Employers have been awaiting guidance from the EEOC on vaccine-related incentives since the EEOC stated in April 2021 that it would issue new guidance (but declined to state when). Now, they have it. On May 28, 2021, the EEOC issued updated and expanded COVID-19 guidance in its technical assistance document “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The updated guidance provides clarification and supplements the original December 2020 version of Section K (“Vaccines”) of the technical assistance.

Key updates regarding incentives include:

  • From a federal EEO standpoint, employers administering vaccines to their employees can offer incentives for their employees to be vaccinated, as long as the incentives are not coercive-but a large incentive could make employees feel pressured to disclose protected medical information by way of pre-vaccination disability-related screening questions.
  • Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. Employers must keep vaccination information confidential pursuant to the ADA.

Notably, the EEOC stated in this update that it is beyond the EEOC’s jurisdiction to discuss the legal implications of the Emergency Use Authorization (EUA) status of the three COVID-19 vaccinations or the Food and Drug Administration’s (FDA) approach to vaccine authorization–a response to “many inquiries” the EEOC received about the type of authorization granted the vaccines by the US Department of Health and Human Services (HHS) and the FDA.

Continue Reading EEOC Updates its COVID-19 Technical Assistance: Employers Administering Vaccines Can Offer Non-Coercive Incentives to Employees

California employers who have been eagerly awaiting amendments to the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) could be in luck. The Cal/OSHA Standards Board is scheduled to meet June 3, 2021 to consider and vote on proposed amendments to the ETS (see June 3, 2021 Board Meeting Agenda, here).

The Standards Board was originally scheduled to vote on proposed amendments at a May 20, 2021 meeting, but that vote was deferred to June 3 to allow Cal/OSHA to consider the Centers for Disease Control and Prevention’s (CDC) May 13 update to its Interim Public Health Recommendations for Fully Vaccinated People and to present a new proposal to the Standards Board. The updated CDC guidance provides that individuals who are fully vaccinated can largely go without masks or physical distancing in most indoor and outdoor settings, with certain exceptions, including a deferral to applicable law and local business and employer workplace practices and rules (as explained in our prior blog here). In light of the CDC update, California Health & Human Services Agency Secretary Dr. Mark Ghaly announced on May 17 that “California plans to implement the CDC’s guidelines around masking to allow fully vaccinated Californians to go without a mask in most indoor settings” starting June 15, 2021. Cal/OSHA vowed to limit any potential changes to the proposed amendment to consideration of the updated CDC guidance in order to meet the targeted June 15 effective date for the ETS amendments.

The proposed amendments originally set to be considered and voted on at the May 21 meeting incorporated several key changes (which now may be modified given the CDC’s May 13 guidance), including:

  • Fully vaccinated employees would no longer be required to wear masks or physically distance, as long as all individuals in the location are all fully vaccinated and asymptomatic.
  • Fully vaccinated employees, or asymptomatic employees who have fully recovered from COVID-19 in the last 90 days, would no longer need to be offered COVID-19 testing or excluded from the workplace after a close contact exposure with COVID-19.
  • Employees who wear respirators would be exempt from the ETS physical distancing requirement (but the use of such respirators must be administered in compliance with Cal/OSHA’s respiratory protection standard).
  • Instead of addressing a COVID-19 exposure based on an “Exposed Workplace,” employers would address it based on an “Exposed Group”-a definition that takes into account different shifts of employees, the wearing of face coverings, and the amount of time a COVID-19 case spends in a given area to narrow the employer’s obligations (in terms of investigating, contact tracing, notification, required reporting, etc.) under the ETS for a COVID-19 case.

The Standards Board anticipates posting the text of the new proposed amendments (as well as a meeting notice and Finding of Emergency) on May 28 on the Cal/OSHA website-and those who want immediate notification when the new proposed text has been posted can add their names to a mailing list.

Stay tuned for additional updates regarding the Cal/OSHA ETS amendments, and for your other employment related needs, contact your Baker McKenzie employment attorney.

As vaccination rates increase, officials across the country are reconsidering their health and safety protocols and workplace reopening guidance. Here are a few of the most recent changes that employers need to know.

On-site Employee Health Screening No Longer Required in San Francisco but Masks and Distancing Remain

On May 20, 2021, San Francisco’s Department of Public Health updated the city’s Health Order to loosen COVID-19 restrictions. Under the new rules, businesses are no longer required to perform health screenings for all personnel and patrons, unless required by the state. Public health officials credited the ongoing vaccination effort in bringing COVID-19 cases to the lowest levels seen during the pandemic. As of May 19, 76% of eligible San Francisco residents have been vaccinated, one of the highest vaccination rates in the country.

Continue Reading The Shifting Sands of COVID-19 Regulations: New Rules Regarding Health Screening, Vaccine Cards and Vaccine Passports

Special thanks to guest contributor, Christopher Guldberg

The Internal Revenue Service has issued welcome guidance related to the COBRA subsidy provisions under the American Rescue Plan Act (“ARPA”) in the form of IRS Notice 2021-31 (the “Notice”).

As background, for the period from April 1, 2021, through September 30, 2021, ARPA requires employers to provide a 100% COBRA premium subsidy (the “COBRA Subsidy”) for “assistance eligible individuals” (an “Eligible Individual”).  In general, an Eligible Individual is anyone who elects COBRA continuation coverage due to a loss of coverage as a result of any reduction in hours or an involuntary termination of employment.  The employer recoups the cost of the COBRA Subsidy through a dollar-for-dollar tax credit that applies to reduce the employer’s share of the hospital insurance premium component of FICA taxes paid on employee wages.

In many cases, the Notice mirrors the guidance issued under the American Recovery and Reinvestment Act of 2009 (“ARRA”). Below is a summary of some of the key guidance points included in the Notice.

Involuntary Termination

Similar to the definition used under ARRA, an involuntary termination of employment means “a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate employment, other than due to the employee’s implicit or explicit request, where the employee was willing and able to continue performing services.” A determination of whether a termination of employment is “involuntary” is a facts and circumstances determination.

The Notice clarifies that resignations based on good reason or constructive termination may be considered involuntary terminations for purposes of the COBRA subsidy depending on the facts.  Similarly, involuntary terminations include employee participation in a voluntary “window” severance program where employees who do not elect to participate are facing impending termination. Not all window severance programs carry impending terminations for employees who do not elect to participant and even where impending terminations may be part of the window program that is not always communicated to employees.  Thus, it is unclear whether the COBRA Subsidy would apply in those situations.

Coordination with Voluntary COBRA Subsidies Provided by Employers

If an employer does not otherwise voluntarily subsidize COBRA premium costs, the tax credit that the employer can claim is the premium amount not paid by the Eligible Individual (which can include the traditional additional 2% administrative charge permissible under COBRA).  Any amount voluntarily subsidized by the employer is not eligible for the tax credit. For example, if a severance plan provides that the employer will pay 100% of the COBRA premium for two months following termination, the employer could not take a tax credit for the voluntary subsidy provided during those two months.  Similarly, if the plan only provided for a partial voluntary subsidy (e.g., the employer portion of active premiums), the tax credit can be claimed only for the reduced premium that would have been paid by the employee for those two months (that is, in this case, the employee portion of the premium).  Thus, employers may want to revisit severance plans that provide for voluntary subsidized coverage during the ARPA COBRA Subsidy window.

Self-certification or Attestation

Individuals who have access to other group health coverage or Medicare are not eligible to receive the COBRA Subsidy.  The Notice clarifies that an employer may, but is not required to, have individuals self-certify that they are eligible for the COBRA Subsidy and that they are not eligible for other group health plan coverage or Medicare and the employer may rely on that self-certification absent actual knowledge to the contrary. The Notice also notes that claiming the tax credit will require documented substantiation.  An employer is allowed to rely on other evidence to substantiate eligibility (for example employment records), but collecting attestations and/or self-certifications of eligibility would be advisable.

Interaction with Extended Election Deadlines

Disaster Relief Notice 2021-01 suspended the timeframe to make a COBRA election until the earlier of one year or until 60 days after the conclusion of the COVID-19 National Emergency.  Initially, it was not clear how this extended deadline for electing COBRA was intended to interact with ARPA.  The Notice clarifies that the extension of timeframes under the Disaster Relief Notice do not apply to the ARPA timing requirements for providing notice or the extended election period.  Thus, if an Eligible Individual receives notice of an extended election period he or she can elect COBRA continuation coverage within 60 days of receiving the notice. The individual may elect COBRA coverage for only the period eligible for the COBRA Subsidy, or he or she may also elect retroactive coverage back to the date of the original loss of coverage.  The election of retroactive coverage would require the person to pay the COBRA premiums for periods of coverage before April 1, 2021. However, the extensions of the timeframes under the Disaster Relief Notice for paying those premiums would apply.  If the individual does not elect retroactive coverage at the same time that he or she elects subsidized COBRA coverage, he or she cannot later elect COBRA coverage under the extended period described in the Disaster Relief Notice.

Some other topics of interest set forth in the Notice include:

  • Coordination of the application of the COBRA Subsidy for employer provided retiree medical coverage.
  • Clarification that the COBRA Subsidy is available for coverage under vision-only plans, dental-only plans, and health reimbursement arrangements;
  • Clarification that any reduction in hours that results in a loss of coverage, regardless of whether voluntary or involuntary, can make someone an Eligible Individual.
  • Details on claiming the tax credit.

The above is only a brief summary of some of the more prominent aspects of the Notice.  There are still aspects of the COBRA Subsidy not addressed by the Notice.  Employers may wish to review the Notice in detail with benefits counsel to determine how the guidance impacts their COBRA administration.

Join us for an educational trip around the globe without leaving the comfort of your home office. We know that the pandemic has posed unprecedented challenges for US multinational employers. In addition to keeping your employees safe and maintaining business continuity, it is difficult to keep track of the rapidly changing legal environment for employers both in the US and beyond. Since the legal and litigation landscape for employers is likely to continue to evolve as companies rebound and adjust to the new normal, it’s imperative to understand the major trends shaping the future of work in different areas of the world.

Our four-part webinar series is your passport to ensure that your organization is up to speed on the key labor and employment issues affecting business operations in Europe, The Americas, Asia Pacific, and the Middle East and Africa.

In each regional 60-minute webinar, our in-market presenters will discuss the most recent developments and challenges impacting employers and will share legal updates, practical tips and takeaways for companies to action now.

Join us at the sessions applicable to your organization.

EUROPE, Wednesday, June 2, 9am PT / 12pm ET

THE AMERICAS, Wednesday, June 9, 9am PT / 12pm ET

APAC, Wednesday, June 16, 3pm PT / 6pm ET

MIDDLE EAST AND AFRICA, Wednesday, June 23, 9am PT / 12pm ET

Click here to view the invitation and to register.

Special thanks to co-author, Monica Kurnatowska.

A convergence of forces is changing the public face of the boardroom: the increasing amount of data showing how inclusion and diversity improves performance, impassioned protests for gender equality, the impact of the Black Lives Matter movement, pressure from investors and shareholders, and legislation. While gender diversity has been a focus for some time now, the importance of racial and ethnic diversity in the boardroom has started to dominate the conversation.

Our new thought leadership paper, Board Diversity – A Corporate Imperative, outlines the latest laws around the world in relation to diversity quotas, transparency and disclosure, and managing diversity data.

For a company to effectively expand its global footprint, it’s almost always necessary to engage workers on the ground. The legal risks and opportunities in structuring these relationships differ significantly around the world, and the complexity is further compounded by the intersection with other areas of law, including tax, corporate, intellectual property and employment, to name a few.

Join us Thursday, May 27, 2021 from 1:00 – 2:00 pm PT as we explore the key legal compliance issues that companies need to consider before choosing a PEO / EOR model to engage workforces globally.

Click here to view the webinar invitation and register. We look forward to your participation!

On May 18, 2021, Santa Clara County became among the first jurisdictions in the world to issue an Order requiring employers to determine if employees are vaccinated. Santa Clara County employers will need to move quickly, because the Order requires compliance within two weeks.

Here’s what Santa Clara County employers need to know now to comply with the Order:

  • The new Order requires all businesses and governmental entities to determine the vaccination status of their employees, onsite contractors and volunteers
  • The Order goes into effect May 19, 2021, when the county enters into the Yellow Tier of the State’s Blueprint for a Safer Economy
  • Employers have two weeks to comply with the vaccination information collection requirement
  • Santa Clara County has posted a template self-certification form that employees can use to disclose their vaccination status or confirm that they are declining to do so
  • Penalties for employers who fail to comply with the new requirement can be as much as $5,000 per violation per day

The County Health Department also published FAQs addressing employers’ ascertainment of employees’ vaccination status (linked here and reprinted in full, below) to help employers navigate the new Order.

ASCERTAINMENT OF VACCINATION STATUS

Why are businesses and governmental entities required to ask about and record the vaccination status of their workers?

Vaccines are the most effective way to reduce transmission of COVID-19, and to prevent people from getting sick or dying from COVID-19.  The rules that businesses and governmental entities have to follow to protect workers from COVID-19 are different depending on whether a worker is vaccinated or not. Businesses and governmental entities need to know the vaccination status of their workers so they can follow the rules, and so they can keep their workers, customers, and the community safe.

What should businesses and governmental entities do to determine vaccination status of their workers?

Businesses and governmental entities must determine whether each of their employees (and any contractors or volunteers working in their facilities) is fully vaccinated or not. Businesses and governmental entities must have a record for each staff member reflecting that person’s vaccination status.  The record may document a business’s or governmental entity’s review of documentation establishing vaccination status (e.g., the employee’s vaccine card), or the employee’s completed Self-Certification of Vaccination Status. A template Self-Certification of Vaccination Status is available here.

I have a worker who won’t tell me whether they are vaccinated? What do I do?

You must document that the worker declined to disclose his or her vaccination status, assume that they are not fully vaccinated, and follow all the rules that apply to workers who are not fully vaccinated.

What is the deadline for determining the vaccination status of my workers?

You must request and document the vaccination status of all personnel no later than June 1, 2021.  For workers who were not fully vaccinated or declined to disclose their vaccination status, you are required to request updated vaccination status every 14 days thereafter (e.g., June 15, June 29, July 13, etc.).

Do businesses have to keep records of who is vaccinated and who is not?

Yes. Businesses and governmental entities must maintain records of who is vaccinated and who is not until the provision of the Order requiring ascertainment of vaccination status is no longer effective. Businesses and governmental entities must follow applicable rules related to the confidentiality of these records.

What happens if I don’t ask about the vaccination status of my workers?

Because businesses and governmental entities have to follow different rules for vaccinated as opposed to unvaccinated employees, all businesses must determine the vaccination status of their employees. Any business that fails to ask about and record the vaccination status of its workers is subject to enforcement, and may be required to pay fines of up to $5,000 per violation per day.

Do I have to ask about and record the vaccination status of my workers if they are working remotely?

You are required to determine the vaccination status of all workers who perform any work at a facility or worksite in the county. You are also strongly encouraged, but not required by the Order, to determine vaccination status for all other personnel.

The new Order retires many of the requirements of the County’s prior October 5, 2020 Revised Risk Reduction Order. Businesses are no longer required to maximize remote working or submit Social Distancing Protocols to the County Public Health Department. In addition, the local rules on capacity limitations have been eliminated (but companies should consult the State Blueprint for a Safer Economy and the State’s Industry Guidance to Reduce Risk for information on what is allowed in counties in the Yellow Tier).

The new Order also provides a few new focused requirements related to vaccination, face coverings, and case reporting. In addition to requiring that employers determine the vaccination status of their employees (and onsite contractors and volunteers), the new Order requires:

For assistance navigating this or other COVID-19 health and safety orders, contact your Baker McKenzie employment attorney.

We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

  • The following jurisdictions extended their state-wide orders and/or the duration of the current phase of their reopening plans: Maryland, New Hampshire, Rhode Island and Wyoming.
  • The following jurisdictions eased restrictions, mask requirements and/or advanced to the next phase of their reopening plan: Idaho, Illinois, Kentucky, Maine, Maryland, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, Utah, Vermont, Virginia and West Virginia.
  • There are no longer any requirements for domestic travelers to provide proof of a negative test or to quarantine upon entry into Maine or New Hampshire.

You can also view our brochure which highlights key areas of expertise where we can support your business’s tracking and reopening plans.

For more information, please contact your Baker McKenzie attorney.

 

Companies are facing critical business challenges in regard to their most important asset – their people. While workforce transformation is not a new concept for global organizations, the pandemic has forced us to rapidly adapt our standard ways of working and how we engage with employees to ensure the long-term viability of the business. We have a new understanding of what’s possible – from remote working to flexible employment models – and an opportunity to shape organizations for the future. There has never been a more critical time to innovate and revolutionize working practices.

In February through March 2021, we held our fifth FutureWorks conversation series, bringing together inspiring employment leaders from around the globe to analyze how organizations can embrace the large-scale trends changing the nature of work itself amid disruptive global events.

From our discussions, we have distilled the key messages and insights into an easy-to-digest summary to learn more about the key trends affecting the future of work and their impact on your multinational workforce.

• Building a New Workforce Reality
• Integrating Resilience into the Workforce Strategy
• Workforce Wellbeing, Psychological Health, and Pandemic Times
• The Future is Diverse: Harnessing the Power of Inclusion
• Reconceptualizing the Important of Place
• Leading the Digital Workforce
• Beyond COVID-19: Guidance for Multinational Employers

Click here to read the full report.