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Coronavirus (COVID-19) Response - Labor & Employment Legal Issues



Employers have been at the forefront of the coronavirus (COVID-19) pandemic, forced to simultaneously make decisions that protect their workforce while also ensuring their businesses are well-positioned to meet their customers’ needs.

Our dedicated Occupational Safety and Health Administration (OSHA) team advises clients on keeping essential employees safe from COVID-19 through social distancing and other protocols. We also offer employment advice to clients as they navigate an unprecedented economic environment and seek relief through the CARES Act and other government programs.

Latest Updates

Stay informed with Nixon Peabody Labor & Employment law alerts, updates, and guidance. Recent coronavirus-related topics include:

  • CARES Act and FFCRA
  • Coronavirus travel restrictions
  • Changes to employee-benefits and leave policies
  • Furloughs vs. layoffs
  • Managing an essential workforce during the COVID-19 pandemic
  • OSHA policy updates
  • Reopening businesses after COVID-19
  • Telecommuting and remote workforce management
  • What to do if an employee is infected with coronavirus

Coronavirus Response Team

We have created a multi-office and cross-practice Coronavirus Response Team to help our clients navigate through this fluid situation. Our team is actively providing guidance on a wide range of COVID-19–related issues, including workplace/facility safety, employment, benefits, contract disputes, health care, and education matters.

Learn more about the Nixon Peabody Coronavirus Response Team.

U.S. pastors, advocacy groups mobilize against COVID-19 vaccine mandates

Reuters | October 14, 2021

This article on the large-scale efforts of religious and advocacy groups to challenge COVID-19 vaccine mandates quotes Rochester Labor & Employment partner Kim Harding on the recent rapid increase in religious exemption requests, which have historically been rare.

Judges vaccine religious exemption ruling comes as good news for some NY health care workers

Spectrum News | October 12, 2021

This article, focusing on a federal judge’s ruling upholding the religious exemption to New York State’s vaccine requirement for health care workers, quotes Rochester Labor & Employment partner Kim Harding on what is required of employees to qualify for the exemption and the process for employers to vet these accommodations.

Q&A on OSHAs upcoming vaccine mandate-What it means for HR

HR Specialist Employment Law | October 01, 2021

This industry newsletter includes the client alert “President Biden orders vaccination mandate for large employers,” co-authored by San Francisco partner Rachel Conn, Rochester partner Kim Harding, and Providence department attorney Shelagh Michaud, all of the Labor & Employment group. The Q&A covers OSHA’s emergency standards, the 100-employee threshold in Biden’s vaccination mandate, and how the rule affects state OSHA plans.

Should you put your Covid-19 vaccination status on your résumé? Many hiring managers say yes

The Wall Street Journal | September 27, 2021

This article, covering the growing trend among hiring managers to favor candidates who indicate on their resumes that they are fully vaccinated, quotes San Francisco Labor & Employment partner Rachel Conn on the potentially discriminatory nature of employers pushing for this information.

What workers and employers should know a week after Biden issued COVID vaccine mandate

The Charlotte Observer | September 16, 2021

This article, which has been syndicated across the country, quotes the client alert “President Biden orders vaccination mandate for large employers” co-authored by San Francisco partner Rachel Conn, Rochester partner Kim Harding, and Providence department attorney Shelagh Michaud, all of the Labor & Employment group. The content covers OSHA emergency standards, the 100-employee threshold in Biden’s vaccination mandate, and how the rule affects state OSHA plans.

Vaccine mandate lacks detail

The Daily Record | September 15, 2021

This article on President Biden’s recent vaccine mandate for employees of larger companies quotes Rochester Labor & Employment partner Kim Harding on legal questions and nuances employers have regarding the mandate’s implementation and her outlook on OSHA’s upcoming emergency temporary standard.

Rochester labor and employment attorney swamped with messages since vaccine mandate announced

Spectrum News | September 14, 2021

This broadcast segment, on President Biden’s announcement requiring the COVID-19 vaccine for employees of larger companies, features insight from Rochester Labor & Employment partner Kim Harding, focusing on questions that remain for employers as they navigate the legal landscape and nuances of the mandate, as well as the testing option still available for vaccine-resistant employees. Rochester records clerk Jody Smith also appears in the segment.

Legal perspective on vaccine mandates for employers

Rochester Business Journal | September 10, 2021

Rochester Labor & Employment partner Kim Harding contributed this column which analyzes the legality of mandating COVID-19 vaccines for employees, including the different requirements governing exemption requests, and provides best practices on how employers can mitigate challenges when implementing this policy.

University plumber prepared to lose job rather than get the COVID-19 vaccine

Spectrum News | September 10, 2021

This broadcast segment on President Biden’s announcement requiring the COVID-19 vaccine for employees of larger companies quotes Rochester Labor & Employment partner Kim Harding on employers’ right to impose terms and conditions for employment and the reasoning behind New York State’s vaccine mandate for health care workers.

Business Hour with Frank Mottek

CBS Radio – KNX | September 09, 2021

San Francisco Labor & Employment partner Rachel Conn joined the radio program to discuss President Biden’s proposal that would require employers with more than 100 employees to mandate vaccines or weekly testing, as well as the question of whether employers can deny sick leave or paid time off for any unvaccinated employees who contract Covid-19 and must miss work as a result.

Is COVID-19 surcharge for unvaccinated workers looming?

Rochester Business Journal | September 02, 2021

This article, which covers the growing shift among employers to take more forceful measures when incentivizing workers to get vaccinated, extensively quotes Rochester Corporate partner Brian Kopp, of the Employee Benefits & Executive Compensation team, and Labor & Employment partner Stephanie Caffera on the prospect of charging unvaccinated employees to compensate for health care costs, and the rules employers must abide by if they decide to pursue this path.

Employees who refuse to get COVID-19 vaccine may not qualify for unemployment

WHEC-TV | September 01, 2021

This broadcast segment, covering the latest development around NYS’ vaccine requirement for hospitals and healthcare workers, quotes Rochester Labor & Employment partner Kim Harding on the notion of employee “voluntary-ness” and the potential consequences for employees deciding not to get the vaccine.

NYS orders hospitals and nursing homes to order their employees to get vaccinated

WHEC-TV | August 16, 2021

This broadcast segment, focusing on Governor Cuomo’s announcement that all New York State health care workers must be vaccinated, quotes Rochester Labor & Employment partner Kim Harding on the way in which the state is rolling it out, by requiring hospitals and nursing homes to require it of their employees.

CDC adjusts mask guidance as Delta variant surges

Law360 | July 27, 2021

This article, covering the U.S. Centers for Disease Control and Prevention’s updated mask guidance following a surge in COVID-19 cases, quotes Boston Labor & Employment partner Jeff Gilbreth on the numerous factors employers will need to navigate as they consider their return-to-work plans.

Apple isn't the only tech company spooked by the Delta variant

Protocol | July 23, 2021

This article, on how some tech companies are reevaluating return to office plans in light of Covid-19 Delta variant concerns, quotes San Francisco Labor & Employment partner Rachel Conn on possible facial covering mandates and considerations about the Delta variant that employers should take into account.

It's time for a four-day workweek, America

Democrat & Chronicle | July 14, 2021

This article on the pandemic’s disruption of the conventional workweek quotes Rochester Labor & Employment partner Stephanie Caffera for her thoughts on worker productivity, which continued while working from home, and how it’s opening up the conversation around restructuring the workplace.

Breaking down the HERO Act

Rochester Business Journal | June 11, 2021

Rochester Labor & Employment partner Stephanie Caffera and associate Conor Tallet contributed this article analyzing New York’s first of its kind law, the Health and Essential Rights Act, and the new burdens on employers to protect employees from COVID-19 and other airborne infectious diseases in the workplace.

Cal/OSHA Updated COVID-19 Guidelines

CBS/KNX News Radio | June 09, 2021

San Francisco Labor & Employment partner Rachel Conn discussed an upcoming Cal/OSHA emergency standard board meeting to review its recently updated COVID-19 guidelines on facial coverings, following the urging made by the California Department of Public Health to reconsider the board’s earlier guidelines to better align with CDC recommendations.

Baystate Business

Bloomberg Radio | June 07, 2021

Boston Labor & Employment partner Jeff Gilbreth joined the radio program to discuss recent workplace vaccine guidance from the Equal Employment Opportunity Commission (EEOC), including employers’ concerns, industries where some organizations have mandated vaccinations, and what could constitute “coercive” incentives from employers, among other related topics.

In Depth

CBS/KNX News Radio | June 01, 2021

San Francisco Labor & Employment partner Rachel Conn discussed Cal/OSHA’ s proposed updated COVID-19 guidelines and other top-of-mind issues for California-based employers and employees, including whether employers can ask for workers’ vaccination status, Cal/OSHA’ s requirement for vaccination documentation, and whether employers can require employees to be vaccinated.

Mask guidelines pose challenge to OSHA's ‘grave danger’ mandate

Bloomberg Law | May 20, 2021

San Francisco Labor & Employment partner Rachel Conn is quoted in this article on how the CDC’s updated guidance that the risk of COVID infection is minimal for people who are fully vaccinated likely weakens OSHA’s argument that there is a “grave danger” to employees.

Things you need to know about returning to work now that COVID is receding

The Boston Globe | May 18, 2021

This article covering a range of questions employees will face as they begin returning to offices quotes Boston Labor & Employment partner Jeff Gilbreth on whether employers can make union workers get vaccinated or wear a mask, and the likelihood that many workplaces will adopt a “bifurcated” vaccine and mask policy for vaccinated and unvaccinated employees.

New mask rules pose challenge to business

Rochester Business Journal | May 18, 2021

In this article on New York State’s revised mask guidance in accordance with federal recommendations, Rochester Labor & Employment partner Kim Harding is quoted on enforcement challenges for businesses and the uptick in client inquiries regarding the guidance, mandatory vaccination policies, and job postings.

CDC's about-face on masks puts employers in a bind

Law360 | May 14, 2021

The following media clip features Boston Labor & Employment partner Jeff Gilbreth discussing the new CDC guidance for vaccinated people and how it could impact employers, including the dilemma of having two sets of rules for vaccinated and unvaccinated workers versus maintaining a single set of rules with mask mandates.

Baystate Business- From the MBTA to MGH

Bloomberg Radio | May 14, 2021

The following media clip features Boston Labor & Employment partner Jeff Gilbreth discussing the new CDC guidance for vaccinated people and how it could impact employers, including the dilemma of having two sets of rules for vaccinated and unvaccinated workers versus maintaining a single set of rules with mask mandates.

As businesses digest CDC mask guidance, some look to Governor Baker for faster reopening

The Boston Globe | May 13, 2021

This article covering the CDC’s new mask guidance for fully vaccinated people quotes Boston Labor & Employment partner Jeff Gilbreth on implications for employers and the workplace, including how it could get problematic if employers ask for evidence of vaccination.

Red Wings preparing to welcome back both vaccinated and non-vaccinated fans

Spectrum News | May 06, 2021

In this broadcast story on New York State’s new guidance on capacity seating for venues, Rochester Labor & Employment partner Kim Harding is quoted on whether businesses can ask their customers of their vaccination status.

Key points to consider as employers start bringing back employees to the workplace

Newsday | March 25, 2021

Long Island Labor & Employment counsel David Tauster is quoted in this story on business reopening in the region for his outlook on accommodation considerations and preparation time for employers.

Employers face new risks as business travel returns

Law360 | March 16, 2021

This article on the risks employers face as business travel returns quotes Labor & Employment deputy practice group leader and OSHA practice chair Ben Kim, of Los Angeles, and San Francisco Labor & Employment partner Rachel Conn on the realities of a shifting office environment.

CDC vaccine guidance offers ‘road map’ for employers

Law360 | March 10, 2021

Labor & Employment deputy practice group leader and OSHA practice chair Ben Kim, of Los Angeles, and San Francisco Labor & Employment partner Rachel Conn provide commentary in this article analyzing the CDC’s new post-vaccination guidance, discussing implications for employers.

Morning edition

WXXI-AM (NPR affiliate) | March 08, 2021

In this radio segment discussing a remote workforce in a post-pandemic world, Rochester Labor & Employment partner Kim Harding is quoted on tax and withholding rules, among other employment laws, that employers should be aware of as employees may want to work in other states.

Local experts on CDC's new guidelines for COVID vaccinated people

WHEC-TV | March 08, 2021

In this television news segment on the CDC’s new guidelines announced on Monday, Rochester Labor & Employment partner Kim Harding is quoted on employer incentive programs to increase the population of vaccinated employees, as businesses work toward a return to normal.

The CDC has released guidelines for vaccinated people. Here's what to know

New England Cable News | March 08, 2021

In this television news segment on the CDC’s new COVID-19 guidelines for vaccinated people, Boston Labor & Employment partner Jeff Gilbreth discussed how businesses can continue enforcing additional guidance they have in place, such as mask mandates.

Attorneys predict employment litigation cases will gain traction post-pandemic

Rochester Business Journal | March 05, 2021

Rochester Labor & Employment partner Stephanie Caffera is quoted in this article, as part of the publication’s “Litigation“ special report, for her outlook on the relationship between employment litigation and an economic downturn, areas that could pose challenges for employers, and possible federal OSHA guidance specifically for COVID-19.

90-day window for COVID-19 travel guidelines has some confused

WHEC-TV | March 02, 2021

In this broadcast segment on the loosening of some of New York State’s COVID-19 travel guidelines, Rochester Labor & Employment partner Kim Harding is quoted for her thoughts on state and federal guidelines that employers must follow to protect their workforce.

R.I. Looks to Expand Workplace Tests

Providence Business News | January 22, 2021

This article covering Rhode Island’s push to double the number of daily COVID-19 tests in the state quotes Providence office managing partner Andrew Prescott, of the Labor & Employment group, on a R.I. statute that could potentially restrict employers from requiring tests as a condition of employment.

COVID-related paid sick leave options for employers

Rochester Business Journal | January 20, 2021

Rochester Labor & Employment partner Kim Harding contributed this article for her outlook on the Families First Coronavirus Response Act and what’s top-of-mind for employers in the year ahead.

Baystate Business: Snow, Stimulus, and Fitness

Bloomberg Radio | December 16, 2020

Boston Labor & Employment partner Jeff Gilbreth joined Thursday’s “Baystate Business“ radio program to discuss whether employers can and should mandate that employees get a COVID-19 vaccine in order to return to the office.

NYS Assembly Bill Seeks to Empower Health Department to Make COVID-19 Vaccine Mandatory

Spectrum News | December 09, 2020

In this television news segment on a bill introduced in the New York State Assembly to make the COVID-19 vaccine mandatory, Rochester Labor & Employment partner Kim Harding is quoted for her outlook on the bill’s enforcement mechanism.

Former OSHA Head's Transition Role Suggests Quick Emergency Rule

Bloomberg Law | December 08, 2020

In this article covering former OSHA head David Michaels being named to President-elect Joe Biden’s transition team Covid-19 task force, San Francisco Labor & Employment associate Rachel Conn is quoted on employers’ trepidation over possible new regulation.

Speaking of Health Law: COVID-19 GC Roundtable-Part 10 (podcast)

American Health Law Association | November 05, 2020

In this podcast episode, Washington, D.C. Health Care counsel Sarah Swank speaks with two health care general counsel about how their hospitals are managing the pandemic response, including how they are dealing with patient load and planning for the future, and supply and workforce issues.

New Regulations May Make It Easier for Travelers to State, but Questions Remain

WHEC NBC-10 | November 02, 2020

In this broadcast segment on New York State’s new coronavirus regulations regarding interstate travel, which replaces the 14-day quarantine for travelers, Rochester Labor & Employment partner Kim Harding is quoted for her outlook on how the new regulations are more manageable for businesses.

401(k) Contributions a Victim of Pandemic at Some Companies

Rochester Business Journal | September 25, 2020

Employee Benefits & Executive Compensation team leader and Rochester Corporate partner Eric Paley is quoted in this article on how some companies are freezing contributions to their employees’ 401(k) contributions amid the COVID-19 pandemic.

Pandemic Pay Issues for Wage and Hour Lawyers to Watch

Law360 | September 24, 2020

This article on notable pandemic-related wage and hour issues quotes San Francisco Labor & Employment associate Jade Butman on whether employers would be on the hook for the time that workers spend adhering to building safety protocols.

What Employers Can Learn from New NLRB Virus Advice

Law360 | September 09, 2020

Labor & Employment deputy group leader and Chicago partner Brian Alcala contributed this article on the National Labor Relations Board’s recent guidance on COVID-19-related labor law violations against employers in these uncertain times.

On High Alert: Running a Retail Business in the Age of the COVID Pandemic

Marijuana Venture | August 10, 2020

San Francisco partner Alison Torbitt, who co-leads NP’s Food, Beverage & Agribusiness team, and San Francisco Labor & Employment associate Hilary Baca co-wrote this contributed article on how cannabis retailers can revamp their stores and policies to stay in compliance with state and local laws, while helping to prevent the spread of communicable illnesses to customers and employees.

Liability immunity proposals raise concerns for lawyers

Daily Record | July 31, 2020

In this article on the proposed legislation to provide businesses with immunity from COVID-19 liability lawsuits, Rochester Labor & Employment partner Kim Harding is quoted for her outlook on the legislation and the importance of businesses to continually abide by state and federal laws.

Employer Object To Cal/OSHA Virus Reporting Split From Federal OSHA

Inside OSHA | July 28, 2020

This article, discussing employer objections to the differences between Cal/OSHA and the federal OSHA requirements to record and report COVID-19 cases, quotes an NP alert providing guidance for California employers on the differences. The alert was authored by Occupational Safety & Health (OSHA) practice co-chair and Los Angeles Labor & Employment partner Ben Kim and San Francisco Labor & Employment associate Maritza Martin.

Are employers obligated to accommodate requests to work from home?

WHEC-TV News 10NBC | July 22, 2020

Rochester Labor & Employment partner Kim Harding was featured in this broadcast segment on what obligations employers have to work with their employees as schools start again in September.

Marijuana Social Clubs: How Colorado is Setting the Pace

Cannabis Business Executive | June 17, 2020

This article, on the reopening of Colorado’s marijuana hospitality industry, cites a recent NP alert that details guidelines for cannabis retailers to consider for revamping operations without spreading communicable illnesses. Cannabis Business Executive also re-published the complete NP alert, written by San Francisco Affordable Housing & Real Estate partner Alison Torbitt; Los Angeles Intellectual Property partner, Litigation Department vice-chair, and Fashion practice leader Staci Riordan; and San Francisco Labor & Employment associates Hillary Baca and Rachel Conn.

How employers can prepare for expected waves of coronavirus-related litigation

Daily Journal | June 03, 2020

Labor and Employment partner Bonnie Glatzer and associates Hillary Baca and Jade Butman, all in San Francisco, contributed this article on potential coronavirus-related litigation matters that California employers should be aware of, and how employers can prepare for possible lawsuits.

Special Considerations for Restaurants and Franchised Businesses Under the CARES Act

Modern Restaurant Management | April 29, 2020

Franchising & Distribution co-leader Keri McWilliams in Washington, DC, and Corporate associate Wes Gangi in Chicago contributed this article. Based on a recent client alert, the article covers relief programs available to the restaurants industry, food retailers, and franchisees under the CARES Act and the Paycheck Protection Program.

Employers face a ‘minefield’ of legal issues as they prepare to reopen

The Boston Globe | April 29, 2020

This article, which looks at the potential flood of litigation as the economy reopens, quotes Boston co-office managing partner and Complex Commercial Disputes partner Kathleen Ceglarski Burns on the possibility of shareholder lawsuits at publicly-traded companies, even if companies have listed the coronavirus as a risk factor in their annual reports.

Employers with skeleton crews are on the hook for their safety

Bloomberg Law | March 26, 2020

San Francisco Labor and Employment associate Rachel Conn discusses some of the methods employers are using to keep essential employees safe during the coronavirus outbreak—from staggered shifts to reconfigured work spaces.

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