Giving financial rewards to workers who get vaccinated for COVID-19 may increase following new guidance that greenlit the use of vaccine incentives, while employers also take other steps to encourage employees to get the coronavirus shots.

​Leisure travel is back following a year of lockdowns. But in the time it’s taken hospitality companies to restart their hiring efforts, many of their former employees have found new jobs in other sectors. The result: Restaurants, hotels and entertainment venues nationwide can’t find enough workers. Here are some new benefits they are offering to bring employees back.

After taking an initial hit in the early days of the COVID-19 pandemic, coaching has demonstrated surprising resiliency. Despite being an emerging industry and profession, coaching has proven to be an asset to many companies—even during a time when organizations have been cutting costs wherever they can.

Fisher Phillips, one of the Country’s preeminent labor and employment law firms representing employers, announces the addition of two attorneys in San Francisco. Tomiwa Aina joins as an Associate and Aaron Cargain joins as Of Counsel.

Aina represents employers on all aspects of labor and employment law including class actions, discrimination, and harassment claims. In addition to defending employers in litigation, she will regularly counsel employers of all sizes on preventing workplace disputes by advising them on regulatory compliance, employee training, handbooks, and policy creation. Aina earned her J.D. from Tulane University Law School and her B.A. from Covenant College.

Cargain joins from a national law firm where he represented employers in all aspects of employment litigation, including single-plaintiff, class and Private Attorney’s General Act (PAGA)representative actions. At Fisher Phillips, he expands the Firm’s service offerings in San Francisco by providing strategic counsel on matters involving the California Labor Code, Fair Employment and Housing Act, California wage orders, PAGA, the Americans with Disabilities Act and the Age Discrimination in Employment Act. Cargain earned his J.D. from Rutgers University School of Law, Camden and his B.A. from The University of California, San Diego. He is licensed in California and New York.

“Aaron and Tomiwa are excellent additions to our team in the Bay Area,” said Jason Geller, Regional Managing Partner of Fisher Phillips’ San Francisco office. “Our clients are increasingly facing new employment laws that impact their workplaces and a greater risk of potential litigation. With their arrival, we are continuing to build a team that is strategically positioned to respond efficiently to our clients’ employment law needs.”

The COVID-19 pandemic drove more employers to offer voluntary employee-paid benefits. To ensure that employees appreciate these offerings, they need to be aware they are…

The U.K.’s Pensions Regulator and the Financial Conduct Authority (FCA) have published a joint guide for employers and trustees on providing support with retirement planning without needing to be subject to FCA regulation.

After a rollercoaster meeting yesterday where it originally voted down the proposed revisions, Cal/OSHA’s Standards Board eventually adopted proposed revisions to the Emergency Temporary Standard (ETS) that will establish COVID-19-related workplace safety rules for California employers. Now, the Standards Board will submit the proposed revised ETS to the Office of Administrative Law, which will have 10 days to review and approve the proposal. If approved, the revised ETS is anticipated to go into effect on or before June 15. What do these revisions to the ETS mean for employers? This Insight summarizes the 10 key revisions employers need to know about, and provides a recommended five-point action plan for employers – including a complimentary webinar on June 8 to review the latest developments.

Recapping Recent Revisions

In Change is Coming in California: The Top 10 Revisions to COVID-19 Workplace Safety Rules for Employers, we discussed many of the critical changes proposed in the May 7 update, including revised definitions, modifications to face covering requirements, exclusion after exposure, physical distancing, respirators (N95) for voluntary use, testing, notice, exclusion pay, outbreak requirements and employer-provided housing and transportation requirements.

In addition to the proposed changes issued by Cal/OSHA on May 7, the revised ETS includes further proposed revisions, issued on May 28. Though these additional amendments are relatively minor, they include physical distancing options for employers with employees in indoor settings or “outdoor mega events” of over 10,000 participants or spectators. The additional revisions also accelerate the requirement that employers immediately provide testing for symptomatic employees regardless of work-relatedness.

Summary of Key Revisions

  1. Face Coverings – Despite two rounds of proposed revisions, the revised ETS does not align with the recent CDC guidance or Governor Newsom’s plan to end social distancing and masking for those who are fully vaccinated as of June 15. This means that most employees must continue masking in the workplace, even after June 15.

    Under the revised ETS, the narrow exceptions for removing masks in the workplace include where: (1) an employee is alone in a room; (2) all persons in a room are fully vaccinated and asymptomatic; (3) employees work outdoors and are fully vaccinated and asymptomatic; or (4) employees have a medical, mental health or disability-related reason and remain socially distant or are fully vaccinated or test weekly at the employer’s expense. This means that in nearly all situations for employers with public-facing businesses, vaccinated and unvaccinated employees will need to continue wearing face coverings for now. Additionally, in many other work environments such as employees in open work areas (e.g., cubicles, shared offices), vaccinated and unvaccinated employees will also need to maintain face coverings unless the employer has documentation showing all persons in the room are fully vaccinated (and the persons are asymptomatic).

  2. Employers Must Provide Respirators (N95s) For Voluntary Use to Those Who Are Unvaccinated – Starting July 31, employers are required to provide “respirators” (N95 masks) to all employees who have not provided documentation showing they are fully vaccinated working indoors or at outdoor “mega events” for their voluntary use. There was much controversy over this requirement. In view of this requirement, employers will need to stock up on N95 masks for eligible employees who may ask to use a respirator.
  3. Certain Exemptions From Exclusion After Exposure and Testing – Fully vaccinated employees without symptoms generally will no longer need to be excluded from the workplace after exposure to COVID-19. This also extends to relief from having to exclude employees who were in close contact if they had COVID-19 within the last 90 days and have remained symptom-free. Additionally, employers will be exempted from the obligation to make testing available to employees that are fully vaccinated and asymptomatic or who have had COVID-19 in the last 90 days.
  4. Physical Distancing – The general ETS requirements for physical distancing will come to an end on July 31. Until then, employers have two options as to physical distancing for employees working indoors or at outdoor mega events: 1) continue physical distancing except where the employer where the employer can demonstrate distancing is not feasible and requires non-distanced employees to wear respirators; or 2) discontinue physical distancing so long as respirators are provided for voluntary use to those who are have not provided documentation that they are fully vaccinated.
  5. Notice Requirement and (New) Verbal Follow-Ups – After providing written notice of a COVID-19 case in the workplace, employers will be required to provide “verbal notice” if they reasonably know that an employee has not received the written notice or has limited literacy in the language in which the written notice was provided. For employers with a high percentage of non-English speaking employees, it may be best to provide the initial written notice in the employees’ native language, if possible, to address this requirement.
  6. Documentation for “Fully Vaccinated” – Employers will now be required to have documentation showing a person is “fully vaccinated.” Although there is no definition of “documentation” or current clarification on what documentation will suffice (e.g., signed acknowledgment, confirmation of vaccination card, etc.), Eric Berg from Cal/OSHA stated at the Standards Board meeting that employers are not required to maintain an actual copy of an employee’s vaccine card but can choose to do so. He also indicated that Cal/OSHA will follow up with further clarity and examples of acceptable documentation through updated FAQs.
  7. Exclusion Pay – The revisions specify that employees may bring a wage claim to recover unpaid “continued earnings” when excluded from the workplace. The revisions also specify that employees must be paid their regular rate of pay by the next regular pay day.
  8. Testing for Non-Vaccinated Symptomatic Employees – Employers must make COVID-19 testing available at no cost during paid time to employees with COVID-19 symptoms who are not fully vaccinated.
  9. Revisions to Outbreak Requirements – The requirements that apply when there is an “outbreak” or a “major outbreak” have been revised, in some cases simplifying employer obligations.
  10. Employer-Provided Housing and Transportation Requirements – Finally, employers providing housing and transportation will have increased flexibility with respect to fully vaccinated employees.

In addition to the above, other revisions include modifications to key definitions, a newly imposed training requirement when respirators are provided for voluntary use, and other updates.

Though many of the revisions are welcomed, they do not completely align with the relaxed restrictions seen outside of California and statewide as of June 15. In voting on these proposed revisions, many of the Standards Board members struggled with approving and adopting this version given some of the outdated and misaligned provisions. However, the Board ultimately moved forward with approving the revised version as it contains at least some reprieve for employers and employees.

In addition to approving the revised ETS, the Standards Board voted to create a subcommittee comprised of certain Board members who will be tasked with quickly working directly with Cal/OSHA to draft further revisions to address concerns of the current version of the revised ETS. It is likely we will see further refinements to the regulations in the coming weeks to take into account the positive changes in circumstances as a result of increased vaccination rates and low COVID-19 case rates.

Next Steps

California employers should adopt the following series of steps to ensure compliance with the upcoming changes to the ETS:

  • Review the proposed changes to the ETS carefully and with counsel.
  • Attend our upcoming complimentary webinar on June 8 to learn what you need to know about these changes and what you will need to do differently.
  • These changes will necessitate some changes to your Written COVID-19 Prevention Program (WCPP) and other documents, notices and templates. Fisher Phillips is updating its compliance packet for employers. If you are interested in purchasing a packet, contact your Fisher Phillips attorney or the authors of this legal alert.
  • Consider how you are going to approach the issue of vaccinated employees. Begin with our summary of vaccine-related considerations to get you started.
  • Make sure you are subscribed to Fisher Phillips’ Insight System to get the most up-to-date information. We are continuing to monitor the rapidly developing COVID-19 situation and will provide updates as appropriate.

For further information, contact your Fisher Phillips attorney, the authors of this alert, or any attorney in our California offices.

Welcoming employees back to a physical workplace could enable more effective onboarding, training and collaboration. But recent research shows getting employees to return to the office will be an uphill battle: Nearly two-thirds of employees would choose a permanent work-from-home situation over a $30,000 raise. As the economy recovers and employers hire more workers, HR departments must weigh which benefits would attract the best candidates while also keeping their current employees happy.

States reported that 385,000 workers filed for new unemployment benefits during the week ending May 29, a decrease of 20,000 from the previous week’s revised level and the lowest level of initial claims since Mar. 2020. The total number of workers continuing to claim state unemployment benefits rose to 3.7 million.

New Jersey’s Governor Phil Murphy just issued executive orders easing some of the state’s COVID-19 restrictions and providing employers and businesses some much-welcomed flexibility. Executive Order 243, which becomes effective June 4, rescinds the telework or “work from home” mandate that has been in place since March 2020 and eases other requirements on businesses that operate private offices. Executive Order 242 – which went into effect on May 28 – eases many restrictions on businesses open to the public. What do you need to know about these significant changes?

Telework and Work-From-Home Mandates Rescinded

Executive Order 243 rescinds the mandates put in place in March 2020 via Executive Order 107 that required businesses and non-profits to reduce the number of staff onsite to the minimal number necessary to continue operations and accommodate their workforce for telework or work-from-home arrangements wherever practicable.   

Indoor Private Workplaces  

Effective June 4, in workplaces that are not open to the public, employers will no longer have to require employees who provide proof that they are fully vaccinated to wear face masks or social distance. If an employer cannot determine an employee’s vaccination status or if an employee is not fully vaccinated, employers must continue to require those employees to wear masks and practice social distancing in indoor spaces. Employers are permitted to continue requiring vaccinated employee to wear masks and social distance.

Different rules apply to customers, visitors, and other authorized individuals. Employers may allow them “to enter the worksite without requiring use of a mask or adherence to social distancing, regardless of their vaccination status.” However, employers may establish a policy that requires these individuals who enter the worksite to wear a mask and/or social distance as long as it complies with 1(b) of October 2020’s E.O. 192, which details masking requirements. Employers must still comply with enhanced cleaning protocols and other requirements of Executive Order 239 and Executive Order 192, including daily heath checks described in Paragraph 1(f) of that October 2020 order.   

Indoor Workplaces Open to the Public  

Effective as of May 28, individuals are no longer required to wear face masks or social distance in indoor public spaces. “Indoor public spaces” do not include child care centers, other child care facilities, youth summer camps, and public, private, and parochial preschool program premises, and elementary and secondary schools, including charter and renaissance schools. The social distancing requirements for these locations, and any applicable standards issued by the Commissioner of the Department of Health, remain in full effect.  

Employers and entities overseeing indoor public spaces are permitted to impose stricter requirements regarding mask-wearing. They cannot, however, penalize or retaliate against any individuals who elect to wear a mask.

Food and Beverage Establishments

Executive Order 242 also removes the requirement that food or beverage establishments limit capacity to a number that ensures all patrons remain six feet apart. In addition, these establishments are no longer required to seat individuals or groups of individuals six feet apart. Moreover, patrons are allowed to place orders when not seated, consume food and beverages standing, and be served when not seated. Dance floors are also reopened under the order.

Healthcare Facilities

Executive Order 242 also clarifies that it does not supersede any masking or social distancing requirements currently in place in indoor or outdoor spaces in health care settings, including but not limited to long-term care facilities, home health care settings, and office-based health care settings, correctional facilities, homeless shelters, and on planes, buses, trains, and other forms of public transportation.

New Capacity Limits for Certain Businesses

Executive Order 242 permits the following businesses to operate at full capacity:

  • Retail establishments;
  • Personal care services;
  • Health clubs and amusement and water parks;
  • Recreational and entertainment businesses including pools, amusement parks, and water parks;
  • Casinos, including casino gaming floors and retail sports wagering lounges; and
  • Racetracks

Executive Order 242 also rescinds the capacity limits and requirement that all attendees at indoor gatherings be six feet apart from other attendees. Separate rules apply to workplaces that are not a public space. They are governed by Executive Order 243.

How Should Employers Proceed?

In light of the new executive orders, employers in New Jersey can increase the number of employees in the office. You must consider whether to continue your existing policies relating to face masks and social distancing or to relax them in view of CDC and OSHA Guidance.

If you opt to relax your policies for vaccinated employees, you must follow privacy laws and EEOC and New Jersey Division on Civil Rights guidance when inquiring about vaccine status and maintaining related records. We have created a blueprint for employers on how to overcome risks and hurdles regarding mask mandates and vaccine inquiries

Finally, you must continue cleaning protocols required by the CDC and prior executive orders in your workplaces and maintain protocols regarding daily health checks for employees.

In sum, although New Jersey has relaxed its social distancing and mask mandates, you should monitor the situation on an on-going basis to assure you are adhering to the most up-to-date guidance from the CDC and OSHA and other agencies.


Fisher Phillips will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate. Make sure you are subscribed to Fisher Phillips’ Insight System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney or any attorney in our New Jersey office.