On November 4, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring that employers with 100 or more employees ensure that their employees are fully vaccinated against COVID-19 or tested weekly.
With widespread vaccine eligibility and availability in the United States, and COVID-19 case counts rising with the spread of the Delta variant of the SARS-CoV-2 virus, employers should consider whether a vaccination policy is right for their workplaces. Such policies implicate a broad range of employment laws and regulations. The following questions and answers reflect changes to regulations and updates to guidance from government agencies since the publication of our prior FAQ on April 6, 2021. We address many of the legal issues that employers should take into account as they evaluate the role of vaccinations in their return to office plans. Although we focus on federal law, employers should in all instances consider any applicable state and local laws as well. Likewise, employers considering a vaccination policy should consult with experienced counsel.
In this episode, Akin Gump labor and employment practice head Bob Lian and partner Lauren Leyden discuss employer vaccine mandates related to COVID-19. Among the topics covered:
- Challenges and complications in managing the pandemic in the workplace.
- What employers can require of employees.
- Should employers be mandating the vaccine?
- Who is exempt from vaccine mandates?
- What employers should be thinking about as offices reopen.
As universities and colleges end an incredibly challenging year and begin to prepare for the fall 2021 semester, among the more hot-button issues they are grappling with is whether they can or should mandate that students and/or employees receive COVID-19 vaccinations before returning to campus. Several institutions have already decided to require vaccines, others have opted not to do so, and still others have found themselves caught up in what is becoming an ever more politically charged issue.
The U.S. insular areas—consisting of five U.S. territories and three freely associated states (FAS) —are included throughout the provisions of the $1.9 trillion COVID-19 relief legislation signed into law by President Biden on March 11, 2021. The law also enacts meaningful permanent economic assistance to the territories, which are home to more than 3.4 million Americans. Resources of this kind provided to U.S. insular areas are unprecedented.
Today, the U.S. House of Representatives has approved the U.S. Senate-passed version of H.R. 1319, the American Rescue Plan Act of 2021. The legislation is intended to accelerate COVID-19 activities and provide additional economic support to individuals, state and local governments, and small businesses. The bill, which passed on a largely party-line vote, provides for a total of $1.88 trillion in federal investments.
Click here to read a summary of the package's key provisions.
On October 26, 2020, the SBA announced its intent to require a loan necessity questionnaire (“Necessity Questionnaire”) for borrowers that received PPP loans of $2 million or greater. The Paycheck Protection Program (PPP), contained within the CARES Act signed by President Trump on March 27, 2020, provided forgivable loans of up to $10 million to qualifying small businesses. The SBA intends to use the Necessity Questionnaire as part of its promised review of the economic necessity certification required on PPP applications for loans greater than $2 million and relates to the certification of “economic necessity” for both for-profit borrowers and non-profit borrowers. The SBA has not yet provided guidance on how it will review and evaluate the information requested in the Necessity Questionnaire or how it will determine whether a borrower properly certified economic necessity. Companies should become familiar with the information that the SBA is requesting and pay close attention to any new guidance the SBA may release regarding the Necessity Questionnaire or the loan forgiveness forms.
Recently, California Gov. Gavin Newsom signed a trio of new COVID-19-related employment laws. Together, they: (1) require employers with 500 or more employees, and health care employers with fewer than 500 employees, to provide their California employees with up to 80 hours of COVID-19-related supplemental paid sick leave; (2) create a presumption that employees’ COVID-19-related illnesses or deaths are covered injuries for purposes of workers’ compensation under certain circumstances; and (3) create new notice and recordkeeping requirements with respect to COVID-19 cases in the workplace. Each of these new laws is discussed below.