COVID-19 Response Resource Center: Timely Counsel for your Business

As many aspects of our lives return to “normal” after two years in the COVID-19 pandemic, individuals with caregiving responsibilities—for children, grandchildren, parents, partners or other family members—often remain in limbo. Ongoing school and daycare closures, as well as health risks and concerns for those not yet eligible for the COVID-19 vaccine, will likely create ongoing disruption for employees with caregiver responsibilities.

The Equal Employment Opportunity Commission (EEOC) recently released COVID-19-specific guidance on the ways that caregivers ... Read More 

Last month, the U.S. Supreme Court struck down the Occupational Safety and Health Administration’s (“OSHA”) COVID vaccine or test mandate for businesses with at least 100 employees. Thereafter, the Biden Administration officially withdrew the mandate as an Emergency Temporary Standard (“ETS”) but left open the possibility of a permanent standard that would include some or all elements of the ETS. This now leaves many employers wondering what to do. Should they continue with their plans to implement mandatory vaccinations? Should they provide an option for weekly ... Read More 

On Jan. 13, the U.S. Supreme Court issued rulings that impact two important aspects of the Biden Administration’s efforts to combat the COVID-19 pandemic.

OSHA ETS for Employers with 100 or More Employees:

Employers with 100 or more employees have been in limbo, trying to determine if they will be required to track vaccination and/or weekly testing for their employees since the Occupational Safety and Health Administration (OSHA) issued its Emergency Temporary Standard (ETS) on Nov. 5, 2021. Not long after the ETS was issued, the Fifth Circuit Court of Appeals affirmed a stay on the ... Read More 

On Dec. 17, 2021, the Sixth Circuit Court of Appeals lifted a stay on the Occupational Safety and Health Administration’s (OSHA) Vaccination and Testing Emergency Temporary Standard (ETS) for employers with 100 or more employees.

The Fifth Circuit Court of Appeals had previously affirmed a stay on implementation or enforcement of the ETS. The legal challenges to the ETS were consolidated in the Sixth Circuit Court of Appeals through the multidistrict litigation process.

Now that the Sixth Circuit has lifted the stay, OSHA has indicated that it will give covered employers until ... Read More 

The Department of Labor’s Occupational Safety and Health Administration (OSHA) recently issued a COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) for employers with 100+ employees. The new standard focuses on protecting currently unvaccinated workers – those who have a higher risk of severe health outcomes from COVID-19 and are more likely to contract and transmit COVID-19 in the workplace than vaccinated workers.

Employers subject to the COVID-19 Vaccination and Testing ETS should review the new standard with their attorney and immediately begin ... Read More 

On Sept. 9, 2021, President Biden announced a six-part plan to combat COVID-19. In spoken remarks, he described a “pandemic of the unvaccinated,” caused by the fact that nearly 80 million Americans have yet to get a shot. To address the ongoing crisis, the White House is taking steps to substantially increase the number of vaccinated Americans by ensuring vaccine requirements “become dominant in the workplace.”

Among other things, the plan includes vaccination requirements for federal workers, federal contractors and health care workers at Medicare and Medicaid ... Read More 

This week, two different sets of guidance were published that impact employers’ COVID-19 policies.

First, on July 27, 2021, the U.S. Centers for Disease Control and Prevention (CDC) updated its guidance to recommend that all persons, including those who are vaccinated, wear masks in indoor public settings in locales with substantial or high community transmission of COVID-19.

Second, on July 29, 2021, Gov. Roy Cooper issued Executive Order No. 224, which “strongly encourage[s]” employers to follow the CDC guidance and also verify the vaccination status of employees and ... Read More 

The Department of Labor’s Occupational Safety and Health Administration (OSHA) recently issued a COVID-19 Emergency Temporary Standard (ETS) for the healthcare industry. The new standard focuses on protecting healthcare workers who face the greatest coronavirus risks – those working in healthcare settings where suspected or confirmed coronavirus patients are treated.

Employers subject to the ETS should review the new standard and immediately begin taking steps to comply.

Who Must Comply?

The healthcare ETS applies to settings where any employee provides healthcare ... Read More 

Today, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a COVID-19 Emergency Temporary Standard (ETS) for the healthcare industry. This ETS mandates the development and implementation of a COVID-19 plan in workplaces where employees provide healthcare services or healthcare support services. It also sets out detailed requirements in areas such as patient screening and management, personal protective equipment (PPE), physical distancing, physical barriers, cleaning and disinfection, ventilation, health screening ... Read More 

The Equal Employment Opportunity Commission (EEOC) issued updated Question and Answer Guidance on COVID-19 vaccinations today. The new guidance clarifies several issues that were making some employers reluctant to provide incentives to encourage employees to get vaccinated. They also provide some clarification for employers implementing vaccination policies that differentiate among vaccinated and unvaccinated employees. Below are some of the highlights from the new guidance: 

• Employers may require that all employees physically entering the workplace be vaccinated ...

There is no clear guidance on whether employers may treat vaccinated and unvaccinated employees differently. Employers considering changes to their policies that would treat employees differently based on vaccination status, should discuss their particular circumstances with legal counsel. Consulting legal counsel is also important because each work environment may have different factors and unique circumstances to consider when evaluating how to maintain a safe and healthy workplace for employees. Some of the issues to be considered in an employer’s analysis include ... Read More 

On March 11, 2021, President Biden signed the American Rescue Plan Act (“ARPA” or the “Act”), another piece of the federal government’s response to the COVID-19 pandemic. Among other things, the Act provides premium assistance for eligible employees and their family members who elect continuation coverage under COBRA or a state’s mini-COBRA law and continue health insurance benefits under those laws. The premium assistance is available for coverage between April 1, 2021 and Sept. 30, 2021. Employees pay nothing for their coverage during this time, and employers are ... Read More 

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 into law. The Act, which builds in part on certain COVID-19 relief measures enacted in 2020, contains several items that could impact employers’ COVID-related leave policies.

In particular, though employers are still not required to continue offering leave under the Emergency Paid Sick Leave Act (EPSLA) or the Emergency Family Medical Leave Expansion Act (EFMLEA) passed in 2020, employers that elect to do so through September 2021 are eligible for tax credits to cover much of the cost.

The American ... Read More 

On March 8, 2021, the U.S. Centers for Disease Control and Prevention (CDC) issued new guidance for people who have been vaccinated for COVID-19. (A person becomes “vaccinated” two weeks after receiving the second shot of the Pfizer-BioNTech or Moderna vaccine or one shot of the Johnson & Johnson vaccine.) The public guidance is based on a contemporaneously issued science brief describing preliminary evidence that the vaccines are effective against a variety of coronavirus strains (except a strain out of South Africa) and a growing body of evidence that vaccinated people may be ... Read More 

Starting Jan. 1, 2021, employers subject to the Families First Coronavirus Response Act (FFCRA) are no longer required to provide employees with COVID-related paid leave, but they may do so in some situations and still receive tax credits for doing so.

The FFCRA, which required that employers provide emergency paid sick leave for COVID-related reasons and emergency paid family leave to employees due to school closures, expires on Dec. 31, 2020. These requirements were not extended as part of the stimulus package passed by Congress on Dec. 21, 2020 and signed into law by the president ... Read More 

On Dec. 16, 2020, the Equal Employment Opportunity Commission (EEOC) released its much-awaited guidance on the COVID-19 vaccine in the workplace. (See section “K. Vaccinations” at this link (for the full guidance.) This guidance provides crucial information to employers who have been weighing whether, and how, to require or implement the COVID-19 vaccines in the workplace. 

As with other moments during the COVID-19 pandemic, employers will need to be nimble in their response to current events, changing circumstances, and evolving scientific and legal guidance. For ... Read More 

On Dec. 2, 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued new guidance to local health departments regarding their options and choices for shortening the length of quarantine after a person is exposed to the COVID-19 virus or has traveled internationally.

Post-Exposure Quarantine

Prior guidance required that a person quarantine for 14 days from the last exposure to a COVID-positive person, regardless of any negative test. The purpose of the quarantine period is to prevent spread of the virus by people who may be contagious but never develop symptoms, and to ... Read More 

On Friday, Sept. 11, 2020, the U.S. Department of Labor (DOL) issued revisions to their original regulations on paid leave under the Families First Coronavirus Response Act (FFCRA). These revisions are in response to the Aug. 3, 2020 decision by a federal court in New York that invalidated portions of the original regulations. Most significantly, the revisions provide a new, narrower definition of who qualifies as a “health care provider” for purposes of the FFCRA.

Under the FFCRA, two types of paid leave were made available to employees working for an employer with fewer than 500 ... Read More 

A federal court in New York has invalidated portions of emergency Department of Labor (DOL) regulations that employers have been using to create their policies and determine whether to grant leave under the Families First Coronavirus Response Act (FFCRA).

Under the FFCRA, there are two leave laws that provide employees the ability to receive pay for certain absences relating to COVID-19. Summaries of these laws are available in our prior alerts: Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA).

The DOL issued regulations ... Read More 

The one constant in the COVID-19 pandemic is that the guidance keeps changing. We have highlighted it before and we’ll do it again: Part of every employer’s COVID-19 preparedness and response plan needs to include the designation of someone in the company who will periodically review the website for the Center for Disease Control (CDC) and other key organizations such as the Department of Labor and the Department of Health and Human Services for changes to their guidance on COVID-19 precautions.

On Monday, the CDC changed key elements in its recommendation for determining when a ... Read More 

Many businesses are anxious to resume operations after closing or scaling back because of COVID-19. However, trends in North Carolina COVID-19 diagnoses and hospitalizations show that the pandemic is still very much an issue. The question becomes: what is the best way to balance these competing concerns?

The Occupational Safety and Health Administration recently issued an updated “Guidance on Returning to Work” to assist employers and workers during the COVID-19 pandemic. The guidance is a supplement to OSHA’s prior “Guidance on Preparing Workplaces for COVID-19” ... Read More 

Three agencies have provided updated guidance for employers on essential COVID-19 issues:

• The Department of Labor (DOL) addressed how new leave laws apply to these situations:
  
  • Domestic workers;
  • Those working through temporary agencies;
  • Employees who previously were working from home without the need for leave, but now need leave to care for children;
  • Handling employees absent for symptoms of COVID-19; and
  • Leave to care for children as schools close for the summer rather than due to COVID-19.
• The Equal Employment Opportunity Commission (EEOC) clarified how to handle the return of ...

Brooks Pierce has been honored to have so many North Carolina employers rely on us for up-to-date guidance on personnel matters stemming from the COVID-19 crisis. We will continue to produce, update, and post alerts for employers on our COVID-19 Response Resource Center as promptly as possible. Employers can also expect timely webinars and roundtables from us in the coming weeks, as well as the ability to review past webinars by viewing the recordings on our website.

The following checklist is our latest tool offered to North Carolina employers. It condenses information from ... Read More 

The crisis has not passed, but many employers are reaching out to us about returning their employees to work. In some cases, it’s because employers have received PPP funds and want to make sure they are appropriately managing employee payroll, including headcount, to take advantage of loan forgiveness. In others, employers are preparing for Governor Cooper’s phased approach to lifting restrictions, monitoring North Carolina’s COVID-19 trends.

Whatever the situation, we’ve identified several important things employers should be thinking about as they return ... Read More 

On April 20, 2020, North Carolina Governor Roy Cooper issued Executive Order No. 134  permitting employers to provide financial assistance to employees who have been temporarily furloughed for reasons related to COVID-19 without affecting their unemployment insurance benefits. Typically, such financial assistance would reduce, delay, or preclude employees’ unemployment benefits. However, recognizing the unique circumstances presented by the COVID-19 pandemic, Executive Order No. 134 authorizes employers to make “COVID-19 Support Payments” to ... Read More 

On April 9, the Equal Employment Opportunity Commission (EEOC) posted additional, updated guidance for employers regarding COVID-19, the ADA, and other EEO laws, and consolidated all its COVID-19 related advice here.

It reiterates why each of the following employer actions are permissible under the current circumstances and reminds employers of important considerations if they are doing any of these:

• Asking employees about symptoms of COVID-19
• Taking body temperature of employees
• Requiring employees with COVID-19 symptoms to stay home
• Requiring doctors' notes ...

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. The FFCRA contains two key provisions for employers – the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). Both EFMLEA and EPSLA provide paid leave to employees for reasons related to COVID-19. On April 1, 2020, the U.S. Department of Labor (DOL) issued temporary regulations bolstering and clarifying these provisions of the FFCRA. Corrections to these regulations were later published on April 10, 2020. The DOL ... Read More 

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. The FFCRA contains two key provisions for employers – the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). Both EFMLEA and EPSLA provide paid leave to employees for reasons related to COVID-19. On April 1, 2020, the U.S. Department of Labor (DOL) issued temporary regulations bolstering and clarifying these provisions of the FFCRA. Corrections to these regulations were later published on April 10, 2020. The DOL ... Read More 

An employee may have been exposed to COVID-19. What do you do? 

This question is becoming more common for essential businesses that continue to operate during quarantines. On April 8, the CDC issued a new Interim Guidance explaining how to keep essential employees working following potential exposure to COVID-19. They also provide a printable flyer for the workplace.

The new guidance permits employees with possible exposure to return to work provided they are (1) asymptomatic and (2) take the following additional precautions:

• The employer should measure the employee’s ...

The Department of Labor (DOL) shared more insights into the Families First Coronavirus Response Act (FFCRA). These latest additions to the DOL’s guidance include a few surprises, which we’ve highlighted here.

One of the biggest surprises was that the DOL provided two different definitions of the exact same words in the Act—Health Care Providers:

• For purposes of determining who can advise an employee to self-quarantine, a “health care provider” is limited to a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a ...

Yesterday, March 26, the Department of Labor (DOL) issued additional guidance on how the Families First Coronavirus Response Act (FFCRA) will be applied, the latest in a string of expected clarifications leading up to the April 1 effective date. The FFCRA includes the Emergency Family and Medical Leave Expansion Act (EFMLA) and Emergency Paid Sick Leave Act (EPSLA). This guidance provided several important clarifications for employers on the DOL’s enforcement policy.

Here are the highlights:

Implications of Furloughs and Closures

• Furloughed employees, or employees whose ...

Employers are faced with difficult and unpleasant choices in response to the current COVID-19 crisis. Some are closing down or reducing operations. This guidance addresses your rights and obligations concerning salaried employees, and suggests strategies available to you.

The general rule under the federal Fair Labor Standards Act (FLSA) is, if an employee is “salaried” and works any time during a workweek, the full salary for the workweek is due. For these purposes, “salaried” refers to exempt employees subject to “white collar exemptions” under the FLSA ... Read More 

The Equal Employment Opportunity Commission has posted guidance for employers regarding medical examinations and inquiries during the COVID-19 pandemic, linked here.

The guidance explains why each of the following employer actions are permissible under the current circumstances and reminds employers of important considerations if they are doing any of these:

• Asking about symptoms of COVID-19
• Taking body temperature of employees
• Requiring employees with COVID-19 symptoms to stay home
• Requiring doctors' notes certifying fitness for duty to return to work

Brooks ... Read More 

On March 17, 2020, North Carolina Governor Roy Cooper issued Executive Order No. 118 expanding the availability of unemployment insurance benefits to workers who have been affected by COVID-19 (commonly referred to as the coronavirus). The changes announced by Governor Cooper are consistent with U.S. Department of Labor guidance issued last week recommending that states utilize unemployment insurance benefits to lessen the financial burden caused by the coronavirus. Additionally, legislation currently pending before the U.S. Senate contains provisions that ... Read More 

Update: President Trump signed these Acts into law on March 18. They are expected to take effect no later than April 2.

Today the U.S. Senate voted to adopt House Bill 6201 with some corrections and clarifications. These changes make the bill much narrower than the earlier version. The President is expected to sign the bill into law. Additional legislation is in the works to address concerns about how employers are to meet the immediate cash flow obligation of paying for leave under this bill. 

The main provisions of the adopted bill are summarized below, but one of the most important ... Read More 

House Bill 6201 was passed by the U.S. House of Representatives with bipartisan support. It creates an obligation for employers with fewer than 500 employees to provide job-protected leave and paid sick leave to employees for absences related to COVID-19. The Senate is expected to take up the bill today, and the President has expressed his support for it. While things could change, as everything has been recently, here’s what we know about the bill now:

Emergency Family and Medical Leave Expansion Act:

• What do you mean expansion? There would be a new reason that leave may be ...

U.S. employers recognize that COVID-19 (commonly referred to as the coronavirus) presents a potential hazard to the well-being of their employees, and many have already taken practical steps to reduce the risk of transmitting the disease in the workplace. All employers are encouraged to review guidelines recently published by the Centers for Disease Control and Prevention (CDC) (available here) for employer-specific strategies to combat the coronavirus.

While physically preparing workplaces and instructing employees about best practices is vitally important, employers ... Read More