On June 10, 2021, the federal Occupational Safety and Health Administration issued updated guidance for businesses on COVID-19 prevention and mitigation – taking into account the impact of vaccinations – along with a long-awaited Emergency Temporary Standard (ETS) applicable only to healthcare (which is not discussed in this E-lert).
Workplace guidance on COVID-19 keeps shifting at the federal and state level, which poses a challenge for all employers. For Maryland businesses, we thought it might be helpful to summarize where we stand as of early June 2021.
Although Maryland remains in a state of emergency, at this time, the Governor has lifted many of the restrictions that impact the private workplace, such as shutdown orders, most masking requirements, group limitations, travel, etc. This does not mean a return to normal, however, as federal guidance still applies, and more state guidance should be forthcoming shortly. In addition, local jurisdictions, such as Baltimore City, may still have restrictions – like masking while indoors – with which employers must comply.
A workplace rumor, especially a salacious one involving a high echelon employee, can take on a life of its own and reverberate throughout the workplace in unforeseen ways that can result in potential liability to an employer and result in expensive litigation. The Parker v. Reema Consulting Services, Inc. case provides guidance for employers on the issue of workplace rumors and gossip.
As the COVID-19 vaccine has become freely available, employers have struggled with workplace vaccination protocols in the context of compliance with anti-discrimination laws, including the Americans with Disabilities Act. On May 28, 2021, the Equal Employment Opportunity Commission updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and other EEO Laws resource to include guidance that answers many employer questions on this topic – including the use of incentives to encourage vaccination.
Well, we’re always playing catch-up with the changing agency guidance on COVID-19 – and the Occupational Safety and Health Administration just juked on its recording requirements for adverse effects to the COVID-19 vaccine. Now, employers will not be required to record such adverse reactions – at least through May 2022.
Just over two weeks after it relaxed its protocols for fully-vaccinated individuals, the Centers for Disease Control and Prevention (CDC) has now issued revised guidance essentially permitting those individuals to resume their pre-pandemic lifestyle, subject to any applicable and differing state and local mandates. Consistent with prior iterations of this guidance, the CDC asserts that “You will still need to follow guidance at your workplace.” So what can employers do now? Well, we’ve now updated our last blog post on this topic (and then further updated to account for OSHA’s latest pronouncement).
So my partners and I have repeatedly written that, under the Americans with Disabilities Act (ADA), employers – not employees – get to choose among available accommodations to enable an employee with a disability to perform their essential job functions or enjoy equal privileges and benefits of employment. (See here and here, for example). But, as a federal appellate court recently explained, that principle is not without limitation – at least as to reassignment.
This week, the Centers for Disease Control and Prevention (CDC) further relaxed its COVID-19 protocols for fully vaccinated individuals. Of significance to employers, the CDC continues to assert that such individuals should continue to “[f]ollow guidance issued by individual employers.” But what impact might these looser rules have in the workplace? We had previously offered some guidance the last time the CDC adjusted the rules, and have now updated that guidance.
So said a federal court in tossing an employee’s rather cheeky claims of interference with her rights under the Family and Medical Leave Act, as well as retaliation for taking FMLA leave, when she was fired after taking a trip to Thailand – for which she had previously requested time off and was denied – while on FMLA leave.
Today, the White House highlighted a benefit to small employers that was part of the American Rescue Plan Act enacted on March 11, 2021: a tax credit for providing employees with paid leave to obtain a COVID-19 vaccine.