very limited exceptions. The governor also announced that the 14-month state of emergency will end on June 15, 2021.
The California Department of Public Health (CDPH) announced the state will move beyond the Blueprint for a Safer Economy, allowing businesses to return to usual operations (with limited exceptions for Mega Events), effective June 15, 2021.
On May 18, 2021, Santa Clara County issued the Order of the Health Officer of the County of Santa Clara to Protect the Community from COVID-19, which became effective on May 19, 2021. Most notably, the order requires employers to ascertain the vaccination status of personnel by June 1, 2021; institute mandatory reporting for employees if they test positive for COVID-19; and enforce additional rules for personnel who are not fully vaccinated.
The California Occupational Safety and Health (Cal/OSHA) Standards Board has decided to delay approving Cal/OSHA’s proposed “readoption” of the COVID-19 Prevention Emergency Temporary Standards pending Cal/OSHA’s anticipated further proposed revisions in light of recent mask guidance from the Centers for Disease Control and Prevention.
The Centers for Disease Control and Prevention (CDC) updated its guidance for fully vaccinated individuals on May 13 to state that “fully vaccinated people no longer need to wear a mask or physically distance” in most settings, subject to applicable law or workplace guidance.
Illinois Governor J.B. Pritzker announced that effective May 17, 2021, the State of Illinois is adopting the Centers for Disease Control and Prevention’s new guidance regarding face coverings for fully vaccinated individuals. The next day, Chicago Mayor Lori Lightfoot announced similar changes to Chicago’s face covering requirements.
California will keep its existing mask guidance in place until June 15, 2021, when it aims to “fully reopen the economy.” Thereafter, California will align its mask guidance with the Centers for Disease Control and Prevention’s mask guidelines for fully vaccinated individuals.
Governor Andrew Cuomo announced that effective Wednesday, May 19, 2021, New York State will adopt the Centers for Disease Control and Prevention’s (CDC’s) Interim Public Health Recommendations for Fully Vaccinated People for most businesses and public settings.
The recent rollout of various COVID-19 vaccines has raised many questions around their availability, distribution, and requirements for employers and other groups, including essential insurance, liability, and enforcement considerations. Here we provide key legal and regulatory perspectives for those organizations providing access to the vaccines and/or mandating vaccination. Highlights include the state and federal laws providing protection to organizations during an outbreak of an infectious disease and what employers contemplating the administration of a closed point-of-delivery (POD) vaccination program need to know.
The Centers for Disease Control and Prevention (CDC) updated its guidance for fully vaccinated individuals on May 13 to state that “fully vaccinated people no longer need to wear a mask or physically distance” in most settings, subject to applicable law or workplace guidance.
Partners Reece Hirsch and Pulina Whitaker authored an article for Bloomberg Law about the implementation of digital COVID-19 vaccine passports.
The Biden-Harris administration announced on May 5 its intent to support a waiver on intellectual property protections on COVID-19 vaccines. The scope of any potential waiver is subject to further negotiation at the World Trade Organization (WTO). Any decision made at the WTO level requires a consensus among all of its 164 members.
New York Gov. Andrew Cuomo, New Jersey Gov. Phil Murphy, and Connecticut Gov. Ned Lamont jointly announced on May 3 a significant easing of the remaining capacity restrictions on business operations related to the COVID-19 pandemic.
The European Data Protection Board and European Data Protection Supervisor have published a joint opinion on the data protection aspects of the European Union's proposals for a Digital Green Certificate, a form of COVID-19 vaccine certification that aims to facilitate the free movement of people within the European Union and kickstart international travel.
Given the significant push to vaccinate the public since the start of 2021, the increasing availability of vaccines, and the need to recruit additional personnel to administer vaccinations, the secretary of the US Department of Health and Human Services (HHS) has again amended its declaration under the Public Readiness and Emergency Preparedness Act (PREP Act) to accommodate some workforce barriers that had not been previously contemplated.
Expectations for positive turns in many spheres of life, both commercial and social, have sprung at the arrival of COVID-19 vaccination. One of the popular questions is whether vaccination could change the current preference for working remotely (even as we see gradual easing of the remote work requirement in Russia) or whether it would be required as a condition to work in office. In this LawFlash we address whether an employer can require employees to vaccinate, whether the employee can seek to discontinue remote work following vaccination, and related matters.
Employers should note several recent legislative and regulatory developments in New York State related to the COVID-19 pandemic. On March 12, Governor Andrew Cuomo signed legislation entitling all public- and private-sector employees in the state to up to four hours of paid leave per injection to receive the COVID-19 vaccination.
The Centers for Disease Control and Prevention (CDC) issued public health recommendations for fully vaccinated people that provide guidance on activities these individuals can engage in as well as ongoing precautions of which to be aware. These updates include directions that apply to non-healthcare settings and specifically describe activities that the CDC deems to be low or high risk for individuals who are fully vaccinated against COVID-19. Separate from the CDC guidance, various states are beginning to issue more vaccine-related guidance, including on whether employers can mandate vaccines and whether otherwise applicable quarantine requirements apply to vaccinated individuals, which is in line with prior CDC guidance.
With the United Kingdom’s vaccination programme well underway, many employers are struggling with the best course of action for how to approach COVID-19 vaccines and their workforce. As mantras like “No Jab, No Job” circulate around the news, it raises the key question of whether employers can require their employees to be vaccinated before returning to work. To date, the UK government has left it up to individual employers to decide what is appropriate and justified in the context of their own workforce, and those decisions should be made with care. Here are a few of the most important things to consider as an employer deciding on the best course of action for requiring or encouraging COVID-19 vaccines.
The Centers for Disease Control and Prevention (CDC) has been actively reviewing its COVID-19 guidance over the past few weeks and as expected, the new administration has issued significant new guidance and updates. These updates include direction on topics relevant to employers, including testing, quarantining, and mask-wearing. First, new CDC guidance on testing advises employers to seek informed consent for any workplace-based COVID-19 testing program.
The Biden administration has vowed to invoke the Defense Production Act (DPA) to increase domestic production of essential supplies needed to respond to the COVID-19 pandemic. In this Insight, we address key features of the DPA, guidance for companies that may receive a rated order, financing incentives offered by the DPA, and how we anticipate the Biden administration will use the DPA over the next year.
In response to delayed EU shipments of certain COVID-19 vaccines to the European Union, the European Commission (Commission) passed on 29 January 2021 Regulation 2021/111 (Export Authorization Regulation) which is in force from 30 January 2021. The Commission intends for the Export Authorization Regulation to apply until at least 31 March 2021.
As the United States races to deliver safe and effective coronavirus (COVID-19) vaccines under the Biden administration, employers, healthcare providers, and many others are assessing what it means for their industries and organizations.
Immediately following his inauguration on January 20, US President Joseph R. Biden, Jr. began taking executive action to enact many of his administration’s initial priorities, which included a number of executive orders, memoranda, and directives to cabinet agencies to address policies he detailed during his campaign, including the COVID-19 pandemic, climate change, equality, and the global economy. To help clients navigate potential changes from these actions, Morgan Lewis has provided a quick analysis of many of these orders and their impact. We will release more detailed pieces as the president unveils additional specifics of his First 100 Days plan.
The United Kingdom on 2 December became the first country to approve the Pfizer-BioNTech vaccine for coronavirus (COVID-19), with approximately 500,000 people receiving the vaccine in the first two weeks of the largest vaccination programme in British history.
On the heels of the US Food and Drug Administration’s first issuance of an Emergency Use Authorization for a coronavirus (COVID-19) vaccine, the Equal Employment Opportunity Commission published an updated technical assistance bulletin that begins to address some of the questions employers have raised regarding whether they can require employees to get vaccinated for COVID-19, as well as considerations employers should be aware of if they do offer a COVID-19 vaccination program.
With coronavirus (COVID-19) vaccines on the horizon amid the surging pandemic, critical extensions expand the scope of liability immunity under the PREP Act.
The eagerly anticipated news of coronavirus (COVID-19) vaccine candidates last week has been welcomed by the scientific community across the globe. For employers, the news has prompted consideration of the potential implications of a successful vaccine for the workplace.
While workplace safety standards have been thrust into the national conversation since the coronavirus (COVID-19) pandemic began, Occupational Safety and Health Administration (OSHA) enforcement has been relatively quiet. That will likely change under a Biden administration.
Healthcare systems have been on the front lines of the coronavirus (COVID-19) pandemic and may have several questions about how to manage workforce challenges as we look toward the upcoming months.
With the US Food and Drug Administration’s first issuance of an Emergency Use Authorization for a COVID-19 vaccine, employers should consider the implications a new vaccine will have on their workplaces. Although much remains speculative, employers can look to the regulation of current vaccines as the basis for their preliminary planning. Those who begin to plan now will be better positioned to navigate the various risks and issues involved.
In the News
Partner Scott Memmott and associates Jacob Harper and Jonathan York wrote an article for Law360, explaining that although the US Department of Justice's (DOJ’s) COVID-19 fraud enforcement has so far focused on individuals and entities blatantly abusing pandemic assistance funds, health care and life sciences companies should assess their compliance programs as the DOJ will likely turn to larger-dollar activity at the organization level soon.
Associate Jake Harper, Executive Director of the Center for Telehealth and E-Health Law (CTeL) Christa Natoli, and Director of Policy and External Affairs for CTeL Ben Steinhafel recently discussed the current regulatory landscape for telehealth at both the federal and state level on the Healthcare Strategies podcast.
Partners Lesli Ligorner, Vivien Yu, and Tomoko Fuminaga and associate Jonathan Tang wrote an article for HR Asia about immigration-related developments that impact business travel to and from China, Hong Kong, Singapore, and Japan. They discussed a quarantining pilot, visa requirements, and vaccination developments.
Amid the Equal Employment Opportunity Commission’s updated guidance for employers handling religious objections to COVID-19 vaccinations, partner Michael Puma was quoted by HR Magazine on the business impact of managing these accommodations.
As employers continue to deal with the ongoing impacts of the pandemic heading into 2022, partners Michael Jones and Siobhan Mee and associate Alana Genderson shared some related legal trends to watch in the new year.
In Law360, partner Ashley Hale and associates Dan Kadish and Kaiser Chowdhry write that there has been minimal guidance for New York City’s new vaccination requirements for private sector employees who report to work in person—which would apply to an additional 184,000 businesses.
Associate Dan Kadish writes in Chain Store Age about New York City’s recent updates to vaccine mandates, which require that private businesses ensure employees performing in-person work receive a COVID-19 vaccine by December 27.
Associate Alana Genderson spoke with HR Magazine about how employers can accurately assess employee numbers in the wake of the contested Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS), which applies to companies with more than 100 employees.
Associate Dan Kadish told the Associated Press thatthe December 27 deadline for New York City Mayor Bill de Blasio’s new vaccine mandate—which requires all employees who perform in-person work for private businesses in New York City to receive at least one dose of a COVID-19 vaccine by December 27—does not give companies much time to comply with the recent decree. “That creates a very short time period, which of course includes multiple holiday periods between the 15th and the 27th,” Dan says. “And it’s not clear right now exactly what will be required for compliance.”
Morgan Lewis has been named among the top firms in North America for Innovation in New Solutions by Financial Times. The annual North America Innovative Lawyers special report cited the firm’s expansion of its COVID-19 task force model to provide guidance on the Biden-Harris administration, corporate sustainability, climate change and ESG, and racial justice.
Partners Handy Hevener and Steven Johnson discussed with Law360 why they’re grateful for Internal Revenue Code Section 139.
Associate Daniel Kadish spoke with Forbes about best practices employers can employ when asking employees about their vaccination status.
Partners Harry Johnson and Sharon Masling, along with associate Richard Marks, authored an article for Law360 on potential bargaining obligations that could be triggered in light of the Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS) related to COVID-19.
Partner Michael Puma told HR Magazine that employers are seeing an influx of religious accommodation requests in light of COVID-19 vaccination requirements.
Associate Alana Genderson spoke with HR Dive about the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS) requiring some employers to implement COVID-19 vaccine mandates or testing requirements by January 4.
Associate Alana Genderson spoke to Law360 about the Occupational Safety and Health Administration’s new emergency temporary standard requiring private sector employers with 100 or more employees to set up a plan by December 5 to comply with vaccination or testing protocols.
Partner Brian Berry spoke with International Employment Lawyer about the potential increase in labor and employment litigation arising from the COVID-19 pandemic.
Associate Alana Genderson spoke with NPR about the factors employers must weigh when granting religious exemptions to the COVID-19 vaccine mandate.
Associate Alana Genderson spoke with HR Today about the Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) that was issued after a federal mandate for employers with at least 100 employees to require workers to be vaccinated or be tested frequently.
Retailers have regularly pivoted their business models over the past 18 months as changing guidance from world health organizations and national and local governments continue to change the rules of operation.
Partner Leni Battaglia and associate Dan Kadish drafted an article for Total Retail about New York’s Executive Order 225 and related guidance that requires proof of vaccination before being admitted to certain covered indoor facilities in the city.
Getting the Deal Through—Occupational Health & Safety provides an international analysis of workplace safety for corporate counsel, cross-border legal practitioners, and business people.
Partner Daryl Landy spoke with HR Dive about the potential impact on employer vaccine mandates in the wake of full FDA approval of the Pfizer two-dose vaccine shots.
Partner Sharon Masling spoke with US News & World Report about employers offering COVID-19 testing as alternatives to vaccine mandates.
Partner Leni Battaglia and associates Daniel Kadish and Jonathan Weinberg drafted best practices for employers on how to comply with the recent New York City indoor vaccine mandate. While the vaccination verification requirements went into effect immediately on August 17, 2021, enforcement begins September 13. Covered businesses should act promptly to get their own policies and verification processes in place to avoid fines for violations.
Partner Sharon Masling spoke with the Washington Post about the trend of more companies mandating vaccines in the wake of the FDA fully approving the Pfizer vaccine. "Legally an employer was allowed to mandate a vaccine even when it was only authorized under the emergency use authorization," Sharon said. "I think there were some employers who were more hesitant to require employees to vaccinate themselves with a vaccine that had not received full approval. ... I think this will put those employers at ease."
Partner Sharon Masling, associates Alana Genderson and Dan Kadish, and senior attorney Pierce Blue authored a checklist of legal and practical issues for employers to consider when returning to the office, including vaccination policies.
Senior attorney Pierce Blue spoke with HR Magazine to share some best practices for employers asking about employee COVID-19 vaccination statuses as federal and state regulations keep changing.
Senior attorney Pierce Blue spoke with HR Dive on the rise in employer mandates requiring COVID-19 vaccines.
Partner Daryl Landy spoke with HR Magazine about a new statewide regulation that requires California state employees, healthcare workers and others in high-risk workplaces to either show proof of vaccination or complete regular testing.
Partner Sharon Masling spoke with CNBC about legal developments in COVID-19 vaccine mandates and the way an employer’s vaccine policy could affect workplace culture.
Partner Sharon Masling spoke with Bloomberg Law about the debate over mandatory vaccines for school-aged children.
Partner Daryl Landy spoke with Daily Journal about the potential increase of vaccine mandates enacted by private businesses in the wake of new state and federal government regulations. “Although the law is pretty clear and becoming clearer that in almost all jurisdictions, making vaccination a condition of employment is perfectly lawful,” Daryl said.
Partner Sharon Perley Masling spoke with CNBC about the potential impact of the Biden-Harris vaccine mandate for civilian federal workers on private business leaders.
Partner Sharon Masling spoke with the Associated Press about the legal rights of employers when looking to mandate a COVID-19 vaccination for employees.
Partner Sharon Perley Masling spoke with Law360 about the potential influence of recent government vaccine mandates on the private sector. "I think every time an employer, be it public or private, decides to require that their employees get vaccinated means that it is a little bit easier for the next employer to do so," she said in the article.
Partner Klair Fitzpatrick spoke with Bloomberg Law about some of the workplace privacy and safety regulations being enacted at the state level as more employees return to the office.
Partners Daryl Landy and Jason Mills and associate Nicholas Armer co-authored an article for the Daily Journal regarding Cal/OSHA’s changing approach to the Emergency Temporary Standards (ETS) it has issued over the last year. The article highlights the inconsistency in the standards, which has created a “skeptical employer audience when it comes to future emergency standards.”<
Associate Alana Genderson was featured by NPR’s WHYY in an article regarding the dilemma presented to employers and employees as COVID-19 vaccine mandates in the workplace become more common.
Associate Alana Genderson was quoted in a Law360 article regarding the Occupational Safety and Health Administration’s (OSHA’s) most recent COVID-19 workplace safety emergency temporary standards (ETS).
Partner Sharon Masling was quoted in a Bloomberg Law article about guidance from the US Equal Employment Opportunity Commission on incentives that could be offered to encourage employees to receive COVID-19 vaccinations.
Morgan Lewis senior attorney Pierce Blue spoke with HR Magazine after the Occupational Safety and Health Administration (OSHA) issued its COVID-19 emergency temporary standards.
Associate Kaiser Chowdhry was quoted in Modern Healthcare after the Occupational Safety and Health Administration (OSHA) issued important updates to its COVID-19 emergency temporary standards.
Partner Jon Snare was quoted in The Associated Press after the Occupational Safety and Health Administration (OSHA) issued important updates to its COVID-19 emergency temporary standards.
Morgan Lewis partners Jason Mills and Daryl Landy spoke with The Recorder after California state regulators rescinded COVID-19 workplace safety rules.
Partners Daryl Landy and Jason Mills spoke with the Daily Journal regarding Cal/OSHA’s adoption of revised COVID-19 workplace safety standards.
Associate Alana Genderson was quoted in an HR Dive article about the US Equal Employment Opportunity Commission’s (EEOC’s) updated technical guidance related to COVID-19 vaccines.
Morgan Lewis senior attorney Pierce Blue and associates Alana Genderson and Daniel Kadish authored an article for Law360 after the US Equal Employment Opportunity Commission released an update to its technical assistance guidance on COVID-19 and the Americans with Disabilities Act, the Rehabilitation Act, and other federal equal employment opportunity laws.
Morgan Lewis partner Louise Skinner was interviewed by Eddie Mair on LBC Radio about the prospect of making COVID-19 vaccinations compulsory for care home staff.
Morgan Lewis senior attorney Pierce Blue was quoted in an HR Drive article after the US Equal Employment Opportunity Commission (EEOC) published an update to its technical assistance guidance on COVID-19 and the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, and other related laws.
Morgan Lewis partner Klair Fitzpatrick was quoted in a Bloomberg Law article about the potential legal risks of segregating vaccinated and unvaccinated employees in the workplace. “Workers can refuse the jab based on disability or religious belief, so employers could then face allegations of bias against those workers if they suffer negative consequences as a result of being segregated," Klair said in the article.
Senior attorney Pierce Blue was quoted in an HR Magazine article that discussed how companies can approach employees’ COVID-19 vaccination status. Pierce said that “employers should continue to pay close attention to updated rules and guidelines coming from federal, state and local agencies."
Partner Jonathan Snare was quoted in a Bloomberg Law article regarding the Occupational Safety and Health Administration’s (OSHA’s) standard for workplace protection in light of the Centers for Disease Control and Prevention’s (CDC’s) new mask guidelines for vaccinated workers.
Morgan Lewis senior attorney Pierce Blue was quoted in an article by HR Magazine explaining some of the confusion caused by the US Centers for Disease Control and Prevention (CDC) guidance relaxing many of its COVID-19 safety measures for those who have been vaccinated.
Morgan Lewis partner Reece Hirsch spoke to Bloomberg Law about potential privacy issues surrounding digital vaccine passports, recommending that companies and employers collect limited information.
Partner Sharon Masling spoke to CNBC after the US Food and Drug Administration (FDA) approved Pfizer’s COVID-19 vaccine for children ages 12–15 years.
Morgan Lewis associate Alanda Genderson spoke to Axios about the possibility of schools in the US requiring students to receive COVID-19 vaccines as they are approved for younger people.
Morgan Lewis partner Sharon Masling spoke to CNBC about schools requiring students to be vaccinated before returning to school.
A Washington Post article quoting associate Daniel Kadish was quoted in a Computer World article about potential employer questions when considering mandatory COVID-19 vaccinations.
Associate Daniel Kadish spoke with HR Magazine about the role of vaccination cards in the workplace. In the article, Daniel discussed tips for employers if employees lose their vaccination cards, as well as other scenarios.
Morgan Lewis partner Klair Fitzpatrick and associate Daniel Kadish were quoted by HR Magazine in an article about mask policies in the workplace.
Partner Sharon Masling was interviewed by NJ Spotlight News about a new state law that opens the door to employer-mandated vaccinations before allowing employees to return to work.
Morgan Lewis partner Jacqueline Aguilera was quoted in an HR Magazine article about the COVID-19-related questions that are top of mind for employers.
Morgan Lewis associate Daniel Kadish spoke with the Washington Post about the potential for employers to compel employees to be vaccinated. “The thought process is the vaccine stops people from having severe illness or developing severe complications from COVID-19, and so it could help the individual from becoming a direct threat to themselves or others in the workplace,” said Dan.
In a recent International Employment Lawyer article, Morgan Lewis associate Daniel Kadish discussed the issues employers are considering around requiring employees to receive a COVID-19 vaccine.
Morgan Lewis associate Daniel Kadish was quoted in International Employment Lawyer, discussing the possibility of employer-mandated COVID-19 vaccinations in the United States.
Partner Sharon Masling was quoted in a Bloomberg Law article about more employers offering financial incentives in exchange for their employees getting the COVID-19 vaccine. The quickly evolving situation touches on a number of areas in employment law, including health privacy laws and the Americans with Disabilities Act (ADA).
Partner Jonathan Snare spoke with Law360 about new guidance from the Occupational Safety and Health Administration (OSHA) that requires vaccinated workers to continue to wear masks and take other measures to prevent the spread of COVID-19.
Partner Sharon Masling spoke with The Washington Post about the potential interaction of COVID-19 vaccine screening questions and the American with Disabilities Act.
Morgan Lewis associate Daniel Kadish was quoted in an HR Magazine article about best practices for employers amid the COVID-19 vaccine rollout. In the piece, Daniel noted that an employer must provide "reasonable accommodations" to workers who decide not to get the COVID-19 vaccine because of religious or disability concerns.
Morgan Lewis partner Sharon Masling discussed the future of remote working as part of a series of 2021 predictions collated by Legaltech News. Sharon, a director of the firm’s workplace culture consulting group, said, “Although vaccines offer some hope for returning to a pre-pandemic in-person work environment, remote work has become the new normal and employees increasingly expect to have remote work flexibility.”
Morgan Lewis partner Sharon Perley Masling spoke with The Washington Post for an article about the likely implications of COVID-19 on the 2021 workplace.
Morgan Lewis partner Sharon Perley Masling spoke with Bloomberg Law about the legal questions for employers around mandating the COVID-19 vaccine. “Whether to mandate the vaccine is obviously an industry-by-industry and employer-by-employer decision,” said Sharon. “In most cases, however, our clients are deciding to strongly encourage their employees to get the vaccine rather than require them to do so while the vaccine is under an EUA.”
Partner Sharon Perley Masling was quoted in a Boston Globe article about best practices for employers seeking for their workforce to get the COVID-19 vaccine.
Morgan Lewis partner Sharon Masling spoke with CBS News about the Equal Employment Opportunity Commission’s recently released guidance that employers can mandate employees be vaccinated for COVID-19 in certain circumstances.
Morgan Lewis partner Sharon Perley Masling spoke with the HuffPost about the potential for employers to require employees to get a COVID-19 vaccine. “Most clients right now are leaning toward encouraging rather than requiring the vaccine, just because there are still so many unanswered questions,” said Sharon in the article. “I think it is wise for employers to start planning, but those plans are going to be revised as we get more information.
Morgan Lewis partner Sharon Perley Masling spoke with The Washington Post about the unanswered questions employers are facing regarding a potential COVID-19 vaccine.
Morgan Lewis partners Matthew Howse, Pulina Whitaker, Louise Skinner, and Lee Harding’s blog post about the potential implications of a successful COVID-19 vaccine for the workplace was featured in recent Daily Mail article.
Morgan Lewis partner Michael Abernathy spoke with Business Insurance for an article about the pharmaceutical industry’s efforts to produce a COVID-19 vaccine.
Kathy Sanzo spoke with MedCity News regarding the Department of Health and Human Services’ Covid-19 vaccine development program, Operation Warp Speed, which aims to develop vaccines against the SARS-CoV-2 in the space of a year rather than the multiple years normally required
Morgan Lewis partner Kathy Sanzo spoke with Bloomberg Law about the efforts by drugmakers to produce a vaccine and navigate a web of US Food and Drug Administration (FDA) regulations.
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