With the availability of COVID-19 vaccines on the horizon, employers are wondering whether they can or should require employees to receive a vaccine. After all, there could be significant benefits for the operations of many businesses if employees are vaccinated against COVID-19.

There are no federal or state laws which prohibit an employer from mandating that employees receive vaccinations, including influenza or pandemic influenza vaccines. However, while employers may mandate influenza vaccines under certain circumstances, there are two primary exceptions to this principle that have been identified by the federal Equal Employment Opportunity Commission (“EEOC”): (1) when an employee has a qualifying disability under the Americans with Disabilities Act (“ADA”) that prevents the employee from being vaccinated; and (2) when an employee has a sincere religious belief that prevents the employee from being vaccinated.

Continue Reading Should Employers Mandate COVID-19 or Flu Vaccines?

The Centers for Disease Control and Prevention (CDC) is expected to issue shortly new guidelines for quarantine periods, according to Director Robert Redfield.

Under the expected new guidelines, the quarantine period for those who have come in close contact with an infected individual may end after 7 days for those who test negative. For those in close contact but not tested, the quarantine period will be reduced to 10 days.

Dr. Henry Walke, incident manager for CDC COVID-19 response, indicated that people should monitor for symptoms for 14 days.

Formal regulations reflecting these quarantine changes have yet to be issued by the CDC.

As Thanksgiving and what is traditionally the busiest holiday travel period approaches, COVID-19 numbers are rising, and state governments are doubling down on travel and quarantine restrictions.

The State of NH revised its travel guidance on November 12, 2020 changing the quarantine period for those NH residents who travel internationally (including to/from Canada); on a cruise ship; or domestically outside of the New England states for non-essential purposes.  Essential travel includes travel for work, school, personal safety, medical care, care of others, parental shared custody, for medication, and brief trips for take-out food and groceries.  Of course, the guidance continues to discourage business from allowing business-related travel for non-essential purposes.

Continue Reading States Issue New Travel and Quarantine Restrictions in Advance of Thanksgiving Holiday

Governor Sununu issued Emergency Order #74 (the “Order”) on November 19, 2020 mandating the wearing of masks or cloth face coverings in indoor and outdoor public spaces where individuals are unable to or inconsistently maintain a physical distance of six feet from persons outside their own household. The order takes effect on November 19, 2020. Relevant portions of the Order are summarized below:

  • All persons over the age of 5 in the State of New Hampshire are covered by the Order.
  • “Public spaces” includes any part of public or private property that is generally accessible to the public including lobbies, waiting areas, restaurants, retail businesses, streets, beaches, parks, elevators, restrooms, and parking areas.
  • Municipalities are free to enact ordinances which are stricter than the Order.
  • The Order does not override any provision of industry specific guidance related to face coverings referenced in Emergency Order #52.  Where there is a conflict, the industry specific guidance controls.

Continue Reading Governor Sununu Issues Emergency Order Mandating Masks

On Monday, November 2, 2020, Governor Baker signed a modified COVID-19 Order No. 54. The Order now states that all gatherings – no matter the size – must disperse by 9:30 p.m. Exceptions are religious and political gatherings only.

Gatherings at private residences are limited to a maximum of 10 people. Outdoor gatherings at private residences are limited to 25 people.

All persons over the age of 5 must wear a facemask in public – even where they are able to maintain 6 feet of distance from each other.

These changes will go into effect today – Friday, November 6, 2020.

The Governor also stated that there will be no more exceptions or exemptions as to when social distancing is necessary.

Moreover, the Department of Public Health is issuing an advisory, which states that people should stay at home between the hours of 10:00 p.m. and 5:00 a.m.

Effective Friday, November 6, 2020, Massachusetts residents will be required to wear a mask or cloth face coverings at all times when in any public place, with limited exceptions.  This new directive expands upon a prior mask mandate issued by Governor Charlie Baker in May.  Under the earlier order, residents were instructed to wear face coverings in public when it was not possible to maintain six feet of social distancing.  The new order removes the distance qualification, and essentially requires people to keep their masks on at all times.  “We’re basically saying if you go out in public, wear a mask,” the Governor said during a press conference announcing the new order.  Governor Baker imposed the harsher rule in light of rising COVID-19 infection and hospitalization rates in Massachusetts this fall.

Continue Reading Massachusetts Governor Issues Stronger Mask Mandate

The Centers for Disease Control and Prevention (CDC) recently updated the definition of “Close Contact.” Among other things, the new definition effects the close contact and monitoring process recommended by the CDC.

The term “Close Contact” is now defined as:

Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24 hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.

See CDC Appendix to Contact Tracing protocols, among others. This new definition applies directly to “Close Contact Evaluation and Monitoring Priorities.” This recommendation concerns the evaluation and monitoring of individuals who have had close contact with people with confirmed and probable COVID-19 infection.

The CDC provides a “Close Contact Evaluation and Monitoring Hierarchy.” Those who should be evaluated and monitored carefully are those who come in close contact with: for example: 1) hospitalized patients and members of a large household living in close quarters; 2) individuals 65 years of age or older; 3) individuals with COVID symptoms, and 4) individuals without apparent symptoms.

This new definition applies not only to so-called “contact tracing,” but also when to recommendations as to when one should quarantine.

The Centers for Disease Control and Prevention (CDC) have recently issued guidance for Thanksgiving celebrations in light of the continuing risks associated with COVID-19 exposure. The CDC recommends that: “Staying home is the best way to protect yourself and others.” The CDC believes that having a small dinner with just household members is the safest bet. Or, if necessary, having a “virtual dinner” with family and friends.

These suggestions are designated “low risk activities” by the CDC. A “moderate risk” activity is defined, among other things, as “[h]aving a small outdoor dinner with family and friends who live in your community.” If you decide to do the latter, the CDC recommends that the placing of the table and chairs follows social distancing guidelines, i.e., be six feet away from those people from other families. When guests arrive, “do not shake hands, do elbow bumps, or give hugs,”  the CDC emphatically suggests. Moreover, masks should be worn if there is a likelihood that people will be less than six feet apart.

In such holiday gatherings, hands should be washed for at least 20 seconds when entering or exiting the site of the gathering. The sanitizer used should be made available in restrooms. It should contain at least 60% alcohol. Also, such washing of the hands should be done before serving any food.

The Department of Labor (DOL) has proposed a rule that seeks to make it easier to classify workers as independent contractors.  The distinction is not without difference, as the federal Fair Labor Standards Act (FLSA) and many of its state analogues only protect employees, but do not extend to independent contractors – including many gig economy workers.  However, as made clear by the proposed rule, merely identifying a worker as an “independent contractor” does not mean the employer is off the hook.

Continue Reading Better Classification for our Economic Reality

As of Monday, September 21, the Massachusetts Department of Labor Standards (DLS) is offering free review of and advice on companies COVID-19 safety protocols where a cluster, i.e., two or more, of employees has come down with the illness. DLS does so remotely via telephone and email. The DLS will review all existing COVID safety protocols implemented by a company and make suggestions on how to optimize same, among other things.

The contact number to request such services is: 508-616-0461, ext. 9488.

This is a great opportunity for companies to ensure that their COVID safety standards are efficacious and meet state and federal requirements for a safe workplace during this unprecedented pandemic.