Category: Administrative & Regulatory

As Local Mask Mandates Expire, How Should Employers Respond?

Following the May 13, 2021, and May 16, 2021, guidance from the U.S. Centers for Disease Control and Prevention (CDC) relaxing mask requirements for fully vaccinated individuals outside of healthcare and select other settings, most state and local government mask mandates have been lifted or will soon be allowed to expire. As a result, many employers across the U.S. are exploring their options regarding their masking policy.

Recap of the CDC’s guidance

The CDC’s guidance states that fully vaccinated individuals “can resume activities without wearing a mask or staying 6 feet apart, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”

Essentially, this means that fully vaccinated individuals can leave their masks at home unless a state or local mask mandate or a business’ policy says otherwise. The CDC also suggests fully vaccinated individuals with compromised immune systems ask their healthcare provider about continuing to wear a mask and/or social distance.

As for unvaccinated individuals, the CDC recommends continuing precautions, including wearing a mask and social distancing.

WHAT DOES IT MEAN TO BE FULLY VACCINATED?

According to the CDC, individuals are considered fully vaccinated:

  • Two weeks after their second dose in a 2-dose vaccine series, such as the Pfizer or Moderna vaccines
  • Two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine

Also at the federal level, the Occupational Safety and Health Administration (OSHA), which oversees workplace safety, directed employers to the new CDC guidance. However, employers should be aware that OSHA continues to consider an Emergency Temporary Standard which may include mask guidance and requirements.

Expiring local orders

State and local laws mandating masks continue to decrease in number and Wisconsin is following this trend. On March 31, 2021, the Wisconsin Supreme Court invalidated the statewide mask mandate. On June 1, 2021, the City of Milwaukee’s mask ordinance will expire, and the City of Madison’s and Dane County’s joint mask requirement ends June 2, 2021.

Three common approaches to changing workplace mask policies

Considering recent changes in state and local mask mandates as well as mounting pressure from employees to make policy adjustments, many non-healthcare employers are changing their mask policies. Although there has been a spectrum of approaches, the following are three common ones:

1. WAIVING MASK REQUIREMENTS FOR FULLY VACCINATED EMPLOYEES

Many employers are sticking closely to the recent CDC guidance by retaining a mask requirement for employees who are not fully vaccinated and allowing fully vaccinated employees to forgo masks. A key decision point for employers when choosing this approach is whether to require proof of vaccination. Many employers are relying on the honor system as there are important legal considerations before asking employees about their vaccination status.

2. RETAINING MASK REQUIREMENTS REGARDLESS OF VACCINATION STATUS

Some employers are retaining mask requirements for all employees. Reasons for this may include: an inability to socially distance in the workplace, uncertainty regarding the potential OSHA standard or a local order requiring that masks remain in place.

3. ELIMINATING THE MASK REQUIREMENT ALTOGETHER

Some employers are eliminating mask requirements for all employees. Reasons for this approach may include: a fully vaccinated workforce, an outdoor work environment or the ability to socially distance during the entire workday with limited crossover. It is important to note that this approach carries the most risk for employers because the CDC still recommends masking in public spaces in certain instances, like being unvaccinated, and OSHA continues to consider an Emergency Temporary Standard.

Communicate any changes and be clear that unmasking is optional

Any changes to an employer’s mask policy should be formally communicated to employees via the same methods used to convey general workplace guidance. Such policy changes should emphasize that unmasking, as allowed by the policy, is optional, thereby allowing individuals who wish to continue masking, for whatever reason, to do so.

Each approach comes with varying legal risks and benefits, depending upon the specific facts related to the workforce, industry and other variables. Employers considering changes to their mask policies should contact legal counsel to discuss these issues and update their COVID-19 safety plans to reflect any changes to their practices.

Copyright © 2021 Godfrey & Kahn S.C.

ARTICLE BY Rebeca M. Lopez and Sarah K. Mueller
of Godfrey & Kahn S.C.
For more articles on mask mandates, visit the NLRCoronavirus News section.

IRS Guidance Clarifies “Involuntary Termination” for the COBRA Subsidy

In Notice 2021-31, the Internal Revenue Service (IRS) provides broad guidance in a question-and-answer format on the application of the American Rescue Plan Act of 2021 (ARP) regarding premium assistance under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) continuation coverage provisions. Perhaps most critical for group health plan administrators and insurers, the IRS has defined and illustrated the use of the term “involuntary termination of employment,” which is the primary trigger (the other is a reduction in hours) for premium assistance obligations under the ARP.

Background

Section 9501 of the ARP provides for a temporary 100%reduction in the premium otherwise payable by certain individuals and their families who elect continuation coverage due to a loss of coverage as the result of a reduction in hours or involuntary termination of employment under COBRA (and, in certain cases, under state “mini-COBRA” laws). Such persons may be “Assistance Eligible Individuals” for whom group health plan administrators and insurers must provide certain notices and facilitate a premium reduction, if elected. For more background regarding the premium subsidy under the ARP, see our prior article.

What is an involuntary termination of employment?

The notice generally defines an involuntary termination of employment as follows:

a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee’s implicit or explicit request, where the employee was willing and able to continue performing services

Ultimately, however, the determination of whether a termination is involuntary is based on the facts and circumstances.

What are some examples of an involuntary termination of employment?

  • Good Reason – An employee-initiated termination of employment is involuntary if it occurred for good reason due to employer action that results in a material negative change in the employment relationship for the employee analogous to a constructive discharge.
  • Impending Termination – An employee-initiated termination of employment is involuntary if the employee was willing and able to continue performing services, but the employee initiated termination having knowledge that the employee would have otherwise been terminated by the employer.
  • Illness or Disability – An employer-initiated termination resulting from the employee’s absence from work due to an illness or disability is an involuntary termination if before the action there is a reasonable expectation that the employee would have returned to work after the illness or disability has subsided. However, mere absence from work due to illness or disability before the employer has taken action to end the individual’s employment is not an involuntary termination.
  • Cause – An employer-initiated termination of employment for cause is involuntary. However, if the termination is due to gross misconduct, the termination is not a qualifying event under COBRA and will not result in premium assistance.
  • Change of Work Location – An employee-initiated termination as the result of a material change in the geographic location of employment for the employee is involuntary.
  • Window Program – An employee-initiated termination of employment through a window program that is offered in connection with an impending termination and that meets the requirements of Treas. Reg. § 31.3121(v)(2)-1(b)(4)(v) is involuntary. Such a window program is generally one that provides an early retirement benefit, retirement-type subsidy, Social Security supplement, or other form of benefit for a limited period of time (no greater than one year) to employees who terminate employment during that period or to employees who terminate employment during that period under specified circumstances.
  • Nonrenewal – An employer’s decision not to renew an employee’s contract if the employee was otherwise willing and able to continue the employment relationship and was willing either to execute a contract with terms similar to those of the expiring contract or to continue employment without a contract is generally an involuntary termination. However, if the parties understood at the time they entered into the expiring contract, and at all times when services were being performed, that the contract was for specified services over a set term and would not be renewed, the completion of the contract without it being renewed is not an involuntary termination.

What are some examples of terminations of employment that are not involuntary?

  • Retirement – An employee’s retirement generally is not an involuntary termination. However, if the facts and circumstances indicate that, absent retirement, the employer would have terminated the employee’s employment, that the employee was willing and able to continue employment, and that the employee had knowledge that the employee would be terminated absent the retirement, the retirement is an involuntary termination.
  • Workplace Safety – An employee-initiated termination due to general concerns about workplace safety typically is not involuntary. However, if the employee can demonstrate that the employer’s actions (or inactions) resulted in a material negative change in the employment relationship analogous to a constructive discharge, the termination is involuntary.
  • Childcare – An employee-initiated termination resulting from the employee’s child being unable to attend school or because a childcare facility is closed due to COVID-19 generally is not involuntary.
  • Death – The death of an employee is not an involuntary termination of employment.

© 2021 Bradley Arant Boult Cummings LLP

ARTICLE BY B. David Joffe and Caleb L. Barron of
Bradley Arant Boult Cummings LLP
For more articles on free COBRA premiums, visit the NLR Coronavirus News section.

CBD Here, CBD There, CBD Everywhere: Tension Between State and Federal Authorities Leaves CBD Companies in Limbo

You can’t miss them: signs reading “CBD PRODUCTS SOLD HERE” are appearing in gas stations and drug stores across the country. Cannabidiol (“CBD”), a naturally occurring non-psychoactive compound derived from the cannabis plant, is a mainstream product marketed as a supplement that provides health benefits to its users. Proponents claim CBD provides pain relief and reduces feelings of anxiety and depression, among other health benefits. In 2018, the United States Food and Drug Administration (“FDA”) approved Epidiolex, a CBD oral solution, for the treatment of seizures associated with Lennox-Gastaut syndrome and Dravet syndrome, diseases that generally appear in early childhood.

While CBD’s effects are promising, the FDA considers CBD a “new drug” under the Food, Drug and Cosmetic Act (“FD&C”). Under the FD&C, it is generally illegal to introduce a new drug into interstate commerce. The question, therefore, begs – if the FDA considers the sale of CBD illegal, then why are we seeing CBD for sale everywhere?

In 2018, the Agriculture Improvement Act (“2018 Farm Bill”) removed hemp from the definition of marijuana under the federal Controlled Substances Act (“CSA”). Consistent with the 2018 Farm Bill, Pennsylvania adopted a Hemp Program. The program permits the Pennsylvania Department of Agriculture to grant licenses to entities to grow, cultivate, and sell hemp. Under the program, licensees are permitted to grow hemp for the purpose of producing CBD. Other states have adopted similar programs, and under lawful state programs, the industrial hemp industry is growing (pun intended). By 2024, the United States CBD market is expected to reach $20 billion in sales. By 2028,  the value of the global industrial hemp market is projected to reach $27.7 billion.

So what’s the hold up? Since 2015, the FDA has issued warning letters to more than a dozen CBD companies for alleged violations of the FD&C. In the warning letters, the FDA claims to have reviewed the companies’ websites (including social media accounts) for evidence of FD&C violations. The FDA explains that the marketed CBD products are “drugs” under the FD&C because the products are “articles intended for the use in the diagnosis, cure, mitigation, treatment, or prevention of disease and/or intended to affect the structure or any function of the body.” 21 U.S.C. § 321(g)(1). The FDA says that the products are “new drugs” because CBD is not generally recognized as safe and effective. See 21 U.S.C. § 321(p). Under the FD&C, new drugs may not be legally introduced or delivered for introduction into interstate commerce without prior approval from the FDA, or unless they are over-the-counter drugs lawfully marketed under 21 U.S.C. § 505G.

Clearly, there is conflict between state and federal authorities. While businesses face exposure under the FD&C, states like Pennsylvania permit CBD production. In the absence of regulation and consistent enforcement, it is likely that the CBD industry will continue to grow.  Due to the complexities in the laws, companies operating in the CBD sector may face difficulties in risk management, banking, and logistics. SMGG is tracking changes in the CBD laws and rulemaking process, and we are ready to advise you or your company in navigating CBD’s complex legal landscape.

©2021 Strassburger McKenna Gutnick & Gefsky

ARTICLE BY Matthew J. Morella of Strassburger McKenna Gutnick & Gefsky

Not With a Bang but a Whimper

In a non-precedential Order issued by the US Court of Appeals for the Federal Circuit—on remand from the US Supreme Court’s April 2021 decision upholding Google’s fair use defense to Oracle’s copyright infringement claim—the Court recalled its mandate in the case “solely with respect to fair use,” leaving intact the Federal Circuit’s May 2014 judgment favoring Oracle on the question of copyrightability. Oracle America Inc. v. Google LLC, Case Nos. 17-1118; 1202 (Fed. Cir. May 14, 2021)(PER CURIAM). After recalling its mandate, the Federal Circuit issued its order without further briefing by the parties.

© 2021 McDermott Will & Emery

ARTICLE BY Ewa A. Wojciechowska of McDermott Will & Emery
For more articles on IP law, visit the NLRIntellectual Property section.

The Need for Speed: Five Drivers Affecting Developments in Climate Action

Current climate action around the globe and in the U.S. signals the very real possibility that efforts to address climate change are not moving fast enough for some. The landmark Dutch court decision ordering Royal Dutch Shell PLC to cut 2019 greenhouse gas emissions levels by 45% by 2030 and the results of recent energy company shareholders’ meetings provide two examples, highlighting that change is in the air. We list five drivers, among many, affecting recent developments in climate action:

1. The Courts – Recent court verdicts are accelerating climate change action at home and abroad. In the U.S. Supreme Court, decisions on climate-related cases lodged by state and local governments are advancing climate issues toward a future Supreme Court ruling on whether climate torts belong in state or federal court. Citing its recent BP PLC et al. v. Mayor and City Council of Baltimore decision, the high court vacated and remanded First, Ninth, and Tenth circuits decisions, to allow for expanded jurisdictional reviews. In the Netherlands, a Dutch court ordered Royal Dutch Shell PLC to cut its greenhouse gas emissions to align with the Paris Agreement. This result could trigger “a wave of climate-related litigation.”

2. The Biden Administration – The Biden Administration’s “whole-of-government” approach to climate change is having an enormous impact. The President’s decision to rejoin to the Paris Agreement sends a message heard around the world that the U.S. is serious about climate change. The Administration’s full court press on climate issues encompasses everything from policies to federal appointees to the Social Cost of Carbon to a sustainable federal supply chain to the acceleration of the electric vehicle transformation.

3. Financial Governance – The Treasury Department’s new climate hub as well as the Securities and Exchange Commission’s anticipated climate-related disclosures requirement reflect the depth and breadth of renewed focus on climate change within the financial sector. Additional emphasis on Environmental, Social, and Governance (ESG) initiatives will include an environmental justice focus.

4. Investors – Climate action affected the latest shareholder votes within the energy industry. ExxonMobil shareholders elected two environmentally conscious directors to the board, while Chevron shareholders pushed the company to cut greenhouse gas emissions. Increasingly, those who finance businesses are getting involved in the climate change battle, as witnessed by Goldman Sachs’ $750B climate commitment, Citibank’s $1.5T sustainability program, and the global banking and insurance industry coalition, Glasgow Finance Alliance for Net Zero.

5. Demographics – It is clear that new voices are entering the climate change debate, with increasing influence. Millennials, Generation Z, and environmental justice communities in general view the climate issue differently than generations past. Industry must account for their perspectives and influence both today and tomorrow.

With these changes in the air, the regulated community will want to consider how to adapt to an accelerating climate change focus.

© 2021 Beveridge & Diamond PC

ARTICLE BY Jennifer J. Leech and Benjamin F. Wilson of Beveridge & Diamond PC

For more articles on climate, visit the NLR Environmental, Energy & Resources section.

A Return to Normal?

On Friday, May 28th, Governor Murphy will be lifting the State of New Jersey’s mask and social distancing mandate for mo2st businesses. That said, the most recent Executive Order makes clear that businesses can require mask use if they want and cannot stop people from wearing masks, if they so choose.

“Indoor public spaces” will no longer require masks or social distancing, HOWEVER, this does NOT include indoor worksites of employers that do not open their indoor spaces to the public for purposes of sale of goods, attendance at an event or activity, or provision of services. So in the typical closed office environment, individuals continue to be required to wear face coverings, subject only to exceptions that have previously existed, such as when employees are at distanced workstations or in their own offices, and shall continue to maintain six feet of distance from others to the maximum extent possible, except in the circumstances described therein. That said, if you have a business where customers are coming into the building to get products or services, mask use and social distancing will not be required by law. Additionally those who are not vaccinated are “strongly encouraged” to continue to wear a mask when indoors.

© 2021 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

ARTICLE BY Jay S. Becker,  Jeri L. Abrams and
Ari G. Burd of Giordano, Halleran & Ciesla, P.C.

For more articles on COVID-19, visit the NLR Coronavirus News section.

“We are not going to be moving slowly” SEC Director on ESG Disclosure Requirements

The Securities and Exchange Commission (SEC) requests public comments to be made ahead of their decision to possibly strengthen Environmental, Social, and Corporate Governance (ESG) disclosures for corporations. Specifically, this action would hold companies more accountable for their possible contributions to global climate decline. While the comment period is open until June 13th, SEC Director of the Division of Corporation Finance John Coates urges submissions sooner rather than later.

“We’re not going to be moving slowly,” Coates said in a round table discussion of the SEC action hosted by New York University Vincent C. Ross Institute of Accounting Research on April 30th. “We’re going to be moving relatively promptly on this front, and if you really want your contributions read, I would send them in earlier than June 13th.”

Coates assured that more detailed attention will go into the submissions received ahead of the deadline.

“If you get them in earlier… we will be able to spend more time carefully reading them right away. We will eventually process all of them, just to be clear, but it may take more time for the ideas of them to get into our head so sooner rather than later, would be great.”

Among the comments already submitted, there is a wide range of opinions on whether the SEC is overstepping its responsibilities in taking on climate issues by requiring more transparency from companies. While some commenters tell the SEC to leave any climate policy to elected officials, others are enthusiastic about more uniform and structured approaches to accountability.

Some opinions fall in the middle, where commenters want to see the SEC simply enforce existing guidelines, set by organizations such as the Task Force on Climate-Related Financial Disclosure (TCFD) and the Sustainability Accounting Standards Board (SASB), instead of creating new and possibly confusing procedures. This is in response to arguments that the current course of action in climate reporting is insufficient, and corporations have found ways to escape sharing climate impact with their shareholders in the past.

Kelsey Condon, a whistleblower attorney at Kohn, Kohn and Colapinto, published an article on this issue stating, “This policy change is important for whistleblowers to be aware of because a corporation’s misleading statements on these subjects are now likely to be treated as material by the SEC and may actually be prosecuted. Corporate insiders, i.e., whistleblowers, are well-positioned to report to the SEC when they know that a company’s statements about climate and ESG are false or designed to be misleading.”

And that, “Whistleblowers are a crucial source of information and evidence, providing a window into the opaque and sophisticated worlds of corporate inner workings and criminal networks, which law enforcement would otherwise not have. In this way, whistleblowers are our best hope for holding corporations to their environmental promises through such reporting. Now, the SEC may actually take action on such reports, and whistleblowers will enjoy the safeguards that come with reporting to the SEC, such as anti-retaliation protection, anonymity, and awards.”

With stricter regulations would come a greater need for those ready to blow the whistle on companies still failing to accurately communicate their environmental impact.

To read previously submitted comments, or submit your own, click here.

Copyright Kohn, Kohn & Colapinto, LLP 2021. All Rights Reserved.

ARTICLE BY Grace Schepis of Kohn, Kohn & Colapinto

For more articles on the SEC, visit the NLR Securities & SEC section.

Hello Again, Worlds: A Failed Gaming IPR Leads to § 101 Success

The tides have turned again in the litigation campaign against gaming companies by Worlds, Inc., who many may recognize as one of the named parties in often-cited Federal Circuit case law on real-parties in interest (“RPI”). In 2018, the Federal Circuit shook up the IPR landscape with a series of RPI decisions, starting with Wi-Fi One, LLC v. Broadcom Corp., which held that the PTAB’s time-bar determinations under § 315(b) are appealable. A series of frequently-cited Federal Circuit decisions followed, including Applications in Internet Time, LLC v. RPX Corp. and Worlds, Inc. v. Bungie, Inc.

In Worlds, Inc. v. Bungie, Inc., the PTAB issued final written decisions holding 34 out of 40 challenged claims unpatentable. On appeal, the Federal Circuit held that the petitioner bears the burden of persuasion for proving that the petition is not time-barred under § 315(b), meaning Bungie had the burden of persuasion to show that Activision—which had been served with a complaint more than one year before Bungie filed its petition—was not an RPI. The Federal Circuit vacated and remanded, and on remand, the PTAB vacated its final written decisions.

Those vacated IPR decisions laid the groundwork for invalidating Worlds’ patents. Recently, a U.S. District Court (D. Mass.) invalidated the asserted patents under § 101, based in part on the PTAB’s substantive analysis. See Worlds, Inc. v. Activision Blizzard, Inc., et al., No. 12-cv-10576-DJC, Dkt. 358 (D. Mass. Apr. 30, 2021) (“Decision”). The Court noted that the PTAB decisions were vacated on procedural grounds and considered the PTAB findings as persuasive authority. “Although now vacated, the substance of the PTAB’s prior rulings serves to support the Court’s analysis below that the client-side and server-side filtering of position information is not inventive.” Decision at 7-8.

The parties focused on four representative claims, including claim 1 of U.S. Patent No. 7,945,856 (the “’856 patent”).

For Step 1, World’s prior arguments, including in the IPR, were used against it. Worlds had argued that its patents were directed at a method of “crowd control” and that these claims are the filtering function to do so. Citing to those characterizations, the Court held the claims to be directed to “the abstract idea of ‘filtering’ (here of ‘position’ information”) which amounts to ‘crowd control.’” Decision at 14.

Activision argued that such filtering is “a fundamental and well-known concept for organizing human activity,” and that the claims do nothing more than recite a general client-server computer architecture to perform routine functions of filtering information to address the generic problem of crowd control. See Decision at 14 (citing BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1348 (Fed. Cir. 2016)). The Court agreed that this conclusion was consistent with Mayo, Alice, and other cases.

For Step 2, Worlds’ briefing relied heavily on BASCOM’s holding that an inventive concept “may arise … in the ordered combination of the limitations.” BASCOM, 827 F.3d at 1349 (emphasis added). Worlds argued that the claims teach an inventive ordered combination of steps: “a multistep process whereby a server receives position information of avatars associated with network clients; the server filters the received positions and then sends selected packets to each client,” whereby a client can then further determine which avatars to display.” See Decision at 17.

However, the Court held that “there is nothing in the ordering of the steps in the claims (i.e., receiving, determining, comparing) that make them inventive; the ‘steps are organized in a completely conventional way.’” Decision at 18. “The steps of the claims here use only ‘generic functional language to achieve the purported solution’ of filtering of position information for crowd control.” Id. (citing Two-way Media, Ltd. V. Comcast Cable Comms. LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017)). “None of the remaining claims are limited to ‘any specific form or implementation of filtering . . . .” Id.

While Worlds emphasized technical-sounding terminologies, such as clients, servers, avatars, networks, and packets, the Court noted that “[c]lient-server networks, virtual worlds, avatars, or position and orientation information are not inventions of Worlds but rather, their patents seek to demonstrate their use in a technological environment.” Decision at 19. “That is, Worlds’ asserted claims use a general-purpose computer to employ well-known filtering or crowd control methods and means that ultimately use same to display graphical results and generate a view of the virtual world, none of which is inherently inventive or sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application.” Id.

Notably, the briefing and the Court’s decision did not appear to rely on expert testimony or evidence in the district court litigation. Therefore, the PTAB’s technical analysis from its vacated decisions played an important role, providing the foundation for the Court’s conclusion that “client-side and server-side filtering of position information is not inventive.” Decision at 7-8.

While gaming companies must be mindful of the many potential procedural pitfalls in PTAB challenges, this recent decision shows the importance of attacking non-inventive patents using both § 101 and IPRs.

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.

ARTICLE BY Harper Batts and Jeffrey Liang of Sheppard, Mullin, Richter & Hampton LLP
For more articles on gaming IPR, visit the NLRIntellectual Property section.

Santa Clara County Orders Businesses to Track Employees’ COVID-19 Vaccination Status

Santa Clara County wasted no time in altering its public health regulations in response to the county’s graduation to the ‘yellow tier’ of California’s Blueprint For a Safer Economy on May 18, 2021.  Within hours, the County announced a new Public Health Order that went into effect on May 19, 2021.

The Order retires several of the most burdensome requirements of the County’s October 5, 2020, Risk Reduction Order.  As a result, businesses are no longer required to (1) maximize the number of people who work remotely; (2) submit Social Distancing Protocols to the County Public Health Department; or (3) observe County-issued limitations on in-person capacity.

However, the Order imposes several new requirements on employers, including:

  1. Face Coverings: All businesses must require employees and customers to wear face coverings in accordance with the Mandatory Directive on Use of Face Coverings.
  2. Capacity limitations: Some businesses remain subject to State-issued COVID-19-related capacity limitations and must limit the number of people inside their facilities to a certain percentage of their usual maximum occupancy.
  3. Industry-Specific Requirements: Businesses must follow any industry-specific guidance from the State.
  4. Mandatory Reporting Regarding Personnel Contracting COVID-19: Businesses must require that all personnel immediately alert the business if they test positive for COVID-19 and were present in the workplace either:
    1. within the 48 hours before the onset of symptoms or within 10 days after onset of symptoms if they were symptomatic, or
    2. within 48 hours prior to the date on which they were tested or within 10 days after the date on which they were tested if they were asymptomatic.

If a business learns that any of its personnel have tested positive for COVID-19 and were at the workplace during the specified time frame, the business is required to report the positive case within 24 hours to the County Public Health Department at sccsafeworkplace.org.

Businesses must also comply with all case investigation and contact tracing measures directed by the County.

  1. Ascertainment of Vaccination Status: Businesses must ascertain the vaccination status of all personnel. Under the order, personnel includes employees, contractors, and volunteers. Until a person’s vaccination status is ascertained, they must be treated as not fully vaccinated.  Personnel who decline to provide vaccination status must also be treated as unvaccinated.

Businesses must complete their initial ascertainment of vaccination status for all personnel within 14 days of May 19, 2021, or no later than June 1, 2021.  Thereafter, businesses must obtain updated vaccination status for all personnel who were not fully vaccinated every 14 days (e.g., June 15, June 29, July 13, etc.).  Businesses must maintain appropriate records to demonstrate compliance with this provision.  The County has provided a template self-certification form for this purpose.

  1. Mandatory Rules for Personnel not Fully Vaccinated: Businesses must require all personnel who are not fully vaccinated to:
    1. comply with all applicable provisions of the Mandatory Directive on Use of Face Coverings, and
    2. comply with all applicable provisions of the Health Officer’s Mandatory Directive on Unvaccinated Personnel.

In announcing the new Order, the County’s Health Officer indicated additional changes will occur in conjunction with California’s “reopening” on June 15, 2021.  Dr. Cody predicted the future changes will even further differentiate between vaccinated and unvaccinated people.

Employers doing business in the County must act quickly to reconcile their new obligations under the Order with other California laws, chiefly the Fair Employment and Housing Act (“FEHA”), which is enforced by the state’s Department of Fair Employment and Housing (“DFEH”).  The DFEH previously issued guidance for employers that will assist in this endeavor.

Jackson Lewis P.C. © 2021

ARTICLE BY Patrick C. Stokes and Kate L. Brown of Jackson Lewis P.C.
For more articles on COVID-19 Vaccination Status, visit the NLRCoronavirus News section.

The Trend Towards Legal Recreational Cannabis: Considerations for Employers

In the first four months of 2021, Virginia, New Mexico, New York and New Jersey passed laws legalizing or decriminalizing, in some form, recreational marijuana.  Exactly how these laws will affect employers in these states is still an open question, but for now, employers should understand the nuances of the laws so they can prepare for the emerging reality that is legal marijuana.

Recent Laws

New Mexico’s law, which takes effect in June 2021, legalizes recreational marijuana use and sales for people over age 21.  The law allows employers to test for marijuana but has protections for medical marijuana users, which means employers, with limited exceptions, are prohibited from taking adverse action against applicants and employees who have a prescription for and/or use medical marijuana.

New York’s law allows individuals who are at least 21 years old to possess, use, and transfer (without compensation) limited amounts of cannabis.  With some narrow exceptions, employers are prohibited from taking adverse employment action against employees solely because of their use, recreational or otherwise, of cannabis before or after their work hours.  Employers, however, may still prohibit employees from using cannabis while working, on the employer’s premises, or while operating or using the employer’s equipment or property.

New Jersey’s law legalized the sale, use and possession of recreational marijuana for individuals 21 and older.  The law does not restrict an employer from maintaining and enforcing drug-free workplace policies but, when it comes to marijuana, requires employers to show use and/or impairment at work, as opposed to off-duty use, before the employer can take adverse employment action.

Virginia’s new law (HB 2312 / SB 1406) legalizes home cultivation and personal possession of cannabis beginning July 1, 2021, and retail sales to individuals 21 years and older beginning January 1, 2024.  An amendment to existing law (HB 1862) provides employment protections for medical marijuana cardholders by prohibiting employers from terminating, disciplining, or otherwise discriminating against an employee “for such employee’s lawful use of cannabis oil pursuant to a valid written certification.”  While the statute provides anti-retaliation protections for an “employee’s lawful use of cannabis oil based on a valid written certification,” it does not: (i) restrict an employer’s ability to take adverse action for an employee’s impairment while at work or to prohibit possession during work hours; (ii) require an employer to commit any act that would cause the employer to be in violation of federal law or that would result in the loss of a federal contract or federal funding; or (iii) require any “defense industrial base sector employer or prospective employer” to hire or retain any applicant or employee who tests positive for marijuana in excess of specified amounts.  See our recent post concerning employment protections for medical use of cannabis oil.

Under each of these laws, the requirements employers must meet in order to justify adverse employment action can be difficult to ascertain.  Also, the various state administrative agencies tasked with providing guidance regarding these laws have not produced final versions of that guidance.  Even when such guidance is available, however, questions for employers will remain.  Much of what employers can and cannot do under these laws depends on the type of work in which the employees are engaged and the nature of the employment policies at issue.  There will likely not be a “one-size-fits-all” approach to navigating this new legal landscape and employers should be mindful of this as they contend with the prospect of broadening legalization of marijuana.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.
ARTICLE BY Michael Reed and Holly H. Williamson of Hunton Andrews Kurth
For more articles on legal cannabis, visit the NLR Biotech, Food, Drug section.