The past two weeks have been a whirlwind in developments relating to COVID-19. The Omicron variant continues to rage, leaving most people unclear as to how to best approach everyday life. Further complicating the situation has been a patchwork of federal and local guidance on how to handle the virus at work. The following are three important takeaways:

1. Many employers with 100+ employees are no longer required to mandate vaccinations/weekly testing. On January 13, 2022, the Supreme Court of The United States struck down the Occupational Safety and Health Administration (OSHA) rule requiring private employers with 100 or more employees to mandate COVID-19 vaccination or weekly testing. In issuing its decision, the Court focused on the agency’s authority to promulgate such a rule (which they found was outside of their authority). It should be noted that a separate decision (also issued on January 13) found that healthcare organizations receiving Medicaid or Medicare funding could require vaccination. 
   
   Future legal challenges are anticipated. For the time being, it is important to note that the Court’s decision does not preclude employers from requiring vaccination and weekly testing. In fact, many large employers (i.e., Target) have issued statements that they will still require vaccination or weekly testing in order to prevent the spread of the virus. I recommend reviewing your organization’s current COVID-19 policy before implementing any changes. Modifying a policy (for a reason such as removing a vaccine mandate) without exploring a legally-sound approach can result in additional liability.

2. Virginia’s new governor Glenn Youngkin issued an Executive Order rescinding existing mask mandates and potentially scaling back requirements for businesses. On January 15, 2022, Glenn Youngkin was sworn into office as Virginia’s newest governor. On the same day, he issued several executive orders, including one “removing” an existing mask mandate for public school students and another ordering an examination of COVID-19 requirements for businesses.It should be noted that there has been no statewide mask mandate in Virginia for most private businesses for several months. Governor Youngkin’s Order relates to school-aged children (with many counties already stating that they will continue to require masks). Therefore, employers can still continue to require masks in their places of business. I recommend keeping an eye out for the findings of the Commission appointed to review requirements on business. It is possible that existing requirements (i.e., mandatory COVID-19 policies) may be rolled back or modified.

3. D.C. employers still need to offer leave for both receiving and recovering from the vaccine until late 2022 (perhaps beyond). In late December 2021, Governor Muriel Bowser signed the “COVID Vaccination Leave Temporary Amendment Act of 2021” (Temporary Act) into law. This Act will become effective on February 18, 2022, and, in many ways, “picks up” where the COVID Vaccination Leave Emergency Amendment Act of 2021 (part of DCFMLA), “left off.” The Temporary Act requires that employers provide D.C. employees with leave for receiving the vaccine and recovering from side effects through October 1, 2022. I recommend checking your policy to ensure that you make clear that D.C. employees are free to take leave for these reasons.

Stay safe – and feel free to reach out to me to discuss.