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As distribution of the COVID-19 vaccine begins, the Equal Employment Opportunity Commission has modified its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws resource to address the impact of federal non-discrimination laws on an employer’s vaccine requirements. Of particular interest, the EEOC makes the following points with regard to the Americans with Disabilities Act, Title VII and the Genetic Information Nondiscrimination Act:

Notably, the EEOC emphasizes that federal antidiscrimination laws do not interfere with or prevent employers from following guidelines and suggestions from the CDC or other governmental public health authorities. The EEOC also refers employers to the FDA’s website for more information on the Emergency Use Authorization of COVID-19 vaccines, which differs from the normal approval process.Continue Reading EEOC Provides COVID-19 Vaccine Guidance

With apologies to William Shakespeare, these past couple of weeks have been rather confusing, with two of the major federal agencies leading the battle against COVID-19 – the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) – issuing somewhat, well, inconsistent guidance on the use of cloth face coverings or masks.

For many months now, the CDC has told us that cloth masks help to control the spread of COVID-19 by providing a barrier to help prevent the wearer’s respiratory droplets from reaching others – but that the masks did not protect the wearer. And because such cloth masks had no protective function, OSHA naturally declared that they were not personal protective equipment (PPE), which is significant because there may be OSHA-mandated employer obligations relating to the use of PPE in the workplace (e,g. fit testing, training, documentation, etc.).Continue Reading Cloth Masks: PPE or Not PPE? That Is the Question

It’s that time of year when many folks look forward to seeing family members near and far. In the context of the pandemic, however, the CDC and many state and local officials are recommending that folks avoid travel and gatherings with those outside of the immediate household.  Given the workplace impact of employees’ holiday travel – with possible infections, exposures, and quarantines – employers are wondering whether they can prohibit employees from traveling during the holidays. And the answer, of course: It’s complicated.
Continue Reading It’s The Holiday Season – Can Employers Restrict Personal Travel?

The U.S. Department of the Treasury issued, on August 28, 2020, a Notice concerning President Trump’s Presidential Memorandum concerning employers’ deferral of payroll taxes.  Here are the key points:
Continue Reading Treasury Department Provides Guidance on President Trump’s Deferral of Payroll Taxes

In this new pandemic world, employers are grappling with many questions. One of them is when can they require employees to provide the results from any COVID-19 tests that they have taken, in the context of granting leave and returning to work.
Continue Reading When Can Employers Require Employees to Provide COVID-19 Test Results?

President Trump issued, on August 8, 2020, Memoranda and Executive Orders concerning unemployment insurance, payroll tax withholding, evictions, and student loans.  Below, we discuss the two employment-related Presidential Memoranda (which have been incorrectly designated Executive Orders in the media, although there is little technical distinction between the two).  Neither requires immediate action by employers.
Continue Reading President Issues Memoranda on Payroll Taxes and Unemployment Insurance

In a decision potentially impacting all employers covered by the Families First Coronavirus Response Act (FFCRA), a federal court upended some of the employer-friendly limitations set forth in the U.S. Department of Labor’s (DOL) implementing regulations (i.e. the “Final Rule”): (1) the work-availability requirement, (2) the broad exemption for health care providers, (3) employer approval of intermittent leave, and (4) the documentation requirement. Below, we first summarize the Court’s decision and then discuss the practical effect of this decision on employers.
Continue Reading Federal Court Vastly Expands FFCRA Paid Leave Mandate – What This Actually Means for Covered Employers

As offices and other workplaces reopen, employers are struggling with the issue of masks and face coverings in the workplace. There has been much confusion about whether and when cloth face coverings are required, and what are an employer’s obligations with regard to their use.
Continue Reading Masks/Face Coverings in the Workplace Uncovered! What Can Employers Require?

Over the course of the COVID-19 pandemic, there has been a great deal of discussion – and confusion – about the use of masks and face coverings and respirators. Are they personal protective equipment (PPE)? Who should use them? Who must use them? Should employers provide them? Must employers provide them? Which one should employers provide? Should employers provide training on their use? Must employers providing training? And on and on…
Continue Reading OSHA Speaks: Face Coverings, Masks and Respirators – Oh My!

As the United States still struggles with testing capacity for active COVID-19 infections, employers are increasingly asking “may we require our employees be tested for the presence of COVID-19 antibodies?” This is particularly true following the Equal Employment Opportunity Commission’s position that employers were permitted to test for the presence of active COVID-19 infection, set forth in its What You Should Know About COVID-19 resource (Q&A 6).
Continue Reading COVID-19 Antibody Testing:  Useful Screening Tool or Impermissible Medical Examination?