Category Archives: COVID-19

March 31, 2023

States That Still Require Paid Sick Leave for COVID-19

Laurie Rogers

Question: Do any states still require employers to provide paid COVID-19 sick leave in 2023?

Answer: Yes. As of March 15, 2023, states, counties, or cities that still require an employer to provide paid COVID-19 sick leave include:

Chicago and Cook County, Illinois (vaccine leave);
Colorado (public health emergency leave);
Los Angeles County, California (supplemental paid sick leave and paid vaccine leave);
Nevada (paid vaccine leave and paid leave for public accommodations facilities);
New York State (paid vaccine leave);
Oakland, California (supplemental paid sick leave); and
Philadelphia, Pennsylvania (supplemental paid sick leave).

May 10, 2022

Can Offer Be Pulled If Job Candidate Won’t Follow Our Vax-or-Test Policy?

David Law

by David S. Law, Holland & Hart, LLP

Question: Our COVID-19 policy calls for vaccination or testing and masking “at all times.” We made a verbal offer to a candidate for a position requiring travel to trade shows, but when she learned about our vaccine-or-test mandate, she objected to sharing her vaccination status. How can we cleanly rescind the offer (which wasn’t in writing) and avoid any issues?

Answer: This is a great question. Before rescinding the offer, you should ask the candidate why she opposes the vaccine-or-test requirement. If her reason for objecting is political or ideological, you can likely rescind the offer with little risk of legal exposure. If, on the other hand, she cites a religious or medical reason, you may be required to work with her to find a reasonable accommodation. Read more >>

January 14, 2022

U.S. Supreme Court Blocks OSHA’s Vaccine-or-Test Rule; Upholds CMS’s Healthcare Vaccine Mandate

By Mickell Jimenez and Curtis Greenwood

The U.S. Supreme Court, in a 6-3 decision, has blocked the Department of Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) requiring private employers with 100 employees or more to vaccinate-or-test for COVID-19 from taking effect. However, in a separate decision, the Court allowed a more limited Centers for Medicare and Medicaid Services (CMS) Interim Final Rule, requiring COVID-19 vaccination of staff working at health care facilities that receive Medicare and Medicaid money from the federal government.

The Court’s decision on OSHA’s ETS does not prohibit employers across the country from implementing their own vaccinate-or-test policies. But absent an obligation to do so, it remains unclear whether employers will choose to implement such a policy given the already challenging staffing issues and the need to comply with the myriad confusing and sometimes contradictory patchwork of laws and regulations enacted by state and local governments. Employers that implement a vaccinate-or-test policy, or other type of policy to address the impact of COVID-19 in the workplace, should ensure that the policy complies with applicable law. Particular attention should be paid to the requirement to accommodate, where appropriate, employees’ sincerely held religious beliefs and/or medical conditions. Read more >>

November 15, 2021

Utah’s New Law on Employer Vaccination Policies: What Employers Need to Know

By Bryan Benard and Kody Condos

Bryan Benard

On November 16, 2021, Governor Spencer Cox signed into law SB2004 “Workplace COVID-19 Amendments,” a bill passed during a special session of the Utah Legislature. While the bill was introduced in response to vaccine mandates contained in the Executive Orders of President Biden and the special rule or ETS from the Occupational Health and Safety Administration (“OSHA”) (which has now been stayed by the federal courts), this new law nonetheless carries significant legal requirements for Utah employers. The bill became immediately effective yesterday upon the Governor’s signature without giving employers any lead time to prepare or change policies/processes. This law does not apply to any “person” that is regulated by the Centers for Medicare or Medicaid Services related to COVID-19 (unless a state entity) or that is a federal contractor.

Kody Condos

At a high level, the bill:

(1) requires that any employer vaccination mandate include exemptions for a) health reasons; b) sincerely held religious beliefs; and c) “sincerely held personal beliefs”;

(2) prohibits employers from taking any adverse action against an employee or potential employee who is not vaccinated or asks for an exemption;

(3) requires employers to pay for any COVID testing requirements; and

(4) prohibits employers from retaining a copy of any vaccination documents but allows employers to keep a record of whether an employee is vaccinated. Read more >>

November 5, 2021

New OSHA and CMS COVID-19 Vaccination & Testing Mandates: What Employers Need to Know

By Mickell Jimenez, Robert Ayers, Tyson Horrocks, Kody Condos, and Curtis Greenwood

Today, the Department of Occupational Safety and Health Administration (OSHA) issued its Covid-19 Vaccination and Testing Emergency Temporary Standard (ETS) and the Centers for Medicare & Medicaid Services (CMS) issued its Interim Final Rule (the “Interim Rule”), nearly two months after President Biden issued two executive orders in conjunction with the Path out of the Pandemic, President Biden’s COVID-19 Action Plan (collectively, the President’s Action Plan”), providing new COVID-19 vaccination requirements. While there is some overlap between the standards, we will address the ETS and Interim Rule separately. We recommend that you contact your employment and healthcare attorneys for additional guidance. Read more >>

November 3, 2021

Making Room for Vaccinated, Unvaccinated Employees Under Same Roof

by Steven Gutierrez

Steve Gutierrez

Question: We aren’t sure we want to permit someone who isn’t vaccinated to work closely with us and are particularly concerned because the unvaccinated employee is sitting next to an enclosed area with a fully vaccinated individual who has an immunocompromised infant. How do we protect the vaccinated employee and her infant when we cannot say who is/is not vaccinated because of the Health Insurance Portability and Accountability Act (HIPAA)?

Answer: These are good questions to ask and should be part of the interactive process with the unvaccinated employee to see if there’s a reasonable accommodation that doesn’t pose an undue hardship. Additionally, under the present circumstances, the unvaccinated employee may be considered a “direct threat” that cannot be eliminated or reduced by reasonable accommodation. Read more >>

November 2, 2021

Federal Contractors Offered Some Flexibility to Implement COVID-19 Vaccine Mandate

by Shaun C. Kennedy and Ryan K. Lundquist

Shaun Kennedy

The implementation of President Biden’s Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO”) continues to evolve and will likely be refined and updated over the coming weeks and months. In a prior alert, we covered guidance issued by the Safer Federal Workforce Task Force’s (the “Task Force”) on September 24, 2021 detailing requirements for implementation of the EO.

On November 1, 2021, the Task Force released additional FAQs to clarify its prior guidance. We highlight below some of the key takeaways from the recently released FAQs:

Ryan Lundquist

1. Is a 100% vaccination rate required by December 8, 2021?

In what will likely be welcome relief, the FAQs introduced a certain degree of flexibility for covered contractors to comply with the EO’s vaccination requirements.

The FAQs instructed agencies to assess the degree to which a covered contractor is taking good faith steps to comply with the EO. When a covered contractor is working in good faith toward enforcing compliance with the EO and workplace safety protocols, the agency “should work with them to address the challenges.” However, where the agency determines a contractor is not “taking steps” to comply, the contracting officer should take “significant actions, such as termination of the contract.” Read more >>

September 10, 2021

Vaccine Mandates Q&A

By Mickell Jimenez, Tyson Horrocks, and other Co-Authors

On September 9, 2021, President Biden issued two executive orders in conjunction with the Path out of the Pandemic, President Biden’s COVID-19 Action Plan (collectively, the “President’s Action Plan”), providing new COVID-19 vaccination requirements, which may affect you and your business. Since the President’s announcement, we have received numerous questions from employers across the spectrum. This article unpacks the White House’s latest efforts as employers continue to navigate the ever-changing COVID and vaccination landscape. Read more >>

September 7, 2021

Employers Consider Raising Premiums for Unvaccinated Workers

by Beth Nedrow

Beth Nedrow

Employers are impacted in many ways by the COVID-19 pandemic, not the least of which are employee health and safety. For the last several months, employers have used mostly soft-sell approaches to encourage their employees to get vaccinated. With the FDA’s approval, employers are showing a willingness to move beyond incentives like gift cards. One of the more notable examples in the headlines lately is Delta Airlines’ decision to implement a premium surcharge on unvaccinated workers. Employees who don’t get the jab will have to pay more in premiums under the Airlines’ medical plan. Read more >>

August 4, 2021

Denver’s New Vaccine Mandate For Some Private-Sector Employers: Are you prepared?

by Laurie Rogers

Laurie Rogers

Colorado employers already grappling with mandatory paid sick leave and complex job posting requirements may now be obligated to implement mandatory vaccination policies for their employees.

On Monday, August 2, 2021, Denver Mayor Michael Hancock announced a mandatory vaccination requirement for the City’s 10,000-plus workers and certain private-sector workers in high-risk settings. Denver is the first major U.S. city to mandate COVID-19 vaccinations for private-sector employees. The City’s Department of Public Health & Environment (“DDPHE”) claims that, as the accredited public health agency for the City and County of Denver, it has the authority to mandate vaccinations to protect the public from immediate and imminent risk to its health and safety. See City of Denver FAQs.