On September 9, 2021, President Biden announced that he has directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to promulgate an emergency temporary standard requiring all US companies with 100 or more employees to ensure that their workers are either vaccinated against COVID-19 or tested  weekly before coming to work. In an 11-page memo, “Path Out of the Pandemic” (the Memo), the President announced a “six-pronged, comprehensive national strategy” to combat COVID-19, including the OSHA emergency rule.

The White House estimates the OSHA emergency rule will apply to more than 80 million private-sector workers.

Here’s what US private employers need to know right now.
  • The emergency rule will require all US employers with 100 or more employees to either ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. The emergency rule will undergo a process of expedited review before taking effect, and will be issued without public comment.
  • The emergency rule is expected in the coming weeks, and will take effect shortly thereafter.
  • Once the rule is in place, businesses who violate its provisions could face penalties of up to $14,000 per violation.
  • According to the memo, businesses will be required to provide workers with paid time off, both to get vaccinated and to recover from side effects from vaccination.

As part of the plan, President Biden announced he will require all health facilities accepting Medicare or Medicaid funding to vaccinate their workforces.

He also signed two executive orders on September 9 addressing federal employees and contractors. The first Executive Order requires all federal employees to be vaccinated, with no option to be regularly tested instead (the only exceptions to vaccination being those “required by law”)–a method the President reportedly hopes state governments and private companies will adopt. The second is an Executive Order “directing that this standard be extended to employees of contractors that do business with the federal government” (according to the Memo), indicating that federal contractors will also be required to ensure their workers are vaccinated, with no testing option.

The President’s plan also calls on large entertainment venues, like sports arenas, large concert halls, and other venues where large groups of people gather to require that their patrons be vaccinated or show a negative test for entry.

For now, employers should stay tuned for additional updates pending the issuance of OSHA’s emergency rule, and check out our other recent resources on mandatory vaccination:

As always, for assistance with any employment related needs, contact your Baker McKenzie employment attorney.

We are pleased to share a recent International Employment Lawyer article, “Are US Employers That Don’t Mandate Vaccines Now At Risk?” by Stephanie Priel, Robin Samuel, and Autumn Sharp. The article discusses risks companies that are not mandating COVID-19 vaccines may face, as well as steps those companies can take to meet their health and safety-related workplace obligations to employees.

Click here to view the article.

Special thanks to guest contributor:  Helena Engfeldt.

US employers want employees to return to the brick and mortar workplace but with the COVID-19 Delta variant rampaging across the US and elsewhere, many employers are requiring employees to be vaccinated before they return – and they are requiring proof of vaccination. So, what can employers do to track the vaccination status of their employees?

In this Quick Chat video, our Labor and Employment and Data Privacy lawyers discuss risks and best practices for US employers on tracking proof of employee vaccinations, and take a look at data privacy issues that can arise.

Click here to watch the video.


We note that clients are finding our Vaccine Analysis Matrix (VAM) helpful. On a state-by-state or country-by-country basis, depending on your organization’s needs, the matrix covers topics like permissibility of mandatory vaccinations, getting proof of vaccination and potential liabilities. This practical tool supports companies in developing their reopening plans and is available for a fixed fee.

Read more about whether US employers can (and should) mandate vaccinations for their workforce in our client alert, United States: Mandating COVID-19 Vaccination? Before You Act, Consider These Key Issues For US and Multinational Employers and watch The Employer Rapport video, Momentum to Mandate Vaccinations in the Workplace: What Employers Need to Know Now.

The United States Department of Labor, Occupational Safety and Health Administration (OSHA) has decided to sing the same song as its sister agency. Last Friday, August 13, OSHA updated its guidance for American workplaces, auto-tuning its recommendations for fully vaccinated employees to match recent guidance issued by the Centers for Disease Control and Prevention (CDC).

Specifically, on the topic of workplace vaccination, OSHA now

suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”

In so doing, OSHA joins the growing ensemble of government agencies recommending vaccine mandates, while public and private employers rush to require their workers to get vaccinated or undergo regular testing. (For details on this momentum, read more here or watch our video chat here.)

Additional Recommendations

OSHA updated its guidance to help employers and workers not covered by OSHA’s COVID-19 Emergency Temporary Standard (ETS) for the healthcare industry to identify COVID-19 exposure risks to workers who are unvaccinated or otherwise at risk even if fully vaccinated (e.g., immunocompromised individuals).

The guidance encourages employers to engage with workers and their representatives to determine how to implement multi-layered intervention strategies to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19, including:

  • Encouraging and facilitating employees to get vaccinated by providing paid time off, working with local agencies to offer vaccination clinics in the workplace, and adopting policies that mandate employee vaccination.
  • Instructing infected workers, unvaccinated workers who have had close contact with a positive COVID-91 case, and all workers with COVID-19 symptoms to stay home from work.
  • Implementing physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers.
  • Providing workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE. In addition to unvaccinated and otherwise at-risk workers, CDC recommends that even fully vaccinated people wear masks in public indoor settings in areas of substantial or high transmission.
  • Suggesting or requiring that unvaccinated customers, visitors, or guests wear face coverings in public-facing workplaces such as retail establishments, and that all customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission.
  • Recording and reporting COVID-19 infections and deaths, in compliance with mandatory OSHA rules.
  • Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19 related hazards.

Takeaways

While OSHA’s guidance is advisory, and not mandatory, employers would be wary of that siren song. Keeping the beat with recommended health and safety guidance, even when not compelled, puts employers in the best position to protect their people and defend against claims.

For help developing your return to office plans, please contact your Baker McKenzie employment lawyer.

On August 5th, Legal500 and Baker McKenzie held an employment law roundtable discussing best practices for LATAM employers navigating the new normal. Tatiana Garcés (Colombia), Javiera Medina (Mexico) and Leticia Ribeiro (Trench Rossi Watanabe in Brazil) were joined by general counsels Gabriela Rodríguez (Stryker) and Catalina Robledo (Nissan).

Together, the panel shared insights around remote work, hybrid work and managing mental health issues in the workplace.

To listen in, click here.

The emergence and subsequent spread of the Delta variant has led several countries, most notably the United States, into adopting more stringent health and safety protocols. On July 29, , President Biden declared that the US government would be imposing vaccination requirements in certain cases and offering additional incentives for its citizens to be vaccinated.

Following this announcement, TMT Talk revisits the important legal aspects of vaccinations, as they apply to the TMT sector. Kate AlexanderSusan Eandi, and Julia Wilson discuss key considerations for companies when it comes to vaccination requirements and workplace safety protocols, as well as their perspective on how to best approach vaccine mandates.

Please click here for the podcast.

 

Can private employers mandate vaccination as a condition of returning to the workplace? The recent spike in the COVID-19 Delta variant has caused the re-closure of worksites or changes to workplace safety protocols, leading to legal developments that provide more clarity to this issue.

In this Quick Chat video, our Labor and Employment lawyers breakdown whether and how private employers can mandate vaccination.

Click here to watch the video.

Clients are finding our Vaccine Analysis Matrix (VAM) helpful. On a state-by-state or country-by-country basis, depending on your organization’s needs, the matrix covers topics like permissibility of mandatory vaccinations, getting proof of vaccination and potential liabilities. This practical tool supports companies in developing their reopening plans and is available for a fixed fee.

Read more about whether US employers can (and should) mandate vaccinations for their workforce in our client alert, United States: Mandating COVID-19 Vaccination? Before You Act, Consider These Key Issues For US and Multinational Employers.

For help navigating the legal landscape of COVID-19 vaccines and drafting and implementing Return to Workplace policies that are compliant in each jurisdiction where your company has headcount, please contact your Baker McKenzie employment lawyer.

So much for the summer of freedom. As anticipated, the seven Bay Area counties of  San Francisco, San Mateo, Alameda, Santa Clara, Contra Costa, Marin, and Sonoma  plus, the city of Berkeley, announced today that they are now mandating that everyone — regardless of vaccination status — wear masks indoors as the Delta variant of COVID-19 spreads in the region.* The new requirement takes effect Tuesday, August 3 at 12:01 a.m. The joint press release is here.

Per the various health orders, Bay Area health officials recognize that “vaccines remain the most powerful tool in the fight against COVID-19, including the Delta variant.” Notwithstanding, “indoor masking is a temporary measure that will help us deal with the Delta variant, which is causing a sharp increase in cases, and we know increases in hospitalizations and deaths will follow. When we all wear face coverings indoors, we are protecting our fellow residents and helping our healthcare workers.”

Key Provisions in the Orders

  • Unless an individual is otherwise exempt, masking is required indoors except when working in a closed room or office alone or performing an activity that cannot be done without a mask (eating, etc.)
  • Masking is recommended outdoors in crowded areas
  • Businesses must enforce the new mask requirement for all personnel and members of the public entering facilities, regardless of vaccination status; signage is required:
    • Signage for employees: All businesses and governmental entities are required to post signs in employee break rooms or common areas encouraging employees to get vaccinated and providing links to additional information.
    • Signage for patrons: All businesses and governmental entities are required to conspicuously post signage reminding individuals of COVID-19 prevention best practices to reduce transmission.
  • As usual, the enforcement section cites to fines or imprisonment for violations
  • Notably, Santa Clara County included several recommendations applicable to all businesses and governmental entities. In addition to the new mask requirement, the Health Officer suggested:
    • Implementing mandatory vaccination requirements for all personnel;
    • Moving operations / activities outside where possible;
    • Prohibiting unvaccinated personnel from travelling for work to places where there are elevated rates of COVID-19; and
    • Requiring unvaccinated personnel to obtain frequent testing.

More Stringent than State Guidelines

The new local mask requirements are more strict than the brand new face covering guidance issued by the California Department of Public Health on July 28 (which recommends but does not require face coverings indoors for vaccinated individuals, in line with the CDC’s updated face covering guidance), and Cal/OSHA’s June 17 amended ETS (which allows fully vaccinated employees to forgo masks and social distance in many circumstances). As such, employers in the listed counties have some “to dos” in the next few hours: (1) update mask policies; (2) post clearly visible signage regarding masking rules;  and (3) require all employees and patrons to wear masks in indoor settings.

What’s Next for California Employers?

Given the headlines in the last week — from federal, state and municipal agency vaccine mandates and incentives to some of the largest companies in the tech, financial services, education, and healthcare industries  requiring employees to be vaccinated to come into work — it is not at all surprising that masking is back in some California counties. What will be interesting is to see if any other California counties pick up on Santa Clara’s recommendation in its Health Order urging employers to implement mandatory vaccination policies. We suspect this trend to continue in certain pockets of the country. For assistance in building out your legally-compliant COVID-19 policies, read more here and contact your Baker McKenzie employment lawyer.

*Los Angeles, Sacramento and Yolo counties already have mask mandates.