Category: COVID-19

Labor Shortage: Will Additional Seasonal Visas Help?

The United States is in the midst of a significant labor shortage. In response to the growing demand for labor, the U.S. government recently announced it will expand the number of H-2B visas available for seasonal workers this winter. Although the announcement is hailed by some as necessary, critics suggest the response may be insufficient to meet growing demand.

The Modern Labor Shortage

Following the economic turmoil spawned by the COVID-19 pandemic, the U.S. economy faces an unusual set of circumstances: instead of a lack of jobs, there is a lack of workers to fill available positions. Experts attribute the labor shortage to a number of potential causes, but some suggest a lack of immigrant labor is at least partially to blame. Due to lengthy processing times for immigration applications, foreign born workers hoping to enter the United States face unprecedented challenges obtaining the necessary paperwork to work here legally.

Biden Administration Expands Seasonal Visas

In response to the growing challenges of the labor shortage, the Department of Homeland Security (“DHS”) and the Department of Labor (“DOL”) recently announced they will issue a joint temporary final rule to make available an additional 20,000 H-2B temporary nonagricultural worker visas. These visas will be set aside for U.S. employers seeking to employ additional workers on or before March 31, 2022.

The visas are in addition to 33,000 visas already set aside for seasonal employers, marking a substantial 60% increase from the previous limit.

What is the H-2B Program?

The H-2B visa program allows U.S. employers who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. The industries most reliant on the H-2B program vary, but include landscapers, hotels, and ski resorts. By providing foreign workers to meet labor shortages in the United States, the program is meant to support the fluctuating needs of the U.S. economy.

The program has restrictions, however. The employment must be for a limited period, including seasonal or intermittent needs. To hire H-2B workers, employers must, among other things, certify to a lack of U.S. workers available to fill the position. Additionally, employers must certify that using the program will not adversely affect wages for similarly-employed U.S. workers.

Will Additional Seasonal Visas Be Enough?

Expansion of the H-2B program is being praised as necessary relief by some. However, others suggest it may not be sufficient to answer the growing labor demand in the country.

Business owners from Cape Cod, Massachusetts, hailed the news, citing the strained vacation industry that relies so heavily on seasonal workers to meet the high demand. Additional workers will provide necessary relief on many strained industries.

Steve Yale-Loehr, a professor of immigration law practice at Cornell, recently noted that if employers get past these hurdles, the visas could help the labor shortage, but only a little bit. After all, the labor shortage in the United States exceeds the additional 20,000 seasonal visas being offered. Recent estimates suggest 10.4 million jobs are available here. Moreover, applications under the H-2B program can be costly, forcing employers to weigh the financial implications of sponsoring workers under the program.

Article By Raymond G. Lahoud of Norris McLaughlin P.A.

For more immigration legal news, click here to visit the National Law Review.

©2022 Norris McLaughlin P.A., All Rights Reserved

At-Home COVID-19 Testing Options and Alternatives

In fulfillment of President Biden’s promise to make at-home COVID tests more available for all of us, two significant action steps have now occurred:

  1. Every U.S. household has access to free at-home COVID-19 tests. As of January 18, 2022, any individual with a residence in the United States may request up to four (4) at-home COVID test kits.  There is no cost to register or for the kits themselves.
  1. At-home COVID-19 testing is available at no cost without a prescription under an employer’s group health plan. On January 10, 2022, the Department of Labor (DOL) released updated guidance and an FAQ that, as of January 15, 2022, now extends an employer’s obligation to cover all types of COVID-19 tests, between those performed or prescribed by a physician or other health care provider,  and for in-home COVID-19 tests provided without a doctor’s order.

Key Points:

All group health plans and insurance carriers must now cover the cost of at-home COVID-19 test kits, passing none of that cost to employees or individuals covered under the plan, and without requiring a medical diagnosis or prescription from a health care provider.

  • The plan or insurer need not provide this coverage to employees not covered under the employer’s plan.
  • For these purposes, the coverage can be provided through an employer’s medical plan, pharmacy benefit plan/PBM, or both. Employers should discuss the options and costs for administering this arrangement under their particular plan with their brokers and consultants or insurance carriers.
  • The guidance allows a plan or insurer to meet this coverage obligation in one of two ways:
    • The plan can work with its insurance carrier or third-party claims administrator (TPA) to create “direct contract” arrangements with retailers (e.g., Walmart, RiteAid, Walgreens, etc.) and other insurance network providers to provide COVID tests to covered individuals at no cost to the individual at the counter; costs are negotiated and paid between the plan/insurer/TPA with the retail service provider directly.
    • Individuals can also purchase COVID tests through any other resource and submit the receipt for reimbursement through the plan or insurer’s established process, either through the insurance carrier, TPA or PBM. The maximum amount to be paid in reimbursement is the lesser of: (a) the actual cost of the COVID test; or (b) $12 per test (note: if the COVID kit comes with two tests, the cost to be reimbursed would be per test or a maximum of $24).  The plan or insurer does not have to reimburse for COVID tests purchased before January 15, 2022.
    • Suppose a plan or issuer is unwilling or unable to satisfy the above criteria in providing the opportunity to receive COVID testing coverage under either of the above criteria. In that case, the plan or issuer must still provide reimbursement of at-home COVID tests without the above cost limitations.
  • The plan or insurer can limit the total number of COVID tests to 8 per person per month (or 4 kits if the kit includes two tests). A separate limit applies for each covered family member (e.g., a family of 4 could receive up to 32 tests per month (or 16 kits, if it includes two tests each).  There is no annual maximum limit.
  • An individual need not provide proof of medical need, but the plan can require the individual to attest that they are purchasing only for personal use (not for resale).
  • Employers are encouraged to communicate to all covered individuals about the alternatives available and processes for seeking reimbursement of purchased tests.
  • The obligations for coverage of at-home COVID tests remain in effect for at least the remainder of the Public Health Emergency period, which has now been extended to at least April 15, 2022.
  • COVID testing and other related costs provided at a health care provider or other health care facility as part of a medical assessment must still be covered 100 percent by the plan or issuer without being subject to the test or cost limits that apply for over-the-counter COVID tests, under previous guidance under the CARES Act, and the First Families Coronavirus Response Act (FFCRA).

Employer sponsors of group health plans are likely to have received at least some information from their TPA, insurance carrier, or other brokers and consultants about the steps to be taken related to the guidance provided under the most recent DOL FAQ.

Jackson Lewis P.C. © 2022

Article By Brian M. Johnston of  Jackson Lewis P.C.

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

U.S. Supreme Court Lifts Preliminary Injunctions on Healthcare Worker Vaccine Mandate

On January 13, 2022, the United States Supreme Court upheld the Centers for Medicare & Medicaid Services (“CMS”) Interim Final Rule (the “Rule”) in a 5-4 decision, staying the preliminary injunctions issued for 24 states by the District Courts for the Eastern District of Missouri and the Western District of Louisiana.  Therefore, the CMS vaccine mandate is in full effect for all states except Texas, which was not part of the cases before the Court.  The Rule requires nearly all workers at Medicare- and Medicaid-certified facilities—whether medical personnel, volunteers, janitorial staff, or even contractors who service the facilities—to be fully vaccinated against COVID-19 unless they qualify for a medical or religious exemption.

The Court based its holding on two main points.  First, the Court held that Congress clearly authorized CMS to put conditions on funding it provides to the Medicare and Medicaid certified facilities.  The Court opined that perhaps CMS’s “most basic” function is to ensure that regulated facilities protect the health and safety of their patients, noting that Medicare and Medicaid patients are often some of the most vulnerable to infection and death from COVID-19.  Because CMS determined that a vaccine mandate is necessary to protect patient health and safety, the Court held the mandate “fits neatly within the language of the [authorizing] statute.”  The Court acknowledged that CMS has never required vaccinations in the past, but attributed this in part to the fact that states typically already require necessary vaccinations like hepatitis B, influenza, and measles for healthcare workers.

Second, the Court held that the mandate is not arbitrary and capricious, and cautioned the district courts that their role is merely to make sure an agency acts within the “zone of reasonableness.”  The Court found the administrative record sufficient to explain CMS’s rationale for the mandate and also accepted that getting the vaccine mandate in place ahead of winter and flu season satisfied the “good cause” standard for skipping the notice and comment period.

Healthcare employers subject to the Rule should immediately start implementing vaccine requirements if they have not already.  It is anticipated that in all states but Texas, CMS will likely begin enforcement of the vaccine mandate in approximately 30 days.  On December 28, 2021, CMS released guidance to state surveyors with enforcement standards to use starting 30 days from the memo, though at the time the memo only applied to the 25 states that were not enjoined.  Healthcare employers should also keep in mind that this is not the end of the road: the Court’s holding only means that the CMS vaccine mandate is in force while the 5th and 8th Circuits complete their review of the underlying state challenges to the mandate.  While the Supreme Court’s opinion sends a strong message that lower courts should uphold the mandate, there is no guarantee they will do so.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size-fits-all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Article By Keeley A. McCarty and Ashley T. Hirano of Sheppard, Mullin, Richter & Hampton LLP

For more health law legal news, click here to visit the National Law Review.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.

U.S. Supreme Court Shoots Down COVID-19 Shot-or-Test Rule

The U.S. Supreme Court has blocked the Occupational Safety and Health Administration’s emergency “vaccine-or-test” rule mandating private employers with 100 or more employees to institute a policy requiring their employees to be vaccinated against COVID-19 or undergo weekly testing.

The Court ruled 6-3 to block the vaccine-or-test rule on the basis that OSHA had exceeded its authority in enacting the emergency rule. The Court described the rule as “a significant encroachment into the lives—and health—of a vast number of employees.” Had the rule not been rejected by the nation’s highest court, it would have required roughly 84 million workers to be fully vaccinated against COVID-19 or submit to weekly testing and wear a mask at work. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.

While blocking the vaccine-or-test rule for large private employers, the Court ruled 5-4 to allow a separate rule to take effect which mandates the COVID-19 vaccine for workers in nursing homes, hospitals, and other facilities that receive Medicare and Medicaid payments from the federal government. The Court reasoned that the regulation serves to protect patients and ensure that healthcare providers take steps to avoid transmitting a dangerous virus to their patients. The Court noted: “It would be the very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19.” Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett dissented.

©2022 Roetzel & Andress
For more articles on SCOTUS, visit the NLRLitigation / Trial Practice section.

What Should Your COVID-19 Vaccination/Test Policy Contain?

Every employer who employs at least 100 employees is anxiously awaiting the decision from the United States Supreme Court on OSHA’s Vaccination and Testing Emergency Temporary Standard (ETS). One thing that cannot be avoided is having a policy in place/ready to go given that the January 10, 2022 enforcement date from OSHA is here.

Specifically, the ETS requires employers to have a written policy on COVID-19 vaccinations. Employers are able to decide whether to have a policy that mandates vaccinations for employees. Such a policy must address the following:

  1. The requirements to be vaccinated against COVID-19,
  2. Exclusions for medical reasons/accommodations based on disabilities and/or religious beliefs,
  3. Information required to be submitted regarding the employee’s vaccination status and how to provide the information to the employer,
  4. Paid time for vaccination purposes (up to four hours of leave for each dose that is not deducted from the employee’s leave bank) and sick leave for the vaccine’s side effects of up to 2 days (which can be deducted from the employee’s leave bank, if leave is available),
  5. Obligations to notify the employer of a positive test result and removal COVID-19 positive employees from the workplace, and
  6. Discipline for failure to comply with the policy.

For employers who choose not to mandate vaccines, they still have to have a policy that provides for the information above but allows employees to choose to submit to weekly COVID-19 testing and wear a face covering. Notably, of course, the weekly testing obligation for those who are not vaccinated is not in effect until February 9, 2022. However, if the ETS survives Supreme Court scrutiny (oral arguments were held last Friday, January 7, 2021), employees who report to the workplace weekly must submit to testing once every 7 days or within 7 days of reporting to the workplace if they do not work in person weekly.

The policy should inform employees of the testing obligation and that employees cannot both self-administer and self-read a test unless at least one step is observed by the employer or an authorized telehealth proctor.

With no guarantee as to how and when the Supreme Court will rule and given these enforcement dates, it is past time for employers to be developing their policies, collecting vaccination information, and informing employees who are not fully vaccinated, that they will be required to wear face coverings (and that weekly testing will begin in February).

© 2022 Foley & Lardner LLP

Article By Carrie Hoffman of Foley & Lardner LLP

For more articles on vaccination, visit the NLR Coronavirus News section.

COVID-19: Cameras in The Courtroom: Public Access to Appellate Proceedings Post-COVID-19

INTRODUCTION

While federal and state appellate courts have historically been cautious about allowing cameras in the courtroom, the COVID-19 pandemic has pushed courts toward live audiovisual broadcasting to preserve public access to proceedings. Appellate courts’ new practices for virtual arguments and live audiovisual broadcasting1 present expanded opportunities for client engagement in the appellate process.

HISTORY OF PUBLIC ACCESS TO APPELLATE PROCEEDINGS

The founders did not countenance secret justice, believing that the operations of the courts were “matters of utmost public concern.”2

In the early years of the federal judiciary, Supreme Court justices lived this value when they rode circuit—traveling the country and hearing appeals in different courts. This allowed the public to view courtroom proceedings, showing the ways in which the new government, and its appellate judges, could serve their needs.3 Since circuit riding ended, however, both federal and state judiciaries have lagged in ensuring public access to court proceedings.

Only in 1980 did the Supreme Court first recognize a constitutional right to courtroom access. In Richmond Newspapers, Inc. v. Virginia,4  a criminal defendant on trial for murder asked that the courtroom doors be closed to the public, and the judge granted that request.5 A local newspaper sued, raising the issue of whether the public had a right to access the trial court’s proceedings.6 The Supreme Court said yes: The press and the public have a First Amendment right to access criminal trials.7 

The public may have the right to attend criminal trials, but the Fourth Circuit is the only federal court to hold that the public has a constitutional right to attend appellate court proceedings.8 The Ninth Circuit and Seventh Circuit, the only two other federal courts to address the issue, stopped short of finding a constitutional right, instead concluding that there is a presumption of public access to appellate proceedings.9 Among the states, about half have general and presumptive “open court” constitutional provisions or statutes.10 Only six states have specifically addressed the issue of public access to appellate proceedings — Connecticut, Maine, Missouri, New Mexico, and Rhode Island each have rules of appellate procedure that call for public access to appellate court proceedings.11 The Florida Supreme Court recognizes a “presumption of openness [that] continues through the appellate review process.”12 The Nevada Supreme Court has stated that it agrees with other courts’ recognition of a public policy towards public access to appellate proceedings.13

Even among appellate courts that recognize or practice public access, however, there has been disagreement as to whether that access should include live audiovisual broadcasting.

APPELLATE COURTS’ CONCERNS ABOUT CAMERAS

Until recently, many, if not most, litigators, judges, and scholars opposed allowing cameras in the courtroom.14 They worried that lawyers and judges would grandstand in the presence of cameras, becoming more dramatic, argumentative, or long-winded knowing that their image was being broadcast on television.15 Other lawyers and judges might feel self-conscious and limit their arguments or their questions.16 Justice Kennedy expressed concern that allowing audiovisual broadcasting in the Supreme Court would encourage lawyers and justices to engage in sound bites rather than make legal arguments.17

Another concern has been that cameras would create a “circus” atmosphere and undermine the seriousness of or politicize the matter before the court.18 The American Bar Association in 1937 drafted a model rule for state bar associations that admonishes judges:

Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the courtroom, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.19

This rule—or, more accurately, ban—was adopted by all federal jurisdictions and all but three states.20

Incremental change began in the 1980s. After demonstrations urging the Supreme Court to permit cameras in the courtroom and a letter from C-SPAN offering to help make that a reality, Chief Justice Rehnquist formed an ad hoc committee in 1988 to study the issue.21 From 1990 to the mid-2010s, federal circuit and state supreme courts began to explore the idea of cameras in the courtroom. A pilot program began in 1991 in which the Second and Ninth Circuits televised appellate arguments.22 While the program did not result in the Judicial Conference mandating cameras in all courtrooms, the Ninth Circuit was permitted to continue using cameras.23 State supreme courts followed similar test-and-see approaches. The Pennsylvania Supreme Court, for example, spent six months testing audiovisual broadcasting before formally approving oral arguments to be broadcast live on the Pennsylvania Cable Network.24

Nonetheless, many courts remained cautious about allowing cameras in the courtroom. For example, the Alabama Canons of Judicial Ethics prohibit live audiovisual broadcasting of proceedings unless authorized by the presiding judge.25 Such authorization requires obtaining advance consent from the attorneys who would be recorded and establishing a plan to ensure that the live broadcasting will not detract from the “dignity of the court proceedings.”26 The Fourth Circuit, despite having expressly recognized the public’s right to access appellate proceedings, refused to permit cameras in its courtrooms, instead opting to broadcast only audio of oral arguments.27

Such hesitancy has largely evaporated during the COVID-19 pandemic.

THE RISE OF LIVE BROADCAST VIRTUAL ORAL ARGUMENTS DURING THE PANDEMIC

The COVID-19 pandemic pushed judicial proceedings, including appellate proceedings, onto virtual platforms. This encouraged appellate courts to consider their commitments to open access and adjust accordingly. Federal courts, including the Supreme Court, instituted live audio broadcasting.28State supreme courts took this opportunity to bring cameras into the courtroom.

Now, nearly two years into the COVID-19 pandemic, 38 out of the 50 state supreme courts are offering live audiovisual broadcasting of oral arguments:

Alaska

Arizona

Arkansas

California

Colorado

Connecticut

Delaware

Florida

Georgia

Hawaii

Idaho

Illinois

Indiana

Iowa

Kansas

Kentucky

Louisiana

Maryland

Massachusetts

Michigan

Minnesota

Mississippi

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Ohio

Oregon

Pennsylvania

South Carolina

Tennessee

Texas

Washington

West Virginia

Of the states that have adopted a live audiovisual broadcasting system in response to the COVID-19 pandemic’s impact on court access, public engagement has greatly increased. For example, hundreds of viewers logged on to the Hawaii Supreme Court’s first-ever live audiovisual broadcast oral argument regarding a water rights case.29 Will a return to in-person arguments prompt retrenchment, or is the genie now out of the bottle? We cannot know for sure, but fear of the unknown and dark predictions of grandstanding have lost much of their power in the debate over cameras in the appellate courtroom.

HOW PUBLICLY ACCESSIBLE, VIRTUAL ORAL ARGUMENTS HELP CLIENTS

Live audiovisual access to appellate proceedings promotes public access and transparency. No audience has a bigger stake in these proceedings than the clients that are a party to them. Here are just a few ways they benefit from audiovisual access:

  • Attorneys can share recordings of or links to live audiovisual broadcasts with clients that are new to appeals, so they can learn what to expect of the proceedings.
  • Clients no longer have to travel to watch oral argument, saving them significant money and time.
  • Clients can view the work of counsel they are interested in hiring, the approach of opposing counsel, and the ways in which appellate judges and justices engage with attorneys, all of which audio recordings and written transcripts only imperfectly reveal.

Clients should, therefore, welcome this development and encourage its continuation.

1 This client alert uses the term “live audiovisual broadcasting” to describe both live television broadcasts and livestreaming of video as well as audio content via the Internet.

2 Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 839, 98 S. Ct. 1535 (1978); see also JOHN ADAMS, A DISSERTATION ON THE CANON AND THE FEUDAL LAW, NO. 3 (1765), https://founders.archives.gov/documents/Adams/06-01-02-0052-0006 (last accessed Jan. 3, 2022) (“[L]iberty must at all hazards be supported. . . . And liberty cannot be preserved without a general knowledge among the people, who have a right from the frame of their nature, to knowledge . . . of the characters and conduct of their rulers. Rulers are no more than attorneys, agents and trustees for the people; and if the cause, the interest and trust is insidiously betray[ed], or wantonly trifled away, the people have a right to revoke the authority, that they themselves have deputed, and to constitute abler and better agents, attorneys and trustees. And the preservation of the means of knowledge, among the lowest ranks, is of more importance to the public, than all the property of all the rich men in the country.”).

3 David R. Stras, Why Supreme Court Justices Should Ride Circuit Again, 91 MINN. L. REV. 1710, 1716–17 (2007).

4 448 U.S. 555, 100 S. Ct. 2814 (1980).

5 Id. at 559–60.

6 Id. at 562–63.

7 Id. at 580.

8 United States v. Moussaoui, 65 F. App’x 881, 890 (4th Cir. 2003) (“[T]he First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”).

9 United States v. Sedaghaty, 728 F.3d 885, 892 n.2 (9th Cir. 2013) (recognizing a “strong public policy in favor of public access to judicial proceedings” to explain why it heard nearly all of the issues on appeal in open court); In re Krynicki, 983 F.2d 74, 75–76 (7th Cir. 1992) (“Judges deliberate in private but issue public decisions after public arguments based on public records. . . . Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat; this requires rigorous justification. . . . Public argument is the norm even, perhaps especially, when the case is about the right to suppress publication of information.”).

10 ALA. CONST. ART. I, § 13; COLO. CONST. ART. II, § 6; CONN. CONST. ART. I, § 10; DEL. CONST. ART. I, § 9; FLA. CONST. ART. I, § 21; IDAHO CONST. ART. I, § 18; IND. CONST. ART. I, § 12; KY. CONST. § 14; LA. CONST. ART. 1 § 22; MISS. CONST. ART. III, § 24; MONT. CONST. ART. II, § 16; NEB. CONST. ART. I, § 13; N.C. CONST. ART. I, § 18; N.D. CONST. ART. I, § 9; OHIO CONST. ART. I, § 16; OKLA. CONST. ART. II, § 6; OR. CONST. ART. I, § 10; PA. CONST. ART. I, § 11; S.D. CONST. ART. VI, § 20; TENN. CONST. ART. I, § 17; TEX. CONST. ART. I, § 13; UTAH CONST. ART. I, § 11; WA. CONST. ART. I, § 10; W.VA. CONST. ART. III, § 17; WYO. CONST. ART. I, § 8; IOWA CODE § 602.1601 (2018).

11Conn. R. App. P. § 70-9; M.R. App. P. 12B(e); Miss. Sup. Ct. Op. R. 20.02(c); N.M. R. App. P. 12-322; R.I. Sup. Ct. R. 22(b).

12Barron v. Fla. Freedom Newspapers, 531 So. 2d 113, 118 (Fla. 1988).

13Whitehead v. Comm’n on Jud. Discipline, 111 Nev. 70, 119–21 (Nev. 1995) (citing In re Krynicki, 983 F.2d at 75, and Barron, 531 So. 2d at 118,, in justifying its decision to refuse to seal its review of charges of judicial misconduct).

14 Nancy S. Marder, The Conundrum of Cameras in the Courtroom, 44 ARIZ. ST. L.J. 1489, 1514–17 (2012).

15 Id. at 1514.

16 Id. at 1515.

17 Id. at 1514–15.

18 Id. at 1517.

19 ABA CANONS OF PROFESSIONAL ETHICS, CANON 35 (1937); see also Richard B. Kielbowicz, The Story behind the Adoption of the Ban on Courtroom Cameras, 63 JUDICATURE 14, 14 (1979).

20 Kielbowicz, 63 JUDICATURE at 14.

21 Lysette Romero Córdova, Will SCOTUS Continue to Livestream Oral Arguments and are Cameras Next? Let’s Hope So., AM. BAR ASS’N (Aug. 24, 2021), https://www.americanbar.org/groups/judicial/publications/appellate_issue….

22 History of Cameras in Courts, U.S. Cts., https://www.uscourts.gov/about-federal-courts/judicial-administration/ca… (last accessed Jan. 3, 2022).

23 Id.

24 Amy Worden, Pennsylvania Supreme Court to Allow Cable TV Cameras, PHILA. INQUIRER (Aug. 15, 2011), https://www.inquirer.com/philly/news/breaking/20110815_Pa__Supreme_Court….

25 Ala. Canons Jud. Ethics 3.A(7); 3.A(7B), https://judicial.alabama.gov/docs/library/rules/can3.pdf (last accessed Jan. 3, 2022).

26 Id.

27 Electronic Device Policy, U.S. Ct. of Appeals for the Fourth Cir., https://www.ca4.uscourts.gov/oral-argument/visiting-the-court/electronic… (last accessed Jan. 3, 2022).

28 U.S. Sup. Ct. Audio Broad., https://www.supremecourt.gov/oral_arguments/live.aspx (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the First Cir. Audio Broad., https://www.youtube.com/channel/UCiq_Kg0zEPrjMFK_s-KP5_g (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Second Cir. Audio Broad., https://ww2.ca2.uscourts.gov/court.html (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Third Cir. Audio Broad., https://www.youtube.com/channel/UCLSXp4JMYiFc7BHD_ln3d-w (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Fourth Cir. Audio Broad., https://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Fifth Cir. Audio Broad., https://www.ca5.uscourts.gov/ (last accessed Jan. 3, 2022) (audio broadcast links posted weekly); U.S. Ct. of Appeals for the Sixth Cir. Audio Broad., https://www.ca6.uscourts.gov/live-arguments (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Seventh Cir. Audio Broad., https://www.youtube.com/channel/UCWvXsHlWdsIJHy3R_znCUsA (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Eighth Cir. Audio Broad., https://www.ca8.uscourts.gov/ (last accessed Jan. 3, 2022) (audio broadcast public access telephone numbers posted weekly); U.S. Ct. of Appeals for the Tenth Cir. Audio Broad., https://www.youtube.com/c/theuscourtofappealsforthe10thcircuit (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Eleventh Cir. Audio Broad., https://www.ca11.uscourts.gov/live-streaming-oral-arguments (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Dist. of Columbia Cir. Audio Broad., https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20Calenda… (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Fed. Cir. Audio Broad., https://www.youtube.com/channel/UC78NfBf28AQe3x7-SbbMC2A (last accessed Jan. 3, 2022). The Ninth Circuit is the only federal appellate court to date to offer audiovisual broadcasting. U.S. Ct. of Appeals for the Ninth Cir. Audiovisual Broad., https://www.youtube.com/c/9thCircuit (last accessed Jan. 3, 2022).

29 Madison Adler & Allie Reed, All U.S. Appeals Courts Embrace Argument Streaming Due to Covid, BLOOMBERG (Aug. 4, 2020), https://news.bloomberglaw.com/pharma-and-life-sciences/all-u-s-appeals-c….

Copyright 2022 K & L Gates

Article By Robert B. Mitchell and Monica A. Romero of K&L Gates

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

The OSHA Mandate — Supreme Court Oral Argument Preview

Tomorrow morning (Friday, January 7), the Supreme Court hears oral argument in the OSHA (10 a.m. EST) and CMS (11 a.m. EST) mandate cases.  (You can listen to the arguments live here.)  For the OSHA mandate, one group of petitioners consists of a coalition of twenty-seven States, led by Ohio, and the other consists of a coalition of business associations.  We’ve read the briefs, and here are our issues to look out for tomorrow:

Whether OSHA may only regulate occupational dangers.  The petitioners argue that because the OSH Act and OSHA regulations are all concerned with occupational hazards, OSHA cannot regulate against a virus presenting a risk to all Americans.  Meanwhile, OSHA argues that the OSH Act is not limited to dangers that are workplace-specific, especially given Congress’ previous endorsement of OSHA’s measures to encourage vaccination against bloodborne pathogens.

Whether COVID-19 is a “grave danger” that represents a “new hazard.”  The States argue that the OSH ACT limits “grave danger” to those “from exposure to substances are agents determined to be toxic or physically harmful,” connoting toxicity and poisonousness.  Thus, it cannot refer to airborne viruses that are “both widely present in society” and “non-life-threatening to a vast majority of employees.”  OSHA argues that the statute’s disjunctive phrasing allows for an ETS targeting viruses that are physically harmful, or a “new hazard, even if not technically “toxic” in nature.

Whether there is an “emergency” to justify the ETS.  The petitioners continue to argue that nothing significant has changed over the past year the country had been living with the virus to justify finding an emergency.  OSHA responds by pointing to problems presented by the return to work, the Delta variant, and COVID fatigue.

Whether the ETS is “necessary.”  The States argue that the OSH Act imposes a higher standard:  while other regulations may be merely “reasonably necessary or appropriate,” the Act requires emergency regulations to be “necessary”—which the States read as essential or indispensable.  According to the States, the delay between the issuance of the ETS and the time it was supposed to go into effect dooms any argument that it is necessary.  The business associations, for their part, stress that OSHA could have gone through notice and comment proceedings months ago.  In OSHA’s view, the statute is not nearly so narrow and it is enough that workplaces contribute substantially to the spread of the virus and that vaccines are the best way to fight COVID-19.

The scope of relief.  The petitioners obviously want to stay the entire mandate—both the vaccine and masking/testing requirements.  OSHA argues that any stay should be limited to the vaccine requirement.

Major-questions doctrine and federalism canon.  The petitioners argue that these canons of construction require Congress to speak clearly when delegating major economic and political questions to agencies that alter the balance between federal and state governments.  OSHA argues that neither of these canons apply and, in any event, Congress did speak clearly, as evidenced by the fact that it recently allocated $100 million to OSHA to carry out COVID-19 related worker protection activities.

Facts outside the administrative record.   While the OSHA and CMS mandates are supposed to be judged according to the record — which makes much of the factual discussion seem a little dated in this fast-moving pandemic — we’ll be interested to see whether the Omicron variant, the recent spike in cases, and other relatively recent developments show up at oral argument.

And, maybe, a few Constitutional issues.  While constitutional issues like the Commerce Clause and Non-Delegation Doctrine might appear tomorrow, we expect the statutory arguments to dominate the discussion—exactly as they did in the parties’ Supreme Court and Sixth Circuit briefing and in most Sixth Circuit opinions.

We’ll be interested to see how the opinions of Judge Stranch, Judge Larsen, Judge Sutton, and Judge Bush influence the Justices’ approach to the legal and factual questions.

© Copyright 2022 Squire Patton Boggs (US) LLP
For more about OSHA litigation, visit the NLR Coronavirus News section.

New Year, New Rules: Chicago Employers Navigate Vaccine Mandates

With the new year comes a new set of health orders and employer obligations related to the COVID-19 pandemic. As a last-minute holiday present to Chicago businesses, the City announced a new public health order mandating that covered businesses require patrons as young as 5 years old to present proof of full vaccination, and require unvaccinated employees to undergo weekly COVID-19 testing. A few days after Chicago’s announcement, Cook County followed suit, announcing its own health order with commensurate obligations.

How should employers prepare? Much’s Labor & Employment team outlines the key elements of the City and County orders, including guidance on what employers should do now.

When do the new requirements take effect?

Both the Chicago order and the Cook County order (together, the “Orders”) take effect January 3, 2022.

Are small employers covered, or just larger employers?

Employers of any size are subject to the Orders, provided they operate one or more “Covered Locations.”

What is a “Covered Location”?

In general, the Orders cover restaurants and bars, fitness and exercise venues, as well as entertainment and recreational venues where food and drinks are served. As stated in the Orders, “Covered Locations” are:

  • Establishments where food or beverages are served including, but not limited to, restaurants, bars, fast food establishments, coffee shops, tasting rooms, cafeterias, food courts, dining areas of grocery stores, breweries, wineries, distilleries, banquet halls, and hotel ballrooms.
  • Event spaces, such as hotel ballrooms, commercial event and party venues, and nightclubs.
  • Gyms and fitness venues, such as gyms; recreation facilities; fitness centers; yoga, Pilates, cycling, barre, and dance studios; hotel gyms; boxing and kickboxing gyms; fitness boot camps; and other facilities used for conducting indoor group fitness classes.
  • Entertainment and recreation venues in areas where food or beverages are served including, but not limited to, movie theaters, music and concert venues, live performance venues, adult entertainment venues, commercial event and party venues, sports arenas, performing arts theaters, bowling alleys, arcades, card rooms, family entertainment centers, play areas, pool and billiard halls, and other recreational game centers.

There are exceptions, however. The Orders do not cover houses of worship; K-12 schools; locations in O’Hare and Midway airports; locations in residential or office buildings that are limited to residents, owners, or tenants of the building (such as your office kitchen or condo common area); or food service establishments providing only charitable food services, such as soup kitchens.

If I’m a Covered Location, what are my obligations with respect to patrons?

Covered Locations are required to verify that any patron age 5 or older is fully vaccinated against COVID-19. The Orders adopt the most restrictive definition of “fully vaccinated” in use by the Centers for Disease Control and Prevention (CDC) or the applicable local health department. As of December 30, 2021, that means two weeks after the second dose of a two-dose vaccine series or two weeks after a single-dose vaccine. It does not yet include booster shots.

There are some exceptions, however. For example, Covered Locations do not need to check the vaccination statuses of patrons entering an establishment for less than 10 minutes to order and carry out food or to use the bathroom. In addition, individuals who have received a medical or religious exemption can still enter these locations, provided they show proof of the medical or religious exemption and a COVID-19 test “administered by a medical professional” within 72 hours prior to entering the Covered Location.

And, for those of you reading this article who are a “nonresident performing artist” or “nonresident professional athlete,” first, thanks for reading, and second, you’re not covered and don’t need to show proof of vaccination status before playing in Chicago.

What counts as sufficient proof of vaccination status?

It’s the proof you would expect. Patrons can present a physical CDC COVID-19 Vaccination Record Card or show a paper or electronic copy of one (such a picture on a phone) that shows the patron’s name, brand of vaccine, and dates administered. Also acceptable are official immunization records from the jurisdiction where the vaccine was administered. Patrons who are age 16 or older will also need to provide identification showing their name, such as a driver’s license, passport, or state ID card.

Are businesses required to keep copies of patrons’ vaccination statuses?

No, and nor should they.

OK, so that takes care of how we handle members of the public. But what about our employees? Do the Orders require that they be vaccinated?

No, the Orders are not requiring that businesses mandate employee vaccinations. Rather, it’s a shot-or-test requirement. In other words, employees who work at these covered entities must either present proof of vaccination to their employer or undergo the weekly testing required by the recent Occupational Safety and Health Administration (OSHA) emergency rule.

Wait, I thought the OSHA rule was on hold? Or on again? Honestly, it’s a bit confusing.

We hear you. As of the date of this article, it’s back on again, but now legal challenges to the rule are before the U.S. Supreme Court. Stay tuned on that front. However, regardless of what happens with that rule, Chicago and Cook County will be able to enact these testing requirements. So, even if the OSHA rules are never implemented, the local requirements in the Orders will still take effect January 3, 2022.

What vaccination information do I need to collect from employees?

Employers are required to obtain confirmation of employees’ vaccination statuses, and the acceptable proof of vaccination is the same as for patrons. Notably, the Orders’ guidance states that employers are not required or expected to maintain copies of employees’ proof of vaccination, but they are required to document the verification and compliance, and to have those records available for inspection by the city.

But what about testing? That’s what I’m most worried about.

Employees who are not fully vaccinated against COVID-19 will be required to receive a COVID-19 test every seven days and provide to their employers verification of a negative result.

Just as with the OSHA rule, only certain tests are considered acceptable. The test cannot be an antibody test, but instead must be a test approved by the Food and Drug Administration (including Emergency Use Authorization), such as a PCR or antigen test. Additionally, over-the-counter boxed tests are acceptable only if they were observed by either the employer or an authorized telehealth proctor. Employees conducting the test on their own at home and then reporting the results – which is how most people use boxed COVID-19 test kits – would not qualify as acceptable testing under the Orders.

What records do I need to keep of negative tests?

The Orders and the City’s guidance state that they do not expect or require employers to keep copies of the negative test results. Rather, they expect that employers will keep a log that documents verification of the test results and compliance with the Orders.

What if an employee tests positive?

The employee must be excluded from the workplace and follow CDC guidelines. If the test result is inconclusive, the employee should be retested in order to provide a positive or negative test result.

Do I have to pay for tests? Or pay employees for the time spent obtaining a test outside of working hours?

These are excellent questions that, unfortunately, still have unclear answers. Much of the current guidance on who pays for a test, or whether the time spent taking a test is compensable, pre-dates current developments and is predicated on the testing being employer-mandated, rather than mandated by government orders. OSHA’s position with respect to its testing rule is that employees generally bear the cost of testing, but even OSHA acknowledges that “employer payment for testing may be required by other laws.” OSHA’s position may not be the position of the Illinois Department of Labor, and the question of who pays for testing in the context of employees with medical or religious grounds for not becoming fully vaccinated is not clear. For now, we await further guidance on how employers are meant to approach this issue.

What else? Any other requirements? I’m guessing there’s another poster to put up.

There are some additional requirements, including a poster. They can be found on the City of Chicago website. Employers subject to the Orders also will need to “develop and keep a written record for describing the protocol for implementing and enforcing the requirements” of the Orders. The City of Chicago has issued guidance for employers’ protocols, but it will not be issuing template policies. The City has also issued a template “COVID-19 ‘Proof of Vaccination’ Compliance Plan,” as an example of how to track employee test results.

Any other takeaways?

As with any new COVID-19 guidance and requirements, the situation remains fluid. Additional clarifications and guidance may be issued before and after the Orders take effect on January 3, 2022. Employers have become adept at adapting to what seems like an ever-changing regulatory landscape, and the Orders are just the latest example.

© 2021 Much Shelist, P.C.

Article By Matthew J. Feery and Laura A. Elkayam of Much Shelist, P.C.

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

COVID-19 Update: The CDC Issues New Isolation Guidance

On December 27, 2021, the CDC shortened its recommended isolation and quarantine periods for those infected with, or exposed to, COVID-19. Because the CDC’s Isolation Guidance is incorporated by reference into OSHA’s vaccination or test rule, larger employers should revise their policies to reflect these new guidelines in advance of the January 10th deadline for compliance. Here is a summary of the new isolation/quarantine periods:

Employees Who Have Tested Positive and are Asymptomatic

  • Isolate at home for five days.
  • Mask for five days after isolation period.

Employees Who Have Tested Positive and Have Symptoms

  • Isolate at home for five days and, if symptoms resolve during that time, the employee can leave isolation.
  • If the employee has a fever, the employee must remain isolated until the fever resolves.
  • Mask for five days after isolation period.

Employees Who Are Exposed to COVID-19 and Have Received Booster

  • No required isolation or quarantine.
  • Wear mask for 10 days.
  • Best practice: Test, if possible, five days after exposure.

Employees Who Are Exposed to COVID-19 and Completed Vaccination (Pfizer or Moderna) Within the Last Six Months or Received J&J Vaccine Within the Last Two Months 

  • No required isolation or quarantine.
  • Wear mask for 10 days.
  • Best practice: Test, if possible, five days after exposure.

Employees Who Are Exposed To COVID-19 and Are Unvaccinated or Completed Vaccination (Pfizer or Moderna) More Than Six Months Ago or Received J&J Vaccine More Than Two Months Ago

  • Stay home for five days.
  • Mask for five days after quarantine
  • If employee cannot quarantine, mask for 10 days
  • Best practice: Test, if possible, five days after exposure.
©2021 Roetzel & Andress

Article By Morris L. Hawk of Roetzel & Andress LPA

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

OSHA’s COVID-19 Vaccine, Testing Mandates Back On – Effective Jan. 10, 2022

On December 17, the U.S. Court of Appeals for the Sixth Circuit lifted the stay of OSHA’s Emergency Temporary Standard (ETS) that had been imposed by the Fifth Circuit, putting the ETS’ employer vaccination and testing requirements for COVID-19 back into effect. Following the decision, OSHA announced a Jan. 10, 2022, effective date, but added it will not cite employers for noncompliance with the testing requirements prior to Feb. 9, 2022.

Accordingly, employers can consider these dates as the new compliance deadlines: Jan. 10 for all ETS requirements except testing and Feb. 9 for testing requirements. Notably, OSHA will require employers to demonstrate good faith efforts to come into compliance. So employers covered by the ETS should begin taking steps to demonstrate compliance and documenting all such efforts.

Right now, employers should conduct vaccination inquiries, create a roster of employee vaccination status, and decide whether to require vaccinations for all employees or allow weekly testing as an alternative.

Employers should also consider reviewing options from payroll providers or HRIS software for the confidential storage and retrieval of vaccination and test information. Unionized employers need to consider their bargaining obligations over the discretionary aspects of the ETS, as well as over the effects of its nondiscretionary requirements.

This court decision adds another twist in the winding litigation challenging President Biden’s federal vaccine mandates. Following the Dec. 17 decision, the parties challenging the ETS immediately filed emergency applications with the U.S. Supreme Court to reimpose the stay. Justice Brett Kavanaugh will review and make a decision on the applications, as he is the justice assigned to hear such petitions arising from the Sixth Circuit. Justice Kavanaugh will have the option to grant the applications and stay the ETS pending review by the full Supreme Court, refer them to the full court for a decision, or take no action pending review.

It is possible the Supreme Court will weigh in on the emergency applications quickly, so employers can expect updates in the coming days and weeks.

© 2021 BARNES & THORNBURG LLP
For more about OSHA Mandates, visit the NLR Coronavirus News section.