On the heels of President Biden’s Executive Order on Protecting Worker Health and Safety directing the Department of Labor and the Occupational Safety and Health Administration (“OSHA”) to issue “science-based guidance” to protect workers from COVID-19 exposure, the agency announced its updated guidance entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”).  Along with providing information for employees on protecting against COIVD-19 infection, the Guidance provides additional details on key measures employers should take to limit the spread of the virus in the workplace.

Implementation of a COVID-19 protection program.  Although most employers have already implemented safety protocols in response to prior CDC guidance on reopening the workplace, the new Guidance provides greater details on recommended COVID-19 prevention programs which should include the following elements:

• Assignment of a workplace coordinator responsible for COVID-19 issues on the employer’s behalf.

Now that COVID-19 vaccines are being administered to the general population, the Centers for Disease Control (the “CDC”) has issued new quarantine recommendations for individuals who have received the vaccination.

Quarantine not necessary for vaccinated individuals outside a healthcare setting who meet certain criteria.  Under the new CDC recommendations, individuals who have been fully vaccinated (one or two doses depending upon the authorized vaccine) are no longer required to quarantine for 14 days after exposure or suspected exposure to COVID-19 if they meet the following criteria:

• they have been fully vaccinated , with at least 14 days since their final dose;

A recent decision from the New Jersey Appellate Division serves as a warning to employers requiring  employees to sign a bevy of employment-related documents during an orientation period.  The case, Imperato v. Medwell, LLC, concerned the enforceability of Mutual Agreement to Arbitrate all employment related disputes.

The employee acknowledged that she signed the agreement on her fourth day of employment with the employer.  Immediately above the employee’s signature line was a section titled “Voluntary Agreement,” which read in all capital letters:

I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT, THAT I UNDERSTAND ITS TERMS, THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND ME RELATING TO THE SUBJECTS COVERED IN THE AGREEMENT ARE CONTAINED IN IT, AND THAT I HAVE ENTERED INTO THE AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN THE AGREEMENT ITSELF.

The Biden Administration has made it clear that it intends to reverse many of the Trump Administration’s regulatory initiatives.  During his campaign Biden touted himself as a champion of labor, and his administration’s actions immediately after assuming power suggest that he intends to keep this campaign promise.  This article summarizes some of the actions already taken and those contemplated by the new administration.

EXECUTIVE ORDERS.  In his first week in office the Biden Administration signed 22 Executive Orders (EO’s), significantly more than his predecessors, and shows no signs of slowing the pace down.   Some of those affecting employers are discussed below.

Freeze on Proposed and Pending Regulations.  President Biden’s first EO called for an immediate withdrawal of administrative agency rules not yet published in Federal Register so they can be reviewed and approved by the new administration.  The Administration also asked federal agencies to consider postponing the effective date of pending rules published in Federal Register for 60 days and opening a 30 public comment period.

In our December 11, 2020 publication found here, we explored the ability of employers to mandate COVID-19 vaccinations in the workplace. In short, in the absence of federal or state laws to the contrary, employers are free to mandate vaccinations.

On December 16, 2020 the EEOC issued guidance that paved the way for employers to mandate vaccinations without fear of violating the Americans with Disabilities Act (the “ADA”), Title VII and other federal law.  The provisions of the new guidance are outlined below.

Vaccinations are not “medical examinations” under the ADA.

Federal and State law require nonexempt employees to be paid time and one half their regular hourly wage for hours worked in excess of 40 hours in any given workweek.  Overtime is calculated based on an employee’s regular hourly wage.[1] Assuming there is no contract or other obligation imposed by Federal or State law, there is no requirement that a nonexempt employee be paid premium overtime compensation for hours worked in excess of eight hours per day, nor for work on Saturdays, Sundays, or holidays, other than the requirement of overtime for over 40 hours per week.

Who Qualifies as a Nonexempt Employee Eligible for Overtime Pay?

Not all employees qualify for overtime pay.  Generally, individuals employed in bona fide executive, administrative, or professional capacities are exempt from Federal and State overtime requirements under the so-called “white collar” exemptions.  Qualification for exemption is not determined solely by an employee’s title, job description or the fact that the employee is paid on a salary as opposed to hourly basis.  Rather, to qualify for this exemption, the employer must show that the employee satisfies both a “salary basis” test and a “duties” test.  Because the burden is on the employer to demonstrate that the exemption applies, it is critical that employers conduct a thoughtful and careful analysis when classifying an employee as exempt.

In response to the pandemic, Congress passed the Families First Coronavirus Response Act (the “FFCRA”) that provided up to 10 days of emergency paid sick leave for COVID-related absences and up to 12 weeks emergency paid family leave to care for a child in the event of a COVID-related school or daycare closure.  These benefits went into effect in April 2020 and will terminate on December 31, 2020.

Many speculated that Congress would extend the FFCRA benefits to provide continued relief to individuals and families still grappling with work-related absences caused by the ongoing pandemic.   Cases have spiked in many areas and schools continue to provide remote learning.  Although the Consolidated Appropriations Act (the “Act”) signed by President Trump earlier this week provides various pandemic relief programs, the Act did not extend the expiration date of the FFCRA.

The Consolidated Appropriations Act’s extension of FFCRA Tax Credits for Employers.

As the pandemic enters its tenth month, employers have had to adjust to significant interruptions to the workplace and the new mandates under the Families First Coronavirus Response Act and other state law protection to individuals and families impacted by the virus.   Now that several pharmaceutical companies are about to rollout COVID-19 vaccines, employers are facing a new dilemma – whether private employers can mandate employees get vaccinated and, if so, should they do so?

Although it is questionable whether the federal government has the authority to mandate vaccines, President Elect Joe Biden has stated that he does not intend to make vaccinations mandatory, preferring to implement programs to encourage voluntary vaccinations.   Dr. Anthony Fauci has likewise expressed his objection to compulsory mandates.   On the other hand, mandatory vaccinations can be imposed on the state level but to date states have not expressed a firm intention to go this route.   As with influenza, the CDC recommends individuals get the COVID-19 vaccination when it becomes available, especially healthcare workers, but does not issue any mandates to the healthcare systems.

According to the Pew Research Center, four out of ten Americans indicate that they would likely not opt for vaccination due to concerns over the unprecedented speed of the vaccine’s development and its untested long term safety record.