Labor & Employment

President Biden’s Vaccination Mandates for Federal Employees and Contractors Remain in Limbo

While the fate of two COVID-19 vaccination rules by federal agencies were decided in January by the Supreme Court of the United States, millions of employees working for the federal government, whether directly or as a contractor, have been waiting for clarity in the wake of court orders halting Presidential efforts to promote vaccination.  Here is a brief update on the status of litigation challenging the extent of the President’s authority to command the Executive Branch.

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The Not So Permanent Standard: Virginia Moves to Withdraw COVID-19 Rule

The first state to implement workplace health and safety standards for COVID-19 is poised to roll back those requirements. Virginia’s Permanent COVID-19 Employee Health and Safety Requirements (the “Permanent Standard”) established requirements for employers to control, prevent, and mitigate the spread of COVID-19.  However, with the Omicron wave receding, Virginia Governor Glenn Youngkin says the Permanent Standard presents “a significant burden on businesses” and should be reconsidered.

Pursuant to Governor Youngkin’s Executive Order issued on January 15, 2022, the Virginia Safety and Health Codes Board (the “Board”) convened on February 16, 2022, to determine whether the Permanent Standard is still necessary.  Adopting the Virginia Department of Labor and Industry’s (“DOLI”) recommendation, the Board agreed that there is no continued need for the Permanent Standard because the virus, “based on emerging scientific and medical evidence, . . . no longer constitute[s] a grave danger to employees in the workplace.”

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Vaccine Requirements – Australia

Australia has a high uptake of vaccination to COVID-19, partly due to enforceable public health orders at State level which require classes of workers to be vaccinated if they are to work outside of their home.

As at the date of writing, the position is summarised below.

Commonwealth –

The Federal Government has not mandated vaccination but has endorsed state mandates for vaccination of workers in aged care settings. Read more…

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Vaccine Requirements – United States: Massachusetts

Over the past year, it has become increasingly common for employers in Massachusetts to establish and enforce mandatory COVID-19 vaccination policies. Such policies are legal and appropriate in Massachusetts. Unless required by law (see below), implementation of mandatory vaccination policies is at the discretion of the employer. Other than strict mandatory vaccination requirements for all employees, options include an alternative to vaccination in the form of regular testing, masking and social distancing requirements. Also, depending on such considerations as the nature of your business, the various duties and conditions of employment of your workforce, whether your employees are on site or remote, and whether they interact with the public, it may be reasonable to establish and enforce different policies for different groups of employees. It is recommended that employers carefully consider what makes sense for their needs and the needs of their employees. Read more…

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Vaccine Requirements – UK

Since its widespread roll out over the past year, the UK Government’s COVID19 vaccination programme has been largely successful. To date, over 70% of the population are fully vaccinated and a vaccination booster programme has now been implemented. Currently, compulsory vaccination only applies to those working in registered care homes in England (n.b. there are some exemptions). Because of the high uptake of vaccination amongst all constituent parts of the UK, it is unlikely that the devolved administrations or the UK Government will extend vaccine mandates to further sectors. Indeed, the trend appears to be going in the opposite direction with the UK Government recently abandoning compulsory vaccination for National Health Service (NHS) staff in England and the Scottish Government halting any extension of their vaccine certification schemes to further venues. Read more…

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Vaccine Requirements – United States

In the United States, the federal government has faced challenges in imposing vaccination mandates for large private employers, federal contractors, and certain health care employees. Because of that, choices around vaccination mandates have largely been left to private employers, in compliance with state and local laws relating to vaccination status. While some locations have mandated vaccination for private employers (New York City), others have placed restrictions on private employers’ ability to impose vaccine mandate (e. g., Florida, Texas, Utah, etc.). Below is a summary of two of these rules, to show how U.S. jurisdictions are treating vaccine mandates.

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New York HERO Act COVID-19 Designation Extended Again: Safety Plans Required through March 17, 2022

New York employers seeking further relaxation of COVID-19 mitigation protocols after the recent lifting of a statewide mask mandate will have to wait. The designation of the virus as a “highly contagious communicable disease that presents a serious risk of harm to public health” that had been extended through February 15, 2022 was extended yet again. An order by the New York State Commissioner of Health continues the designation, made pursuant to the New York HERO Act, through March 17, 2022. This means that New York employers must continue to implement their safety plans, including daily screening of employees working onsite. The New York State Department of Labor recently issued an updated model safety plan with recommendations, as opposed to requirements, regarding usage of masks indoors.

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CMS Discontinues Prior Guidance on Visitation Restrictions and Rescinds COVID-19 Focus Infection Control Survey Procedures

On February 4, 2022, the Centers for Medicare and Medicaid Services (CMS) issued important updated guidance in a memo (QSO-21-08-NLTC) regarding how acute and continuing care facilities—including hospitals, ambulatory surgical centers, end-stage renal disease facilities, home health agencies, and hospices—manage infection control procedures in light of the COVID-19 public health emergency.

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Mask Off: New York Governor Drops Mask Mandate, for Now

On February 9, 2022, New York Governor Kathy Hochul announced that she would let the lapse on its Thursday, February 10, 2022 expiration date. The Governor’s lifting of the statewide rule, which required businesses to either require proof of vaccination or universal masking indoors, does not yet include an end to mandatory masking in schools, despite a slew of action to that effect in neighboring states, including New Jersey, Connecticut, and Massachusetts. California is also allowing statewide masking requirements for businesses and many other indoor public spaces to expire on February 15, 2022.

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Mask on, Mask Off? San Francisco Again Revises its Rules for Universal Face Coverings

On January 26, 2022, the City and County of San Francisco released an updated Health Order No. C19-07y (the “Updated Health Order”), which addresses a number of rules issued in an effort to combat continued spread of COVID-19, including changes in exemptions to the universal indoor mask mandate.  Specifically, effective February 1, 2022, the Updated Health Order renews a previously-suspended masking exemption for vaccinated workplaces, with a few significant changes.

First, under the revised mask exemption, only employees who are “Up to Date” on vaccination (see below for definition) may go unmasked in the workplace, assuming the other conditions for the exemption are met.  Other individuals must wear masks at all times, subject to limited exceptions (e.g., alone, while eating).  Further, consistent with the Cal/OSHA definition of an outbreak, this exemption only applies if there have been no outbreaks (currently defined as three or more COVID-19 cases in an “exposed group” within a 14-day period) in the past 30 days.

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