With the recent spread of the Omicron variant, public focus has turned to the question of whether and how quickly an employee can return to work after testing positive for COVID-19. But for some, including those who became ill before a vaccine was available, testing positive is just the beginning, as symptoms can persist for months on end and can affect the ability to partake in certain of life’s activities.

Recently, the Equal Employment Opportunity Commission (“EEOC”) updated its guidelines with respect to these “long-haulers.” Those who experience ongoing health problems four or more weeks after being infected with COVID-19 are said to be suffering from “long COVID” (also known as “chronic COVID” or “post-acute COVID”) and may be protected under Section 1 of the Americans with Disabilities Act (“ADA”), which is the section that sets forth requirements for nondiscrimination and reasonable accommodations in the employment context.

This latest update follows President Joe Biden’s July 2021 announcement that “long COVID” may be considered a disability under the ADA. Following suit, the EEOC’s new guidelines explicitly discuss “long COVID” and reemphasize the factors taken into consideration in determining whether and to what extent ADA protection exists. It makes clear that, while COVID-19 is not automatically considered a disability, it may cause impairments that themselves are disabilities under the ADA, regardless of whether the initial case of COVID-19 was an actual disability. Further, while any determination must be made on a case-by-case basis, those who are either asymptomatic or have mild COVID symptoms that resolve in a few weeks are not likely to be considered disabled under the ADA, since their symptoms typically do not “substantially limit” a major life activity.

What is “Long COVID”?

Long COVID is marked by ongoing health problems four or more weeks after initial infection. Sufferers of long COVID include those whose original symptoms persist and those who have new or recurring symptoms down the road, provided the individual’s doctor attributes those symptoms to COVID-19.

Explicitly recognized health problems associated with COVID in this context include:

  • limitations in neurological and brain function, such that a person experiences “intermittent multiple-day headaches, dizziness, or brain fog” and, as a result, has difficulty thinking or concentrating;
  • limitations in respiratory function, such that a person initially received supplemental oxygen for breathing difficulties but nonetheless experiences shortness of breath, associated fatigue, and other virus-related sequelae;
  • limitations in cardiovascular and circulatory function, such that a person experiences heart palpitations, chest pain, shortness of breath; or
  • limitations in gastrointestinal function, such that a person experiences intestinal pain, vomiting, and nausea.

What Constitutes a Major Life Activity?

EEOC guidance specifies that people with COVID-19, including those suffering from “long COVID,” will only be considered disabled when their symptoms substantially limit a major life activity. In this sense, the ADA treats COVID-19 no differently than it does other medical conditions.

“Major life activities” is a broad term encompassing a wide range of functions such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working.

Moreover, as with other medical conditions, there is no blanket rule. Instead, to determine whether either COVID-19 or “long COVID” substantially limits a major life activity as defined under the ADA, one must conduct an assessment tailored to the individual at issue. In other words, not all who contract COVID-19 will be protected under the ADA, even where symptoms persist for four weeks or longer.

What Does it Mean to “Substantially Limit” a Life Activity?

The term “substantially limits” is construed broadly under the ADA and should not demand extensive analysis. Further, it is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Moreover, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when occur.

To be clear, when dealing with COVID-19 under the ADA, the limitations at issue do not necessarily have to last any particular length of time to be substantially limiting. Rather, the length of the symptoms at issue is simply determinative of whether someone suffers from “long-COVID.” Whether that individual has a covered disability requires an individual assessment, as it would with any other medical condition.

What Types of Accommodations Might Be Used for Long Covid?

Given the fluidity of the law and lack of precedent in this area, employers should be flexible in the types of accommodations they offer to employees suffering from long COVID. According to a blog from the U.S. Department of Labor, accommodations for those disabled by long COVID may include:

  • providing or modifying equipment or devices
  • part-time or modified work schedules
  • reassignment to a vacant position
  • adjusting or modifying examinations, training materials or policies

An employer is not, however, required to:

  • remove essential job functions
  • lower production standards
  • provide personal need items such as hearing aids and wheelchairs
  • provide any accommodation that creates an undue hardship
  • provide an employee’s preferred accommodation as long as the employer provides an effective accommodation

In sum, this most recent update from the EEOC highlights the fact that employers should be ready to see claims from those suffering the symptoms of COVID-19 well into the future. If you have questions on this topic, please contact Rachel Morgenstern at rmorgenstern@jaspanllp.com or Jessica Baquet at jbaquet@jaspanllp.com.

We previously blogged about the issuance of an emergency temporary standard (ETS) by the Occupational Safety and Health Administration (OSHA) obligating large employers to require their employees to become vaccinated against COVID-19 or submit to weekly testing for the disease. Since the ETS was published in November 2021, lawsuits challenging the mandate have proceeded on a tortured procedural path through our federal courts. At one point, the Fifth Circuit Court of Appeals stayed the ETS from taking effect. Later, after the various cases were consolidated before the Sixth Circuit, the stay was vacated and the Biden administration told employers it was full steam ahead. The majority of the ETS’ provisions took effect on January 10, 2022, while the date for compliance with the weekly testing requirement was scheduled to take effect in February.

Supreme Court Ruling

Most recently, the ETS’ challengers applied to the United States Supreme Court (SCOTUS) for an order barring the ETS from taking effect while the lower courts consider whether OSHA exceeded its authority in issuing the rule. This application for emergency relief–which appeared on what some call the court’s “shadow docket”– was orally argued (and broadcast online) before SCOTUS on January 7th. Based on comments made by the justices, particularly those by Justice Roberts, many commentators anticipated that the stay would be granted.

Today, those predictions were proven correct when six of the nine justices ruled in favor of staying the ETS from taking effect and/or being enforced. As a practical matter, this means that employers with one hundred or more employees who were preparing to comply (or already started doing so) are no longer required to do so for the time being. Of course, this does not change anything for companies that are subject to state or local mandatory vaccination requirements.

Future of the ETS

Many employers are wondering whether the stay will ultimately be lifted and it will become necessary to comply with the ETS. Based on SCOTUS’ ruling, it is unlikely that the ETS, in its current form, will ever take effect.

Although the distinction may not matter to some, the reality is that SCOTUS did not permanently strike down the ETS. It stopped the ETS from taking effect while leaving it to the trial courts to decide whether the ETS should be upheld at the end of the day. However, SCOTUS’ decision foreshadows how the court would view the underlying question of the ETS’ validity if it ever came before the justices on an appeal. That is because one of the primary considerations in whether to grant a stay is whether the party seeking the stay is “likely to succeed on the merits” of the underlying lawsuit.

The majority of the justices agreed that OSHA does not have the authority to issue a sweeping mandate like the ETS, which would have covered approximately 84 million people and regulated a risk that exists both in and outside of the workplace.  According to the majority opinion, if Congress had intended for OSHA to have such broad powers, the law would have said so clearly, but it does not. Since SCOTUS held, in the context of the stay application, that OSHA does not have the authority to issue such a rule, it is very unlikely that the majority would reach a contrary conclusion on a later appeal.

It remains to be seen whether OSHA will attempt to implement a narrower temporary rule, or individual states will pass legislation imposing obligations similar to those in the ETS. Employers that have taken steps to comply with the ETS can still choose to require vaccination or testing of their employees, so long as they properly entertain requests for reasonable accommodations for medical or religious reasons. Otherwise, employers can shelf their vaccination or testing plans for now–and possibly forever.

If you have any questions about the ETS or mandatory vaccination policies, please contact Jessica Baquet at jbaquet@jaspanllp.com.

Although the Centers for Disease Control and Prevention (CDC) issued updated guidance for isolation and quarantine relating to COVID-19 on December 27, 2021, the New York State Department of Health (NYSDOH) did not follow suit until yesterday, January 4, 2022. In an interim guidance document made available online and sent to local health departments, school districts, congregate care settings and healthcare providers, NYSDOH stated that it is “aligning with CDC’s updated isolation and quarantine recommendations” but, because CDC guidance is in flux and expected to be updated as further evidence relating to the current surge is gathered, NYSDOH’s policy is being issued on an interim basis and is subject to change.

Isolation for the General Population

NYSDOH now requires that a person who tests positive for COVID-19 or experiences symptoms of COVID-19 isolate for five days after symptom onset or, if asymptomatic, after receiving a positive test. Subsequently:

  • For most people, if asymptomatic at the end of five days or symptoms are improving and the person has been without a fever for at least twenty-four hours, isolation ends and the individual must wear a well-fitting mask while around others for five additional days. ​Presumably (though not stated explicitly by NYSDOH), if a person’s symptoms are not improving on the fifth day of isolation, isolation should continue until symptoms begin improving and the individual has been without a fever for at least twenty-four hours.
  • Individuals who are unable to wear a well-fitting mask or are moderately/severely immunocompromised may not discontinue isolation after the initial five days. In most cases, isolation may be ended after ten total days have elapsed and the individual has been without a fever for at least twenty-four hours. However, if such a person was “severely ill” with COVID-19 (i.e., hospitalized, on a ventilator or subject to intensive care), then extending isolation to a total of twenty days “may” be warranted.
  • Quarantine for the General Population

    If a person is exposed to COVID-19, quarantine requirements depend on the individual’s vaccination status. Specifically:

  • If a person is unvaccinated or is vaccinated but has not received a booster for which the person is eligible, the individual must quarantine for five days after exposure and wear a well-fitting mask around others for five additional days after quarantine ends. Testing at the end of the initial five day period is recommended but not required. ​
  • If a person is fully vaccinated and boosted, or fully vaccinated and not yet eligible for a booster, the individual does not need to quarantine but is required to wear well-fitting mask around others for ten days after exposure. Again, testing at the end of the initial five day period is recommended but not required. ​
  • ​If symptoms develop for someone who was exposed to COVID-19, the person should continue quarantining (or begin/return to quarantine, as applicable) and seek testing. Quarantine will end if a negative result is received. If a person does not test, or tests positive, they must follow the isolation procedures described above.

    Quarantine and Isolation for Healthcare Workers

    On December 24, 2021, NYSDOH updated its guidance for quarantine and isolation of healthcare workers and “other critical workforce.” That guidance is no longer applicable to “other critical workforce” members and those individuals should now follow the January 4th guidance. However, the December 24th guidance remains in effect for healthcare workers.


    If you have any questions concerning quarantine and isolation requirements, please contact Jessica M. Baquet at (516) 393-8292 or jbaquet@jaspanllp.com.

    On December 6, 2021, New York City Mayor Bill de Blasio announced a COVID-19 vaccine mandate for all private-sector employers in the City. Under the mandate of the Department of Health, New York City businesses, regardless of size, must ensure that employees who work in-person receive at least one dose of the vaccine by December 27, 2021. According to the website for the Mayor’s office, the City will issue “additional enforcement and reasonable accommodation guidance” on December 15th “along with additional resources to support small businesses with implementation.”

    This is not the City’s first vaccine mandate. In the last several months, the City imposed vaccine mandates on municipal workers, and employees and patrons of indoor dining, entertainment venues and gyms. Also on December 6th, Mayor de Blasio announced that the pre-existing mandate, known as the Key to New York Pass, will be expanded to require children ages 5 to 11 to show proof of at least one vaccination dose to patronize indoor dining, entertainment venues and gyms beginning on December 14, 2021. Additionally, starting on December 27, 2021, people ages 12 and older will be required to show proof that they have received two doses of the Pfizer or Moderna vaccine, or one dose of the Johnson & Johnson vaccine, to enter these facilities.

    While we await the release of further guidance, employers should begin working to update their existing policies to account for the enforcement of the expanded vaccine mandate to employees and, in some instances, customers. This should include a process for receiving and reviewing requests for exemptions or reasonable accommodations from the mandate.

    If you have questions concerning this expanded mandate or how to revise your company’s policies, please contact Jessica M. Baquet at (516) 393-8292 or jbaquet@jaspanllp.com.

    New York Governor Kathy Hochul recently signed S.B. 4394, an amendment of Section 740 of the New York Labor Law that amounts to a significant expansion of safeguards for whistleblowers. Effective January 26, 2022, the new law broadens the definition of retaliation, creates new notice and reporting requirements, extends certain protections to former employees and independent contractors, and increases potential damages, among other things discussed in greater detail below.

    Who is an “Employee” Under the New Law?

    Formerly, whistleblower protections were only extended to those “who perform[ ] services for and under the control and direction of an employer for wages or other remuneration,” as that was the definition of “employee.” However, under the amended law, the range of people protected from retaliation includes current and former employees as well as independent contractors.

    What Kind of Activity is Protected Under the New Law?

    Under the old law, employees were only protected when reporting a violation that created a substantial and specific danger to public health or safety. By contrast, the amended law protects those who disclose or threaten to disclose anything relating to practices and activities that the employee “reasonably believes” (1) violate a law rule, or regulation, or (2) pose a substantial and specific danger to public health or safety. The employee is also protected if he provides information to or testified before a public body, or objects or refuses to participate in the subject policy or practice.

    What Constitutes Retaliation Under the New Law?

    Under the old law, the definition of retaliatory conduct was limited to the discharge, suspension or demotion of an employee, or other adverse employment action. Now, the law also protects against actual or threatened adverse employment actions, including (1) the above-described conduct, (2)  conduct that would adversely impact a former employee’s current or future employment; and (3) the contacting of immigration authorities or reporting the immigration status of employees or their family members.

    How Have the Reporting Requirements Changed?

    Under the old law, employees had to report any violations to their employer first, before disclosing it to a public body. This was intended to give the employer a reasonable opportunity to correct the alleged violation. The amended law, however, requires only that employees make a “good faith” effort to notify their employer first. Further, the employee can entirely bypass that step, and go straight to public disclosure if the employee reasonably believes: (1) that there is imminent and serious danger to public health or safety; (2) that reporting the alleged wrongdoing to their employer will result in the destruction of evidence, concealment, or harm to the employee; or (3) that his supervisor already knows of the violation and will not correct it.

    What Else Has Changed?

    Under the old law, a plaintiff could seek (1) injunctive relief; (2) reinstatement; (3) compensation for lost wages, benefits, and other remuneration; and (4) reasonable costs, disbursements, and attorneys’ fees. The law now allows for a jury trial and permits, in addition to existing remedies, front pay in lieu of reinstatement, the recovery of up to $10,000 and punitive damages. If the plaintiff prevails, he may be entitled to injunctive relief, reinstatement, compensation for lost wages, benefits, and other remuneration, and reasonable costs, disbursements, and attorneys’ fees. Importantly, the amended law also expands the statute of limitations from one to two years. However, it is also of note that, if the court finds that a retaliation claim was brought without basis in law or fact, the employer may now be awarded reasonable costs and attorney fees.

    Recommendations for Employers Going Forward

    Employers are required to post notice of the employees’ protections, rights and obligations under the new law. The notice should be conspicuous, meaning in an accessible and well-lighted place. A model posting will likely be available at the Department of Labor website in advance of the law’s effective date. Additionally, it may be appropriate to provide additional training for managers responsible for receiving and escalating whistleblower complaints. Further, it may be advisable to contact counsel when presented with reported violations by employees.

    For further information on New York’s whistleblower laws or how to revise your company’s policies, contact Jessica Baquet or David Paseltiner at 516-746-8000.




    As we discussed in an earlier related blog post, effective March 31, 2021, the Marijuana Regulation and Taxation Act (“MRTA”) legalized the use of recreational marijuana for adults who are 21 and older and amended New York Labor Law 201(d), among other revisions, to prohibit employers from discriminating against an employee for such employee’s “legal use of consumable products, including cannabis in accordance with state law, prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment of other property.” Recently, the New York Department of Labor (“DOL”) issued guidance on MRTA, which delineates permitted employer actions and answers to frequently asked questions.

    Employers cannot test for cannabis and cannot rely on drug workplace policies existing prior to the effectiveness of MRTA, except for limited circumstances, such as if drug testing is specifically required by law. However, employers can implement new policies prohibiting cannabis use during work hours or on the employer’s property in compliance with the law.

    What constitutes “work hours”?

    Under the DOL guidance, “work hours […] means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work. Such periods of time are still considered ‘work hours’ if the employee leaves the worksite.” Additionally, employers can prohibit cannabis while an employee is on call or “expected to be engaged in work.”

    What is employer’s property?

    Employers can prohibit use and even possession of cannabis on the “employer’s property, including leased or rented space, company vehicles, and areas used by employees within such property (e.g. lockers, desks, etc.).” The DOL guidance further states that “employers are permitted to prohibit use in company vehicles or on the employer’s property, even after regular business hours or work shifts.”

    Can an employer take action against an employee for using cannabis on the job?

    Yes, employers may take employment action against an employee if the employee manifests specific articulable symptoms of impairment that (i) decrease or lessen the performance of their duties or tasks and (ii) interfere with an employer’s obligations to provide safe and healthy workplace, free from recognized hazards as required by state and federal occupational safety and health laws (such as the operation of heavy machinery in an unsafe and reckless manner). Articulable symptoms of impairment are objectively observable indications that employee’s performance of the duties of the position of their position are decreased or lessened, however, the DOL guidance cautions that “such articulable symptoms may also be an indication that an employee has a disability protected by federal and state law (e.g., the NYS Human Rights Law), even if such disability or condition is unknown to the employer. Employers should consult with appropriate professionals regarding applicable local, state, and federal laws that prohibit disability discrimination.” Additionally, the DOL guidance specifies that the smell of cannabis alone is not an articulable symptom of impairment.

    For further information or guidance on revising your policies and procedures, please contact Jessica Baquet or David Paseltiner.

    On October 6, 2021, the New York Workers’ Compensation Board adopted a revised regulation addressing the amount of intermittent Paid Family Leave (“PFL”) that is available to employees who work more than five days per week. The revised regulation becomes effective January 1, 2022, and is not retroactive.

    Under existing regulations, employees who are qualified for PFL may take up to 12 weeks of such leave during a period of 52 consecutive weeks. Employees are not required to take PFL all at once and may elect to take it in full day increments on an intermittent basis. When taking PFL on an intermittent basis, the maximum days of PFL that an employee may take is determined by multiplying the average number of days he or she works per week by 12, but in no event more than 60 days of PFL per 52-week period for employees working at least five days per week. As a result, an employee who works more than five days a week is currently capped at 60 days per 52-week period.

    Under the revised regulation, the 60-day cap has been eliminated, and employees who work more than five days per week will be eligible to take additional intermittent PFL once the revised regulation takes effect. Without the cap, employees who work six days per week will become entitled to 72 days of PFL to be used intermittently in a 52-week period, and employees who work seven days per week will become entitled to 84 days of PFL to be used intermittently in a 52-week period.

    The revised regulation does not affect employees who work five or fewer days per week but will  greatly increase the days of intermittent PFL leave available to employees who do work in excess of this amount. Employers who have employees working more than five days per week should take note of this change and take steps to ensure compliance with the revised regulation when it becomes effective.

    For further information or guidance on revising your policies, please contact David Paseltiner or Jessica Baquet.


    On Nov. 1, 2021, New York Governor Kathy Hochul signed an amendment to the New York Paid Family Leave Benefits Law (the “PFL”) expanding the definition of “family member” for the purposes of the PFL to include biological or adopted siblings, half-siblings, and step-siblings. The current definition of “family member” covers children, parents, grandparents, grandchildren, spouses and domestic partners. While the change to the definition will not become effective January 1, 2023, employers should make a note of the change and take steps to prepare for the expended coverage prior to its effective date.

    For further information or guidance on revising your policies, please contact David Paseltiner

    As noted in an earlier blog, on March 12, 2021, New York enacted a new law requiring public and private employers to provide paid leave for any employee receiving a COVID-19 vaccination. Under this law, employers must provide their employees up to four hours (or, if greater, such time as an employee is entitled to receive pursuant to a collectively bargained agreement or as otherwise authorized by the employer) of paid time off per vaccine injection at their regular pay rate.

    When the law was enacted, COVID-19 booster shots were not something that was considered necessary, and guidance from the Labor Department contemplated that total paid leave for vaccinations would be capped at eight hours for those taking a two-dose vaccination series. While, as noted above, the statute itself indicates that four hours of leave is available “per vaccine injection, to avoid any doubt, the Labor Department has revised its Frequently Asked Questions to make clear that the law applies to any COVID-19 vaccination received by an employee, including booster shots.

    Employers should update their paid vaccine leave policies and practices to include paid time off for booster shots.

    For further information or guidance on revising your policies, please contact David Paseltiner or Jessica Baquet.


    This morning, the United States Department of Labor (DOL) published its much-anticipated Emergency Temporary Standard (ETS) concerning COVID-19 vaccination and testing. The ETS was issued at the directive of President Biden and sets forth the details of the mandate that certain employers require their employees to become fully immunized against COVID-19 or, alternatively, to submit to weekly COVID-19 testing and wear face coverings in the workplace. DOL has also released other materials, including fact sheets, a webinar and sample policies, to assist employers in complying with the ETS.

    In this blog, I will summarize some of the salient aspects of the ETS. Note that the requirement that employees become fully vaccinated or submit to weekly testing will become effective on January 4, 2022. All other aspects of the ETS will become effective on December 5, 2021.

    Which employers are subject to the ETS?

    The ETS applies to most private employers with at least one hundred employees company-wide, including employees who are full-time, part-time, temporary or seasonal. Independent contractors are not counted for purposes of determining an employer’s size.

    Certain large private employers are not subject to the ETS because they are covered by other federal rules and regulations. These include federal contractors and subcontractors, and employers whose employees provide healthcare or healthcare support services (which are covered by a separate emergency temporary standard).

    While the ETS does not currently apply to employers with fewer than one hundred employees, DOL’s fact sheet makes it clear that the ETS could be expanded to cover smaller employers in the future. It states that OSHA requires additional time to determine whether it is feasible for smaller employers to comply with the ETS.

    The ETS also applies to state and local government employers with at least one hundred employees, but only in states with safety plans approved by the Occupational Health and Safety Administration (OSHA).

    What obligations do employers have concerning vaccination, testing and face masks?

    Under the ETS, employers have a number of obligations concerning vaccination, testing and face masks. It is important to note that the ETS sets out the minimum obligations of employers. It does not prevent employers from adopting stricter or more protective policies and protocols.

    First, employers must develop a policy requiring employees to become fully vaccinated or submit to weekly COVID-19 testing and wear face masks in the work place. To be clear, employers are not required to provide employees with a weekly “test out” option, and may instead implement a straightforward mandatory vaccination policy. According to the ETS, its provisions override any state or local law or regulation barring employers from requiring vaccination, testing and/or mask-wearing.

    If an employer implements a mandatory vaccination policy without a “test out” option, the employer still must make exceptions for employees: (1) for whom a vaccine is medically contraindicated; (2) for whom medical necessity requires a delay in vaccination; or (3) who are legally entitled to reasonable accommodations under federal law because they have a disability or sincerely held religious belief that conflicts with vaccination requirements. If an employer permits an employee in one of these categories to be present in the workplace, the employee must comply with the ETS’ mandatory testing and mask-wearing requirements (and the employer’s policies must address those requirements). However, employees need not follow vaccination or testing requirements if they: (1) do not report to a workplace where other people are present; (2) work from home; or (3) work exclusively outdoors.

    Second, employers must take certain steps to facilitate their employees becoming vaccinated. Employers must provide employees up to four hours of paid time off for each vaccination dose. This paid time off is in addition to time off available under the employers’ usual policies; employees cannot be made to use other accrued paid time off or sick leave. Employers must also provide a “reasonable” amount of paid time off to recover from side effects experienced after each vaccination dose.

    Third, for employers who choose to provide employees with a “test out” option, the employer must ensure that each employee who is not fully vaccinated, and who is in the workplace at least once per week, is tested for COVID-19 at least weekly and wears face coverings while at work. The ETS does not require employers to pay for costs associated with testing, although payment may be required by other laws, employment contracts or collective bargaining agreements.

    Fourth, employers must require employees, regardless of vaccination status, to provide prompt notice if they test positive for or are diagnosed with COVID-19. Employers must remove such employees from the workplace and prohibit them from returning until they meet the criteria for doing so.

    What notices must employers provide to employees?

    Employers are obligated to provide employees with certain information and to present that information in the language and at the literacy level that its employees can comprehend. The information to be imparted includes: (1) the requirements of the ETS and the specific workplace policies and procedures the employer has adopted in order to comply with the ETS; (2) a document published by the Centers for Disease Control and Prevention entitled “Key Things to Know About COVID-19 Vaccines”; (3) information about employee protections against retaliation and discrimination; and (4) information about criminal penalties that may be imposed against an employee who knowingly supplies false statements or documentation.

    What record-keeping requirements does the ETS impose upon employers?

    Employers must obtain and keep proof of their employees’ vaccination status, and treat this proof as confidential medical information under, among other laws, the Americans with Disabilities Act. Employers must permit an employee, or his/her authorized representative, to examine and/or copy the employee’s vaccination or testing documentation.

    Employers must also create a roster of their employees’ vaccination status. The employer is not required to permit its employees to inspect the roster, but must make available to any employee or his/her authorized representative the total number of employees in the workplace and the number of those employees who are vaccinated.

    What information must an employer report to the government?

    Employers must report to OSHA in certain instances. Specifically, the employer must report any work-related COVID-19 in-patient hospitalizations to OSHA within 24 hours of learning of them, and any work-related COVID-19 deaths within 8 hours of learning about them. However, employers need not submit their policies to OSHA unless requested.


    If you have any questions concerning the ETS or mandatory vaccination policies, please contact Jessica M. Baquet at (516) 393-8292 or jbaquet@jaspanllp.com.