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Texas is now open for business–100% and without masks. On March 10, 2021, Executive Order GA-34 went into effect, lifting the COVID-19 mask mandate in Texas and increasing capacity of all businesses and facilities in the state to 100%. Except for indoor arenas and K-12 schools, Mississippi has followed suit. Other states have also recently eased mask mandates, increased occupancy limits on restaurants and bars, and rolled back restrictions on stadiums and theaters, while warnings from US infectious-disease experts abound.

It may be tempting for businesses to fully open as COVID-19 restrictions–some of which will soon see their one year anniversary–are pulled back. What should employers keep top-of-mind if the COVID-19 health and safety restrictions in their state or locality are loosened or rescinded?


Continue Reading Masks Up or Down: What Employers Should Consider as States Roll Back COVID-19 Restrictions

The Department of Labor (DOL) has proposed to put the final nail in the coffin on two Trump era rules under the Fair Labor Standards Act (FLSA) that were favorable to employers. On March 12, 2021, the DOL’s Wage and Hour Division published in the Federal Register both a proposed rule to rescind the Trump administration’s rule on joint employer status under the FLSA and a proposed rule to withdraw the Trump administration’s rule on independent contractor status under the FLSA. In both cases, the DOL is seeking public comments for 30 days (until April 11, 2021). Neither of these proposed rules comes as a surprise to those keeping tabs on the Biden administration’s agenda, but the DOL has not proposed any new guidance, leaving employers wondering what comes next.

Continue Reading The DOL Proposes to Nix the Trump Administration’s Joint Employer and Independent Contractor Rules

Special thanks to guest contributors Ginger Partee and Matthew Gorman.

As the country awaits confirmation of Judge Merrick Garland, President Joe Biden’s pick for attorney general to head the U.S. Department of Justice, employers in the U.S. should begin to consider what a Biden administration DOJ might mean for their workplace.

Biden has appointed

The CDC has issued long-awaited guidance on what fully vaccinated individuals can and can’t do, in the workplace and elsewhere. On March 8, 2021, the CDC issued its Interim Public Health Recommendations for Fully Vaccinated People, its first set of public health recommendations for fully vaccinated people. On the same day, the CDC posted an accompanying webpage entitled “When You’ve Been Fully Vaccinated,” detailing what has and hasn’t changed for people who are fully vaccinated.

What should employers keep top-of-mind given this new guidance?

  1. Fully vaccinated employees who have been exposed to COVID-19 do not need to quarantine if they are asymptomatic

According to the CDC, employees are considered fully vaccinated:

  • 2 weeks after their second dose in a 2-dose series (like the Pfizer or Moderna vaccines), or
  • 2 weeks after a single-dose vaccine (like Johnson & Johnson’s Janssen vaccine).

Fully vaccinated employees who have been exposed to someone with suspected or confirmed COVID-19 but who are asymptomatic do not need to quarantine or be tested for COVID-19 following the exposure, because risk of infection is low in a fully vaccinated person.

However, the CDC recommends fully vaccinated employees who do not quarantine still monitor for symptoms of COVID-19 for 14 days following an exposure. If they experience symptoms, they should follow standard protocol: isolate themselves from others, be clinically evaluated for COVID-19 (including being tested for the virus, if indicated), and they should inform their health care provider of their vaccination status.


Continue Reading The CDC Issues Guidance for Fully Vaccinated People

The US Department of Labor is developing a new regulation on joint employment under the FLSA, a possible first step towards reversing the Trump administration’s business-friendly rule on the joint employer standard.

First Public Notice of Possible New Regulation

On February 23, the White House Office of Information and Regulatory Affairs (OIRA) posted on its

On February 4, 2021, House Democrats reintroduced the Protecting the Right to Organize Act of 2019 (PRO Act). The sweeping labor legislation, which would return many provisions of current labor laws to their pre-1947 status, would create new claims and impose punitive penalties and strengthen a number of union and employee rights. The legislation has

Listen to our discussion on what employers can do to keep a calm, cooperative workplace even with the stress of the current political climate. This quick chat takes into account recent political tensions that have been roiling for some time now and hit an all-time high last week when armed rioters stormed the Capitol Building

Businesses engaging independent contractors have new guidance from the Department of Labor (DOL) for determining whether an individual is an employee or independent contractor, but the guidance may never take effect. On January 6, 2021, the DOL issued a final rule for determining whether an individual is an employee or independent contractor. The rule focuses on whether workers are economically dependent on another business–making them more likely to be an employee of that business, and entitled to the minimum wage and overtime under the Fair Labor Standards Act (FLSA)–or are economically dependent upon themselves, making them true independent contractors.

Continue Reading DOL Announces Final Rule for FLSA Worker Classification Focused on Economic Dependence-But Its Future is Uncertain

California Gov. Gavin Newsom (D) closed this most recent legislative season by signing dozens of new bills into law that affect California employers. Though some were emergency bills and took effect upon signing, the remainder take effect on Jan. 1, 2021.

The laws are wide-ranging, encompassing topics from pandemic-related measures, to the first board of

On December 16, 2020, the EEOC posted a new section on vaccinations in its COVID-19-related technical assistance Q&As, only five days after the FDA granted its first Emergency Use Authorization for a COVID-19 vaccine. Section K of the EEOC’s COVID-19 Q&As (“Vaccinations”) updates and expands the EEOC’s publication “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” providing information to employers and employees regarding the impact legal requirements under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA) may have on whether and how COVID-19 vaccines can be utilized in the workplace.

The Q&As are linked here, and copied below for ease of reference.

K. Vaccinations

The availability of COVID-19 vaccinations may raise questions about the applicablilty of various equal employment opportunity (EEO) laws, including the ADA and the Rehabilitation Act, GINA, and Title VII, including the Pregnancy Discrimination Act (see Section J, EEO rights relating to pregnancy).  The EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.

1.1  ADA and Vaccinations

K.1. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)

No.  The vaccination itself is not a medical examination.  As the Commission explained in guidance on disability-related inquiries and medical examinations, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.”  If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.

Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”  See Question K.2.


Continue Reading EEOC Issues Much-Anticipated Q&A Guidance on COVID-19 Vaccinations