North America

Keep on Masking: NY Governor Extends Mask Mandate Through February 1, 2022

As we previously reported, in December New York Governor Kathy Hochul issued a mandate requiring that masks be worn in all indoor public places, unless the business or venue requires proof of vaccination for entry.  As part of the state’s “Winter Surge Plan 2.0”, the mandate, which was initially set to expire on January 15, has now been extended for an additional two weeks, through February 1, 2022.

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Unpacking Averages: Likelihood of FDA Medical Device Inspections

It is common for FDA and others to show a map of the United States with the states color-coded by intensity to showcase the total number of inspections done in that state.  Indeed, FDA includes such a map in its newly released dashboard for FDA inspections.  In reviewing that map with the U.S. map color-coded to reflect where medical device establishments are located, do you notice anything?  Not to destroy the suspense for you, but it turns out that FDA tends to inspect where medical device inspection facilities are located.  Really.

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CMS reinstates vaccine mandate rule for healthcare workers in 25 states

Employers continue to find themselves in the crosshairs of the vaccine mandates enforcement battle. The most recent salvo involves the December 28, 2021, decision by the Centers for Medicare & Medicaid Services (CMS) to enforce its vaccine mandate for healthcare workers at covered entities in 25 states – while that same mandate remains stayed in 25 other states.  Read more…

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CDC Shortens Recommended COVID-19 Isolation and Quarantine Periods

On December 27, 2021, the Centers for Disease Control and Prevention (CDC) announced an update to its isolation and quarantine guidance. Although the CDC’s update shortens both the isolation and quarantine periods, as described more fully below, the changes largely affect only asymptomatic individuals. Moreover, because local guidance may differ from the CDC’s recommendations, employers should keep in mind all applicable state and local requirements when deciding whether to amend their own rules.

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Supreme Court Grants Rare Hearing on Stays in Vaccine Mandate Cases

On the evening of Wednesday, December 22, 2021, the Supreme Court of the United States announced that it will hold a special session on January 7, 2022, to hear oral argument in cases concerning whether two Biden administration vaccine mandates should be stayed. One is an interim final rule promulgated by the Centers for Medicare and Medicaid Services (“CMS”); the other is an Emergency Temporary Standard (“ETS”) issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”).  The CMS interim final rule, presently stayed in 24 states, would require COVID-19 vaccination for staff employed at Medicare and Medicaid certified providers and suppliers. The OSHA ETS, which requires businesses with 100 or more employees to ensure that workers are vaccinated against the coronavirus or otherwise to undergo weekly COVID-19 testing, was allowed to take effect when a divided panel of the United States Court of Appeals for the Sixth Circuit, to which the consolidated challenges had been assigned by the Judicial Panel on Multidistrict Litigation, issued a ruling, on December 17, 2021, lifting a stay that had been previously entered by the Fifth Circuit. Multiple private sector litigants and states immediately challenged the decision.

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NYC Employers Take Note: NYC Updates Private Employer Vaccine Guidance

New York City’s private employer vaccine mandate became effective Monday. December 27, 2021 and, the City has updated its FAQs document and the Accommodations Guidance document (“Guidance”).

Guidance Updates: The Guidance was amended to reflect that the New York City Human Rights Law provides for accommodations for pregnancy and for victims of domestic violence, sex offenses, or stalking in addition to medical and religious reasons. The Guidance also clarifies that the examples for medical exemptions for vaccination were those that had been found worthy by the CDC and New York City Department of Health and Mental Hygiene. Further, the Guidance modifies some language on the religious accommodation checklist around the types of information needed to support religious accommodation requests. As we previously shared, the checklist the City recommends that employers maintain and complete in connection with each religious accommodation request does not alleviate an employer’s need to analyze such requests on a case-by-case basis.

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More Tests, Mandatory Masks, and Another Vaccine Mandate: the District of Columbia Steps Up Its Battle Plan

On Monday, December 20, District of Columbia Mayor Muriel Bowser announced a “situational update,” declaring a state of emergency due to the “Winter 2022 Surge” in COVID-19 cases driven by the Delta and Omicron variants. The District will combat the current rise in COVID-19 cases with a six-pronged approach outlined in an action plan (the “Plan”) published by the Mayor’s Office and implemented under Mayor’s Order 2021-147 (the “Order”).  The Plan includes expanding free testing programs, a new indoor mask mandate, and a vaccine mandate for city employees and contractors.

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OSHA ETS vax or test mandate revived: What now?

Employers were left in limbo when the U.S. Court of Appeals for the Fifth Circuit issued a nationwide stay on OSHA’s Emergency Temporary Standard (ETS) in November. Now, in a 2-1 decision issued late on December 17, the U.S. Court of Appeals for the Sixth Circuit has lifted the stay clearing the way for OSHA to resume enforcement of the vaccination or test rule. Immediately following the decision, 27 business groups filed an appeal with the U.S. Supreme Court in an attempt to overturn the Sixth Circuit’s decision. Just days before many are headed off for a holiday break, employers are once again wondering – what now? Read more…

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The EEOC Releases Guidance: What Employers Should Know About COVID-19

On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” Technical Assistance Questions & Answers (the “Guidance”). The most significant change is the addition of a long-awaited discussion of “long COVID,” which other federal agencies had identified as a disability in joint guidance issued back in July.

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OSHA ETS vax or test mandate revived: What now?

Employers were left in limbo when the U.S. Court of Appeals for the Fifth Circuit issued a nationwide stay on OSHA’s Emergency Temporary Standard (ETS) in November. Now, in a 2-1 decision issued late on December 17, the U.S. Court of Appeals for the Sixth Circuit has lifted the stay clearing the way for OSHA to resume enforcement of the vaccination or test rule. Immediately following the decision, 27 business groups filed an appeal with the U.S. Supreme Court in an attempt to overturn the Sixth Circuit’s decision. Just days before many are headed off for a holiday break, employers are once again wondering – what now? Read more…

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