On August 26, 2021, Illinois Governor J.B. Pritzker issued Executive Order 2021-20 (the Order). The Order mandates that all individuals in Illinois who are at least two years old and who are medically able must wear face coverings indoors and in other specified settings.
In addition, the Order mandates COVID-19 vaccination for certain professionals in healthcare and education, as well as for students and state employees, subject to certain exemptions which require regular COVID-19 testing.
On July 26, 2021, the California Department of Public Health (CDPH) issued a new Order that impacts healthcare and state employers in California. According to McDermott’s Michelle S. Strowhiro, Ellen M. Bronchetti and Ludia Kwon, the CDPH Order requires that almost all healthcare employers verify the vaccination status of all of their workers.
The Order also requires workers who are not fully vaccinated to go through regular COVID-19 testing at specified intervals. These facilities also must have a plan in place for tracking verified worker vaccination statuses.
Recent US Equal Employment Opportunity Commission guidance, for example, confirmed what employment lawyers had already been counseling businesses to do, according to McDermott partner Carole A. Spink in a recent Law360 article.
“The guidance was important because it did clarify that employers can provide incentives for voluntary programs. [There] was a big open question about, ‘Am I going to get into trouble because I’m trying to incentivize people to be vaccinated?'”
The US Centers for Disease Control and Prevention (CDC) recently offered employers leeway to relax safety rules for fully vaccinated workers. However, experts say that validating who is vaccinated is rife with potentially costly missteps. In an article published in Law360, McDermott partner Michelle S. Strowhiro said employers must be careful not to ask follow-up questions unless they are implementing a mandatory policy or “taking a position that vaccination status is job-related and consistent with business necessity.”
On June 21, 2021, the US Occupational Safety and Health Administration’s (OSHA) long-anticipated Emergency Temporary Standard (ETS) for COVID-19 requirements in the healthcare industry went into effect. Most of the requirements must be followed by July 6, 2021; the remainder (on implementing physical barriers, improved ventilation systems and employee trainings) must be implemented no later than July 21, 2021, according to McDermott’s Abigail M. Kagan and Michelle S. Strowhiro. OSHA’s COVID-19 safety requirements are workplace-specific. Employers who have some employees working in a patient setting and other employees working in a corporate setting may need to follow the requirements only for the patient-based setting.
When the US Centers for Disease Control and Prevention (CDC) relaxed its mask guidance in May, the news caught many people—especially corporate America—off guard.
In this Forbesarticle, McDermott partner Michael W. Peregrine argues that companies need to provide stakeholders with clear health and safety messaging in light of mandates from state and local governments.
“Companies can ill-afford to drift in the wind of confusion and controversy, and they can’t be blindsided by further guidance change should there be an increase in reported cases or should variants, like those first found in India, surface in the United States,” Peregrine writes.
A “closed point of dispensing” (CPOD) is emerging as a valuable model for employers working to make vaccines more broadly available as the United States moves toward mass vaccination efforts. Establishing a CPOD requires a deliberate strategy but can be done efficiently and proactively by taking a few initial steps.
On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued its first direct guidance for employers regarding COVID-19 vaccines approved or authorized by the Food and Drug Administration (FDA). Important takeaways from the guidance, as well as FAQs from the EEOC, are discussed in the attached link.
COVID-19 safety plans are a way for employers to demonstrate to their employees, the public and, in certain cases, state governments that they have considered the risks associated with COVID-19 in their workplaces and have developed a response to these concerns. The plans establish and explain the policies, practices and conditions necessary to meet the Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA) standards relating to worker and customer exposure to COVID-19. These plans may also incorporate guidance from the state department of health and industry specific guidelines issued via state executive orders.
Some essential workers are refusing to go to work out of fear of contracting COVID-19. Their employers must weigh the employees’ legal rights and understandable health concerns with the organizations’ business needs. It can be a tough balancing act.
In a recent article, McDermott Partner Pankit Doshi said employers may relax documentation requirements due to the difficulty some employees could have obtaining access to medical providers during the pandemic and to encourage ill employees to stay away from work.
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