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Navigating the NEXT.
Questions on Vaccines?
As the pace of the COVID-19 vaccine rollout accelerates, the roles of various players continue to evolve among government, public companies, and private entities. Employers, pharmaceutical and supply manufacturers, healthcare service providers, educators, advertisers, transportation and logistics providers, and many others are continuously evaluating the potential implications of vaccine distribution for their industries and organizations worldwide. Morgan Lewis breaks down what opportunities, regulatory considerations, and legal obstacles still lie ahead.
Insights
The California Division of Occupational Safety and Health (Cal/OSHA) on May 28 released much-anticipated updated text for its proposed “Readoption” of COVID-19 Prevention Emergency Temporary Standards. Perhaps the biggest surprise was what Cal/OSHA did not change.
The US Equal Employment Opportunity Commission (EEOC) released a long-awaited update to its technical assistance guidance on COVID-19 and the Americans with Disabilities Act (ADA), the Rehabilitation Act, and other federal equal employment opportunity (EEO) laws on May 28, 2021. The document addresses frequent employer questions related to requiring vaccines for employees and providing incentives to employees to encourage vaccinations under the ADA, Title VII, and the Genetic Information Nondiscrimination Act (GINA).
New guidance will allow employees in New Jersey, Oregon, and Washington to go maskless and stop social distancing if they provide their employers proof of vaccination against COVID-19.
Massachusetts Governor Charlie Baker announced on May 17 that Massachusetts will rapidly accelerate the commonwealth’s reopening process by adopting the Centers for Disease Control and Prevention’s (CDC’s) Interim Public Health Recommendations for Fully Vaccinated People. Effective May 29, all businesses can open at 100% capacity, with very limited exceptions. The governor also announced that the 14-month state of emergency will end on June 15, 2021.
The California Department of Public Health (CDPH) announced the state will move beyond the Blueprint for a Safer Economy, allowing businesses to return to usual operations (with limited exceptions for Mega Events), effective June 15, 2021.
On May 18, 2021, Santa Clara County issued the Order of the Health Officer of the County of Santa Clara to Protect the Community from COVID-19, which became effective on May 19, 2021. Most notably, the order requires employers to ascertain the vaccination status of personnel by June 1, 2021; institute mandatory reporting for employees if they test positive for COVID-19; and enforce additional rules for personnel who are not fully vaccinated.
The California Occupational Safety and Health (Cal/OSHA) Standards Board has decided to delay approving Cal/OSHA’s proposed “readoption” of the COVID-19 Prevention Emergency Temporary Standards pending Cal/OSHA’s anticipated further proposed revisions in light of recent mask guidance from the Centers for Disease Control and Prevention.
The Centers for Disease Control and Prevention (CDC) updated its guidance for fully vaccinated individuals on May 13 to state that “fully vaccinated people no longer need to wear a mask or physically distance” in most settings, subject to applicable law or workplace guidance.
Illinois Governor J.B. Pritzker announced that effective May 17, 2021, the State of Illinois is adopting the Centers for Disease Control and Prevention’s new guidance regarding face coverings for fully vaccinated individuals. The next day, Chicago Mayor Lori Lightfoot announced similar changes to Chicago’s face covering requirements.
California will keep its existing mask guidance in place until June 15, 2021, when it aims to “fully reopen the economy.” Thereafter, California will align its mask guidance with the Centers for Disease Control and Prevention’s mask guidelines for fully vaccinated individuals.
Governor Andrew Cuomo announced that effective Wednesday, May 19, 2021, New York State will adopt the Centers for Disease Control and Prevention’s (CDC’s) Interim Public Health Recommendations for Fully Vaccinated People for most businesses and public settings.
The recent rollout of various COVID-19 vaccines has raised many questions around their availability, distribution, and requirements for employers and other groups, including essential insurance, liability, and enforcement considerations. Here we provide key legal and regulatory perspectives for those organizations providing access to the vaccines and/or mandating vaccination. Highlights include the state and federal laws providing protection to organizations during an outbreak of an infectious disease and what employers contemplating the administration of a closed point-of-delivery (POD) vaccination program need to know.
The Centers for Disease Control and Prevention (CDC) updated its guidance for fully vaccinated individuals on May 13 to state that “fully vaccinated people no longer need to wear a mask or physically distance” in most settings, subject to applicable law or workplace guidance.
Partners Reece Hirsch and Pulina Whitaker authored an article for Bloomberg Law about the implementation of digital COVID-19 vaccine passports.
The Biden-Harris administration announced on May 5 its intent to support a waiver on intellectual property protections on COVID-19 vaccines. The scope of any potential waiver is subject to further negotiation at the World Trade Organization (WTO). Any decision made at the WTO level requires a consensus among all of its 164 members.
New York Gov. Andrew Cuomo, New Jersey Gov. Phil Murphy, and Connecticut Gov. Ned Lamont jointly announced on May 3 a significant easing of the remaining capacity restrictions on business operations related to the COVID-19 pandemic.
The European Data Protection Board and European Data Protection Supervisor have published a joint opinion on the data protection aspects of the European Union's proposals for a Digital Green Certificate, a form of COVID-19 vaccine certification that aims to facilitate the free movement of people within the European Union and kickstart international travel.
Given the significant push to vaccinate the public since the start of 2021, the increasing availability of vaccines, and the need to recruit additional personnel to administer vaccinations, the secretary of the US Department of Health and Human Services (HHS) has again amended its declaration under the Public Readiness and Emergency Preparedness Act (PREP Act) to accommodate some workforce barriers that had not been previously contemplated.
Expectations for positive turns in many spheres of life, both commercial and social, have sprung at the arrival of COVID-19 vaccination. One of the popular questions is whether vaccination could change the current preference for working remotely (even as we see gradual easing of the remote work requirement in Russia) or whether it would be required as a condition to work in office. In this LawFlash we address whether an employer can require employees to vaccinate, whether the employee can seek to discontinue remote work following vaccination, and related matters.
Employers should note several recent legislative and regulatory developments in New York State related to the COVID-19 pandemic. On March 12, Governor Andrew Cuomo signed legislation entitling all public- and private-sector employees in the state to up to four hours of paid leave per injection to receive the COVID-19 vaccination.
The Centers for Disease Control and Prevention (CDC) issued public health recommendations for fully vaccinated people that provide guidance on activities these individuals can engage in as well as ongoing precautions of which to be aware. These updates include directions that apply to non-healthcare settings and specifically describe activities that the CDC deems to be low or high risk for individuals who are fully vaccinated against COVID-19. Separate from the CDC guidance, various states are beginning to issue more vaccine-related guidance, including on whether employers can mandate vaccines and whether otherwise applicable quarantine requirements apply to vaccinated individuals, which is in line with prior CDC guidance.
With the United Kingdom’s vaccination programme well underway, many employers are struggling with the best course of action for how to approach COVID-19 vaccines and their workforce. As mantras like “No Jab, No Job” circulate around the news, it raises the key question of whether employers can require their employees to be vaccinated before returning to work. To date, the UK government has left it up to individual employers to decide what is appropriate and justified in the context of their own workforce, and those decisions should be made with care. Here are a few of the most important things to consider as an employer deciding on the best course of action for requiring or encouraging COVID-19 vaccines.
The Centers for Disease Control and Prevention (CDC) has been actively reviewing its COVID-19 guidance over the past few weeks and as expected, the new administration has issued significant new guidance and updates. These updates include direction on topics relevant to employers, including testing, quarantining, and mask-wearing. First, new CDC guidance on testing advises employers to seek informed consent for any workplace-based COVID-19 testing program.
The Biden administration has vowed to invoke the Defense Production Act (DPA) to increase domestic production of essential supplies needed to respond to the COVID-19 pandemic. In this Insight, we address key features of the DPA, guidance for companies that may receive a rated order, financing incentives offered by the DPA, and how we anticipate the Biden administration will use the DPA over the next year.
In response to delayed EU shipments of certain COVID-19 vaccines to the European Union, the European Commission (Commission) passed on 29 January 2021 Regulation 2021/111 (Export Authorization Regulation) which is in force from 30 January 2021. The Commission intends for the Export Authorization Regulation to apply until at least 31 March 2021.
As the United States races to deliver safe and effective coronavirus (COVID-19) vaccines under the Biden administration, employers, healthcare providers, and many others are assessing what it means for their industries and organizations.
Immediately following his inauguration on January 20, US President Joseph R. Biden, Jr. began taking executive action to enact many of his administration’s initial priorities, which included a number of executive orders, memoranda, and directives to cabinet agencies to address policies he detailed during his campaign, including the COVID-19 pandemic, climate change, equality, and the global economy. To help clients navigate potential changes from these actions, Morgan Lewis has provided a quick analysis of many of these orders and their impact. We will release more detailed pieces as the president unveils additional specifics of his First 100 Days plan.
The United Kingdom on 2 December became the first country to approve the Pfizer-BioNTech vaccine for coronavirus (COVID-19), with approximately 500,000 people receiving the vaccine in the first two weeks of the largest vaccination programme in British history.
On the heels of the US Food and Drug Administration’s first issuance of an Emergency Use Authorization for a coronavirus (COVID-19) vaccine, the Equal Employment Opportunity Commission published an updated technical assistance bulletin that begins to address some of the questions employers have raised regarding whether they can require employees to get vaccinated for COVID-19, as well as considerations employers should be aware of if they do offer a COVID-19 vaccination program.
With coronavirus (COVID-19) vaccines on the horizon amid the surging pandemic, critical extensions expand the scope of liability immunity under the PREP Act.
The eagerly anticipated news of coronavirus (COVID-19) vaccine candidates last week has been welcomed by the scientific community across the globe. For employers, the news has prompted consideration of the potential implications of a successful vaccine for the workplace.
While workplace safety standards have been thrust into the national conversation since the coronavirus (COVID-19) pandemic began, Occupational Safety and Health Administration (OSHA) enforcement has been relatively quiet. That will likely change under a Biden administration.
Healthcare systems have been on the front lines of the coronavirus (COVID-19) pandemic and may have several questions about how to manage workforce challenges as we look toward the upcoming months.
With the US Food and Drug Administration’s first issuance of an Emergency Use Authorization for a COVID-19 vaccine, employers should consider the implications a new vaccine will have on their workplaces. Although much remains speculative, employers can look to the regulation of current vaccines as the basis for their preliminary planning. Those who begin to plan now will be better positioned to navigate the various risks and issues involved.
In the News
Partners Daryl Landy and Jason Mills spoke with the Daily Journal regarding Cal/OSHA’s adoption of revised COVID-19 workplace safety standards.
Associate Alana Genderson was quoted in an HR Dive article about the US Equal Employment Opportunity Commission’s (EEOC’s) updated technical guidance related to COVID-19 vaccines.
Morgan Lewis senior attorney Pierce Blue and associates Alana Genderson and Daniel Kadish authored an article for Law360 after the US Equal Employment Opportunity Commission released an update to its technical assistance guidance on COVID-19 and the Americans with Disabilities Act, the Rehabilitation Act, and other federal equal employment opportunity laws.
Morgan Lewis partner Louise Skinner was interviewed by Eddie Mair on LBC Radio about the prospect of making COVID-19 vaccinations compulsory for care home staff.
Morgan Lewis senior attorney Pierce Blue was quoted in an HR Drive article after the US Equal Employment Opportunity Commission (EEOC) published an update to its technical assistance guidance on COVID-19 and the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, and other related laws.
Morgan Lewis partner Klair Fitzpatrick was quoted in a Bloomberg Law article about the potential legal risks of segregating vaccinated and unvaccinated employees in the workplace. “Workers can refuse the jab based on disability or religious belief, so employers could then face allegations of bias against those workers if they suffer negative consequences as a result of being segregated," Klair said in the article.
Senior attorney Pierce Blue was quoted in an HR Magazine article that discussed how companies can approach employees’ COVID-19 vaccination status. Pierce said that “employers should continue to pay close attention to updated rules and guidelines coming from federal, state and local agencies."
Partner Jonathan Snare was quoted in a Bloomberg Law article regarding the Occupational Safety and Health Administration’s (OSHA’s) standard for workplace protection in light of the Centers for Disease Control and Prevention’s (CDC’s) new mask guidelines for vaccinated workers.
Morgan Lewis senior attorney Pierce Blue was quoted in an article by HR Magazine explaining some of the confusion caused by the US Centers for Disease Control and Prevention (CDC) guidance relaxing many of its COVID-19 safety measures for those who have been vaccinated.
Morgan Lewis partner Reece Hirsch spoke to Bloomberg Law about potential privacy issues surrounding digital vaccine passports, recommending that companies and employers collect limited information.
Partner Sharon Masling spoke to CNBC after the US Food and Drug Administration (FDA) approved Pfizer’s COVID-19 vaccine for children ages 12–15 years.
Morgan Lewis associate Alanda Genderson spoke to Axios about the possibility of schools in the US requiring students to receive COVID-19 vaccines as they are approved for younger people.
Morgan Lewis partner Sharon Masling spoke to CNBC about schools requiring students to be vaccinated before returning to school.
A Washington Post article quoting associate Daniel Kadish was quoted in a Computer World article about potential employer questions when considering mandatory COVID-19 vaccinations.
Associate Daniel Kadish spoke with HR Magazine about the role of vaccination cards in the workplace. In the article, Daniel discussed tips for employers if employees lose their vaccination cards, as well as other scenarios.
Associate Lauren Groebe spoke with Bloomberg Law about the privacy concerns around potential COVID-19 vaccine passports. “From a confidence standpoint, it’s important the consumers are in charge of what information they’re giving to the vaccine passport,” said Lauren in the article.
Morgan Lewis partner Klair Fitzpatrick and associate Daniel Kadish were quoted by HR Magazine in an article about mask policies in the workplace.
Partner Sharon Masling was interviewed by NJ Spotlight News about a new state law that opens the door to employer-mandated vaccinations before allowing employees to return to work.
Morgan Lewis partner Jacqueline Aguilera was quoted in an HR Magazine article about the COVID-19-related questions that are top of mind for employers.
Morgan Lewis associate Daniel Kadish spoke with the Washington Post about the potential for employers to compel employees to be vaccinated. “The thought process is the vaccine stops people from having severe illness or developing severe complications from COVID-19, and so it could help the individual from becoming a direct threat to themselves or others in the workplace,” said Dan.
In a recent International Employment Lawyer article, Morgan Lewis associate Daniel Kadish discussed the issues employers are considering around requiring employees to receive a COVID-19 vaccine.
Morgan Lewis associate Daniel Kadish was quoted in International Employment Lawyer, discussing the possibility of employer-mandated COVID-19 vaccinations in the United States.
Partner Sharon Masling was quoted in a Bloomberg Law article about more employers offering financial incentives in exchange for their employees getting the COVID-19 vaccine. The quickly evolving situation touches on a number of areas in employment law, including health privacy laws and the Americans with Disabilities Act (ADA).
Partner Susan Harthill was quoted in an HR Dive article about the Occupational Safety and Health Administration’s guidance that requires vaccinated workers to continue to take cautionary measures to prevent the further spread of COVID-19.
Partner Jonathan Snare spoke with Law360 about new guidance from the Occupational Safety and Health Administration (OSHA) that requires vaccinated workers to continue to wear masks and take other measures to prevent the spread of COVID-19.
Partner Sharon Masling spoke with The Washington Post about the potential interaction of COVID-19 vaccine screening questions and the American with Disabilities Act.
Morgan Lewis associate Daniel Kadish was quoted in an HR Magazine article about best practices for employers amid the COVID-19 vaccine rollout. In the piece, Daniel noted that an employer must provide "reasonable accommodations" to workers who decide not to get the COVID-19 vaccine because of religious or disability concerns.
Morgan Lewis partner Sharon Masling discussed the future of remote working as part of a series of 2021 predictions collated by Legaltech News. Sharon, a director of the firm’s workplace culture consulting group, said, “Although vaccines offer some hope for returning to a pre-pandemic in-person work environment, remote work has become the new normal and employees increasingly expect to have remote work flexibility.”
Morgan Lewis partner Sharon Perley Masling spoke with The Washington Post for an article about the likely implications of COVID-19 on the 2021 workplace.
Morgan Lewis partner Sharon Perley Masling spoke with Bloomberg Law about the legal questions for employers around mandating the COVID-19 vaccine. “Whether to mandate the vaccine is obviously an industry-by-industry and employer-by-employer decision,” said Sharon. “In most cases, however, our clients are deciding to strongly encourage their employees to get the vaccine rather than require them to do so while the vaccine is under an EUA.”
Partner Sharon Perley Masling was quoted in a Boston Globe article about best practices for employers seeking for their workforce to get the COVID-19 vaccine.
Morgan Lewis partner Sharon Masling spoke with CBS News about the Equal Employment Opportunity Commission’s recently released guidance that employers can mandate employees be vaccinated for COVID-19 in certain circumstances.
Morgan Lewis partner Sharon Perley Masling spoke with the HuffPost about the potential for employers to require employees to get a COVID-19 vaccine. “Most clients right now are leaning toward encouraging rather than requiring the vaccine, just because there are still so many unanswered questions,” said Sharon in the article. “I think it is wise for employers to start planning, but those plans are going to be revised as we get more information.
Morgan Lewis partner Sharon Perley Masling spoke with The Washington Post about the unanswered questions employers are facing regarding a potential COVID-19 vaccine.
Morgan Lewis partners Matthew Howse, Pulina Whitaker, Louise Skinner, and Lee Harding’s blog post about the potential implications of a successful COVID-19 vaccine for the workplace was featured in recent Daily Mail article.
Morgan Lewis partner Michael Abernathy spoke with Business Insurance for an article about the pharmaceutical industry’s efforts to produce a COVID-19 vaccine.
Kathy Sanzo spoke with MedCity News regarding the Department of Health and Human Services’ Covid-19 vaccine development program, Operation Warp Speed, which aims to develop vaccines against the SARS-CoV-2 in the space of a year rather than the multiple years normally required
Morgan Lewis partner Kathy Sanzo spoke with Bloomberg Law about the efforts by drugmakers to produce a vaccine and navigate a web of US Food and Drug Administration (FDA) regulations.
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