Workforce Bulletin

Our colleagues Frank C. Morris Jr., Arthur J. Fried, Nathaniel M. Glasser and Kamil Gajda of Epstein Becker Green have a new post on the Health Employment and Labor blog that will be of interest to our readers: “Update: CMS Interim Final Rule Stay Lifted Nationwide, Still in Effect in Twenty-Four Plaintiff States".

The following is an excerpt:

As we previously reported, the Centers for Medicare & Medicaid Services’ (CMS’s) interim final rule (the “Rule”) requiring full COVID-19 vaccination for staff and others at Medicare- and Medicaid-certified ...

Before ringing in the New Year, employers should carefully evaluate whether they need to adjust their current practices to ensure that they remain compliant with state and local laws, including those relating to minimum wage and salary thresholds for exempt employees.

As reflected in the charts below, in 2022, minimum wages will increase in more than two dozen states and localities, with many changes taking effect January 1st. Accordingly, employers with minimum wage workers should consult with counsel to ensure that their compensation practices are compliant with the laws in all jurisdictions in which they operate. Employers should pay particular attention to the effective date to ensure compliance by the appropriate date.

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.

The Guidance now contains a new Section N, which addresses when COVID-19 can be considered a disability under each of the three standards of the Americans with Disabilities Act (ADA), i.e., “actual disability,” “record of disability,” or “regarded as an individual with a disability.”  Regardless of which definition may apply, the Guidance stresses the usual ADA rubric—that employers must conduct a fact intensive, case-by-case analysis to determine if an applicant or employee with COVID-19 or “long COVID” has a covered disability under the ADA.

The Commissioner of the New York Department of Health has extended the designation of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health under the NY HERO Act until January 15, 2022, at which point the designation will be reviewed. Accordingly, the airborne infectious disease exposure prevention plans required under Section 1 of the Act must be kept in place through that date.

Although the New York State Department of Labor has published guidance stating that it would provide additional guidance by November 1, 2021 on Section 2 of ...

As featured in #WorkforceWednesday:  This week, we look at the status of the federal government’s COVID-19 vaccine rules for employers and the COVID-19 vaccine mandates in New York State and City.

Important guidance regarding COVID-19 testing in the workplace was recently issued by the Centers for Medicare & Medicaid Services (“CMS”) in the form of Frequently Asked Questions regarding Over the Counter (“OTC”) Home Testing and CLIA Applicability.

CMS regulates clinical laboratory testing pursuant to the federal Clinical Laboratory Improvement Act (“CLIA”). Generally, a laboratory or clinical setting (such as a physician’s office) must obtain CLIA certification to perform laboratory testing. Some OTC tests, however, are approved by the Food and Drug Administration (“FDA”) for home use and the new FAQs address the use of OTC home tests in the workplace.

More than three years after its landmark decision in Epic Systems Corp. v. Lewis, the United States Supreme Court has granted certiorari in Viking River Cruises, Inc. v. Moriana to determine whether Epic Systems extends to arbitration agreements that include waivers of representative actions brought under the California Private Attorneys General Act (PAGA).

Employers with operations in California, who have been plagued by the filing of boilerplate PAGA actions, could be heard to breathe a sigh of relief.

Governor Ron DeSantis recently signed HB 1-B, Ch. 2021-272, Laws of Fla. (the “Vaccination Exemption Law”), which prohibits every private employer from issuing COVID-19 vaccination mandates for its Florida employees without allowing employees to opt out for five specific exemptions: (i) medical reasons, including pregnancy or expectation of pregnancy, as determined by a physician, advanced practice registered nurse, or physician assistant; (ii) religious reasons, based on a sincerely held belief; (iii) COVID-19 immunity, based on prior COVID-19 infection, as documented by a lab test; (iv) periodic testing, agreed to by the employee and at no cost to the employee; or (v) based on compliant use of employer-provided personal protective equipment (“PPE”), agreed to by the employee.  Employers that receive a “completed exemption statement” must allow the requesting employee to “opt out” of the employer’s vaccination requirements.[1]  Employers will be found to have violated the Vaccination Exemption Law by failing to provide for exemptions in their COVID-19 vaccination mandate and terminating the employee—which includes “the functional equivalent of termination,” as defined below.

On December 2, 2021, the Florida Department of Legal Affairs issued a Notice of Emergency Rule (the “Rule”), further defining key provisions of the Vaccination Exemption Law.  Moreover, this Department (headed by the Attorney General) has issued guidance in the form of FAQs (the “Guidance”), outlining the employee complaint procedure for potential employer violations of the Vaccination Exemption Law.

The Rule

UPDATE: New York State issued FAQs confirming that the mask mandate applies to private businesses and their employees. Employers in office spaces must either require proof of vaccination or impose a mask mandate. Masks must be worn except “when eating, drinking, or alone in an enclosed room.”

As featured in #WorkforceWednesday: This week, we look at complying with the rules that require employers to keep employee COVID-19 vaccination and testing information confidential.