In the face of the COVID-19 emergency, employers are struggling with many questions about the impact in the workplace. This document provides answers to many Frequently Asked Questions. As this is a fast-moving and volatile situation, we will be constantly updating this document.

In a decision that surprised many legal observers, the U.S. Court of Appeals for the Sixth Circuit has lifted the Fifth Circuit’s stay of the federal Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS) requiring employers with 100+ employees (1) to mandate vaccinations or weekly testing/face coverings for their workforce and (2) to provide paid time off to get vaccinated and recover from any adverse effects.

As employers likely know, the Biden administration has issued a number of vaccination mandates in various forms – all of which are subject to challenge by States and other interested parties.

Throughout the pandemic, the Equal Employment Opportunity Commission has continuously updated its COVID-19 Guidance to provide employers with assistance on issues arising under the antidiscrimination laws that it enforces.

On November 10, 2021 National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum expressing her office’s views concerning employer bargaining obligations related to OSHA’s Emergency Temporary Standard (ETS) to Protect Workers from Coronavirus.

There have been several significant developments for federal contractors this month, including the issuance of the final rule implementing a higher minimum wage for certain federal contractors, further revisions to the vaccination mandate, an executive order requiring successor service contractors to offer employment to their predecessor’s employees, and a proposal to rescind the Trump administration’s religious exemption final rule..

On November 12, 2021, a three-judge panel of the Fifth Circuit extended the temporary stay it had previously placed on the OSHA vax-or-test Emergency Temporary Standard.

The federal Occupational Safety and Health Administration has now issued the Emergency Temporary Standard (ETS) implementing President Biden’s September 9, 2021 COVID-19 Action Plan that requires employers with 100+ employees (1) to mandate vaccinations or weekly testing/face coverings for their workforce and (2) to provide paid time off to get vaccinated and recover from any adverse effects.

The Equal Employment Opportunity Commission updated its guidance document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, on October 13, 2021, to address vaccination developments and clarify certain issues. (On October 25, 2021, it also added a new section on Religious Accommodations, as separately discussed in our E-lert).

As federal contractors know, President Biden issued an Executive Order requiring the insertion of a clause into certain new, renewed and extended contracts that mandates compliance with Guidance issued by Safer Federal Workforce Task Force.

In general, federal district courts have been rejecting challenges to employer vaccine mandates.

Many employers and employees alike believe that the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA) protects the employee’s vaccination information.

On October 25, 2021, the Equal Employment Opportunity Commission updated its guidance document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, to address religious objections to COVID-19 vaccine mandates.

The federal Departments of Labor, Health and Human Services, and the Treasury issued joint FAQs that address questions regarding COVID-19 vaccinations and group health plans

The Safer Federal Workforce Task Force released mandatory guidelines for federal contractors, implementing President Biden’s Executive Order requiring contractor employees to be vaccinated against COVID-19 (as discussed in our September 10, 2021 E-lert).

As many employers implement a COVID-19 vaccination-or-weekly-testing mandate (soon to be required of all employers with 100+ employees, as we discussed here), a recurring issue is whether the time that employees spend getting that weekly test must be paid under federal and state wage and hours laws.

A day after President Biden announced his COVID-19 Action Plan (which we discussed here), leaders from the Occupational Safety and Health Administration held a short briefing to discuss its forthcoming Emergency Temporary Standard that will require employers with 100+ employees to (1) mandate vaccinations or weekly testing, and (2) provide paid vaccination leave.

On September 9, 2021, President Biden issued COVID-19 Action Plan

An issue that we’ve run into recently is what to do about employees who are vaccinated – but not with one of the FDA-approved vaccines (whether under Emergency Use Authorization (Moderna and J&J) or regular approval (Pfizer-BioNTech))

On August 23, 2021, Pfizer-BioNTech COVID-19 vaccine received regular approval from the Food and Drug Administration. Moderna has submitted its application for regular approval, and it is expected that such approval is forthcoming shortly. With these developments, certain legal hesitation regarding vaccine mandates – including by employers – has fallen away.

And I’m pretty darned sure that many employers feel the same way. This issue has been coming up a lot lately with the burgeoning requests for medical exemptions in the context of COVID-19 vaccine mandates.

Trying to stay on top of federal workplace guidance on COVID-19 is confusing and challenging for employers, and the Occupational Safety and Health Administration (OSHA) has just changed the playing field again – although the new guidance is intended to conform with the Center for Disease Control and Prevention’s (CDC) recently-revised recommendations for fully-vaccinated individuals (as discussed in our August 4, 2021 blog post).

The U.S. Department of Justice (DOJ) has released an opinion (originally prepared on July 6, 2021 for the Deputy Counsel to the President) definitively stating that the Emergency Use Authorization (EUA) statute, under which current COVID-19 vaccines were approved by the Food and Drug Administration (FDA), “does not prohibit entities from imposing vaccination requirements” including “to return to work or be hired into a new job.”

As we discussed in our May 14, 2021 blog post, “Back to Normal for the Fully Vaccinated? What the CDC’s Latest Guidance Means for Employers,” the CDC had previously stated that fully-vaccinated individuals could essentially resume their pre-pandemic, maskless lifestyles, subject to applicable state or local mandates. But the CDC also stated that those individuals were still required to comply with workplace requirements.

President Biden announced additional efforts to increase COVID-19 vaccinations in the U.S. Of interest to employers, these efforts include (1) reimbursements to small and medium-sized employers to provide paid leave for family member vaccinations; and (2) certain vaccine-related mandates applicable to on-site federal contractors, with the intention of expanding those requirements to all federal contractors

As part of its statement commemorating the anniversary of the Americans with Disabilities Act, the Biden-Harris administration released a package of guidance and resources to support individuals experiencing long-term symptoms of COVID-19

The U.S. Department of Justice (DOJ) has released an opinion (originally prepared on July 6, 2021 for the Deputy Counsel to the President) definitively stating that the Emergency Use Authorization (EUA) statute, under which current COVID-19 vaccines were approved by the Food and Drug Administration (FDA), “does not prohibit entities from imposing vaccination requirements” including “to return to work or be hired into a new job.”

As healthcare employers should know, the Occupational Safety and Health Administration released a COVID-19 Emergency Temporary Standard (ETS) (extensively discussed in our June 15, 2021 blog post), which became effective on June 21, 2021 .

In conjunction with updating its COVID-19 guidance for employers generally (discussed in a prior E-lert), on June 10, 2021, the federal Occupational Safety and Health Administration (OSHA) issued a long-awaited COVID-19 Emergency Temporary Standard (ETS) – but limited its coverage only to employers providing healthcare services or healthcare support services.

On June 10, 2021, the federal Occupational Safety and Health Administration issued updated guidance for businesses on COVID-19 prevention and mitigation – taking into account the impact of vaccinations – along with a long-awaited Emergency Temporary Standard (ETS) applicable only to healthcare (which is not discussed in this E-lert).

Workplace guidance on COVID-19 keeps shifting at the federal and state level, which poses a challenge for all employers.

As the COVID-19 vaccine has become freely available, employers have struggled with workplace vaccination protocols in the context of compliance with anti-discrimination laws, including the Americans with Disabilities Act.

The U.S. Department of Labor, through its Office of Disability Employment Policy (ODEP)-funded Job Accommodations Network (JAN), has recently added a number of resources for employers on COVID-19 and reasonable accommodations under the Americans with Disabilities Act to its COVID-19 webpage.

Among the new resources that the U.S. Department of Labor’s Job Accommodations Network (JAN) recently added to its COVID-19 webpage is included frequently asked questions on COVID-19 Long Haulers and the ADA.

Throughout the COVID-19 pandemic, the U.S. Department of Labor’s Wage and Hour Division (WHD) has issued guidance for employers and employees navigating new and unexpected workplace challenges.

The U.S. Department of Labor’s Wage and Hour Division (WHD) has updated its COVID-19 and the Fair Labor Standards Act: Questions and Answers, initially issued in July 2020, to incorporate additional information that has become relevant as the pandemic has continued.

As more employees are being vaccinated, some are experiencing adverse reactions significant enough to impact their ability to work.

The White House highlighted a benefit to small employers that was part of the American Rescue Plan Act enacted on March 11, 2021: a tax credit for providing employees with paid leave to obtain a COVID-19 vaccine.

On April 7, 2021, the U.S. Department of Labor issued FAQs and five model notices for the COBRA premium subsidy provided by the American Rescue Plan Act (ARPA), which we discussed in our March 16, 2021 E-lert.

This past month, the Occupational Safety and Health Administration announced a new national emphasis program and an Updated Interim Enforcement Plan as part of its efforts to address workplace safety issues associated with the COVID-19 pandemic.

The Centers for Disease Control and Prevention (CDC) has issued guidance on workplace vaccination programs that reiterates and expands upon prior guidance on this topic, with the intent of increasing vaccine uptake among essential (and other) workers. According to the CDC, vaccinations benefit both employers and employees by keeping the workforce healthy, reducing absences, and improving both productivity and morale.

In addition to expanding and extending the tax credits that employers may opt to receive under the Families First Coronavirus Response Act for voluntarily providing paid COVID-19-related leave through September 30, 2021, which we discussed in our March 12, 2021 E-lert, the American Rescue Plan Act of 2021 (ARPA) contains several other important employment-related provisions...

The American Rescue Plan Act of 2021 (ARPA), which was signed into law by President Biden on March 11, 2021, both expands and extends the tax credits that employers may opt to receive under the Families First Coronavirus Response Act (FFCRA) for voluntarily providing paid COVID-19-related leave through September 30, 2021.

With case rates declining and COVID vaccine options expanding, five States as of March 8, 2021 have announced the end of all pandemic-driven restrictions, including mask mandates.

The Centers for Disease Control and Prevention (CDC) continues to revise its guidance on the use of masks to prevent the spread of COVID-19

The Centers for Disease Control and Prevention (CDC) continues to issue a steady stream of new guidance and information on COVID-19, some of which has specific relevance to the workplace.

The CDC issued updated guidance on February 10, 2021, stating that, "Fully vaccinated persons who meet criteria will no longer be required to quarantine following an exposure to someone with COVID-19, but only if they have received both doses, it has been at least two weeks and not more than three months since the second dose, and they have not exhibited any symptoms following exposure."

So says the CDC in its new guidance on workplace testing programs, which adds to its previous guidance, Testing Strategies: Considerations for Non-Healthcare Workplaces.

With the COVID-19 vaccine finally becoming a reality, healthcare employers, who were first to receive the vaccine for distribution to their workforce, are addressing questions of how to implement vaccination programs.

The revisions are based on new scientific evidence regarding the transmission risk from asymptomatic individuals as well as the ongoing community transmission risk in many areas.

On Wednesday, December 2, 2020, the Centers for Disease Control and Prevention (CDC) revised its recommended quarantine period for those individuals who were in close contact with a person with COVID-19.

As distribution of the COVID-19 vaccine begins, the Equal Employment Opportunity Commission has modified its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws resource to address the impact of federal non-discrimination laws on an employer’s vaccine requirements. .

The Occupational Safety and Health Administration has issued guidance identifying the violations of workplace standards most often found during COVID-related inspections, accompanied by a one-page summary identifying requirements that employers must follow.

For many months now, the CDC has told us that cloth masks help to control the spread of COVID-19 by providing a barrier to help prevent the wearer's respiratory droplets from reaching others - but that the masks did not protect the wearer.

In revising its definition of who is considered to be in “close contact” with a person infected with COVID-19, the Centers for Disease Control and Prevention (CDC) significantly expanded the universe of individuals who might be required to self-isolate.

The Occupational Safety and Health Administration issued new FAQs regarding the reporting of work-related COVID-19 cases, providing much-needed clarification to employers.

NLRB General Counsel Peter Robb released GC Memo 20-14 summarizing unfair labor practice charges relating to the COVID-19 pandemic

The Equal Employment Opportunity Commission updated its What You Should Know About Covid-19 and the ADA, the Rehabilitation Act and Other EEO Laws.

The surge in telecommuting during the COVID has raised many issues for employers, including compliance with the Fair Labor Standards Act.

In the past several weeks, the Centers for Disease Control and Prevention revised its guidance on several significant issues of interest to employers

The U.S. Department of Labor issued additional Q&A resources to provide guidance to employers on COVID-19-related issues under the FLSA, FMLA, and the FFCRA.

As offices and other workplaces reopen, employers are struggling with the issue of masks and face coverings in the workplace.

Several federal agencies have recently issued additional COVID-19 guidance of interest to employers

Without fanfare on May 27, 2020, the Centers for Disease Control and Prevention (CDC) issued guidance for employers of office workers (as well as updated guidance for restaurants and bars).

The CDC has issued a lengthy document in support of the President’s Plan for Opening America Up Again, containing specific Interim Guidance documents for employers with high-risk workers, as well as for child care programs, schools, bars and restaurants, and mass transit.

OSHA has reversed direction, with increased in-person workplace inspections and recording obligations.

Federal government agencies, including the CDC and the EEOC, and many state and local governments have approved of the use of temperature screening as part of a business’s return-to-work strategy during the COVID-19 pandemic.

Various federal agencies have recently issued additional COVID-19 guidance of significance (more or less) to employers.

The federal Department of Labor (DOL) issued new Worker Adjustment and Retraining Notification (WARN) Act COVID-19 Frequently Asked Questions and added to its extensive Questions and Answers resource for the Families First Coronavirus Response Act (FFCRA).

The federal Equal Employment Opportunity Commission (EEOC) updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” resource to expand upon its guidance on some issues of concern to employers – reasonable accommodations and employee testing.

During the past week or so, various federal agencies have issued additional COVID-19 guidance of significance (more or less) to employers. We summarize these developments.During the past week or so, various federal agencies have issued additional COVID-19 guidance of significance (more or less) to employers. We summarize these developments.

President Trump signed the Coronavirus Aid Relief and Economic Security (CARES) Act, a $2 trillion bill that contains provisions that will provide relief to businesses and individuals negatively impacted by the recent pandemic.