WCI, Inc
Sept. 8, 2021

Latest COVID-19 Guidance for Employers

In arguably the most far-reaching move of the COVID-19 pandemic, the Biden administration announced that federal workplace safety officials will soon issue a rule that will require all employers with 100 or more employees to either ensure their workers are vaccinated or require unvaccinated employees to produce a weekly negative test result before coming to work. Businesses will also be required to give workers paid time off to get vaccinated and to recover from any vaccine side effects as part of the forthcoming emergency rule expected from the Occupational Safety and Health Administration (OSHA). The announcement was part of the Biden administration’s "Path Out of the Pandemic," which outlines a six-pronged, comprehensive national strategy to combat COVID-19, which also includes vaccine mandates for federal contractors (discussed here) and many additional healthcare workers, and providing further access to federal financial assistance. Here is a summary of the expected rule along with a five-step action plan you can implement immediately – and registration information for an emergency webinar to further examine these developments on Tuesday, September 14.

Vaccine Mandate for Employers with 100+ Employees

The cornerstone of the plan involves OSHA issuing a vaccine/testing rule that will apply to all private employers with more than 100 employees – which is estimated to impact 80 million workers, or two-thirds of the country’s workforce. This rule will take the form of an Emergency Temporary Standard (ETS), which allows the agency to enact regulations it can enforce immediately if a "grave danger" to worker safety is present. Covered employers who ignore the standard could face OSHA citations and penalties of up to $14,000 per violation. Although it is currently unclear, this likely means a fine of up to $14,000 for each facility inspected by OSHA where a covered employer has not implemented a mandatory vaccine policy or otherwise complied with the ETS.

Which Employers Will Be Covered?

As OSHA will be the agency responsible for issuing and enforcing the ETS, all employers covered by the OSH Act must comply with the forthcoming ETS. Many office-based employers do not even realize they fall under this statute and are not accustomed to interacting with OSHA, including financial institutions, insurance companies, law firms, and other professional and technical work environments.

When Will the ETS Likely be Issued?

While the Biden administration did not set out a timeline or deadline for OSHA to issue the ETS, it is clear that the administration is taking an aggressive approach. It is likely that OSHA will issue the ETS relatively quickly – perhaps in the next several weeks, especially if it has been in the works behind the scenes for some time now. After it is issued, OSHA will likely strive for a timeline of 75 days before it starts enforcing the ETS to remain consistent with the Biden administration’s proposed deadline for federal workers to obtain the vaccine.

Once issued, the ETS will have immediate effect in the 29 states where federal OSHA has jurisdiction. But in states where the federal government does not have jurisdiction over workplace safety (OSHA-state-plan states such as California, Tennessee, North Carolina, and Kentucky) these agencies will have to adopt the ETS or "just-as-effective measures" within 15 to 30 days.

How Long Will the ETS Last?

The ETS can remain in place for six months. After that time, it must be replaced by a permanent OSHA standard, which must undergo a formal rulemaking process involving a typical notice-and-comment period.

The 7 Biggest Unanswered Questions

The details of what the ETS will include are scarce at this point, leaving many questions unanswered. The seven biggest unanswered questions for employers at this point:

  • Will remote employees be covered? Unless the ETS specifically addresses remote employees, remote employees likely will not be covered by the emergency rule. OSHA largely avoids addressing safety issues concerning employees working from home.
  • How will the 100-employee threshold be counted? It is unclear whether the 100-employee threshold will be considered on a per location or company-wide basis. Given other standards that mandate certain requirements based on employer size, the threshold likely will be on the total number of workers employed by the company. It is also unclear whether a joint employer analysis will apply to the calculation of employees.
  • Will employers be required to collect proof of vaccination? Whether the ETS requires employers to collect proof of vaccination may have a huge impact on employers. OSHA’s record retention regulations require that employers preserve and maintain employee medical records for the duration of employment plus 30 years. Therefore, if the ETS requires employers to collect proof of vaccination, you may be required to maintain that record for the duration of the employee’s employment plus 30 years.
  • What type of testing will be required? It is unclear whether the ETS will mandate a particular type of COVID-19 test (antigen, PCR, etc.). While the PCR test is more accurate, it takes longer to receive the results and is more expensive.
  • Who Pays for Testing? While the Plan proposed to improve access to COVID-19 tests – even suggesting that retailers will offer to sell those rapid tests at cost for the next three months – the question of who pays for testing remains unanswered. Generally, however, any testing protocols must comply with applicable wage and hour laws, which provide that time spent on receiving employer-required tests should almost always be treated as compensable. Indeed, the Department of Labor’s COVID-19 and the Fair Labor Standards Act Questions and Answers, published before the Plan’s announcement, provides that employers are required to pay employees for time spent waiting for and receiving medical attention (including COVID-19 testing) at their direction or on their premises during regular working hours under the Fair Labor Standards Act (FLSA). This likely includes required testing occurring on employees’ days off if such testing is necessary to perform their jobs safely and effectively during the pandemic. Regarding the tests themselves, while insurance may cover the cost of tests, several states have laws predating COVID-19 requiring employers to pay for mandatory medical tests or reimburse employees for any such testing.
  • Will unionized employers be required to bargain over the decision of how to comply with the ETS? It remains to be seen whether and to what extent unionized employers would be compelled to bargain over the decision to effectuate compliance with the new mandate (or at least the discretionary aspects with respect to vaccines vs. weekly testing) under NLRB doctrine. At a minimum, you should prepare for a corollary obligation to bargain over the effects of that decision on demand. In the meantime, non-union employers should consider the practical implications of compliance from a labor relations perspective, as unions may attempt to leverage aspects of the new requirements for organizing purposes.
  • Will the ETS face legal challenges? As with any broad sweeping policy, any ETS that is adopted is likely to face legal challenges. Governors of many states have already indicated that they intend to challenge any ETS. It is possible that a court could even block enforcement of the emergency rule until the legal challenges are resolved. OSHA will have to prove that there is a "grave danger" to the workers of large employees in order for the ETS to withstand a legal challenge, which may be a difficult task.

What Should You Do? A 5-Step Action Plan for Employers

Here is a five-step action plan you can implement immediately to put yourself in the best position to comply with the expected ETS.

You should prepare to implement a system for asking employees whether they have been vaccinated and maintain confidential records of employee vaccination status. The Equal Employment Opportunity Commission has indicated that it is generally lawful for employers to ask employees about COVID-19 vaccination status. That’s because this simple question alone is not likely to elicit information from the employee about possible medical conditions, an inquiry that otherwise would invoke federal or state disability laws. In most cases, the answer to that question alone may be all you really need.

The ETS likely will require that you not only ask for vaccination status but collect proof of vaccination. If this is the case, you should ask employees to show you documentation from the immunization source showing the date(s) the vaccine was administered. To avoid potential legal issues related to this process, you should affirmatively inform employees that they do not need to provide any additional medical or family history information. In lieu of collecting vaccination records, you can create a confidential list of vaccinated workers in order to minimize legal risks and requirements associated with retaining medical documentation, including checking state laws regarding confidentiality and privacy of medical records. If you decide to collect vaccination records, it is recommended that you treat those records as you would other medical records.

You will also need to determine whether you will adopt a mandatory vaccination policy or allow unvaccinated employees to be tested weekly. For some employers, collecting and tracking weekly test results may burden them such that they decide to adopt a mandatory vaccination policy.

For those employers that adopt a vaccine mandate, develop a robust and clear reasonable accommodation policy to address religious and disability issues. Take special care to communicate and administer the accommodation process thoughtfully, emphasizing individualized, confidential consideration of each request. You should also be prepared for employees to request an accommodation from the weekly testing requirement – an accommodation process that must be addressed separately from requests for exemptions from any vaccination mandate.

For a detailed discussion of this topic, please refer to An Employer’s 3-Step Guide to Responding to COVID-19 Vaccine Religious Objections.

For employers who allow individuals who are not fully vaccinated to undergo weekly COVID-19 testing in lieu of receiving the vaccine, you should have a plan in place for collecting and tracking test results. If regular employment-related testing is not covered by the employee’s health insurance and free testing is not feasible, you will need to review the applicable federal, state, and local employment laws to determine if you must pay for testing. Further, under the federal FLSA, employers must pay nonexempt employees for the time spent undergoing testing during the workday

  1. Adopt Procedures for Determining Employees’ Vaccination Status

You should prepare to implement a system for asking employees whether they have been vaccinated and maintain confidential records of employee vaccination status. The Equal Employment Opportunity Commission has indicated that it is generally lawful for employers to ask employees about COVID-19 vaccination status. That’s because this simple question alone is not likely to elicit information from the employee about possible medical conditions, an inquiry that otherwise would invoke federal or state disability laws. In most cases, the answer to that question alone may be all you really need.

The ETS likely will require that you not only ask for vaccination status but collect proof of vaccination. If this is the case, you should ask employees to show you documentation from the immunization source showing the date(s) the vaccine was administered. To avoid potential legal issues related to this process, you should affirmatively inform employees that they do not need to provide any additional medical or family history information. In lieu of collecting vaccination records, you can create a confidential list of vaccinated workers in order to minimize legal risks and requirements associated with retaining medical documentation, including checking state laws regarding confidentiality and privacy of medical records. If you decide to collect vaccination records, it is recommended that you treat those records as you would other medical records.

  1. Determine if You Will Mandate the Vaccine or Allow Unvaccinated Employees to be Tested Weekly

You will also need to determine whether you will adopt a mandatory vaccination policy or allow unvaccinated employees to be tested weekly. For some employers, collecting and tracking weekly test results may burden them such that they decide to adopt a mandatory vaccination policy.

  1. Develop a Plan for Handling Accommodation Requests

For those employers that adopt a vaccine mandate, develop a robust and clear reasonable accommodation policy to address religious and disability issues. Take special care to communicate and administer the accommodation process thoughtfully, emphasizing individualized, confidential consideration of each request. You should also be prepared for employees to request an accommodation from the weekly testing requirement – an accommodation process that must be addressed separately from requests for exemptions from any vaccination mandate.

For a detailed discussion of this topic, please refer to An Employer’s 3-Step Guide to Responding to COVID-19 Vaccine Religious Objections.

  1. Have a Plan for Tracking Test Results

For employers who allow individuals who are not fully vaccinated to undergo weekly COVID-19 testing in lieu of receiving the vaccine, you should have a plan in place for collecting and tracking test results. If regular employment-related testing is not covered by the employee’s health insurance and free testing is not feasible, you will need to review the applicable federal, state, and local employment laws to determine if you must pay for testing. Further, under the federal FLSA, employers must pay nonexempt employees for the time spent undergoing testing during the workday.

  1. Prepare for OSHA Complaints and Inspections

As a reminder, the vaccination ETS will not displace current compliance duties related to COVID-19 prevention and mitigation. Social distancing, masking, sanitizing, and other safety steps you may already be required to take under existing OSHA and CDC guidance, or state or local public health orders, remain in effect.

Therefore, in addition to the requirements of the new ETS, OSHA likely will ask for your COVID-19 response plan and training records if it receives a complaint or conducts an in inspection concerning the vaccine mandate ETS. If not already in place, develop a COVID-19 policy and communicate its requirements to your employees. Train managers and supervisors on what to do and say if OSHA arrives for an inspection. This effort could save your company from paying significant fines.

Conclusion

You should begin preparing now for the forthcoming Emergency Temporary Standard by establishing policies for determining employees’ vaccination status and procedures for tracking weekly test results. You should also prepare for the possibility that employees may refuse to comply with the requirements of the ETS and begin planning and appropriate response – which would include terminating their employment.

Nicholas S. Hulse, Todd B. Logsdon, Travis W. Vance, David Klass, Samantha J. Monsees, Susan Maupin Boone, Patrick W. Dennison, and Steven M. Bernstein from Fisher Phillips law firm

From WCI's HR Answers Now ©2021 CCH Incorporated and its affiliates. All rights reserved.

With the highly transmissible Delta variant surging, and vaccination rates stagnating, employers are facing new pressures to reinstate mask mandates for everyone, regardless of vaccination status, and encourage COVID-19 vaccines through workplace mandates.

On August 23, 2021, the Food and Drug Administration (FDA) fully approved the Pfizer-BioNTech COVID-19 vaccine for use in those age 16 and older. This upgrade to full approval from "emergency use" status is predicted to lead to a rise in vaccine requirements from employers, schools, and local governments. Health officials are also hopeful that the approval will lead to higher vaccination rates. Note that the Pfizer vaccine is only one of three COVID-19 vaccines to receive full approval. The Moderna and Johnson & Johnson vaccines remain in emergency use status only.

Even under the FDA’s prior emergency use approval, major companies - including Google, Facebook, BlackRock, and Morgan Stanley - initiated policies insisting that workers get vaccinated before returning to the office. Meanwhile, California and New York City became the first state and major city, respectively, to require public workers to be vaccinated. Illinois very recently joined the returning wave of COVID-19 related restrictions by enacting another statewide mask mandate and requiring all teachers and healthcare workers be vaccinated or subject to weekly testing. The Biden administration also requires all federal workers to attest to being vaccinated or face strict testing protocols.

See our prior blog post for practical considerations on whether or not to consider mandating the vaccine in your workplace. But the legal considerations surrounding workplace mandates - how to implement them and how to respond to employees who refuse - remain uncertain. Earlier this year, Montana became the first state to make vaccination status a protected class under the law. That puts an employee's vaccination status in the same category as race, sex, and religion when it comes to employment discrimination. Under the new law, Montana employers are not allowed to discriminate against non-vaccinated employees and are not allowed to mandate vaccines. Other state legislatures - including in New York, New Jersey, Maryland, and Illinois - have also introduced similar bills. However, as discussed further below and with the exception of Montana, non-governmental employers in the 49 remaining states may still legally require employees to be vaccinated as of the date of this publication.

A slate of employment-related COVID-19 cases have already hit the courts, and more litigation is expected as workplaces reopen with varying levels of vaccination requirements and accommodations issues. How can employers protect against potentially costly lawsuits as they bring workers back to the office? Here's what you need to know:

Can employers require vaccinations?

The EEOC and DOJ issued guidance saying that federal laws do not prevent employers from requiring all employees physically entering the workplace to be vaccinated, so long as they provide reasonable accommodations under The Civil Rights Act of 1964 and the Americans with Disabilities Act. This means that employers must accommodate those who are unvaccinated due to a disability or religious objection. It is also unlawful for an employer to enforce vaccination policies that treat employees differently based on their disability, race, color, religion, sex (including pregnancy), national origin, age, or genetic information. So, if an employee cannot be vaccinated due to one of these protected characteristics, a vaccine mandate could constitute illegal discrimination and give rise to a lawsuit if reasonable accommodations are not offered. This EEOC guidance is still valid for non-governmental employers - with the exception of those in Montana.

Federal guidance does not preempt state law. In Montana, for instance, vaccine status is now a protected class and employers would be discriminating under the state's employment laws by making employment decisions - like hiring and firing - based on vaccination status. This will become increasingly relevant for employers as more states consider similar legislation.

In addition, several states have issued bans preventing state and local governmental entities from requiring that their employees receive COVID-19 vaccines. These states include Arkansas, New Hampshire, Texas, and Utah. Additional states have banned state employers from requiring proof of vaccination as a condition of employment, a small but relevant distinction. Most recently, the governor of Texas issued an executive order banning state and local governmental bodies from mandating COVID-19 vaccinations even after the Pfizer-BioNTech vaccine obtained full FDA approval. Notably, these bans do not have an effect on non-governmental employers who may still implement vaccination mandates. Some state governors have previously indicated that they may allow or consider vaccine mandates after full FDA approval of one or more of the vaccines.

While the full FDA approval of the Pfizer-BioNTech vaccine brings hope of increased vaccination rates and more legal protections for employers, it is, as previously noted, only one of three vaccines on the market in the U.S. While the Pfizer-BioNTech vaccine is currently the most widely available vaccine, it is far from the exclusive option and may not be the locally available option for your employees. Employers should ensure the Pfizer vaccine is readily available in your area before basing any vaccine policy changes on its full FDA approval.

Note that, without an affirmative ban on state and local governmental agencies requiring COVID-19 vaccines, it is generally considered permissible for state or local governments to even require vaccinations of all citizens (not just governmental employees), with certain religious or medical exemptions. This governmental power was recognized in a 1905 Supreme Court case arising out of a smallpox outbreak in Massachusetts and the resulting vaccine mandate for local citizens. This 115+ year-old Supreme Court precedent still forms the basis of vaccine-related judicial rulings today.

Do hospitals and universities get special treatment?

Generally, courts have allowed hospitals and universities (or other institutions of higher learning) to maintain their mandatory vaccination policies in response to legal challenges. Given the obvious high-risk status of many patients and staff, hospitals and other healthcare facilities are often explicitly exempted from state laws and executive orders prohibiting governmental employers from requiring COVID-19 vaccinations (i.e., Texas). As you may have seen, in July 2021, a federal court in Indiana upheld Indiana University's requirement that all students returning to campus be vaccinated. This ruling was upheld in August by the U.S. Court of Appeals for the 7th Circuit (the 7th Circuit encompasses Illinois, Indiana, and Wisconsin) and the Supreme Court decided not to review the 7th Circuit's decision, leaving the ruling in place. The 7th Circuit Court relied on the 1905 smallpox vaccine mandate case in upholding the district court's ruling.

What would constitute "reasonable accommodations" for unvaccinated employees?

Under the ADA, employers must provide reasonable accommodations for employees unless it would pose an undue hardship, which typically means a significant difficulty or expense. EEOC guidance provides a host of examples here. This includes having unvaccinated employees wear a face mask, social distance from colleagues or clients, work a modified shift, get periodic COVID-19 tests, telework, move office locations, or accept a reassignment. It is important to note that, as with other ADA-related accommodations, the employer only needs to offer an accommodation that is reasonable under the circumstances, it does not need to be the employee's preferred accommodation.

Can employers create separate policies for vaccinated and unvaccinated employees?

Generally, an employer can have separate policies for vaccinated and unvaccinated employees (i.e., regarding masks). However, if a person's vaccination status is connected to a protected class (or if your state treats vaccination status as a protected class), then an unvaccinated employee is protected from both unlawful discrimination and harassment. This means employers could be violating the law by treating employees differently based on their vaccination status and by allowing unvaccinated (or vaccinated) employees to be harassed by managers, colleagues, or clients. For instance, if an employee objects to a vaccination for religious reasons or due to pregnancy, adverse employment actions against that employee could constitute religious or sex discrimination.

Can employers offer vaccine incentives rather than implement a vaccine mandate?

Under EEOC guidance, employers may incentivize vaccination so long as those incentives (both rewards and penalties) are not so substantial that they become coercive - think of offering a $10.00 gift card rather than a $1,000.00 bonus payment. Some employers are validly offering additional paid time-off to employees who get vaccinated.

In a novel twist on the idea of vaccine incentives, Delta Airlines will begin docking the pay of unvaccinated employees on the company’s healthcare insurance plan $200 per month - effectively a vaccine penalty. (You can promote this as "increased employee costs of health insurance" rather than a "penalty"). The airline justifies this approach by noting that the average COVID-related hospital stay costs the company $40,000, and all airline employees who were recently hospitalized with COVID were not fully-vaccinated. Unvaccinated Delta Airlines employees will face weekly COVID testing in addition to the unvaccinated surcharge.

What if an employee refuses to get vaccinated?

Before determining whether to discipline or terminate an employee for refusing to comply with a lawful vaccine mandate, check with your [preferred employment] attorney to make sure you are not running afoul of the applicable laws or executive orders in your area. However, unless state law provides otherwise, employers may generally be permitted to terminate an employee who refuses a COVID-19 vaccine out of personal preference and who cannot be reasonably accommodated.

What can employers do to protect against COVID-related discrimination litigation?

The legal landscape surrounding back-to-work and vaccination policies is quickly evolving. To reduce risk associated with potential vaccine discrimination claims, employers should be updating workplace policies and keeping abreast of local law. Employers will be better prepared against vaccination-related legal claims if they adhere to CDC guidelines and other safety guidelines published by state and local health agencies (e.g., mask mandates). Because nothing can prevent a current or former employee from filing a claim (meritless or not) against an employer, especially in such a novel area of the law, it is generally safest to explore possible accommodations of unvaccinated employees prior to termination.

For specific examples to promote workplace safety and, therefore, also minimize potential legal liability, the CDC has extensive guidance for employers which was last updated in March 2021. In addition, to use as a supplement or complement to CDC guidance, OSHA very recently updated its guidance for employers to consider in creating a safe work environment.

Does an employee's refusal to get vaccinated make them a "direct threat" to coworkers?

Maybe. The concept of a "direct threat" is an exception to the general rule under the ADA that employers must accommodate persons with disabilities. Employers do not have to accommodate an employee who is a "direct threat," defined as someone who presents "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." In the COVID-19 arena, someone who cannot get a vaccine due to a disability could potentially be a considered a direct threat, but only if there is no reasonable accommodation to eliminate the threat to the health of others or their own health. Even with the known dangers of COVID-19, an extensive, case-by-case analysis is required to establish whether an employee is a direct threat to others under the ADA.

In short, the direct threat analysis only applies in the context of someone who is not able to receive a vaccine due to a disability (potentially including pregnancy-related disabilities or complications, depending on the jurisdiction).

What is going on in Florida (as it relates to employers)?

The state of Florida has been in the news for recent COVID-19 related legislation and executive orders. Mainly such statutes and executive orders are aimed at preventing places of public accommodation (restaurants, movie theaters, retailers, etc.) from requiring documentation of vaccine status from patrons who enter into their establishment - this documentation is commonly known as a "vaccine passport." (Florida is only one of several states to restrict the use of vaccine passports). Other restrictions are being placed on Florida public school districts and educational institutions. However, employers in Florida may still require their employees to be vaccinated at this time.

To paraphrase a line from a Florida attorney - you have to get the jab to keep the job.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Shea O’Meara & Tyler J. Bohman, Kelley Drye & Warren LLP, New York NY, © Mondaq Ltd, 2021

From WCI's HR Answers Now ©2021 CCH Incorporated and its affiliates. All rights reserved.

The EEOC has once again extended the deadline to submit and certify the 2019 and 2020 EEO-1 Component 1 Reports. The previous extension to August 23 has been changed to Monday, October 25, 2021. The EEOC stated that this deadline is the final one. No additional changes to the filing deadline will be made. The Commission is encouraging eligible employers to file the required EEO-1 Component 1 report(s) as soon as possible.

Information on eligibility requirements and report guidelines can be found in the WCI's NC Employers Desk Manual, Chapter 12, pages 15-16. To file or request government assistance, filers should visit the EEO-1 Component 1 website for the latest filing updates and additional information. By visiting the Filer Support Center, filers can request assistance as well as find helpful resources on how to file the 2019/2020 EEO-1 Component 1 reports.

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension through 12/31/2021, for employers to use the flexibility option for complying with I-9 requirements.

This option allows employers who are hiring employees working from remote locations to assign “an agent” to handle the requirement for physically viewing the required new hire documentation and for completing Section 2 of the I-9 form. The employer remains responsible for ensuring the process, timeframe, documentation, and required recordkeeping is handled properly.

For specific details on the eligibility guidelines and process for using this remote option, please see COVID-19 webpage at: https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/temporary-policies-related-to-covid-19.

U.S. employers have known for a while that they can require their employees to get an FDA-approved Covid-19 vaccine. As recently as a couple of months ago, however, most employers weren't doing that, with a few exceptions in healthcare and on Wall Street that were either celebrated or notorious, depending on your view.

The balance has clearly shifted now.

One survey in February 2021 found that almost 80% of employers chose not to mandate vaccination because their employees were personally opposed to vaccination. As one of our clients put it: "If we mandated, half our workforce would quit." So the initial stance taken by most employers was essentially an employee relations choice, and employers "strongly encouraged," but didn't require, vaccination.

It looks like months of "strong encouragement" didn't move the needle one way or the other. Our unscientific guess (but one generated by endless discussions with our clients) is that employees who were personally inclined to get vaccinated with or without a mandate got vaccinated, and those who were opposed didn't which is to say that, arguably, hardly anybody was "encouraged" to do anything they weren't going to do anyway. Result: only about 50% of the US population has been fully vaccinated, according to the CDC.

Enter the Delta variant. Many states are now experiencing high rates of transmission. Overloaded hospitals in under-vaccinated parts of the country are literally rationing care. Though a small percentage, there are also reports of vaccine breakthrough infections, a harbinger of small but distinct risks even for vaccinated individuals. In response to increasing rates of transmission, on July 27 the CDC published guidance recommending all people (regardless of vaccination status) resume wearing masks in public indoor settings in areas of substantial or high transmission. On July 29, the federal government, America's largest employer, set rules for federal workers and contractors requiring verification of vaccination. Unvaccinated federal employees will be required to wear masks, get tested weekly, and face travel restrictions.

So it's no surprise the private sector has taken note, with a significantly greater number of employers now requiring vaccination. But many more have not yet made that decision. For those that haven't, the obvious question becomes: how are we supposed to analyze risks both to employee safety, to employee morale, and to the business, in order to figure out whether to mandate or not to mandate?

The Basic Rules on Mandatory Vaccination

Let's review the basics:

  • Employers can require vaccination, subject to exceptions under state and federal laws that may require an employer to provide accommodations to individuals with disabilities or bona fide religious beliefs that prevent their vaccination.
  • Employers can ask employees for proof of vaccination, subject to any restriction under specific states' laws or executive orders.
  • Employers can implement workplace safety standards based upon vaccination status. In practice, this usually means having different rules for being around other people in and out of the office depending on vaccination status.

But all that only tells you what you can do. It doesn't begin to address what you should do.

How To Decide

Forget politics: throughout this whole pandemic, the only point of ever following CDC guidance on masking and social distancing, and the only point of ever encouraging or requiring vaccination, was always to reduce the risk of an employee claiming that an employer didn't do everything possible to protect employee safety.

Example: John comes to a workplace where nobody is vaccinated or wears a mask; John gets infected or takes the virus home and infects his immunocompromised mother-in-law; and whether or not John particularly cares for his mother-in-law (or himself), somebody gets seriously ill, suffers "long Covid" (which is, by the way, now recognized under some disability discrimination laws as a protected category), or dies. John, or John's estate, then sues his bone-headed employer for not taking basic steps to mitigate an obvious risk to the workforce and/or John's mother-in-law.

Safety rules are about safety, but they're also about liability. As with any safety rule, one big goal of a mandatory vaccination program is to create a defense to claims that an employer knew of risks and failed to mitigate them. And the science of Covid-19 risk mitigation is definitive: a vaccinated person is far less likely to get sick, to die, and to infect others, emerging stats about breakthrough infections notwithstanding. We would argue that with the Delta variant wreaking havoc and with mask mandates and social distancing rules remaining difficult to police, erring on the side of absolute caution and taking advantage of the right to require vaccination is, if nothing else, an obvious and good risk management practice.

So what about our client who fears that half its workforce will quit in the face of a mandate? Since losing a workforce at least as damaging as any Covid-19 outbreak, here's how we would make the call:

  • Unless an employer expects such resistance that a vaccine mandate would turn into a huge employee relations problem, it's safer to mandate than not at this point. Because of the Delta variant's transmissibility, and because masks aren't fully protective, an employer expecting employees to physically be at work takes less of a risk if it simply mandates vaccination, which is vastly more effective at preventing serious illness/death than masking or social distancing alone.
  • If half your workforce is going to quit, then sure: stick to mask mandates, adhere to social distancing rules, strongly encourage vaccination, and cross your fingers. The economic risk of having half your workforce quit may outweigh the potential economic risk of a few employees contracting Covid recognizing that employee safety doesn't have a price tag. In contrast, employers that have professional/office environments, that don't operate in deep red states, or that have workforces that are already largely voluntarily vaccinated, have far less to worry about. Those employers could reasonably expect minimal and manageable pushback to a vaccination mandate.
  • Because of the considerations in the first two bullets, an avalanche of employers are now mandating, or will mandate by some point in September/October. You may have heard of some of them: United Airlines, Facebook, Cisco, Amtrak, Google, Ford, Netflix, NBCUniversal, Tyson Foods, DoorDash, Walgreens, Walmart, at least half of Wall Street, and many other high-profile private employers. There is a degree of "safety in numbers": employers considering mandates will have increasing cover that they aren't the only ones doing it or are somehow a novel "test case."

Whether implementing a mandatory vaccination program may be right for your business, it's always smart wise to consult outside counsel for individualized guidance and recommendations. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mark Konkel and Alison Frimmel, Kelley Drye & Warren, New York, (c) Mondaq Ltd, 2021

From WCI's HR Answers Now (c) 2021 CCH Incorporated and its affiliates. All rights reserved.

Issue: After being shut down for many months due to the pandemic, your company’s worksite has reopened to employees. Precautionary measures, including temperature checks and social distancing, are being taken to prevent anyone with COVID-19 from being at the worksite. However, the site manager recently learned that one employee has COVID-19, or has symptoms associated with the disease. She knows she must report it but is worried about violating the confidentiality provisions of the Americans with Disabilities Act (ADA). What should she do?

Answer: The ADA requires employers to keep all medical information about employees confidential, even if that information is not about a disability. Clearly, the information that an employee has symptoms of, or a diagnosis of, COVID-19 is medical information. However, the fact that this is medical information does not prevent the manager from reporting it to appropriate employer officials so that they can take actions consistent with guidance from the Centers for Disease Control and Prevention (CDC) and other public health authorities.

The question is what information to report: is it the fact that an employee — unnamed — has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who learn the name of the employee.

The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those individuals without revealing the employee’s identity. Using a generic descriptor, such as telling employees that "someone at this location" or "someone on the fourth floor" has COVID-19, provides notice and does not violate the ADA’s prohibition on disclosure of confidential medical information. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. Also, all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information. Employers may want to plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and taking next steps.

Source: EEOC Technical Assistance Questions and Answers: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, Q&A #B5, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, reported in Employment Practices Guide, New Developments

From WCI's HR Answers Now ©2021 CCH Incorporated and its affiliates. All rights reserved.

It seems that at every turn, COVID-19 is keeping employers from catching their breath. We've discussed on this blog how employers should navigate having employees work from home, reopening and remaining compliant with the law and CDC guidelines, mask and vaccine mandates, and what to do when an employee tests positive for the virus. Now another issue confronts employers: how to best accommodate employees who are suffering from COVID symptoms months after having been infected with the virus long COVID.

On July 26, 2021, the U.S. Department of Health and Human Services Office for Civil Rights (HHS) and the U.S. Department of Justice Civil Rights Division (DOJ) jointly published guidance on whether long COVID may qualify as a disability subject to the nondiscrimination requirements of the ADA, Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act. They concluded that certain cases it does.

A Short Primer on Long COVID

The immediate symptoms of a COVID-19 infection are now as infamous as they are legion -fever, nausea, shortness of breath, fatigue, loss of taste or smell, etc. But with vaccination rates continuing to rise, attention is turning to so-called "long COVID" and the "long-haulers" still ailing months after their initial infections. According to the CDC, these symptoms "are a wide range of new, returning, or ongoing health problems people can experience four or more weeks after first being infected." Much like with the immediate symptoms, the breadth and severity of long COVID symptoms vary greatly from person to person; sometimes mild and intermittent, other times serious and pervasive. The CDC notes that while this is not uncommon among virus patients generally, "from a scientific standpoint, it is a puzzle." Until that puzzle is solved, it falls to employers to determine how to responsibly accommodate the long-haulers within their ranks.

When is Long COVID a Disability?

According to the guidance, while long COVID "does not automatically qualify as a disability," as with any disability inquiry, an employer is obligated to engage cooperatively with an ailing employee to conduct an "individualized assessment" and determine whether that employee's long COVID symptoms constitute physical or mental impairments that substantially limit one or more major life activities.

The guidance makes clear that "the term ‘substantially limits’ is construed broadly under these laws and should not demand extensive analysis." Nonetheless, HHS and the DOJ have provided three possible (but not comprehensive) examples of where long COVID would be considered a disability:

  1. an employee having substantially limited respiratory function due to lung damage
  2. an employee having substantially limited gastrointestinal function (frequent intestinal pain, vomiting, and nausea); and
  3. an employee having substantially limited cognitive function or "brain fog."

The guidance emphasizes that the symptoms need not necessarily manifest physically long COVID may substantially effect an individual's psychological or emotional wellbeing to the point that an accommodation may be required.

What Employers Should Know

The guidance, just like our understanding of long COVID, is frustratingly vague. The silver lining is that any employer already sensitive to the accommodation needs of its employees is already well-positioned to account for the needs of employees with long COVID symptoms. Employers should not fall prey to tunnel vision and determine whether an employee's symptoms are due to COVID per se.

Rather, they must stay focused on the fundamental question: are these symptoms substantially limiting my employee's ability to perform their job?

As with any medical condition, the substance of an ensuing "cooperative dialogue" between employer and employee may vary greatly depending on the employee's duties, their symptoms, and the advice they receive from their medical care providers. Of course, any employer may make the reasonable request that an employee provide a doctor's note in order to substantiate a request for an accommodation under the ADA, but simply making that request of an employee does not absolve an employer from making reasonable efforts to engage with that employee to determine what accommodations, if any, are available.

Planning for the Future

Employers should also anticipate ongoing and evolving accommodation discussions, particularly if the employee is in fact a COVID "long-hauler." The long-term effects of a COVID infection are still not fully understood, and the best-prepared employer is the one ready to adapt to an employee's needs not only reasonably, but also rapidly.

That can mean a few different things.

  1. DOCUMENT. It will be crucial for anyone performing a human resources function to (securely) memorialize the substance of every discussion regarding an employee's requests for accommodation. At the same time, be sure to sequester and secure any medical records, and work to ensure confidentiality.
  2. ASSESS REGULARLY. As so little is known about long COVID, and because symptoms may suddenly lessen or become more severe in time, employers should require affected employees to agree upon pre-determined "check-in" meetings. At a specific date in the future, employer and employee might reconvene to reassess what further (or fewer) accommodations the employee could require. This is a sensitive issue, however, and is best done in concert with qualified legal counsel.
  3. BE FLEXIBLE. If an employee requires an accommodation for long COVID, be flexible in addressing their requests. Consider whether you can grant the accommodations, and document why you can or cannot. Finally, before denying an accommodation, be sure that there is now reasonable way that the accommodation may be granted.

Whether the issue is discrete or you're seeking to devise a broad-strokes policy that can affect every employee, it is always wise to consult outside counsel. This will ensure that you are aware of the locally-applicable laws and regulations regarding disability accommodations, particularly COVID-related accommodations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

--Barbara E. Hoey and Sebastian Clarkin of Kelley Drye & Warren LLP, New York NY

From WCI's HR Answers Now ©2021 CCH Incorporated and its affiliates. All rights reserved.

Masks Required Indoors in Buncombe County

At its August 18 emergency meeting, the Buncombe County Board of Commissioners declared a Local State of Emergency requiring residents and visitors in any indoor spaces in public spaces to maximize protection from the Delta variant and prevent possibly spreading it to others. Effective immediately, indoor public spaces include business establishments, offices and workplaces, public transportation facilities and vehicles, and any indoor place the public is invited and allowed to enter and gather. The order applies to all people who are at least 5 years old, and face coverings are recommended for all people over the age of 2.

The mask requirement currently extends throughout unincorporated Buncombe County as well as the municipal limits of the City of Asheville, the Town of Montreat, the Town of Woodfin, and the Town of Weaverville. Worship, religious, and spiritual gatherings, funeral ceremonies, wedding ceremonies, and other activities constituting the exercise of First Amendment rights are exempt from the requirement of this order.

Click here to read the full order.

CDC Guidance on Booster Vaccines

The CDC recommends that people with moderately to severely compromised immune systems receive an additional dose of mRNA COVID-19 vaccine at least 28 days after a second dose of either the Pfizer-BioNTech or Moderna vaccines. However, the CDC does NOT recommend additional doses or booster shots for any other people at this time.

People who are immunocompromised are especially vulnerable to COVID-19 because of the risk of serious prolonged illness. These people may benefit from an additional (3rd) dose to make sure they have enough protection against COVID-19.

-- Karol DeWitt, HR Advisor with WCI, 8/16/2021

CDC Guidance on the Delta Variant

As the CDC continues to monitor case statistics and keep the nation informed of the increase in outbreaks and areas of high concern, the CDC’s July 27 recommendation that everyone wear a mask indoors remains in place.

Information provided on the Delta variant continues to support vaccinations in helping slow the spread of the pandemic.

The Delta variant is more contagious, nearly twice as contagious as previous variants.

  • Some data suggest the Delta variant might cause more severe illness than previous strains in unvaccinated persons. In two different studies from Canada and Scotland, patients infected with the Delta variant were more likely to be hospitalized than patients infected with Alpha or other virus strains.
  • Unvaccinated people remain the greatest concern. Although breakthrough infections happen much less often than infections in unvaccinated people, individuals infected with the Delta variant, including fully vaccinated people with symptomatic breakthrough infections, can transmit it to others. CDC is continuing to assess data on whether fully vaccinated people with asymptomatic breakthrough infections can transmit. However, the greatest risk of transmission is among unvaccinated people who are much more likely to contract, and therefore transmit the virus.
  • Fully vaccinated people with Delta variant breakthrough infections can spread the virus to others. However, vaccinated people appear to be infectious for a shorter period. Previous variants typically produced less virus in the body of infected, fully-vaccinated people (breakthrough infections) than in unvaccinated people. In contrast, the Delta variant seems to produce the same high amount of virus in both unvaccinated and fully vaccinated people. However, like other variants, the amount of virus produced by Delta breakthrough infections in fully-vaccinated people also goes down faster than infections in unvaccinated people. This means fully vaccinated people are likely infectious for less time than unvaccinated people.

For more information, you can refer to our report on the CDC's July 27 recommendations here.

-- Karol DeWitt, HR Advisor with WCI, 8/9/2021

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