Originally published in June of last year, and as reported by Ballard Spahr here, the OSHA Healthcare Emergency Temporary Standard (“ETS”) set safety requirements for health care and health care support service workers in settings where people with COVID-19 are reasonably expected to be present. The ETS expired after six months, on December 21, 2021.

OSHA had previously announced that it intended to issue a permanent standard, or set of rules, to replace the expired ETS. Just this week, OSHA reopened the rulemaking record partially and scheduled an informal public hearing to seek comments on specific topics that relate to the development of a final standard to protect healthcare and healthcare support service workers from workplace exposure to the COVID-19 virus. OSHA will also reopen the regulation for public comment from March 23, 2022, through April 22, 2022.

The agency is reopening the rulemaking record to allow for new data and comments on topics, including the following:

  • Alignment with the Centers for Disease Control and Prevention’s recommendations for healthcare infection control procedures.
  • Additional flexibility for employers.
  • Removal of scope exemptions.
  • Tailoring controls to address interactions with people with suspected or confirmed COVID-19.
  • Employer support for employees who wish to be vaccinated.
  • Limited coverage of construction activities in healthcare settings.
  • COVID-19 recordkeeping and reporting provisions.
  • Triggering requirements based on community transmission levels.
  • The potential evolution of SARS-CoV-2 into a second novel strain.
  • The health effects and risk of COVID-19 since the ETS was issued.

With the announcement, OSHA reaffirmed its plans to publish a permanent COVID-19 safety standard for the healthcare industry. The announcement also makes clear that “employers must continue to comply with their obligations under the General Duty Clause, Personal Protective Equipment and Respiratory Protection Standards, as well as other applicable OSHA standards to protect their employees against the hazard of COVID-19 in the workplace.” Ballard Spahr’s Labor & Employment Group counsels employers regarding the changing requirements of workplace safety and compliance.

The historical uncertainty regarding whether businesses must have websites and mobile applications that are accessible to persons with disabilities has been, in part, the result of the absence of regulatory direction as to whether such digital assets are covered by Title III of the Americans with Disabilities Act (ADA).

While regulations have yet to be promulgated, the United States Department of Justice (DOJ) on March 18, 2022 published Guidance on Web Accessibility and the ADA explaining that entities covered by Title II (state and local governments) and Title III (places of public accommodation) should ensure their websites are accessible to people with disabilities in line with the ADA’s requirements.

The Guidance explicitly confirmed the DOJ’s position that businesses and state and local governments “must ensure that programs, services, and goods that they provide to the public – including those provided online – are accessible to people with disabilities.” The DOJ explained that covered entities should address unnecessary barriers, such as inaccessible web content, so that individuals with disabilities have equal access to information.

The DOJ specifically noted that in recent years, “a multitude of services have moved online, and people rely on websites like never before for all aspects of living,” including accessing voting information, finding up-to-date health and safety resources, and looking up mass transit schedules and fare information. The DOJ’s Guidance clarified that the Department has “consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”

The Guidance highlighted common examples of website accessibility barriers, including poor color contrast, use of color alone to provide information, lack of text alternatives (“alt text”) on images, a lack of captions on videos, inaccessible online forms, and mouse-only navigation (lack of keyboard navigation).

As we previously noted, the ADA does not currently mandate any particular technical standard for website accessibility, and the DOJ’s Guidance explained that businesses and state and local governments have flexibility in how they comply with the ADA. However, the DOJ pointed to existing standards, such as the Web Content Accessibility Guidelines (WCAG) as providing guidance concerning how to make website features accessible.

In emphasizing that web accessibility is a priority for the DOJ, the Guidance additionally provided a review of cases wherein the DOJ has used its enforcement authority to ensure businesses and state and local governments have made accessible goods and services offered online.

The DOJ’s clear position in this Guidance is likely to shape the development of this continually evolving legal space. Given the lack of concrete regulations, and the lack of specific requirements in this Guidance, we expect that litigation will continue to increase, as it has over the last five years. All businesses and state and local governmental bodies subject to the ADA should continue to stay informed, and are encouraged to review the accessibility of their websites and other digital assets and adopt an ADA Risk Management Program.  Ballard Spahr’s Accessibility Team is ready to assist with your compliance and litigation needs.

In June, 2021, Philadelphia’s previous public health emergency leave mandate expired. However, on March 9, 2022, Philadelphia Mayor Jim Kenney signed a new bill extending COVID-19 paid sick leave to certain eligible employees. That bill became effective immediately upon signature. These requirements will sunset on December 23, 2023.

Under this new ordinance, employers with more than 25 employees must provide up to 40 hours of additional paid sick leave to eligible employees who are unable to work for reasons related to COVID-19, including:

  • A determination by a public official or public health authority having jurisdiction, a health care provider, or an employer that the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to COVID-19 or because the employee is exhibiting symptoms that might jeopardize the health of others, regardless of whether the employee has been diagnosed with or has tested positive for COVID-19.
  • Caring for a family member due to a determination by a public official or health authority having jurisdiction, a health care provider, or the family member’s employer that the presence of the family member on the job or in the community would jeopardize the health of others because of the family member’s exposure to COVID-19 or a determination by the employer that the employee is a danger to the health of others because they are exhibiting symptoms that might jeopardize the health of others, regardless of whether the family member has been diagnosed or has tested positive with COVID-19.
  • Caring for oneself or a family member self-isolating due to having tested positive or diagnosed with COVID-19.
  • Caring for oneself or a family member self-isolating due to experiencing symptoms of COVID-19.
  • Seeking a medical diagnosis, care, or treatment due to experiencing symptoms of an illness related to COVID-19.
  • Caring for a family member who needs medical diagnosis, care, or treatment due to experiencing symptoms of an illness related to COVID-19.
  • Caring for a child, whose school or place of care has been closed, or the childcare provider of such child is unavailable, due to precautions taken in response to COVID-19.
  • Receiving a COVID-19 test or vaccine (including a booster), or recovering from injury, disability or illness related to vaccination.

Eligible employees are those who either work in the City of Philadelphia, normally work in the City of Philadelphia but are currently teleworking due to COVID-19, or work from various locations, so long as 51% of the employee’s time is spent in the City of Philadelphia.  Eligible employees who work 40 or more hours a week are eligible for a full 40 hours of COVID-19 leave, whereas eligible employees who work less than 40 hours a week receive an amount based on average hours worked or scheduled, whichever is greater.  Note that there is no waiting period and no length of service requirement before use of this leave. The leave must be paid at the employee’s regular rate of pay.

Employees are required to provide notice of their need for leave as soon as practicable, but the ordinance offers no guidance on employee notice obligations when the need for leave is unforeseeable.  In connection with this leave, employers should only request self-certified statements from the employee that the leave was taken for a covered reason.  Employers must also post a notice of employee rights.

Employers may use existing paid leave policies to comply, but only to the extent the policy is equally generous and meets all the requirements of the mandate.  Further, the ordinance includes an exemption for any employer policy which provides (a) at least 120 hours of paid time off in 2022 (for 40-hour/week employees), and (b) that time can be used for the same reasons and under the same conditions set out in the ordinance.

Given the complexity of this ordinance, and the significant publicity it has received, we recommend that employers consult with counsel to ensure that they are in compliance with accurate policies and training to follow those policies. We also recommend that employers monitor the City’s webpage for updated guidance. Ballard Spahr regularly works with its employer clients to assist them with leave laws and other aspects of labor and employment laws at the federal, state and local government levels.

Join SEPA SHRM for a live presentation on Tuesday, April 26, 2022 with Brian Pedrow, Esq. of Ballard Spahr LLP on the Year in Review – Legal Update.  Brian Pedrow is part of Ballard Spahr’s Labor and Employment Group and serves on the Board of SEPA SHRM.  This presentation will reflect on the Labor and Employment developments of the last year, with discussion of key legislative, regulatory and judicial developments.  This program is useful to in-house counsel, as well as business leaders and HR professionals.  Click here to register, and here to view the 2022 program schedule.

A quick update on key legal developments for employers with employees in New York.

  • Whistleblower Protections. Expanded whistleblower protections under New York Labor Law Section 740 are now in place. Effective January 26, 2022, the amendments to Section 740 expand private-sector whistleblower protections beyond reports of public health and safety concerns and health care fraud. As amended, the law’s protections extend to individuals (including former employees and independent contractors) who report, or threaten to report, any activity they reasonably believe is a violation of law, rule, or regulation or a substantial and specific danger to public health and safety. In addition, the amendments extended the statute of limitations for a New York whistleblower claim from one to two years, and expanded the definition of retaliatory action, among other changes.
  • HERO Act. The HERO Act has been extended through March 17, 2022. Due to continued transmission of COVID-19, New York extended the HERO Act, which requires employers to adopt an industry specific workplace health and safety plan to protect employees against exposure from COVID-19.
  • Employee Monitoring. Effective May, 7, 2022, New York employers that monitor employee electronic activity must notify employees of that electronic monitoring. Employers that electronically monitor phones, emails, and/or internet usage (among other sources) will be required to give written notice of that monitoring to new employees upon hiring, obtain written acknowledgement of that notice, and must post a notice of those monitoring efforts in the workplace in a “conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.” For purposes of this notice, employees must be advised that “any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.”
  • Publishing Salary Ranges. As of May 15, 2022, employers employing four or more workers must include a good faith salary range (i.e., the minimum and maximum salary for any position) in any advertisements for a job, promotion, or transfer opportunity performed in NYC.
  • State Paid Family Leave Expanded. As of January 1, 2023, New York State’s Paid Family Leave will permit employees to take leave to care for a sibling with a serious health condition.

Ballard Spahr’s Labor and Employment attorneys are here to provide guidance and answer questions about issues facing employers with employees in New York.

On March 14, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released several pieces of guidance aimed at addressing discrimination against caregivers, including:

  • A technical assistance document entitled “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law”;
  • Updated COVID-19 guidance, entitled “What You Should Know,” which explains what may constitute discrimination against employees and job seekers with family caregiving responsibilities; and
  • A short video explaining caregiver discrimination in both English and Spanish.

The technical assistance, available here, explains that discrimination against people with caregiving responsibilities may be unlawful under federal employment discrimination laws, depending upon the relevant facts and circumstances, and provides related examples.  In a question-and-answer format leaning on real-world scenarios, the EEOC provides guidance on how and when discrimination against applicants or employees with caregiving responsibilities violates the law, as well as explanations regarding required accommodations.

The EEOC’s COVID-19 “What You Should Know” page, available here, also has been updated to include a section titled “Caregivers/Family Responsibilities.”  This information explains how unlawful caregiver discrimination might arise and addresses considerations related to sex discrimination and other pandemic-related caregiver discrimination issues.

This new guidance from the EEOC underscores the need for employers to continue to be vigilant in how they address pandemic-related requests for caregiver accommodations, even as other COVID-19 precautions relax.  Ballard Spahr counsels employers to ensure that their positions with respect to hiring and workplace accommodations are consistent and in compliance with the EEOC’s guidance as well as federal, state and local laws.

In response to dropping cases of COVID-19 in the City, on March 2, 2022, Philadelphia announced that it has moved into the “All Clear COVID Response Level,” and, as a result, will no longer enforce its indoor mask mandate.  The change is effective immediately for businesses and institutions.  The Philadelphia Department of Public Health also stressed that businesses may still require masks, and that the City may reinstate the mask mandate if COVID-19 cases rise, or a new variant develops.  In addition, masks will still be required in certain higher risk settings, health care institutions, congregate settings, and on public transportation.  In addition, the School Board of Philadelphia announced that mandatory masking in Philadelphia schools ended on March 9, 2022.  However, masking will still be required for pre-kindergarten classes, and masks will be required for one week after spring break to avoid a post-break surge in cases.  City buildings continued to require masking until March 7, and now, masks are optional for visitors and fully vaccinated staff, while unvaccinated staff are still required to wear two masks while indoors and around others.

President Biden has signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” which we previously discussed here. During the signing ceremony, President Biden celebrated the legislation, stating it was a “momentous day for justice and fairness in the workplace.”

What still remains to be seen is how this law will be interpreted and applied. Many commentators have questioned how lawsuits that include more than one claim – just one of which is sexual harassment or assault– will be treated under this law. Specifically, would such cases be divided by claim, and subject to arbitration and litigation simultaneously?  And who decides how the case will proceed – the arbitrator or the court?  Time will tell.

The U.S. Equal Employment Opportunity Commission (“EEOC”) has applauded the new law, stating that it expects more workplace sexual harassment claims to be investigated by the government, and then litigated against employers.  The EEOC noted that in 2020, more than 6,500 private sector sexual harassment charges were filed with that Agency.

Given the EEOC’s outreach regarding this new law and wide media publicity, and the research showing that most workplace sexual harassment is not reported, we recommend that employers work with their counsel to update any employee arbitration and alternative dispute resolution agreements and policies to ensure compliance with the law.  Ballard Spahr regularly works with its clients to update their policies and to take other preventative steps, such as training and prompt investigation of claims to avoid and address sexual harassment claims.

President Biden’s vaccination mandate for federal contractors remains under a nationwide injunction.  In September 2021, President Biden issued Executive Order 14042, which directed federal agencies to require certain federal contractors and subcontractors to implement a vaccine mandate and COVID-19 workplace safety measures.  On December 7, 2021, the Southern District of Georgia enjoined the Executive Order nation-wide, and the injunction was later upheld by the US Court of Appeals for the Eleventh Circuit.

The federal government appealed the Eleventh Circuit’s decision, and briefs were submitted by the parties in January 2022.  Oral argument currently is scheduled for April 8, 2022 before the appellate court.

In addition, the Southern District of Georgia issued a subsequent order on January 21, 2022, stating that the ruling on the injunction expressly covered the vaccine mandate only.  The court explained that the other aspects of the Executive Order remain in effect, including the health and safety protocols contained in subsequent guidance, such as masking, social distancing, and designation of COVID-19 safety coordinators.

Confusion remains as to whether these other aspects are in effect, particularly in light of the fact that other federal courts have enjoined Executive Order 14042, but only in certain states including Alaska, Arkansas, Florida, Iowa, Kentucky, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Dakota, Tennessee, and Wyoming.

While the legal status of the Executive Order’s remaining COVID-19 safety rules is unclear, the Office of Management and Budget issued guidance stating the Government will take no action to enforce any clause implementing Executive Order 14042.  In addition, the Department of Defense issued a memorandum on December 9, 2021 stating that its contracting officers will not enforce clauses implementing the Executive Order.  The Department of Defense also instructed all contracting officers not to include clauses required by the Executive Order in existing contracts, task orders, and delivery orders.

We will monitor the upcoming oral argument and other developments regarding the federal contractor vaccine mandate.  Ballard Spahr’s Labor & Employment Group counsels employers regarding the changing requirements and status of the COVID-19 vaccine mandates and workplace safety and compliance.

On the latest episode of our podcast, Business Better, our Ballard lawyers provide an update on the current status of the federal COVID-19 vaccine mandate, and the steps employers should be taking as a result of the recent changes.

Leading this discussion is Lila Sevener, an Associate in Ballard’s Philadelphia office. With Lila are Brian Pedrow and Shannon Farmer, both of whom are Partners in Ballard’s Philadelphia office. Lila, Brian and Shannon all focus on representing employers in labor and employment litigation and investigations and counselling them on employment policies and practices.