Category: COVID-19

UK Imposes Strict Quarantine Requirements for Passengers From ‘Red List’ Countries

On 15 February 2021, the UK government imposed stricter requirements on individuals travelling or transiting from any of the 33 countries (‘red list countries’) that have had a travel ban to England applied. Separate advice applies to Scotland, Wales, and Northern Ireland.

Only British citizens, Irish citizens, and those with UK residence rights are able to enter the United Kingdom if they have visited or transited through a red list country in the 10 days prior to entry to England.

These individuals will need to quarantine in a government-managed hotel for 10 days (11 nights) from the date of their arrival. They must also abide by the following requirements.

  • Individuals must only arrive at an authorised airport. According to the guidance, authorised aiports include only Heathrow Airport, Gatwick Airport, London City Airport, Birmingham-Shuttlesworth International Airport, and Farnborough Airport, although ‘[o]ther ports of entry may be added in the future.’ Passengers whose flights are due to arrive at a different airport must reschedule them to an authorised airport.
  • Individuals must provide a negative COVID-19 test to travel to the UK. The test must be taken in the three days prior to departure, and must be negative in order to travel or board the plane. Their results will need to be provided upon arrival in the UK, or else a fine of £500 could be imposed.
  • Individuals must reside in a government-managed hotel. The 10-day quarantine period must be in one of the government-managed hotels and reserved via the booking portal (before arriving in England). The fee for the ‘quarantine package’ for one adult is £1,750. To add another person over the age of 12 to the booking will cost £650, or £325 for a child between the ages of 5 and 12. This price includes transport to and from the hotel, meals, and COVID-19 testing on the second and eighth days of the 10-day quarantine period.
  • Individuals must complete an online ‘passenger locator form’ in the 48 hours prior to travelling to the UK. The form is intended to provide a passenger’s journey and contact details. Passengers who do not complete the form may face delays in entering England or they could be fined or refused entry. Once the form has been completed, passengers will receive a confirmation email with a document attached. The document will contain a QR code that will be scanned by the Border Force to confirm that the form has been completed successfully.

Sanctions may be imposed on passengers who provide false or deliberately misleading information on the passenger locator form. Passengers who provide inaccurate information may be fined ‘up to £10,000, imprisoned for up to 10 years, or both’. If the quarantine rules are broken, fines of up to £10,000 may be imposed.

The situation with COVID-19 and pre-entry requirements to the UK is constantly changing, and it is also likely that other countries may be added (or removed) from the red list. Individuals may want to review the guidance for updates and further information on how to quarantine when arriving in England.

The government also provides guidance for passengers who are not travelling to England from red list countries.

Wales

Passengers may not directly travel to Wales if they have visited or passed through a red list country in the previous 10 days. They must arrive through one of the designated ports of entry to the UK in England or Scotland and ‘isolate for 10 days in a managed quarantine hotel.’

They must also complete a passenger locator form, have proof of a negative COVID-19 test (taken no more than 72 hours before departure), and also take a test on or before the second day and on or after the eighth day of quarantining.

Scotland

Although part of the UK, different rules apply regarding quarantine for individuals arriving in Scotland. All travellers flying into Scotland from outside the Common Travel Area (not just the red-list countries) must book and pay for managed isolation in quarantine hotels. The Common Travel Area comprises of the United Kingdom, Ireland, the Isle of Man, and the Channel Islands.

The following requirements apply for individuals arriving by air into Scotland.

  • Individuals must provide a negative COVID-19 result during the three days before travel.
  • Individuals must ‘book and pay for managed isolation in a quarantine hotel for at least 10 days from the point of arrival’.
  • Individuals must ‘complete an online passenger locator form before travelling, and provide contact details, travel details and the address of [the] final destination’.
  • Individuals will also need to provide the booking reference for the quarantine package.
  • Individuals must be tested on the second and eighth days of the 10-day quarantine period.
  • Individuals must follow the national rules on ‘Coronavirus in Scotland.’
    © 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
    ARTICLE BY Ruhul K. Ayazi of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more, visit the NLR Immigration section.

Second Draw Paycheck Protection Program Loans: Answers to Employers’ Frequently Asked Questions

The Consolidated Appropriations Act (CAA), 2021 includes a provision that modified and extended the Small Business Administration’s (SBA) Paycheck Protection Program (PPP). Specifically, Section 311 of the Additional Coronavirus Response and Relief provisions of the CAA provides for PPP second draw loans for eligible businesses. Employers seeking a PPP loan may apply through March 31, 2021. Below are answers to some key questions regarding second draw PPP loans.

Question 1. What are some key distinctions between first and second draw PPP loans?

Answer 1. Second draw PPP loans are intentionally narrower and smaller in terms of eligibility and amount. In order to be eligible, businesses must be able to demonstrate that they experienced a 25 percent reduction in gross receipts in a 2020 calendar quarter compared to the same quarter in 2019. While first draw PPP loans were capped at $10 million per borrower based on payroll costs in 2019, second draw PPP loans have a maximum of $2 million per borrower based on payroll costs in either 2019 or 2020. Additionally, first draw PPP loans were subject to a $20 million maximum for businesses that were part of a single corporate group, but second draw loans are subject to a $4 million maximum.

Q2. What employer missteps may impact forgiveness for PPP loans?

A2. A common mistake is not looking at the loan forgiveness application or their own data until after the conclusion of the “covered period.” This may limit a borrower’s ability to implement strategies that take advantage of the various safe harbors or exceptions to rules that reduce the amount of the loan that may be forgiven.

Another common mistake occurs when borrowers do not maintain PPP loan records in a centralized location, which may cause them to scramble to collect the information needed when they are completing the loan forgiveness application. In some instances, employers may not be able to find documents to substantiate unique situations, such as bona fide offers to rehire terminated employees that were refused or employee requests for reduced hours.

Q3. What steps might employers take to aid in managing the requirements for loan forgiveness?

A3. Borrowers may want to start contemplating loan forgiveness before they receive their loan disbursements. For example, in order to properly account for these funds, consider setting up a separate bank account to receive the PPP loan distribution. This step will streamline a borrower’s ability to track how each dollar of the loan is spent.

Borrowers may also want to contact their vendors shortly after receiving their loans to determine what type of reporting features may be available to help them document the permitted payroll and non-payroll costs during the covered period. Many vendors are producing standardized PPP loan reports that facilitate a borrower’s ability to complete the loan forgiveness application.

Q4. Are there any special considerations in the PPP loan process?

A4. In an effort to provide targeted relief to businesses that have been hardest hit by the pandemic, there are special rules in place for determining eligibility and the maximum amount of the PPP loans for borrowers that are in the hotel or restaurant industries (those with an NAICS code beginning with 72).

Borrowers that receive a loan in excess of $2 million are subject to a higher level of scrutiny and review following submission of their loan forgiveness applications. In addition to a mandatory SBA audit, such borrowers also need to complete an additional loan necessity questionnaire on SBA Form 3508 or 3509 (depending on their for-profit status).

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

ARTICLE BY Michael K. Mahoney of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
For more, visit the NLR Coronavirus News section.

Vaccine Volunteers: Is “Thank You” Sufficient Compensation?

The Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees at least minimum wage for all hours worked up to 40 hours in a workweek and time and one-half for all hours worked over 40 hours in the same workweek. An exception to this rule exists for volunteers, who are not categorized as “employees” under the statute. Typically, volunteers are individuals who donate their time to non-profit, civic, religious, and other charitable organizations.

In light of the COVID-19 pandemic and the urgency to administer vaccines as quickly as possible, hospitals and healthcare facilities are relying on volunteers to assist in organizing vaccine distribution. Employers may want to review their program to ensure volunteers are donating their time in a way that does not run afoul of the FLSA.

Unfortunately, no bright-line rule exists to determine whether an individual is volunteering his or her time or performing compensable work under the FLSA. Instead, this determination hinges, in large part, on the type of work performed by the individual.

If an individual is performing service that relates to commercial activities, he or she will likely be considered an employee under the FLSA, and therefore entitled to wages. For example, an individual who “volunteers” his or her time working at the hospital gift shop may be entitled to compensation under the FLSA. Further, if a volunteer performs tasks on a full-time schedule, is retained for an indefinite period, or displaces a regular employee, it is likely the FLSA would categorize this individual as an employee who should be paid wages for all hours worked.

Recently, some hospitals have been faced with situations in which employees offered to volunteer their time after their shifts to perform the same types of services they are otherwise employed to provide. For example, a nurse employed at a hospital to administer the COVID-19 vaccine to patients during her regular working hours may volunteer to continue vaccinating patients after her assigned shift. Because this is likely impermissible “volunteer” work under the FLSA, the nurse may be entitled to compensation for any hours worked after her shift.

Another similar situation would be when a retired nurse wants to assist with clinical aspects or vaccine administration on a volunteer basis. For the same reasons noted above, this may also be problematic. Employers may want to review each situation on a case-by-case basis and proceed with caution. At a minimum, the employer may want to consider the below recommendations before classifying the returning nurse as a volunteer—who will likely be working alongside paid employees performing the same tasks.

So how can hospitals and similar facilities potentially use volunteers? Some ideas that may be permissible under the FLSA include: organizing the hospital’s vaccine distribution process, including ensuring patients waiting for their vaccine are wearing masks and staying six-feet apart in a line (among other safety recommendations); helping with check-in and other administrative work; and answering questions from patients.

If permitting volunteer work, healthcare employers may want to consider asking volunteers to sign authorization or other written forms that acknowledge the volunteers are knowingly and willingly donating their time to specific tasks and that the duration of the work is temporary. This type of acknowledgment may help to verify that the volunteer and employer are aligned in terms of the work performed, their relative expectations, and the (lack of) compensation provided.

With hospitals and other healthcare distribution facilities maintaining a commitment to administer the vaccine as effectively and efficiently as possible, volunteers are a key part of this mission. Many roles may exist for volunteers that comply with the FLSA and applicable state laws. While employers may want to carefully consider each situation and take precautions, the additional assistance provided by volunteers may be worthwhile to service communities and provide a quick and seamless process to administer vaccinations. At the very least, employers may want to ensure that volunteers are receiving proper recognition and resources for their time, even if it is a simple “thank you.”

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved
ARTICLE BY John B. Brown and Jamie E. Brod of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

White House Issues PPP Reforms

Today, the White House announced several reforms to the PPP Program aimed at targeting funds to the smallest businesses and those that have been left behind in previous relief efforts.

The key reforms are as follows:

  • 14-Day Exclusivity Period. From February 24 – March 10 only businesses with fewer than 20 employees can apply for PPP.
  • Revisions of Loan Calculation Formula. The loan calculation formula for sole proprietors, independent contractors, and self-employed individuals will be revised to offer more relief. Additionally, $1 billion will be set aside for businesses in this category without employees located in low- and moderate-income areas.
  • Removal of Restrictions on Eligibility.
    • Businesses with at least 20% owned by individuals who have committed a felony within the last year (except for financial-assistance related fraud) are now eligible for PPP, unless the applicant or owner is incarcerated at the time of the application.
    • Restrictions on eligibility for businesses with at least 20% owned by individuals who are delinquent on federal student loans will be removed.
  • Clarification of Non-Citizen, Lawful U.S Resident Eligibility. The SBA will issue clarifying guidance that holders of Individual Taxpayer Identification Numbers (“ITINs”) may access PPP if otherwise eligible.

The full White House briefing can be found here. SBA guidance on these matters will be forthcoming.

© Polsinelli PC, Polsinelli LLP in California

ARTICLE BY Philip G. Feigen and Sara C. Ainsworth of Polsinelli PC
For more, visit the NLR Coronavirus News section.

Food & Food Packaging Is Unlikely to Spread COVID-19

The U.S. Food and Drug Administration (FDA) and Department of Agriculture (USDA) published a press release yesterday underscoring the international consensus that no credible evidence shows that food or food packaging is a source of viral transmission of SARS-CoV-2, the virus that causes COVID-19.

The press release highlights a September 2020 opinion from the International Commission on Microbiological Specifications for Foods that stated, “Despite the billions of meals and food packages handled since the beginning of the COVID-19 pandemic, to date there has not been any evidence that food, food packaging or food handling is a source or important transmission route for SARS-CoV-2 resulting in COVID-19.”  This consensus is consistent with literature reviews and research in other countries, and the fact that in the 100 million cases of COVID-19 worldwide, no epidemiological evidence suggests food or food packaging is a source of transmission to humans.

The U.S. Centers for Disease Control and Prevention (CDC) together with the U.S. Occupational Safety and Health Administration (OSHA) have provided guidance for food manufacturers to reduce the risk of spreading COVID-19 between workers. These guidelines complement the USDA and FDA food safety requirements that all U.S. food manufacturers must follow, such as the current Good Manufacturing Practices and preventative controls that focus on good hygiene practices and worker safety.

© 2020 Keller and Heckman LLP
For more, visit the NLR Biotech, Food, Drug section.

Stumbling Through Securities Law Challenges for COVID-19 Vaccine Developers

As the world waits to overcome the COVID-19 pandemic, publicly traded pharmaceutical companies waging in that fight are facing the multifaceted challenge of developing COVID-19 responses, informing the public of their progress, and managing legal challenges related to their efforts. Enter AstraZeneca.

AstraZeneca partnered with Oxford University to develop a COVID-19 vaccine in April 2020, which it later called “AZD1222.” On May 21, 2020, the company announced that the United States government was providing more than $1 billion for the development, production and delivery of the vaccine. Over the course of the next six months, the company continued to make public announcements on further financial support agreements and interim development results on its vaccine progress.

On January 26, 2021, an institutional holder of AstraZeneca’s American depositary shares (“ADSs”)” filed a putative securities class action complaint in the United States District Court for the Southern District of New York. The plaintiff claims that between May 21, 2020, and November 20, 2020, AstraZeneca failed to disclose certain alleged errors and flaws in AZD1222’s clinical trials.  According to the complaint, analysts and industry experts began to raise questions after AstraZeneca’s November 23, 2020 disclosure of an interim analysis of two smaller scale trials of the vaccine in disparate locales with two different dosing regimens. This disclosure purportedly resulted in a decline of nearly $2 per ADS during the trading day on November 23, 2020.

The complaint goes on to allege that post-class period reports revealed that AstraZeneca failed to disclose (i) that initial AZD1222 clinical trials had suffered from a critical manufacturing error, resulting in a substantial number of trial participants receiving half the designed dosage; (ii) that clinical trials for AZD1222 consisted of a patchwork of disparate patient subgroups, each with subtly different treatments, undermining the validity and import of the conclusions that could be drawn; (iii) that certain clinical trial participants for AZD1222 received the second dose up to several weeks after the dose had been scheduled to be delivered according to the original trial design; (iv) that AstraZeneca had failed to include a substantial number of patients over 55 years of age in its clinical trials for AZD1222; and (v) that AstraZeneca’s clinical trials for AZD1222 had been hamstrung by widespread flaws in design, errors in execution, and a failure to properly coordinate and communicate with regulatory authorities and the general public.  Based on these purported problems, the complaint contends that the data and conclusions that could be derived from the clinical trials were of limited utility, and AZD1222 was unlikely to be approved for commercial use in the United States in the short term. The complaint also alleges that AstraZeneca’s disclosures undermined confidence in AZD1222 and may have eroded public trust in the COVID-19 vaccine development process.

Interestingly, this complaint was filed the day after Merck & Co., Inc. announced its discontinuation of development of its own SARS-Cov-2/COVID-19 vaccines, following review of Phase 1 clinical trials  As of the date of this post, Merck’s stock price trades at $75.60 as compared to $80.98 on January 22, 2021.

Nevertheless, on February 10, 2021, the World Health Organization published interim recommendations for use of the AZD1222 vaccine developed by AstraZeneca and Oxford University, concluding that “the known and potential benefits of AZD1222 outweigh the known and the potential risks” and recommends “an interval of 8 to 12 weeks between the doses.” That announcement came after the complaint against AstraZeneca was filed, but may alter the course of the litigation as it moves forward.

© 2020 Proskauer Rose LLP.
ARTICLE BY Mee (Rina) Kim of Proskauer Rose LLP

Understanding the Four Goals of Biden’s “American Rescue Plan”

President Joe Biden announced his plan for a new COVID-19 relief package on January 20, 2021 – the day he took office. He, along with Democrat leadership, attempted to gain bipartisan support for the legislation, but ultimately failed to gain Republican support to proceed with the measure. Instead, Democrats will use the budget reconciliation process to pass the relief package with a simple majority vote.

In total, it is a $1.9 trillion plan with the stated goals of: (1) funding a comprehensive COVID response plan, (2) delivering relief to working families, (3) supporting communities that are struggling, and (4) protecting against future cyberattacks. Read on for the top details to know about the plan:

  • The comprehensive COVID response includes creating a national vaccination program, scaling up testing, and working to re-open schools.
  • The relief for working families is the most wide-ranging of the goals. It consists of:
    • Direct payments of $1,400 per person to households under a certain income threshold across America.
    • Increasing the minimum wage from $7.25 per hour to $15 per hour by 2025.
    • Expanding unemployment insurance benefits by providing an additional $400 per-week supplement to those in need through August 2021. This measure will also expand benefits for “gig” workers and extend the amount of time that unemployed individuals can qualify for payments.
    • Working to solve hunger problems by extending the 15 percent SNAP benefit increase and investing $3 billion in WIC.
    • Expanding tax credits for low- and middle-income families to $3,000 from $2,000 for any child 17 and younger.
    • Boosting and expanding Medicaid coverage by allowing state programs to penalize drug companies for drug pricing hikes. It also includes new incentives to encourage states to expand Medicaid under the Affordable Care Act. This would be the first expansion of ACA subsidies in over 10 years.
  • To support communities, the plan aims to:
    • Provide support for small businesses.
    • Provide $130 billion for K-12 schools to access the resources they need in order to safely reopen by hiring more staff and putting in place new testing protocols. It may also include $25 billion for childcare centers and $35 billion for colleges and universities.
    • Send $350 billion to state, local, and territorial governments, along with $20 billion for public transit systems. This is an area of partisanship, as Democrats have been pushing for more funding for several months and Republicans see it as a bailout.
  • The cybersecurity efforts included are largely in response to the recent SolarWinds breach of federal systems. The plan funds modernization of federal IT and networks. The Administration also indicated that the modernization will assist with the COVID-19 vaccine process.

The timing for this bill is still up in the air. President Biden set a deadline of March 14 for passage, as that is when the current funding for extended unemployment insurance expires. That will require Congress to work quickly, and they are attempting to meet the deadline; however, Congress is simultaneously working to confirm Biden’s nominees to his administration and holding an impeachment trial for former President Trump.

Congress’s process began last week when the House and Senate passed and adopted a budget resolution. Over the next few days, House committees will work on marking up and drafting legislation, which will then get sent to the Budget Committee, the Rules Committee, and, eventually, to the floor for a vote. After its expected passage in the House of Representatives, the bill will be sent to the Senate, where it is also expected to pass on a party-line vote. Finally, it will be sent to President Biden for his signature.

© 2020 Foley & Lardner LLP

ARTICLE BY Jared B. Rifis and Kate M. Merrill of Foley & Lardner LLP
For more, visit the NLR Coronavirus News section.

COVID-19 Weekly Newsletter: Biden Administration Rolls Out COVID-19 Response

Wednesday marked the beginning of a new presidency and with it a new chapter in the U.S. COVID-19 response. The Biden administration immediately unveiled a number of executive orders designed to take control of the pandemic.

Executive Orders & COVID-19 National Strategy

President Biden signed a series of executive orders (EOs) in his first two days in office intended to curb the pandemic — in the same week in which the total death toll exceeded 400,000. The COVID-19 EOs require face masks and social-distancing practices on federal property and while traveling via certain modes of domestic transportation; give the COVID-19 response coordinator the authority to convene and tap relevant domestic and global agencies to coordinate efforts; require all international travelers to the U.S. to have a negative test prior to entry; establish a COVID-19 Health Equity Task Force; enhance data collection and collaboration efforts; and establish a Testing Board and free testing — specifically closing a loophole that previously existed that allowed private plans to charge asymptomatic individuals who wanted to get tested on their own. In addition, Biden invoked the Defense Production Act to secure the supply chain of needed materials: vaccines, personal protective equipment (PPE), etc. On Thursday, Biden released a 200+ page strategy to combat the pandemic.

Vaccine Distribution Hiccups Nationwide

New York City had to cancel over 20,000 vaccine appointments this week as their supply ran dry, a step many other states had to take for similar reasons. The city is considering using its 65,000 stock of the second dose of the vaccine to close the supply gap. Some states are pulling back on their vaccine allocation criteria to narrow the number of eligible individuals to match their scarce supply. Last week’s White House announcement encouraging states to expand vaccination to individuals over 65 led many states to believe they would receive shipments from the feds to meet the new guidance; however, it was determined that the federal government’s stockpile was dried up as well. California is considering prioritizing those 65-plus over those with high-risk occupations for easier logistical distribution. In the meantime, Pfizer this week indicated interest in working with the Department of Health and Human Services (HHS) on a distribution model that would allow state governments to buy directly from them.

Sequencing COVID-19 Samples

The Centers for Disease Control and Prevention (CDC) on Monday secured a contract with Quest Diagnostics to do genomic sequencing of the COVID-19 virus. This news comes two weeks after LabCorp signed the same in an effort to expand the CDC’s genomic sequencing capabilities. The data from private laboratories will be combined with data coming from public health and academic laboratories nationwide to assist in identifying mutations, prevalence and patterns of transmission.

Concerns of New COVID-19 Variants

Several new variants of COVID-19 have been discovered recently in the U.K., Brazil, South Africa and possibly California. Preliminary reports indicate that while these variants are more easily transmitted, they do not seem to result in increased mortality. These new variants are raising concerns on the effectiveness of the three main COVID-19 vaccines from Pfizer BioNTech, Moderna and AstraZeneca currently being administered all target the spike protein (S-protein) where these variants have mutations. For the U.K. variant, it is predicted that these vaccines will still be effective, and preliminary data on the effectiveness of the Pfizer BioNTech vaccine supports that theory. For the South African variant, there is more concern that one mutation in the S-protein called E484K may reduce the effectiveness of the vaccines. Preliminary data on the South African variant has demonstrated that this variant is less affected by the immune responses from previous infections. The Brazil variant has been reported to have this same E484K mutation as the South African variant. More experiments are underway to further assess the effectiveness of the vaccines against these variants. It should be noted that if any of these and other variants are found to be less susceptible to these vaccines, given the high effectiveness of these vaccines they will likely still have levels of effectiveness above the World Health Organization threshold of 50%.

Vaccine Side Effects Continue To Be Studied

Vaccines being administered in the U.S. under emergency use authorization have been carefully studied in tens of thousands of people, and further studies are ongoing — in part, to better understand all possible effects of vaccines in diverse populations. For example, the age of participants ranged from 16 to 89 years old in the BNT162b2 vaccine study group and from 18 to 95 years old in the mRNA-1273 study, indicating the vaccines are safe and effective in both old and young adults. On the other hand, information about the impact of serious underlying health conditions and multiple medications is still limited. The vaccines have now been administered to millions of people, leading to a slow accumulation of observations of health problems and even deaths which occurred shortly after the vaccine administration and which may or may not have been caused by the vaccine — see here, here and here. Severe allergic reactions seem to be one of the acknowledged potential side effects, and a number of other possible reactions have now been documented, including itch, rash, swelling and mild respiratory symptoms. A continued collection and analysis of real-world data is critical to establishing the safest and most effective protocols to vaccinate entire populations.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.
ARTICLE BY James M. Vergis, Ph.D., Sarah-Lloyd Stevenson and Nisha K. Quasba of Faegre Drinker
For more, visit the NLR Coronavirus News section.

Can U.K. Employers Make COVID-19 Vaccinations Mandatory?

So, can employers mandate that their workforce receive the vaccine? Employers have a legal duty to ensure the health and safety of their workforce as far as reasonably possible, so such a requirement would appear to be an effective means of satisfying this duty. However, whilst there may be certain settings where such a requirement is reasonable — for example, in health care or other high-risk areas — employers should be very cautious about pursuing a policy of mandatory vaccination since this could have a number of legal implications.

Primarily, such a policy could expose an employer to claims, including for discrimination and/or constructive dismissal if an employer were to take detrimental or disciplinary action because an employee refuses to be vaccinated and such refusal is related to a characteristic that is protected under U.K. discrimination law (namely, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation). For example, there is a risk of maternity or disability discrimination where employees who are pregnant or suffering from a medical condition that amounts to a disability are not able to have the vaccine and are consequently treated less favourably by their employer than employees who have had the vaccine. Likewise, such a requirement could also amount to age discrimination if younger employees, who are likely to be the last category of people being offered the vaccine as part of the NHS rollout, are treated less favourably than older employees who have had the vaccine.

A policy of mandatory vaccination could also infringe employees’ right to privacy under Article 8 of the Human Rights Act 1998. Technically an employer may be able to justify such a breach, but this is likely to be difficult where less personally invasive measures are available to employers to maintain the health and safety of their workforce, such as social distancing and the wearing of face coverings.

Employers should also consider the data protection implications of mandating vaccinations since holding data on whether an employee has had the vaccine is likely to be considered a special category of data under applicable data protection law (meaning that it needs more protection because it is sensitive). In order to lawfully process such data, there must be a lawful basis for the processing, and additional conditions and supporting documentation must be put in place, including conducting an impact assessment to identify and minimise any risks.

Whilst a policy of mandatory vaccination may present difficulties from a legal perspective, employers may want to put in place nonmandatory guidance about the vaccine to encourage their employees to have it. Additionally, employers should not rely on vaccination to replace other protective measures in the workplace, such as social distancing and the wearing of face coverings, and should continue to assess their workplace risks as the pandemic unfolds.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.

ARTICLE BY Alex Denny and Emma Vennesson of Faegre Drinker
For more, visit the NLR Labor & Employment section.

Want to Know if Your Employees Received the COVID-19 Vaccine? Some Best Practices to Consider

While its rollout has been slow, the vaccine is being administered across the U.S. and in other countries. As of January 15, 2021, nearly 36 million doses of a COVID-19 vaccine have been administered, just over 11 million in the U.S. For a variety of reasons, organizations want to know whether their workforce members (employees, contractors, etc.) have been vaccinated. Some are trying to assess prospects for return to work, while others want to provide incentives to get the vaccine, and still others are managing customer demands to know if their vendor’s workforce has been vaccinated.

The EEOC has provided some guidance on the issue:

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

So, based on the answer to the question posed above, we know the EEOC’s position is that asking or requiring employees to provide information on whether or not an employee was vaccinated is not a disability-related inquiry under the Americans with Disabilities Act (ADA). But that may not be the end of the inquiry. These are several considerations and best practices that organizations might consider before putting such requests to their workforce members.

  • Who wants the information, and why? As noted above, there could be several reasons for wanting to ask employees about their vaccination status. Those reasons can affect compliance and best practice considerations. For example, if an organization is working to accommodate customer demands for vaccination status of the organization’s employees who are performing services at the customers’ facilities, the organization might want to consider, among other things:
    • Does it need to provide the information to the customer?
    • Is consent/authorization necessary?
    • How should the information be transmitted?
    • Who at the customer would have access to that information?
    • Will the customer safeguard it?
  • What steps can be taken to limit compliance risk? If an organization decides to ask workforce members about their vaccination status, there are steps it can take to minimize compliance risk. For instance, an organization can minimize the chance of an ADA violation by (i) designing the request so it is not likely to elicit information about a disability, (ii) not asking why an individual did not receive a vaccination, and (iii) warning the employee not to provide any medical information as part of the requested proof of receipt of a COVID-19 vaccination. Similarly, employers that are subject to the California Consumer Privacy Act (CCPA) and wondering whether their notice at collection to California employees needs to cover vaccination information may decide to provide notice in the abundance of caution.
  • Is it necessary to even ask employees directly…couldn’t the organization look at its health plan’s claims information for vaccine-related administration charges? Aside from being arguably more administratively difficult, this method likely would be considered a violation of the HIPAA privacy rule. Plan sponsors may not use protected health information under HIPAA for an employment purpose without the employee’s authorization.  
  • Does the collection and processing of vaccination information raise data privacy and security risks? Even if making the request is not a disability-related inquiry, it may be considered a medical inquiry, and the employee’s response, confidential medical information. While not subject to HIPAA in the employer-employee context, this information still may have protections under state statutory and common law. Consider, for example, that several states, such as California and Florida, include “medical information” as part of the definition of “personal information” under their breach notification laws. Accordingly, if that information is breached, which could include access to the information by an unauthorized party, notification may be required.

Additionally, statutory and common law obligations exist to require employers to safeguard employee personal information, which may include information about their physical health, such as vaccination status. Thus, maintaining reasonable safeguards to protect such information is prudent. This might include access management measures and record retention and destruction policies. It also may include having clear guidelines for making disclosures of this information and determining whether an authorization is needed before such information may be disclosed or accessed by a third party.

These are just some of the issues organizations may find themselves grappling with as COVID-19 vaccinations become more available. Thinking them through carefully should help organization minimize their compliance and legal risks as they continue to manage their businesses through this pandemic.

Jackson Lewis P.C. © 2020
ARTICLE BY Joseph J. Lazzarotti of Jackson Lewis P.C.
For more, visit the National Law Review Coronavirus News section.