#COVIDVaccinesatWork

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[UPDATE – The DOL seems to have removed the fact sheet from its website – but we captured a printout. We also note that the fact sheet referenced the Vax-or-Test ETS as if it were still in existence; perhaps that’s why it was pulled. Be warned that the printout is NOT official and, according to the DOL, should NOT be relied upon! In other words, you won’t be able to cite to the guidance, but we believe the general FLSA principles will likely not change in any future guidance.]

For much of the past year or so, employers have struggled with the question of whether they must pay employees for the time spent getting vaccinated against or tested for COVID-19, particularly during off-duty hours. The U.S. Department of Labor has finally issued guidance on this issue under the Fair Labor Standards Act.
Continue Reading The DOL (Finally!) Provides Guidance on Compensability of COVID Testing/Vaccination Time!

OSHA Withdraws the Healthcare ETS. The Healthcare ETS, which was promulgated by the Occupational Safety and Health Administration (“OSHA”) on June 21, 2021, has been largely withdrawn by OSHA.  On December 27, 2021, OSHA announced its withdrawal of the non-recordkeeping components of the Healthcare ETS.  We previously described the requirements of the Healthcare ETS in our June 15, 2021 E-lert.
Continue Reading OSHA Scraps Its Healthcare ETS While CMS Moves Forward With the Vaccine Mandate in Half of the Country

In a decision that surprised many legal observers, the U.S. Court of Appeals for the Sixth Circuit has lifted the Fifth Circuit’s stay of the federal Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS) requiring employers with 100+ employees (1) to mandate vaccinations or weekly testing/face coverings for their workforce and (2) to provide paid time off to get vaccinated and recover from any adverse effects. This means that larger employers must now come into compliance with the requirements of the ETS, unless the U.S. Supreme Court steps in with another stay. In the meantime, the federal contractor vaccination mandate is currently stayed, while the Center for Medicare and Medicaid Services’ vaccination mandate for the employees of Medicare- and Medicaid-certified providers is partially stayed – although both stays have been appealed by the Biden Administration.
Continue Reading OSHA’s Vax-or-Test Emergency Temporary Standard For Larger Employers Is Back in Business – For Now

Following one federal court’s stay limited only to certain states (as discussed in our November 2021 E-Update), another federal court in Louisiana has now granted a nationwide preliminary injunction against the Center for Medicare and Medicaid Services’ (CMS) Interim Final Rule containing a vaccine mandate issued on November 5, 2021 (as discussed in our November 8, 2021 E-lert). This mandate requires workers of most federally-funded healthcare entities to receive their first shot by December 6, 2021 and their second by January 4, 2022. The injunction states explicitly that it “immediately enjoins and restrains the Government…from implementing the mandate.”
Continue Reading Court Enjoins CMS’s Vaccine Mandate for Medicare and Medicaid-Certified Providers

On November 5, 2021, on the same day that the Occupational Health and Safety Administration issued its COVID-19 Vaccination and Testing Emergency Temporary Standard (the “ETS”), the Centers for Medicare and Medicaid Services (“CMS”) released its Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (the “CMS Vaccination Rule” or the “Rule”).  The CMS Vaccination Rule requires certain healthcare providers to mandate vaccination against COVID-19 for all applicable staff.  The Rule, which permits medical and religious exemptions only as required by law, does not require testing of unvaccinated staff.
Continue Reading CMS Issues COVID-19 Rule Requiring Vaccination of Healthcare Staff

The federal Occupational Safety and Health Administration has now issued the Emergency Temporary Standard (ETS) implementing President Biden’s September 9, 2021 COVID-19 Action Plan that requires employers with 100+ employees (1) to mandate vaccinations or weekly testing/face coverings for their workforce and (2) to provide paid time off to get vaccinated and recover from any adverse effects. Although the ETS is effective upon publication in the Federal Register on November 5, 2021, employers will be given until December 5, 2021 to come into compliance with everything but the testing requirement, which has a compliance date of January 4, 2022. The ETS will likely be in effect for six months.
Continue Reading OSHA’s Vax-or-Test ETS: What Employers Need to Know

Last week the federal Departments of Labor, Health and Human Services, and the Treasury issued joint FAQs that address questions regarding COVID-19 vaccinations and group health plans.  The FAQs are particularly relevant to those employers considering whether to provide incentives or impose surcharges under their group health plans to encourage employees to become vaccinated.  Here’s what employers need to know:
Continue Reading New Federal Agency Guidance on Vaccine Incentives and Surcharges: What Employers Should Know

As many employers implement a COVID-19 vaccination-or-weekly-testing mandate (soon to be required of all employers with 100+ employees, as we discussed here), a recurring issue is whether the time that employees spend getting that weekly test must be paid under federal and state wage and hours laws. And the answer is a lawyerly, “Well, it depends.” (Of course).
Continue Reading Do Employers Have to Pay For COVID-19 Testing Time?

An issue that we’ve run into recently is what to do about employees who are vaccinated – but not with one of the FDA-approved vaccines (whether under Emergency Use Authorization (Moderna and J&J) or regular approval (Pfizer-BioNTech)). Perhaps they are participating in a clinical trial or maybe they were vaccinated in another country. Employers are wondering – is this really a valid vaccine? Can we require employees to go get a “real” vaccine?
Continue Reading Foreign COVID Vaccinations and Clinical Trials? What Employers Need to Know

NOTE: This post has been updated for guidance from the Maryland DOL on paid leave under the Essential Workers Protection Act.

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.Continue Reading UPDATED: Maryland Employers and Current COVID-19 Considerations: Workplace Safety Standards, Vaccinations, Masking, Paid Leave, and More