On February 10, 2021, the Centers for Disease Control and Prevention (“CDC”) issued  updated guidance and a report emphasizing the importance of a wearing a mask that fits tightly over the face to slow the spread of COVID-19.  The report, which provides the basis for the CDC’s updated guidance, is based on CDC experiments that showed “substantially improved source control and reduced wearer exposure” when worn properly. The publications recommend two specific ways to ensure a mask works the best it can: (1) make sure the mask fits snugly against the face and (2) pick a mask with layers, or double mask.

The guidance, presented in the form of an illustrated poster, titled “Improve How Your Mask Protects You,” includes specific recommendations for how to wear a mask for maximum protection against contracting or transmitting the coronavirus including to:

  • Choose a mask with a nose wire;
  • Use a mask filter or brace to prevent air leakage;
  • Check for a snug fit over nose, mouth and chin;
  • Wear a cloth mask with multiple layers or a disposable mask under a cloth one; and
  • Knot and tie ear loops of 3-ply masks where they join the edge of the mask and tuck in any unneeded material around the edges (see CDC’s instructional video).

The guidance also includes recommendations of what not to do, including, not to:

  • Combine disposable masks; or
  • Combine a KN95 mask with any other mask.

Overall, the guidance reiterates the importance of correct and consistent mask use as a critical step everyone can take to prevent getting and spreading COVID-19.  It reminds people that “masks work best when everyone wears them, but not all masks provide the same protection” and when choosing a mask to “look at how well it fits, how well it filters the air, and how many layers it has.”

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Please contact Susan Gross Sholinksy for assistance with questions regarding the CDC’s new mask guidance.

*Law Clerk – Admission Pending

Our colleagues Susan Gross Sholinsky, Genevieve M. Murphy-Bradacs, Ann Knuckles Mahoney, and Jenna D. Russell of Epstein Becker Green have recently published an Act Now Advisory that will be of interest to our readers: “Latest New York State Department of Labor Guidance Significantly Expands COVID-19 Sick Leave Obligations”.

The following is an excerpt:

On January 20, 2021, the New York State Department of Labor (“NY DOL”) issued another round of guidance (“Guidance”) on the use of COVID-19 sick leave under the New York State COVID-19 Sick Leave Law (“Law”). Supplementing prior state guidance,[1] this Guidance appears to actually expand the Law by increasing the availability of paid leave. For example, the Guidance now obligates an employer to pay an employee who is required to remain out of the workplace by the employer due to actual or potential exposure to the virus. Under the Law, however, an employee is entitled to paid leave only if he or she is subject to a mandatory or precautionary order of quarantine or isolation (“QO”).

As we previously reported, the Law provides all employees subject to a QO issued by an authorized governmental entity with up to 14 calendar days of COVID-19 sick leave, depending on the employer’s size and net income.[2] The Law also mandates job protection for all employees for the duration of the quarantine, regardless of employer size or profitability, and, where applicable, provides access to expanded paid family leave and temporary disability benefits as well. Benefits under the Law, however, are not available to employees who are asymptomatic or not yet diagnosed with any medical condition where the employee is physically able to work remotely while under a QO.

Click here to read the full piece. 

Our colleagues Susan Gross Sholinsky, Ann Knuckles Mahoney, Jennifer L. Nutter, and Eduardo J. Quiroga of Epstein Becker Green have recently published an Act Now Advisory that will be of interest to our readers: “Roadmap to Compliance: Major Employment Laws Effective as of January 2021 and Beyond”.

The following is an excerpt:

While state legislatures focused much-needed attention on pandemic-related legislation throughout most of 2020, many continued to alter their employment laws in significant ways, or simply had previously passed laws scheduled to take effect at the start of 2021.

Some of the most prominent trends at the state and local level include creating or expanding paid leave benefits, pay equity, and anti-discrimination rules; restricting criminal background checks; and limiting the scope of non-compete laws. Employers should review these developments and consider updating their policies and procedures accordingly.

Click here to read the full piece.

Our colleagues David S. Poppick and Carol J. Faherty of Epstein Becker Green have co-authored an article in Thomson Reuters Practical Law that will be of interest to our readers: “Non-Compete Laws: Connecticut – 2021 Update”.

The following is an excerpt:

This Q&A addresses enforcement and drafting considerations for restrictive covenants such as post-employment covenants not to compete and non-solicitation of customers and employees. Federal, local, or municipal law may impose additional or different requirements. …

In particular, this Q&A addresses:

    • Overview of State Non-Compete Law
    • Enforcement Considerations
    • Blue Penciling Non-Competes
    • Choice of Law Provisions
    • Reasonableness of Restrictions
    • Remedies
    • Other Issues

Click here to download the full version in PDF format.

Our colleagues Maxine Neuhauser and Eric I. Emanuelson, Jr. of Epstein Becker Green have recently published an Act Now Advisory that will be of interest to our readers: “Remote Workforce or Not, New Jersey Employers Must Ensure Notices and Posters Remain Up to Date.”

The following is an excerpt:

The year 2020 brought significant changes nationwide to how and where employees work and expanded the legal landscape. The expectations of employer compliance with employment law, however, remained unchanged. In New Jersey, for example, 2020 brought a package of legislation aimed at independent contractor misclassification, amendments to the Family Leave Act (“NJFLA”), the Earned Sick Leave Law (“ESLL”), and the New Jersey Millville Dallas Airmotive Plant Job Loss Notification Act, commonly referred to as the New Jersey WARN Act (“NJ WARN Act”). Further, the New Jersey Supreme Court ruled that the state’s Law Against Discrimination (“NJLAD”) entitles medical marijuana patients to reasonable accommodation in the workplace. This is not to mention all the COVID-19 guidance and executive orders changing by the week.

Several of these new laws have resulted in changes to employer notice and posting requirements or updates to the official posters. Therefore, we recommend that New Jersey employers review the following summary and ensure that their workplace posters and employee notices remain in compliance.

Click here to read the full piece.

Our colleagues Jennifer Barna, Scarlett L. Freeman, and Nathaniel M. Glasser of Epstein Becker Green have a new post on the Workforce Bulletin blog that will be of interest to our readers: “EEOC Updates COVID-19 Guidance on Employer Administered or Mandated Vaccinations.”

The following is an excerpt:

As the first wave of COVID-19 vaccinations are being administered across the United States, employers are considering whether to mandate and/or administer the COVID-19 vaccine to employees.  On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) released updates to “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” its Technical Assistance Questions and Answers publication, addressing potential concerns with vaccine administration and anti-discrimination laws the EEOC enforces.

The EEOC’s updated guidance offers direction regarding employer-mandated vaccinations, accommodations for employees who cannot be vaccinated due to a disability or sincerely held religious belief, and certain implications of pre-vaccination medical screening questions under the Americans with Disabilities Act (“ADA”) and Title II of the Genetic Information Nondiscrimination Act (“GINA”).

Click here to read the full post on the Workforce Bulletin blog.

Our colleague Nathaniel M. Glasser and Jennifer Barna of Epstein Becker Green have co-authored an article in Bloomberg Law that will be of interest to our readers: “COVID-19 Vaccines and Workplace Challenges.”

The following is an excerpt:

As COVID-19 vaccines become widely available, employers will face a critical set of challenges, ranging from whether they can—or will want to—mandate all or some employees get vaccinated, to what liability may attach to mandating vaccination, and even whether the Occupational Safety and Health Administration (OSHA) could require a vaccine program.

While uncommon, mandatory vaccination policies are not new. For example, many health-care employers have implemented mandatory flu vaccination programs to protect staff and patients. The size and scope of the current pandemic, coupled with the desire to swiftly return employees to the physical workplace, however, means that more employers across various industries will likely consider mandating that their employees receive a COVID-19 vaccine once one becomes available.

Employers need to stay ahead of workplace COVID-19 vaccine issues with awareness and planning, so they can adapt their policies to meet the moment. Following are several of the most common questions employers should be prepared to answer in considering COVID-19 vaccination programs.

Click here to download the full version in PDF format.

Our colleagues David M. Prager, Jennifer L. Nutter, Alice Kwak, and Mary T. Vu at Epstein Becker Green recently published an Act Now Advisory that will be of interest to our readers in the health care industry: “Annual California Employment Law Update: New Laws for 2021 Provide COVID-19 Protections and Expand Family Leave.” This year, Governor Gavin Newsom signed numerous employment-related bills passed by the California Legislature. Major changes affecting employers with California operations in the coming year include:

  • requiring COVID-19 supplemental paid sick leave for certain health care providers and emergency responders, persons employed by private businesses of 500 or more employees, and food sector workers;
  • creating a rebuttable presumption for purposes of workers’ compensation that a covered employee contracted COVID-19 at work; and
  • expanding job-protected family leave for employees of companies with five or more employees.

The following is an excerpt:

COVID-19 Supplemental Paid Sick Leave. Effective immediately, AB-1867 requires that employers with 500 or more employees nationwide provide up to 80 hours of COVID-19 supplemental paid sick leave (“SPSL”) to employees who leave their homes to perform work. The law also applies to health care employees and emergency responders whose employers opted out of compliance with the federal Families First Coronavirus Response Act (“FFCRA”).

For purposes of determining whether an employer has 500 or more employees in the United States, employees are counted in the same manner as they are counted under the FFCRA, meaning that either this law or the FFCRA will apply to employees working in California.

Read the full Advisory here.

Our colleagues

Following is an excerpt:

The National Labor Relations Board (“Board” or “NLRB”) on Wednesday, May 13, 2020, overruled decades of convoluted Board precedent regarding “dual-marked ballots” in union representation elections – establishing a new bright line test.  A “dual-marked ballot,” to put it simply, is a ballot that has markings in or around both the “YES” and “NO” box, thus, making it difficult, if not impossible, to tell whether the employee who cast the ballot actually intended to vote for or against union representation. Indeed, a dual-marked ballot might also mean that the employee who completed the ballot actually did not want to take a position either way.   The treatment of such a single dual-marked ballot can have dramatic consequences in a close election, as was the case in Providence Health & Services. …

Read the full article here.

To limit exposure and reduce the spread of COVID-19, New York and New Jersey are requiring long-term care facilities to implement testing for staff.

New York

On May 11, 2020, New York Governor Andrew Cuomo issued Executive Order 202.30 requiring nursing homes and adult care facilities, including all adult homes, enriched housing programs and assisted living residences (“facilities”), to test all staff for COVID-19 twice per week.  Staff who refuse to be tested will be deemed to have incomplete health assessment and will be prohibited from providing services until the test has been performed.

By May 13, 2020, facility administrators are to derive a plan to arrange the tests for the staff and file the plan with the Department of Health.  Additionally, by May 15, 2020, the order requires all facilities to submit a certificate of compliance with this order, as well as all applicable directives of the Commissioner of Health.  Facilities are also required to report any positive test results to notify the Department of Health by 5:00 p.m. of the day following receipt of the results.

Lastly, and significantly, the executive order mandates hospitals to not discharge a patient to a facility unless the facility administrator has certified that it is able to properly care for such patient and the patient has been tested negative for COVID-19. This order is to remain in effect until June 9, 2020.

Any facility that violates this executive order or the directives issued by the Commissioner of Health may have its operative certificate suspended or revoked.  Facilities that fail to comply may also be subject to a penalty of $2,000 per violation per day, with subsequent violations up to $10,000 per violation per day.

New Jersey

On May 12, 2020, New Jersey’s Health Commissioner signed an Executive Directive requiring all long-term care facilities, including nursing homes, assisted living residences, comprehensive personal care homes, residential health care facilities, or dementia care homes (“LTC”), to amend their outbreak plans (“Plan”) by May 19, 2020, to provide for COVID-19 baseline testing of all staff and residents by May 26, 2020.  Those who test negative must be retested within three to seven days after the baseline testing.  The Directive provides that any further testing, as well as the treatment of staff who test positive, should be in accordance with the CDC’s guidelines on Testing for Coronavirus in Nursing Homes.

The Plan must also address:

  • Testing procedures and frequency;
  • Post-testing protocols for patients such as cohorting of residents/patients and separation of those with laboratory confirmed COVID-19 infection from others;
  • Procedures to obtain staff authorizations for release of laboratory test results to the LTC so as to inform infection control and prevention strategies;
  • Work exclusion of staff who test positive for COVID-19 infection, refuse to participate in COVID-19 testing, or refuse to authorize release of their testing results to the LTC, until such time as such staff undergoes testing and the results of such testing are disclosed to the LTC;
  • Return to work protocols’ after home isolation for staff who test positive; and
  • Plans to address staffing (including worker absences) and facility demands due to the outbreak.

LTCs are required to submit attestations to the Department of Health by May 19 and May 26 that they are in compliance with requirements in the Directive.  Failure to comply with the Directive may result in license suspension or revocation.

In addition to complying with the strict and immediate requirements in the New York Order and New Jersey Directive, facilities must ensure they are confidentially maintaining any test results separate from employee personnel files in compliance with the Americans with Disabilities Act.