Questions on COVID-19 Vaccines?

The US Equal Employment Opportunity Commission (EEOC) recently updated its COVID-19 guidance, detailing its view of employer obligations under Title VII when evaluating religious objections to COVID-19 vaccination mandates. The EEOC also added guidance on requests for accommodation based on pregnancy under the Americans with Disabilities Act and the Pregnancy Discrimination Act. Together, these comprise the second significant update to EEOC’s COVID-19 guidance since the FDA and CDC authorized COVID-19 vaccines.

A new travel policy requiring foreign nationals traveling to the United States to demonstrate proof of full vaccination against COVID-19 will take effect November 8, as announced by the White House on October 15. The accepted vaccines will include FDA-approved or authorized vaccines and WHO emergency use vaccines. In light of this announcement, many US consular posts are no longer processing National Interest Exceptions except in emergency situations.

Senior attorney Pierce Blue and associate Alana Genderson authored an article for Bloomberg Law discussing how the rollout of COVID-19 booster shots can create potential legal issues for employers implementing vaccine policies.

In our latest Fast Break session and on the heels of recent announcements from the Biden-Harris administration and the US Food and Drug Administration’s (FDA’s) granting of full authorization for the Pfizer vaccine in August, we were joined by Dan Kadish, a Morgan Lewis labor and employment associate and one of the leaders of our Morgan Lewis COVID-19 vaccine task force, to discuss how these updates may impact employers in the healthcare industry.

The Biden-Harris administration plans to lift travel restrictions on visitors from most European countries, including the United Kingdom and Ireland, and other countries that have been in place since the start of the coronavirus pandemic.

New York State Governor Kathy Hochul announced on September 6, 2021 that the New York State Department of Health designated COVID-19 a highly contagious communicable disease that presents a serious risk of harm to public health under the New York State Health and Essential Rights Act (HERO Act). Under the Act requirements, businesses must promptly review their worksite exposure prevention plans; activate the protective measures in the plan, including mandatory screening, social distancing, and masking; and provide employees with verbal and written notice of their exposure prevention plans.

The US Centers for Disease Control and Prevention (CDC) recently announced a new policy under which all applicants for a green card must be fully vaccinated against COVID-19. As part of the green card application process, all individuals are required to undergo a medical exam by a civil surgeon. This surgeon will assess a full medical history, conduct a physical examination, ensure attainment of all required vaccinations, and screen for mental health, sexually transmitted diseases, and various other illnesses that have been determined to be adverse to the interests of the general public.

The Occupational Safety and Health Administration (OSHA) recently updated its nonbinding COVID-19 guidance applicable to all industries not otherwise covered by its Emergency Temporary Standard (ETS).

Due to increased COVID-19 positivity and hospitalization rates stemming from the Delta variant, including a rising number of breakthrough cases, public health officers in seven Bay Area counties—Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and Sonoma— and the City of Berkeley all issued face covering orders on August 2, 2021. The orders became effective on August 3, 2021.

The UK government has waived quarantine requirements for visitors from Europe and the United States who have been fully vaccinated—and who have not been in France or a Red List country in the 10 days prior to arriving in the United Kingdom—as part of a range of new measures designed to continue reopening international travel.

The Centers for Disease Control and Prevention (CDC) has released updated guidance recommending that fully vaccinated persons in areas with substantial or high rates of COVID-19 transmission resume wearing masks in public indoor settings. The guidance also encourages all fully vaccinated persons who are exposed to COVID-19 to take a COVID-19 test three to five days after exposure, and to wear masks in public indoor settings for 14 days or until receiving a negative COVID-19 test. The guidance also recommends universal indoor masking for all teachers, staff, students, and visitors to schools, regardless of their vaccination status.

The UK government, in line with its roadmap out of lockdown, has announced that travelers who have been vaccinated with an NHS-administered vaccine in the United Kingdom (plus 14 days), or are on a formally approved UK vaccine clinical trial, will no longer need to quarantine on their return to the United Kingdom from an amber list country.

The Cal/OSHA Standards Board voted on June 17 to “readopt” the COVID-19 Prevention Emergency Temporary Standards (ETS) with several revisions that brought the ETS rules for fully vaccinated employees more in line with the Centers for Disease Control and Prevention (CDC) and California Department of Public Health’s (CDPH) guidance. Later that day, Governor Gavin Newsom issued Executive Order N-09-21 that eliminated 10 days of administrative review so that the ETS could take effect immediately.

In another reversal, on June 9 the California Division of Occupational Safety and Health (Cal/OSHA) Standards Board unanimously voted to withdraw the “Readopted” Emergency Temporary Standards that it had approved just six days earlier, while the California Department of Public Health (DPH) previewed new face mask guidance that aligns with the Centers for Disease Control and Prevention’s (CDC’s) face mask guidance and will take effect June 15. In addition, the health department from Los Angeles County—the county with the largest population and with the highest number of COVID-19 cases and deaths in the state since the pandemic began—announced that it will adopt the state DPH guidance except that employers must adhere to Cal/OSHA standards.

On June 8, 2021, the New York State Department of Health released updated interim guidance for office-based workplaces that removes significant prior restrictions. This new guidance comes on the heels of Governor Andrew Cuomo’s recent announcement that once 70% of adult New Yorkers have received at least the first dose of the COVID-19 vaccine, almost all applicable guidance will become optional, except that unvaccinated individuals still need to wear face coverings and maintain social distancing. According to Governor Cuomo, New York is expected to hit the 70% threshold during the week of June 14, if not earlier.

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).

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.

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 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.

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.

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.

Partners Reece Hirsch and Pulina Whitaker authored an article for Bloomberg Law about the implementation of digital COVID-19 vaccine passports.

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.

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.

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.

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 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.

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.

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.

With coronavirus (COVID-19) vaccines on the horizon amid the surging pandemic, critical extensions expand the scope of liability immunity under the PREP Act.

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.

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.

Retailers have regularly pivoted their business models over the past 18 months as changing guidance from world health organizations and national and local governments continue to change the rules of operation.

Getting the Deal Through—Occupational Health & Safety provides an international analysis of workplace safety for corporate counsel, cross-border legal practitioners, and business people.

Partner Sharon Masling spoke with US News & World Report about employers offering COVID-19 testing as alternatives to vaccine mandates.

Partner Sharon Masling spoke with the Washington Post about the trend of more companies mandating vaccines in the wake of the FDA fully approving the Pfizer vaccine. "Legally an employer was allowed to mandate a vaccine even when it was only authorized under the emergency use authorization," Sharon said. "I think there were some employers who were more hesitant to require employees to vaccinate themselves with a vaccine that had not received full approval. ... I think this will put those employers at ease."

Senior attorney Pierce Blue spoke with HR Magazine to share some best practices for employers asking about employee COVID-19 vaccination statuses as federal and state regulations keep changing.

Partner Daryl Landy spoke with HR Magazine about a new statewide regulation that requires California state employees, healthcare workers and others in high-risk workplaces to either show proof of vaccination or complete regular testing.

Partner Sharon Masling spoke with Bloomberg Law about the debate over mandatory vaccines for school-aged children.

Partner Sharon Perley Masling spoke with CNBC about the potential impact of the Biden-Harris vaccine mandate for civilian federal workers on private business leaders.

Partner Sharon Perley Masling spoke with Law360 about the potential influence of recent government vaccine mandates on the private sector. "I think every time an employer, be it public or private, decides to require that their employees get vaccinated means that it is a little bit easier for the next employer to do so," she said in the article.

Partners Daryl Landy and Jason Mills and associate Nicholas Armer co-authored an article for the Daily Journal regarding Cal/OSHA’s changing approach to the Emergency Temporary Standards (ETS) it has issued over the last year. The article highlights the inconsistency in the standards, which has created a “skeptical employer audience when it comes to future emergency standards.”<

Associate Alana Genderson was quoted in a Law360 article regarding the Occupational Safety and Health Administration’s (OSHA’s) most recent COVID-19 workplace safety emergency temporary standards (ETS).

Morgan Lewis senior attorney Pierce Blue spoke with HR Magazine after the Occupational Safety and Health Administration (OSHA) issued its COVID-19 emergency temporary standards.

Partner Jon Snare was quoted in The Associated Press after the Occupational Safety and Health Administration (OSHA) issued important updates to its COVID-19 emergency temporary standards.

Partners Daryl Landy and Jason Mills spoke with the Daily Journal regarding Cal/OSHA’s adoption of revised COVID-19 workplace safety standards.

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 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.

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."

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.

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 partner Sharon Masling spoke to CNBC about schools requiring students to be vaccinated before returning to school.

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.

Morgan Lewis partner Klair Fitzpatrick and associate Daniel Kadish were quoted by HR Magazine in an article about mask policies in the workplace.

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.

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.

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 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 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 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.”

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 Washington Post about the unanswered questions employers are facing regarding a potential COVID-19 vaccine.

Morgan Lewis partner Michael Abernathy spoke with Business Insurance for an article about the pharmaceutical industry’s efforts to produce a COVID-19 vaccine.

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.