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On December 15, New York City released guidance on the new private sector COVID-19 vaccine mandate set to take effect on December 27. The new order is the strictest in that nation and comes amid omicron’s emergence, delta’s severity and the holiday season. Below, we provide answers to the key questions NYC employers may have to ensure compliance with the mandate.

Which NYC employers are covered by the mandate?

The mandate applies to any non-governmental entity that employs more than one person in NYC or maintains or operates a workplace in NYC (a Covered Entity), regardless of its industry. “Workplace” is defined as any place where work is performed in the presence of another worker or a member of the public, including vehicles. Self-employed individuals and sole proprietors are not covered by the mandate unless they work at a NYC workplace or interact in person with other workers or members of the public as part of their job duties.

What workers are covered?

Employers must collect proof of vaccination from all full- or part-time employees, interns, volunteers, or contractors. The mandate includes exemptions for those who:

  1.  Work remotely full-time
  2. Only enter the workplace for a quick and limited purpose,
  3. Are performing artists or athletes who are not required to be vaccinated per the Key to NYC program, or
  4. Are granted a reasonable accommodation based on their religion or medical condition.

Purposes characterized as “quick and limited” include using the bathroom, making a delivery, or receiving an assignment before leaving to begin a solitary assignment.

Continue Reading NYC Mandates the Jab for Private Employers | What Employers Need to Know About the Detailed Guidance Unveiled December 15

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To mitigate against a 47% increase in the seven-day average COVID-19 case rate and a 14% increase in hospitalizations, Governor Gavin Newsom announced the return of an indoor mask mandate — which will apply irrespective of vaccine status in many locations — starting December 15 and lasting until January 15. California is implementing this change because of the rapid spread of the Omicron variant and increased travel and mixing of households during the holiday season.

So, just as things were starting to relax a bit in some parts of the state, the California Department of Public Health mask mandate once again tightens up face covering requirements for California employers. What do California employers need to know now?

Who & Where: A number of California counties — including Los Angeles, Ventura, Sacramento, and most of the San Francisco Bay Area – already have their own indoor mask mandates that were implemented in the summer and have no end dates. The new mandate does not supersede these existing orders, and thus will primarily change things for employers in San Diego County, Orange County, the Inland Empire, swaths of the Central Valley, and rural Northern California.

What & When: California employers must comply with the new order by requiring both employees and customers to wear masks in all indoor public settings, irrespective of vaccine status, from December 15, 2021 to January 15, 2021.

In addition to masking, the state will now require those without proof of vaccination attending events with more than 1,000 people to show proof of a negative COVID-19 test within one day. The previous guidelines required a test within 72 hours. The state will also recommend those who travel in or out of California get tested for COVID-19 within three to five days.

What else are employers asking?

Some employers have questioned whether the mandate covers office settings where workers are 100% vaccinated. The answer is: “it depends.”

On Tuesday afternoon, the CDPH clarified that the new indoor mask mandate only applies to local jurisdictions that do not already have an existing mask requirement in place as of December 13, 2021. Thus, for example, because San Francisco already has an indoor mask mandate that allows stable cohorts of 100% vaccinated people to forego masks in indoor settings like workspaces and gyms, the CDPH clarification enables employers in San Francisco to continue allowing their fully vaccinated stable cohorts to go without masks if they otherwise meet the requirements of the San Francisco health order. (In the Bay Area, Alameda, Contra Costa, Marin and Sonoma counties have adopted similar exemptions and thus the same analysis applies.) Note that some counties and cities with mask mandates do not permit vaccinated persons to forgo masks indoors, and in such locations, the local order applies, but vaccinated employees must still wear masks.

Continue Reading Breaking News – Mask Up California! New Statewide Mandate Effective December 15

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We are pleased to share with you The Global Employer – Global Immigration & Mobility Quarterly Update which is a collection of immigration and mobility alerts and videos from around the world.

Please click here to view.

 

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Special thanks to Melissa Allchin and Lothar Determann.

Our California Employer Update webinar is designed to ensure that California in-house counsel are up to speed on the top employment law developments of 2021 and are prepared for what’s on the horizon in 2022.

With our “quick hits” format, we provide a content-rich presentation complete with practical takeaways in 75 minutes.

Among other topics, you will hear about:

  • Best practices for drafting and rolling out vaccine and mask policies in California, including data privacy tips
  • Understanding the current landscape for arbitration agreements under AB 51
  • Significant changes to the Fair Employment and Housing Act and other major legislative developments like California’s newest board diversity requirement and new restrictions on severance and settlement agreements

Apply our Annual California Employer Update Takeaways Checklist: Going into 2022 to help your organization’s leadership prepare for some of the most important employment law developments in 2022.

Click here to view the webinar recording.

 

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This year New York employers have had to scramble to keep up with many new employment laws, and next year promises more of the same. The latest: New York City Mayor Bill de Blasio’s December 6 mandate that private sector employers require COVID-19 vaccines for their workers in NYC. If it survives expected legal challenges and takes effect December 27 (Happy Holidays!), the rule will be the broadest mandate of any state or large city in the US. From minimum wage increases, to regulations on the use of artificial intelligence tools in employee recruitment, to notice requirements for electronic employee monitoring, to New York’s fulsome response to COVID-19 through the HERO Act—private sector employers in New York have a laundry list of changes to implement and prepare for.

Below we highlight the 10 major employment law changes and updates that businesses need to know.

  1. New York City Vaccine Mandate To Hit All Private Employers December 27

By the end of the month, all in-person private sector New York City employees must have at least one dose of a COVID-19 vaccine, according to an announcement by Mayor de Blasio. The mandate, which will take the form of an order issued by the NYC Department of Health and Mental Hygiene, will apply to nearly 184,000 businesses and will not be limited to businesses in certain industries or based on company size. The mandate will most likely parallel the city worker mandate in that employers will, in certain instances, be permitted to make reasonable accommodations to mandatory vaccination policies for employees with legitimate religious or medical reasons, but will not permit any testing options in lieu of the vaccine. The mandate will not apply to fully remote employees or those who are alone at a worksite. The city has not yet announced whether employers will face inspections or fines if they fail to follow the mandate, but it intends to release implementation and enforcement guidelines by December 15, 2021.

The new mandate is the first of its kind on a local level while the federal vaccine rule for private employers with 100 or more employees remains on pause amid several legal challenges. The city mandate is also set to go into effect only days before the New York City mayoral transition, leaving future enforcement of the mandate uncertain.

 Employer Takeaways

  • Stay abreast of further city announcements concerning additional guidance on the vaccine mandate.
  • Operate under the assumption that the vaccine mandate will take effect December 27, 2021, and notify employees of the new mandate so unvaccinated employees have sufficient time to get vaccinated.
  • Implement procedures to verify applicable in-person employees vaccination status and prepare to collect vaccination records as confidential medical information.
  • Prepare to establish a mandatory vaccination policy and a process for employees to request exemptions, to the extent your business has not already done so.
  • Begin considering operational contingency plans if your business expects that a significant portion of the workforce will not get vaccinated.

Continue Reading Top 10 New York Employment Law Updates For 2021/2022

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We identified and mapped out our most relevant blog posts, articles and video chats to serve as a quick and handy roadmap to recovery and renewal for your company.

Our 2022 Employment & Compensation Resource Navigator provides US multinational companies organized links to Baker McKenzie’s most helpful, relevant thought leadership in one brief document. Arranged alphabetically by topic, the Navigator can be saved to your desktop for quick reference when an issue arises.

The bulleted resources in the PDF are clickable links to guidance on the following topics:

  • Employment Law Under the Biden Administration
  • Data Privacy
  • Inclusion & Diversity
  • COVID-19 & Managing the Workforce
  • COVID-19 & Vaccinating the Workforce
  • COVID-19 & Leave Laws
  • Department of Labor Updates
  • Future of Work
  • Disputes & Investigations
  • Immigration, Corporate Travel & Remote Work
  • Transactions
  • Global Updates
  • Benefits  & Compensation

Click here to download the Resource Navigator.

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Special thanks to Maurice Bellan, Graham Cronogue and Sydney Hunemuller.

On September 9, 2021, President Biden issued Executive Order 14042 and related guidance, requiring most government contractors and subcontractors who contract with federal agencies to impose a COVID-19 vaccine mandate on their employees. In the intervening months, the scope and significance of Executive Order 14042 have continued to change. As we near the end of 2021, we expect these shifts to continue at least until January 2022, but likely well afterward. The following are some of the key areas where we have seen changes and expect to see more:

Timing: The enforcement deadline for vaccination has moved and may move again, especially in light of the multiple lawsuits surrounding its implementation, including the nationwide injunction which was issued December 8 and the potential congressional response (see infra) The original deadline for employee vaccination was December 8, 2021, but the current deadline for employees to be “fully vaccinated” has been moved to January 18, 2022.[1] This additional time provides a small amount of breathing room for corporations, but it remains to be seen whether the extension will be enough or if more time will be allowed.[2] Unless and until a new deadline is issued, it is wise to treat January 18 as the target date. However, compliance teams should be alert to any extensions that would allow for a smoother transition.

Agency-Specific Regulations: The scope of the mandates have increased, as certain agencies have applied the mandate to contractors that provide only products. The Executive Order and guidance carved out contractors who solely provided products. However, the guidance left the door open for agencies to impose their own wider-reaching requirements, regardless of the types of contracts involved. Agencies have already begun imposing these separate requirements, further complicating the landscape and obligating contractors to carefully scrutinize any new bids or contract modifications lest their particular agency has included the FAR clause requiring compliance.[3] Accordingly, the intake process needs to remain diligent to both avoid agreeing to this significant commitment and seize on potential opportunities to try to negotiate delayed implementations or other concessions. By the same token, companies should be alert for changes to agency requirements in case an agency retracts or refines its treatment of product providers.

Legal Challenges: It remains an open question as to which (if any) of the restrictions will actually become effective for product or service providers, as multiple litigants have challenged various aspects of the mandate and have received substantial (albeit temporary) relief. The following are some key litigation challenges:

Continue Reading Update on COVID-19 Vaccine Mandates

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With no rest for the weary, the new omicron coronavirus variant was detected in various pockets around the world over the holiday weekend, likely rattling employers and raising questions about returning to work. At the same time, there are new developments with respect to the federal government’s vaccine mandates.

Here’s what US employers need to know:

ETS: 6TH CIRCUIT LITIGATION

Where Things Stand: The Fifth Circuit’s stay of OSHA’s ETS, imposed on Nov. 6, remains in effect.  The Biden administration has asked the Sixth Circuit to lift the Fifth Circuit’s stay, arguing that “Congress charged OSHA with addressing grave dangers in the workplace, without any carve-out for viruses or dangers that also happen to exist outside the workplace.”  The Sixth Circuit set a briefing schedule on the stay, indicating it won’t rule on the Biden administration’s request until after Dec. 10.  Because the briefing schedule would run past the ETS’s first compliance deadline of Dec. 6, the administration has asked the Sixth Circuit to expedite the stay’s briefing schedule so that briefing is completed by Dec. 6. In the same motion, the administration asked the Sixth Circuit to set an expedited briefing schedule on the merits, with briefing to be completed by Dec. 29.  Opponents of the ETS have objected to this request, urging the court to reject the administration’s “lightning-speed approach.”

Takeaways:

  • The stay issue is unlikely to be decided before the ETS’s Dec. 6 compliance deadline.
  • The ETS’s Jan. 4 vaccination deadline is unlikely to survive because even if the Sixth Circuit dissolves the stay, OSHA will need to give employers time to implement the ETS.
  • Practically speaking, the party that wins this initial litigation over the stay will prevail; it is unlikely that the ETS’s merits will be resolved until mid-January at the earliest, unless the Supreme Court intervenes in the interim.
FEDERAL HEALTHCARE WORKER VACCINE MANDATE: INJUNCTION

Breaking: A federal court in Missouri has blocked the Biden administration from enforcing CMS’s vaccine mandate for health-care workers in 10 states.  The CMS rule requires health-workers to be vaccinated by Jan. 4, 2022.  Any appeal would face a tough road in the Eighth Circuit, which seats just one Democrat-appointed judge.

OMICRON VARIANT:

Mask Rules & Advisories: Amid concern about the new omicron COVID-19 variant, New York City’s Health Commissioner has issued a mask advisory, “strongly recommending” New Yorkers to wear masks at all times when indoors in public settings. The new advisory is not a requirement, but applies regardless of vaccination status. Other jurisdictions are likely to issue similar masking orders or advisories in the near future.

Travel Restrictions: News of the omicron variant has prompted a new wave of travel restrictions. Countries around the world are implementing new travel restrictions and quarantine requirements. These restrictions currently focus on travel from certain African countries, but broader restrictions can be expected if concern over omicron grows.

Takeaways:

  • Employers who have eased their masking requirements should ready themselves to reinstate mask requirements in response to local orders.
  • Employers should be mindful of new travel restrictions as they plan company events and as employees continue their holiday travels.

 

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Special thanks to Ginger Partee, John Foerster and Matthew Gorman.

Noncitizen travelers can pack their bags. With certain requirements, noncitizen travelers will be allowed to travel to the US as of November 8, 2021, under President Biden’s Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic. The new rules, which focus on the vaccination status of noncitizen travelers, replace the country specific restrictions that have been in place since March 2020. The proclamation also contains limited exceptions within the proclamation for noncitizen travelers who have not been vaccinated.

Critically, nonimmigrant visa holders always require US visa stamps to reenter the United States. Although the travel restrictions will be lifted for vaccinated travelers as described below, the US Consulates and Embassies remain closed for routine visa processing – meaning that travelers should expect long backlogs when scheduling visa stamping appointments. This could be a damper on travel for many foreign national visa-holders who have been “stuck” in the United States over the course of the pandemic and are looking to travel home during the holidays.

Click here to continue reading.

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OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) is here, and employers have only about 30 days to start complying. On November 4, 2021, in response to President Biden’s call for an emergency standard (see our prior blog here), OSHA issued the ETS. As expected, the rule requires employers with 100 or more employees to ensure employees are either vaccinated or test weekly for COVID-19 .

Covered employers need to move quickly. First, by December 5th, 2021, employers must comply with several requirements under the ETS, such as providing paid time for employees to get vaccinated and requiring masks for unvaccinated workers in the workplace.

Next, covered employers must decide whether they will mandate vaccination for all employees or instead allow employees to test weekly in lieu of vaccination.  Employers who mandate vaccination must require employees to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022. Note that, in a departure from most existing vaccine mandates, employees do not have to be “fully vaccinated” by this deadline, and they just have to have had all required shots.  Employers who elect testing or vaccination must ensure that employees who have not received the necessary doses begin providing a verified negative COVID-19 test on at least a weekly basis after January 4.

Here’s what employers need to know now.

Require vaccines, or test and mask. The ETS requires employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy-unless employers instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace. If an employer implements a mandatory vaccination policy, the policy must require vaccination of all employees except those who have a medical contraindication to vaccination, those for whom a vaccine must be delayed out of medical necessity, or those legally entitled to a reasonable accommodation because they have a disability or a sincerely held religious belief, practice, or observance conflicting with the vaccination requirement. Employees who are granted reasonable accommodations do not have to be permitted to work onsite while masked, as other accommodations such as remote work may exist, but employers can choose to allow them to do so. Employers must ensure each of their workers are fully vaccinated or tested for COVID-19 on at least a weekly basis, and those who aren’t vaccinated must wear face coverings while indoors.

Continue Reading “OSHA ETS Day” Is Finally Here: What Employers Need To Know Now About OSHA’s Vaccinate, or Test and Mask Rule