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OSHA Issues New Guidance for Employers Combating COVID-19

February 10 - Posted at 10:30 AM Tagged: , , , , , , ,

On January 29, 2021, the Occupational Safety and Health Administration (OSHA) published “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The Guidance incorporates much of the existing guidance from the Centers for Disease Control and Prevention (CDC), adds to guidance OSHA previously issued, and reflects strategies and practices familiar to many employers.

The Guidance, which is intended for non-healthcare employers, is not mandatory and does not have the same legal effect as an OSHA standard. Nevertheless, it provides insight into OSHA’s views and previews what the agency may include in an Emergency Temporary Standard (ETS), which the Biden administration has directed OSHA to consider and potentially implement by March 15, 2021.

OSHA’s Guidance provides all employers an important opportunity to review their COVID-19 prevention strategies. While most of the Guidance is not new, it provides a handful of new recommendations employers may want to consider adding to their current COVID-19 protocols. The new recommendations include:

1. Establish a system to communicate and provide training to all employees on the employer’s COVID-19 policies and establish an avenue for employees to report COVID-19-related concerns anonymously, without fear of retaliation. All such communications should be in languages employees understand and provided in a manner accessible to individuals with disabilities.

2. Make COVID-19 vaccines available at no cost to all eligible employees and provide information and training on the benefits and safety of vaccinations. While OSHA does not specify the information or training it suggests employers provide, the Guidance references CDC’s “Frequently Asked Questions About COVID-19 Vaccination.”

3. Don’t distinguish between workers who are vaccinated and those who are not. All vaccinated employees should continue to wear a mask, socially distance, and follow other COVID-19 protocols (e.g., exclusion from the workplace following COVID-19 exposure). This is necessary because, as OSHA explains, at this time, “there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.”

4. Provide all workers with face coverings (i.e., cloth face coverings and surgical masks), unless their work task requires a respirator, at no cost.

OSHA recommends that employers provide all workers with face coverings, which include cloth face coverings and surgical masks, for use in the workplace with limited exception and unless their work tasks require a respirator (such as an N95 filtering facepiece respirator) or would present a hazard. OSHA also recommends that employers consider acquiring masks with clear coverings over the mouth for all workers to facilitate lip-reading for employees who are deaf or have a hearing deficit. OSHA further recommends that employers require all other individuals at the workplace over the age of two, such as visitors or customers, to wear face coverings. Where employees with disabilities cannot wear a certain type of face covering, employers should discuss the possibility of providing a reasonable accommodation using an interactive process. OSHA’s Guidance on reasonable accommodations for face covering requirements dovetails with guidance on reasonable accommodations previously provided by the Equal Employment Opportunity Commission (EEOC).

OSHA has explained in previous guidance that cloth face coverings are not personal protective equipment (PPE), but can be used as recommended by CDC as a preventive measure in an employer’s COVID-19 exposure control plan. The new Guidance acknowledges that cloth face coverings can reduce exposure for the person wearing the covering in some instances.

The rest of the Guidance reviews additional practices and protocols that OSHA suggests are necessary for an effective COVID-19 prevention program. These are as follows:

1. Assign a coordinator. OSHA recommends assigning a workplace coordinator to be responsible for COVID-19 issues. The coordinator should administer the COVID-19 prevention program on the employer’s behalf.

2. Conduct a hazard assessment. It is important for employers to identify where and how workers may be exposed to COVID-19 and implement responsive COVID-19 hazard controls. As OSHA points out, it is important to consult with employees, especially those who are in the trenches, when conducting the assessment to understand the realities of the workplace.

3. Identify a combination of measures that will prevent and limit the spread of COVID-19. OSHA provides a hierarchy of controls, prioritizing engineering controls that eliminate the COVID-19 hazard entirely, followed by administrative policies and PPE to protect workers from COVID-19 hazards. OSHA lists several commonly recognized measures that employers should take and provides details to assist employers to implement these measures effectively:

a. Separate and send home infected or potentially infected people from the workplace.

The first step in any workplace safety hazard assessment is to eliminate the hazard. In the case of COVID-19, that means removing infected or potentially infected people from the workplace. We recommend that employers communicate clear expectations to employees and adopt employee and visitor screening practices consistent with state and local requirements and recommendations.

OSHA incorporates existing CDC guidance on how long individuals who are infected should isolate and how long workers who have been exposed to COVID-19 through a close contact with a known infected individual should be excluded from the workplace and directed to quarantine. Workers who have COVID-19 should isolate until they meet the CDC guidelines, or applicable state and local health department requirements, to end isolation (at a minimum, 10 days).

As for workers who are exposed to COVID-19, CDC continues to endorse that these individuals should quarantine for 14 days. CDC explains that any quarantine shorter than 14 days balances reduced burden against a small possibility of spreading the virus. With that balancing act in mind, CDC recognizes that local public health departments may adopt shortened quarantine options if the exposed individual is asymptomatic; for example, ending quarantine after day 10 without testing, or 7 days after receiving a negative test result (test must occur on day 5 or later). CDC advises that in limited circumstances, employers may consider allowing critical infrastructure workers to continue working following exposure.

OSHA explains that most employers will follow a symptom-based strategy for identifying, separating, and sending workers home. OSHA also recognizes that there are some circumstances where “employers may consider a COVID-19 test-based strategy.”

b. Implement physical distancing in all communal work areas.

OSHA explains that the “best way to protect individuals is to stay far enough away so as not to breathe in particles produced by an infected person.” Keeping 6 feet of distance is generally recommended, but it is “not a guarantee of safety, especially in enclosed spaces or those with poor ventilation.” To increase physical distance, it is often important to limit the number of people in one place at any given time and increase physical space between people. OSHA recommends numerous strategies that many employers have adopted over the past 10 months, including telework, flexible work hours, staggered shifts, delivery of remote services, limiting the size of meetings, and using visible cues to encouraging distancing, to name a few.

c. Install barriers where physical distancing cannot be maintained. OSHA recommends installing transparent shields or other solid barriers at fixed workstations where workers cannot maintain 6 feet from other people.

d. Suppress the spread of COVID-19 by using face coverings to prevent COVID-19-infected individuals from spreading the virus through respiratory droplets when they speak, sneeze, or cough.

e. Improve ventilation. OSHA directs employers to the CDC’s guidance on ways to optimize ventilation following the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) “Guidance for Building Operations During the COVID-19 Pandemic.” The OSHA Guidance also details steps employers should take to evaluate their ventilation systems and, where needed, increase air filtration to prevent the spread of COVID-19. In addition to generally increasing ventilation rates, employers are encouraged to improve central air filtration by having a MERV-13 filter (the grade of filter recommended by ASHRAE) or the highest filter compatible installed on the system. The Guidance further recommends that employers ensure ventilation systems are functioning properly, well maintained, and regularly cleaned and serviced.

f. Use applicable PPE to protect workers from exposure. When other measures cannot be implemented or do not protect workers fully, the Guidance concludes that current OSHA standards require that employers provide PPE as a supplement to other controls. (As discussed above, OSHA maintains that cloth face coverings are not PPE.) The standards referenced in the Guidance include OSHA’s PPE and respiratory protection standards, 29 CFR 1910, Subpart I, which require employers, at a minimum, complete a written hazard assessment to determine the need for PPE and PPE appropriate for the hazard and corresponding procedures and training. Therefore, employers are responsible for determining when and what PPE is necessary to protect workers while in the workplace. If an employer determines that an employee must wear PPE while at work and to perform a job safely, the PPE should be provided at no cost to workers and maintained in a safe condition. In application to COVID-19, CDC has addressed when PPE is necessary for job tasks that require interactions with individuals known or suspected of having COVID-19 and, depending on the task, recommends PPE consisting of surgical masks or respirators, such as the filtering facepiece respirators (e.g., N95) or personal air purifying respirators (PAPRs), with eye and face protection (i.e., face shields), protective gowns, and gloves.

If workers are required to use respirators to protect against COVID-19 exposures, employers should comply with the existing respirator standard which requires, among other things, that employers have (i) a written respirator program, (ii) a documented hazard assessment showing the selection of respirator for the hazard, (iii) ensured employees who must use respirators are medically evaluated, fit tested, and trained on their use, maintenance, and care before use, and (iv) implemented procedures to guarantee respirators are used, stored, and, where appropriate, disposed of safely. Many of these requirements must be completed annually.

Although the obligations for an employer are reduced, employers have similar compliance obligations when employees are permitted to use respirators voluntarily. These requirements include ensuring the use of respirators will not create a hazard, which generally requires a hazard assessment, written program detailing conditions of voluntary use, steps to prevent employees from wearing respirators improperly, and measures to ensure employer-provided respirators are properly stored, maintained, and disposed. An employer also must provide employees a copy of the respiratory standard’s Appendix D, which advises employees to consult with their physician on the appropriateness of respirator use. Therefore, employers must be prepared to comply with certain provisions of the PPE and respirator standard if allowing employees to use respirators in the workplace to protect against COVID-19.
There are times when PPE is not required under OSHA standards or other industry-specific guidance but may be provided as a reasonable accommodation under the Americans with Disabilities Act (ADA). Other workers may want to use different or additional PPE voluntarily due to concerns over their personal safety or the safety of a family member who is at higher risk for severe illness. The public dialogue about respirators has increased in recent weeks given the identification of the new virus variants and decisions of leaders in some European countries to require N95s, or similar medical-grade respirators, in many public spaces. Employers should be prepared for some employees to elect to use N95 respirators, double masks, or other equipment at work. In those cases, OSHA recommends that employers encourage and support the employees’ voluntary use of PPE. In doing so, however, employers should comply with applicable federal and state standards, including OSHA’s standards on PPE use, and ensure that employees’ voluntary use of PPE does not pose an additional workplace hazard.

g. Provide supplies for good hygiene, including access to soap and water and hand sanitizer, and take other steps to promote hand washing and respiratory etiquette.

h. Perform routine cleaning and disinfecting. OSHA summarizes and directs employers to follow existing CDC guidance on cleaning and disinfection measures. OSHA’s Guidance also reminds employers that workers may need PPE during disinfecting based on the setting and product used. Employers also may need to comply with federal and state standards and regulations governing use, storage, and disposal of hazardous chemicals, such as OSHA’s Hazard Communication Standard.

4. Consider protections for workers at higher risk for severe illness. Workers with disabilities may be entitled to “reasonable accommodations” under state and federal law to protect them from the risk of contracting COVID-19. The EEOC discusses reasonable accommodations that could offer protection to an employee who is at higher personal risk from COVID-19 due to a pre-existing disability in D.1 of its “What You Should Know About COVID-19 and the ADA and Rehabilitation Act.” OSHA encourages employers to consider whether workers who have an increased personal risk of contracting a severe respiratory illness from COVID-19 (including older adults and anyone who has a serious medical condition) can do some or all of their work at home or in a less densely occupied, better ventilated workplace.

5. Establish a system for communicating effectively with workers. Employers should ask workers to report, without fear of reprisal, symptoms of COVID-19, possible COVID-19 exposures, and possible COVID-19 hazards at work. Similarly, employers should establish channels for communicating important information to employees and, of course, communicate with workers in a language they understand.

6. Educate and train workers on COVID-19 policies and procedures. OSHA recommends that, along with training workers on company policies, employers educate workers about the basic facts about COVID-19, including how it is spread. This can go a long way to helping workers understand why proper distancing, appropriate face coverings, and other measures are important to protect them. OSHA outlines a number of other topics that should be included in worker and supervisor training. OSHA recommends that the training be in plain language that workers understand (including non-English languages and American Sign Language or other accessible communication methods, if applicable).

7. Instruct workers who are infected or potentially infected to stay home and isolate or quarantine. OSHA recommends attendance policies that are non-punitive.

8. Minimize the negative impact of quarantine and isolation on workers. OSHA recommends that, “when possible,” employers allow workers to telework, use paid sick leave, if available, or consider implementing paid leave. Employers that were covered under the Families First Coronavirus Response Act (FFCRA), generally employers with less than 500 employees, can still take advantage of tax credits in connection with voluntarily providing paid leave for COVID-19 related reasons through March 31, 2021.

9. Isolate and send home workers who show symptoms at work.

10. Perform enhanced cleaning and disinfection after people suspected or confirmed to have COVID-19 have been in the workplace. Employers should follow CDC’s guidance, which includes increasing air circulation, cleaning, and disinfection using an EPA-registered disinfectant identified for use against SARS-CoV-2, the virus that causes COVID-19. Employers are required to comply with existing OSHA standards, including those related to hazard communication and PPE appropriate for exposure to cleaning chemicals.

11. Provide guidance on screening and testing. Employers should follow state and local guidance for screening and viral testing (as distinguished from antibody testing) in workplaces. Employers that adopt workplace testing programs should inform workers of testing requirements. We recommend employers review recent guidance from the CDC placing a new emphasis on informed consent prior to testing.

12. Record and report COVID-19 infections and deaths as required by existing OSHA regulations. Employers must record work-related cases of COVID-19 illness on their Form 300 Logs if certain criteria are met. An employer has an obligation to record an employee’s COVID-19 illness if: the exposure is work-related, it results in a fatality, lost workdays, job restrictions or transfers, or otherwise requires medical treatment beyond first aid. Employers must report to OSHA a COVID-19 illness if an employee is admitted to the in-patient service of a hospital within 24 hours of a workplace exposure to COVID-19 or if an employee dies within 30 days of a workplace exposure to COVID-19. In the case of a hospitalization, an employer has 24 hours to report to OSHA from when the in-patient hospitalization occurs or when the employer learns of the hospitalization if the latter occurs later. In the case of a fatality, the employer must report a work-related COVID-19 death within 8 hours of the death or within 8 hours of learning of the employee’s death, if the death occurred within 30 days of the workplace exposure. These are fact-driven, often complicated, analyses and not every employee who tests positive for COVID-19 needs to be recorded on an employer’s OSHA 300 Log or reported to OSHA, for that matter.

13. Implement protections from retaliation and set up an anonymous process for workers to report COVID-19-related hazards. OSHA explains that the Occupational Safety and Health Act prohibits employers from discriminating against an employee for raising “a reasonable concern about infection control related to COVID-19.”

14. Comply with existing OSHA standards. OSHA reminds employers that all OSHA standards that apply to protecting workers from infection, including requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and requirements for employees to access medical and exposure records, remain in place. As mentioned above, while there is no OSHA standard specific to COVID-19, employers still have an obligation under the General Duty Clause to “provide a safe and healthful workplace that is free from recognized hazards that can cause serious physical harm or death.”

Next Steps

Employers should consider the following next steps:

  • Review your COVID-19 prevention program and consider adopting additional elements to align with OSHA recommendations.
  • Train employees, including supervisors, on your latest COVID-19-related policies and prevention strategies.
  • Evaluate availability of vaccines in your state and locality, strategize for making vaccines available to employees, and develop your employee communication strategy.
  • Continue to monitor new and evolving guidance and requirements from OSHA, the CDC, and the EEOC, as well as state and localities where your workplaces are located.

The year 2020 highlighted the need for all of us to be agile, adjusting and responding as our world shifted, science evolved, and best practices for responding to COVID-19 developed and changed. This year is shaping up in a similar manner. 

Article courtesy of Jackson Lewis

Top 7 Things You Need To Know As EEOC Says Employers May Mandate COVID-19 Vaccines

December 17 - Posted at 8:47 PM Tagged: , , , , , ,

Employers now have clarification that they will be able mandate the COVID-19 vaccine among their workers in certain circumstances without running afoul of key federal anti-discrimination laws, according to updated guidance issued Wednesday by the Equal Employment Opportunity Commission. While there are numerous issues to consider before mandating that your employees get vaccinated, this guidance is the first official pronouncement on the subject from the employment law watchdog agency and provides an outline of various hurdles to overcome. Here are the top seven takeaways for employers from this critical development.

1. The EEOC indicates that employers can require their workers to get a COVID-19 vaccine in certain circumstances, even under the Emergency Use Authorization.

The agency’s updated FAQs do not unequivocally state that “employers can require the vaccine.” However, the Equal Employment Opportunity Commission (EEOC) repeatedly answers questions discussing what actions employers can take in response to various circumstances after an employer has mandated the vaccine. This approach plainly suggests there must be circumstances where employers are legally permitted to require vaccine immunization of their workers without violating the Americans with Disabilities Act (ADA), Title VII, and other federal anti-discrimination laws. According to the EEOC, this is true even though the COVID-19 vaccine is only authorized under the FDA’s Emergency Use Authorization (EUA), rather than approved under the full and comprehensive FDA vaccine licensure process, known as a Biologics License Application or “BLA.”

To be clear, the only scenario described by the EEOC as a permissible basis to mandate vaccination under the ADA is when a worker poses a “direct threat” to themselves or others by their physical presence in the workplace without being immunized. This means mandating vaccines is only permitted if workers would pose “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Therefore, if an employee is capable of fully performing their current job duties remotely without the potential spread of the virus to co-workers or work-related third parties, it does not appear that you can require that they get vaccinated.

2. Employers that require the COVID-19 vaccine must consider reasonable accommodations for employees with disabilities.

Notably, simply because your company chooses to mandate vaccine usage for those workers who may pose a direct threat to themselves or others does not mean you have complete freedom to require the vaccine for all such workers. If an individual cannot be vaccinated because of a disability, you need to determine whether you can provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the safety risk. You cannot automatically exclude them from the workplace or take any other negative action against them.

First and foremost, the EEOC recommends that those managers responsible for communicating with your employees about compliance with your vaccination requirement should know how to recognize an employee’s accommodation request. You should also train your managers about the process they should follow to refer accommodation requests through the proper channels for consideration. While the EEOC’s guidance does not mention this, you should strongly consider providing details about the accommodation request procedure in writing to all of your employees (whether in hard copy, electronically, or both). 

Next, the EEOC indicates you should engage in a flexible, interactive process with any employee requesting an accommodation to identify options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. Some things you should consider include the prevalence in the workplace of employees who already have received a COVID-19 vaccination, the amount of involvement with customers, and the rate of vaccination in your community, as well as the amount of contact with others whose vaccination status could be unknown. You should consult your Fisher Phillips’ attorney in developing a medical inquiry for an employee’s doctor or a protocol for responding to requests for accommodation more generally.

Finally, the EEOC reminds employers that it is unlawful to disclose that an employee is receiving a reasonable accommodation, just as it is a violation of federal law to retaliate against an employee for requesting an accommodation. Likewise, you should not reveal which employees have or have not been vaccinated.

3. Similarly, employers need to consider reasonable accommodations for employees who are unable to receive the vaccine for religious reasons.

The EEOC says you must provide a reasonable accommodation if an employee’s sincerely held religious belief, practice, or observance prevents them from receiving the vaccination – unless it would pose an undue hardship under Title VII. The definition of “undue hardship” is slightly different in the religious context compared to the disability context, as courts have defined it as simply “having more than a de minimis cost or burden” on an employer.

While you should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, you would be justified in requesting additional supporting information if you have an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance. The key word here is “objective.” This is a delicate area of the law and you should not unilaterally contact the employee’s place or worship seeking proof about their level of belief, or engage in any conduct that could raise potential discrimination issues. We recommend consulting with an attorney before making such a request to any of your employees.

4. Employers can require employees to show proof that they received a COVID-19 vaccination.

Assuming you can demonstrate that a mandatory vaccine is appropriate and that no accommodation requirements are in play, the EEOC indicates you can require workers to prove they have received the COVID-19 vaccine. The EEOC says that simply requesting proof of receipt of the vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. 

However, subsequent questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that disability-related inquiries be “job-related and consistent with business necessity.” For this reason, if you require employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own healthcare provider, you may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA. If you do receive medical information along with proof of vaccination, you should store the medical information in a confidential medical file consistent with ADA requirements.

5. The administration of a COVID-19 vaccine is not a “medical examination” for purposes of the ADA.

The EEOC confirmed that the act of administering the COVID-19 vaccine is not an ADA “medical examination.” Therefore, if you (or a third party with whom you contract to administer the vaccine) simply administer the vaccine to an employee, the EEOC does not consider you to be seeking information about an individual’s impairments or current health status – but see the next point about questionnaires relating to giving the vaccine.

6. Employers can pose pre-screening vaccination questions, so long as they comply with ADA requirements.

The EEOC’s FAQs offered some direction for employers who want to ask pre-screening vaccination questions as they administer the inoculation. The first thing employers need to know is that pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries (defined as any such inquiries likely to elicit information about a disability). Therefore, if you administer the vaccine, you must show that any pre-screening questions are job-related and consistent with business necessity. To meet this standard, the EEOC says, you need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of themselves or others.  

The EEOC does explain that there are two circumstances in which these screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement. First, you can offer the vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), which means the employee’s decision to answer pre-screening, disability-related questions would also be voluntary. If an employee chooses not to answer these questions, you may decline to administer the vaccine to them but may not retaliate against, intimidate, or threaten them for refusing to answer the questions.  

Second, if an employee receives an employer-required vaccination from a third party with whom your organization does not have a contract (such as a pharmacy or other healthcare provider), the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply.

  Finally, regardless of whether you meet the “job-related and consistent with business necessity” standard, the ADA requires you to keep any employee medical information obtained in the course of the vaccination program confidential. On a related note, the agency reminds employers that any pre-screening questions that ask about genetic information, such as family members’ medical histories or immune systems of family members, may violate the Genetic Information Nondiscrimination Act (GINA). As the EEOC explicitly says that “it is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations,” this is an issue that employers should be aware of as we move closer to vaccines being provided to members of the general population.

To avoid these complications, the EEOC says that employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves. However, to steer clear of unintended GINA violations, you may still want to warn the employee not to provide genetic information as part of the proof. If this warning is provided, the EEOC says any genetic information you receive in response to your request for proof of vaccination will be considered inadvertent and, therefore, not a GINA violation. 

7. Employees may be confused about their ability to “refuse” the vaccine as a result of the EUA.

We expect that some employees may believe they have the right the “refuse” the vaccine even if mandated by their employer. That’s because of language in the EEOC’s updated guidance about the EUA that may cause confusion.

The EEOC notes that, for any vaccine issued under an Emergency Use Authorization, the FDA (and the vaccination provider) has an obligation to inform vaccine recipients about its potential benefits and risks, the extent to which such benefits and risks are unknown, whether any alternative products are available, and “that they have the option to accept or refuse the vaccine.” This language comes from the federal statute governing the EUA.

The FDA’s website (cited by the EEOC) says that the option to refuse is typically included in a “fact sheet” provided to the individual receiving the vaccine (or, alternatively, the party administering the vaccine can direct the individual to the weblink to view the fact sheet online). That fact sheet for the Pfizer/BioNTech vaccine can be found here, and it explicitly says that “the recipient or their caregiver has the option to accept or refuse [the] Pfizer-BioNTech COVID-19 Vaccine.”

This directive seems to be targeted at whether an individual can be forced to take the vaccine by a government entity (as a New York lawmaker recently suggested), not whether an employer can condition an individual’s continued employment on taking the vaccine. After all, in at-will employment settings, an employee can always pursue alternative employment if they do not want to get vaccinated as a condition of their current job. Note that this analysis may be different in unionized settings governed by a collective bargaining agreement. If you are working with a union, you should consult with your Fisher Phillips counsel before proceeding with any mandatory vaccination plan.

Conclusion

Although the EEOC seems to permit mandating vaccinations of employees in certain circumstances, most employers should consider encouraging rather than mandating vaccinations due to potential related risks. Whether you simply encourage or mandate vaccinations, you should be prepared with at least a policy framework and a communications plan as wider availability of the vaccine draws closer. 

Article courtesy of Fisher Phillips 

Can Employers Use COVID-19 Waivers To Limit Liability?

May 28 - Posted at 10:00 AM Tagged: , , , , , , ,

With employees returning to work and companies reopening their doors to customers, employers are looking for ways to limit liability related to potential COVID-19 cases contracted in the workplace. To do so, many are considering waivers for not only their employees, but also for customers. Such waivers, however, are somewhat limited in their effectiveness and employers should consider the pros and cons before attempting to implement them. You may also want to consider an alternate strategy that may offer you some of the assurances you seek without many of the negatives associated with waivers.

No waiver or other attempt at limiting liability can replace the need to maintain a safe workplace. You should start by ensuring you are in strict compliance with local orders, state regulations, and guidance from government agencies like the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), Equal Employment Opportunity Commission (EEOC), and local health authorities.  

What Are Waivers?

The term waiver has more than one meaning. In this context, employers may look to a waiver and releases of liability agreement consisting of a series of contractual provisions to mitigate certain risks of liability. Such an agreement not only includes a waiver clause, but also includes additional protective provisions like clauses for assumption of risks, covenants not to sue, and identification. If enforceable, they would eliminate liability for the risks discussed within.

Employee Waivers

Waiver agreements between employers and employees are traditionally disfavored due to the unequal bargaining power between them, as employers typically have superior bargaining power. In most states, such waivers do not apply to gross negligence or willful, intentional, or wanton conduct, as employers cannot waive such liability.

Employee waivers are even further limited due to workers’ compensation statutes, where states generally require medical expenses, lost wages, and rehabilitation costs be provided to employees injured in the course and scope of their employment. For work-related injuries, employees generally cannot waive their worker’s compensation claims. Although it may be difficult for employees to prove they contracted COVID-19 at work, some states (like California) have created a rebuttable presumption that workers who contract COVID-19 are presumed to have a workplace injury covered by the workers’ compensation system.

Waiver agreements with employees do not protect employers from OSHA complaints or enforcement action when a workplace is dangerous. However, the president recently signed an executive order directing federal agencies, like OSHA, to make exceptions for employers who attempt in good-faith to follow agency regulations during the COVID-19 pandemic, which may ease some concerns about agency actions.

Practically speaking, waivers may discourage employees from returning to work and hinder restarting operations as a result. They may also result in negative reactions and publicity concerns, as has occurred in several instances across the country already.

But due to the COVID-19 pandemic, it remains unclear whether courts and states will allow employers to enforce waiver agreements in this unprecedented time. Regardless of whether you decide to institute COVID-19 waivers to your returning workforce, you should develop return-to-work plans including steps to train employees on any exposure danger, how to eliminate those dangers, and best practices to stay safe.  

Customer Waivers

Waivers for your customers may limit your company’s liability associated with COVID-19, but they may also hurt your business. Employers must carefully decide if the benefits of liability waivers for customers outweigh their drawbacks for their business. Some positives aspects of customer waivers include that they:

  • May limit or prevent certain liability, like that in common negligence suits.
  • Can highlight safety efforts and communicate risks to your customers.

However, customer waivers have downsides too, as they:

  • Do not apply to willful, intentional, or wanton conduct or gross negligence. Consequently, they are less effective at preventing all forms of negligence claims.
  • Only apply to language specified in the waiver and must be carefully drafted. Broad examples likely will be ineffective.
  • May not apply to entire industries that have a duty to the public in states like California, Colorado, and Washington.
  • May scare customers away to competing businesses or cause them to question the sanitation, safety, or integrity of your business.
  • Could create negative press in conventional news and online.
  • May require refund of membership fees to those clients who refuse to sign.

Evaluating how a waiver will affect your business requires you to look at your industry, business, and geographic area, as well as how your customers or the public will react. Customers generally do not expect to sign a waiver before shopping or dining in a restaurant.  But waivers are common in potentially dangerous activities, like extreme sports, where adding a COVID-19 clause may go unnoticed.  Overall, customer waivers could impact businesses in more ways than simply mitigating their liability, so businesses must first consider potential unintended consequences.

Other Strategies: Notices And Questionnaires

Alternate routes to limiting liability may be more beneficial than waivers for many businesses. Businesses may avoid the potentially ominous effect of forcing customers to sign waivers by using questionnaires or notices.

A questionnaire asks entrants to the premises questions about whether they have any of the symptoms of COVID-19 or were exposed to it. A questionnaire could also communicate the employer’s reasonable actions to comply with government guidelines for sanitation, social distancing, mask wearing, and other efforts that the employer uses to keep their guests and employees safe. This strategy could allow the employer to show it took affirmative steps to exclude sick people from its workplace. 

But businesses still need to consider how their customers will react to such a questionnaire. Implementing a questionnaire may deter some customers who find it an impediment or feel it invades their privacy, while others may feel safer coming to your business because you screen everyone who enters.

Notices provide a more streamlined approach, communicating the same information as a questionnaire about the business’ steps to keep its premises safe, without requiring the individual to physically sign away any perceived rights. Communicating the rules and restrictions without asking questions or for a signature, notices require fewer steps from employers and customers than waivers and questionnaires.

Either approach requires employers to provide a handout or post signage at all entrances to the building that broadcast safety information and reasonable actions and prohibit sick or exposed persons from entering the building. These strategies allow people to feel safer and accept the risks when they enter the workplace.

Choosing A Strategy

Waivers have limited but potentially valuable benefits if enforceable. Employers should weigh those benefits against the potential impact on their business and carefully consider all their options, such as questionnaires or notices that communicate information and allow guests to assume risk.   

No strategy can eliminate a company’s obligation to take reasonable actions to protect its employees and customers. The CDC, OSHA, and state or local authorities publish guidelines and guidance that businesses should follow. Demonstrating you followed such guidance will be the best proof your company acted reasonably in responding to COVID-19 risks.

Whether an employer institutes employee or customer waivers, they should develop written plans to reopen that include training for their employees on these guidelines and that document their efforts to comply. Ignoring these guidelines will make workplaces less safe and potentially expose employers to civil suits and government enforcement actions.

What Should Employers Do?

As you begin the process of reopening, you should familiarize yourself with several alerts from a national labor law firm: 5 Steps To Reopen Your Workplace, According To CDC’s Latest Guidance. You should also keep handy the 4-Step Plan For Handling Confirmed COVID-19 Cases When Your Business Reopens in the event you learn of a positive case at your workplace. For a more thorough analysis of the many issues you may encounter from a labor and employment perspective, we recommend you review our FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and our FP Resource Center For Employers.

6 Factors Employers Must Consider When Taking Employees’ Temperatures

May 05 - Posted at 1:00 PM Tagged: , , , , , , , , ,

Employers may be required to take the temperatures of employees when businesses begin to reopen in the coming days and weeks following the expiration of many states’ stay-at-home orders. Screening for fevers is a task never previously undertaken by many companies. Given that many states will require or highly recommend this practice, now is the time for to consider what precautions and procedures to undertake to implement this safety measure.

You should consider these six issues when contemplating whether to take temperatures at your workplace:

  1. Do You Have To Do It?
    Unless required by a local or state order, taking temperatures is not required in most workplaces. Doing so will require extensive planning, training, and could even be quite expensive. In addition, many individuals infected with COVID-19 won’t exhibit any symptoms, and thus temperature screening likely won’t prevent all workers who can transmit the disease from entering your worksite.

    Although the CDC recommends screening employees for fevers of more than 100.4 degrees Fahrenheit, keep in mind some states make recommend different thresholds. If you decide to screen your employees, also plan to check the temperatures of guests, clients, vendors, and contractors to ensure a safe work environment.

  2. Training And Personal Protective Equipment For Those Taking Temperatures
    The safety of all employees is paramount, but those administering temperature screenings will be especially vulnerable to hazards. If you require employees to be within six feet of any individual who may have COVID-19, the Occupational Safety and Health Administration (OSHA) recommends that they wear personal protective equipment (PPE) consisting of some combination of gloves, a gown, a face mask, and/or a face shield or goggles.

    The screening employees should also be trained on the required PPE under OSHA’s PPE standard. You should also prepare a job hazard assessment and PPE certification related to the screening. To the extent that screeners may also be exposed to bloodborne pathogens (BBP), such as mucous or saliva, you should ensure they are properly trained under OSHA’s BBP standard – which requires employers to prepare an exposure control plan.

    Keep in mind that, where not required by a local or state order, the CDC allows employers to screen employees for COVID-19 symptoms, including a fever, without ever touching or interacting with them. You can do so by standing more than six feet away and asking the employee to confirm they don’t have a temperature and making a visual inspection of the employee (e.g., looking for flushed cheeks or fatigue). Only under this method could the employee screener not be required to wear PPE.

  3. Maintaining Social Distancing
    Not only should screening employees be protected, safety measures should also be taken for workers waiting in line to be screened. This includes ensuring employees stand six feet or more from each other while they wait to have their temperature taken.

  4. Logistics
    You may have to screen 50 or more employees prior to the beginning of each shift. This likely will cause delays and create disruption to normal production activities. Be prepared to create outdoor waiting areas (e.g. tents and other temporary structures) where employees must be in lengthy lines prior to entering the facility. Employee privacy, especially where screening takes place and results are announced, should be accounted for during this time.

  5. Privacy Concerns
    Employee privacy concerns will be prevalent during the employee screening process. The Equal Employment Opportunity Commission (EEOC) has cautioned that employers can ask employees if they are experiencing symptoms of COVID-19, including taking their temperatures, provided that all biomedical information is maintained as a confidential medical record, and separate from the employee’s personnel file. Some states, such as California, require employers to provide a notice to all employees prior to screening them for biomedical data.

    For many businesses, maintaining employee privacy can be challenging as you may not have the experience or knowledge to ensure compliance. To mitigate these issues, and if not required by a governmental order, avoid collecting or storing an employee’s biomedical information to the extent possible. Instead, use an instantaneous-reading thermometer and show the employee their temperature simultaneously with the screening.

  6. Wage Issues
    Keep in mind that employees may claim that their time waiting in line or being screened for a fever before their shift is compensable and thus they should be paid for it. Although no case law or Department of Labor guidance on point currently exists on this topic, it is recommended that you err on the side of paying employees throughout the screening process. This also requires you to implement a system to have employees “clock in” when they get in line for screening and to document their time.

What Should Employers Do?

As you begin the process of reopening, you may want to familiarize yourself with several pieces of information: 

For a more thorough analysis of the many issues you may encounter from a labor and employment perspective, we recommend you review  FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and FP Resource Center For Employers.

The New Plus-One: Babies In The Workplace

March 12 - Posted at 9:00 AM Tagged: , , , , , , , ,

You may have heard of “Bring Your Child to Work Day,” but have you ever heard of “Bring Your Baby to Work Every Day”? Many of you likely just scoffed at the idea. Simply put, a baby cannot be an employee so therefore they have no place at work, right? General workplace norms have held fast to that belief, causing working parents to make difficult decisions with limited choices about returning to their jobs and caregiving once their child is born.  Consequently, employers and businesses often experience vital changes to their workforce in the form of staffing, productivity, costs, efficiency, and reliability.

But some employers are challenging the norm and finding a creative solution to the age-old dilemma through implementation of “infant at work” policies. Employers participating in this increasingly popular option make work and parenting synonymous concepts by providing an inclusive, supportive environment that reaps holistic benefits for employees and their families, employers, and businesses.

Baby On Board – At The Office

From a statistical standpoint, there are some reasons why infant-at-work policies are making sense for employers and employees alike. According to the U.S. Bureau of Statistics, nearly 40% of families (including single parents) in America have children under age 18. Meanwhile, both parents are employed in 63% of two-parent families.

Without the safety net of an infant-at-work policy, employers are missing out on a large subset of workers. In 2018, women represented approximately 46.9% of the total workforce nationwide, but approximately one-third of mothers do not return to work after having a baby, due in part to the expense of childcare.

A good example can be found in California. The state is ranked 11th as the most expensive childcare in the nation, with the average cost of child care estimated at $11,817 per year or $985 per month. For a typical family in California, child care costs would eat up 25% of their annual income. Childcare costs are highest for infants than any other age. 

Overall, these statistics demonstrate that working families face a challenging choice between returning to work and placing the child in daycare or staying home until the child is older. Whereas one requires significant time away from the infant and a sizable portion of household income, the other is often financially infeasible.

When The Pros Outweigh The Cons

The alternative option is bringing an infant to work, which has numerous benefits that often dispel any perceived disadvantages. Some of the obvious concerns include disruption to the work environment, added stress to the parent-employee who is trying to perform while managing a child, failure to complete work, distraction, and liability concerns. 

Surprisingly, employers with infant-at-work policies have found that disruption is minimal because the responsive parent can easily soothe the infant’s needs. Infants are happier and calmer than anticipated because of the constant physical proximity to the parent. Physical proximity also allows mothers to easily breastfeed, which results in greater protection against certain cancers in the mother, as well as optimal growth and development and decreased risk of illness for the infant. 

Additionally, parents invest in doing their jobs well because they simultaneously spend time with the infant, earn a paycheck, and are physically present in their career without thinking about getting home to the infant or picking the infant up from daycare. In turn, the parent in fact works more, increases productivity, and decreases sick time. After the initial novelty wears off, babies become a fixture rather than a distraction. Other employees may also bond with the infant and provide support when the parent is occupied with work tasks. Lastly, liability concerns can be addressed through waivers assuring employers that the employee cannot hold the company responsible for accidents that might occur at the office. 

As a result of the benefits to the parent and infant, employers and businesses can experience the following: earlier return to work dates for parent-employees; increased retention, especially of women in the workplace; reduced costs associated with hiring new employees; improved productivity; reduced healthcare costs as the infant and parent are healthier; increased community focus in the workplace between infant, parent, and coworkers; and improved public perception as a family-friendly business.  

Policy And Practice

When welcoming babies into the workplace, an infant-at-work policy that has a clear structure, sets employer expectations, and provides for flexibility will facilitate maximum benefits. You should first consider eligibility requirements by determining which new parents can take advantage of the policy (full-time or part-time employees, or both). You should also determine when employees will no longer be able to bring their infant to work: once the child is a certain number of months old, or begins to crawl, or whichever comes first. 

Second, in the event the parent-employee is occupied with a work task, you may require the parent to select two other employees to provide back-up care for the infant. These are workers not simultaneously participating in the program who consent to serve as an alternate care provider. Third, consider preparing individualized plans specifying what days the child will be in the office. Fourth, determine whether there will be a trial period before the program becomes permanent for each employee. While the program may appear workable in the abstract, it may not be suitable once the infant and parent are in the workplace.

You should also consider a termination procedure detailing when the program will end, either when the infant reaches the eligibility limit or when a termination decision is made following a complaint process that suggests discontinuation of the individual infant and parent in the program is the appropriate course of action. You may specify the factors it will take into consideration in reaching a termination decision, such as decline in performance and interference with business operations, and may also include a notice period before termination of the program. 

Infant-at-work policies can fit seamlessly with policies that many employers should already have in place, including lactation accommodation requirements that require you to provide for breastfeeding facilities with specific amenities. Additionally, lawsuits involving family responsibility discrimination or parental status discrimination – which is employment discrimination because of an employee’s caregiver obligations – are increasingly common.  While parental status is not a protected basis under federal law or most state laws, it is often alleged as the basis for sex, gender, marital status, or childbirth discrimination, and is prohibited by the Equal Employment Opportunity Commission. 

Consider a female employee who has to leave work by 4:00 p.m. every day to pick her child up from day care, is not promoted as a result, and files a sex discrimination claim. An employer with an infant-at-work policy could reduce the likelihood of such a claim by permitting the employee to bring her baby to work thereby extending her workday.

Nobody Puts Baby In A Corner…But Maybe A Cubicle Will Work

Community and family values are easily gained by employers who assist employees in balancing their careers and parenting. Infant-at-work policies can be implemented with minimal investment as long as there are clear rules and expectations.

Of course, each baby, parent, and business is different. Employers that embrace this modern idea should heed traditional practices of oversight and flexibility to ensure that the policy evolves to fit its unique needs. Regardless of the business, utilizing this low-cost option creates a more positive, productive culture, as well as marrying career and family interests where the two were once mutually exclusive.  

EEO1 Report Due by March 31, 2020

March 03 - Posted at 8:30 PM Tagged: , ,
If you employed more than 100 people in the preceding calendar year, you are required to complete and submit your EEO1 Report (Survey) by March 31, 2020. You should have also received a reminder letter via mail recently from the EEOC. 

For more information about the EEOC Report 1 or for a direct link to file via the EEOC’s web-based filing system, visit here.

EEO-1 Pay Data Reporting Guidance Published

July 12 - Posted at 8:40 PM Tagged: , , , , ,
The Equal Employment Opportunity Commission (EEOC) released a sample form, instructions and FAQs to help employers submit employee pay data—due to the agency by Sept. 30—sorted by job category, race, ethnicity and sex.

Earlier this year, employers were required to submit EEO-1 Component 1 data that lists employees by job category, race, ethnicity and sex. Component 2 asks for employees’ hours worked and pay information from their W‑2 forms, broken down into the same categories.

Businesses with at least 100 employees and federal contractors with at least 50 employees and a contract with the federal government of $50,000 or more must file Component 1 of the EEO-1 form. However, only employers with at least 100 employees, including federal contractors, must file Component 2.

The EEOC’s website now provides information employers may need for filing Component 2 data, such as a sample form, an instruction booklet and FAQs for covered employers. The agency confirmed that the Component 2 online filing system will be available July 15, and additional instructions will come soon. The agency also will send login information to covered employers through the U.S. Postal Service and by e‑mail.

Collecting the Data

The EEOC uses information about the number of women and minorities companies employ to support civil rights enforcement and analyze employment patterns, according to the agency.

Under Component 2, employers must report wage information from Box 1 of the W‑2 forms and total hours worked for all employees, categorized by race, ethnicity and sex, within 12 proposed pay ranges.

“Employers may not use gross annual earnings instead of W-2 Box 1 earnings,” noted Kiosha Dickey, an attorney with Ogletree Deakins in Columbia, S.C., and Jay Patton, an attorney with Ogletree Deakins in Birmingham, Ala.

The report should show actual hours worked by nonexempt employees, an estimated 20 hours worked per week for part-time exempt employees, and 40 hours worked per week for full-time exempt employees.

As with Component 1 data, employers should select a pay period between Oct. 1 and Dec. 31 of the reporting year as the “workforce snapshot period” for Component 2 data, the agency guidance said.

“The only employees whose compensation and hours-worked data must be reported are those full- and part-time employees who were on the employer’s payroll during the workforce snapshot period,” Dickey and Patton explained.

Contentious Component

The federal government initially halted plans to collect pay data so it could review the appropriateness of the revised EEO-1 form under the Paperwork Reduction Act.

The worker advocacy groups that filed the lawsuit said the information would help them evaluate pay disparities and better serve their clients. Furthermore, requiring equal-pay data collection would “encourage companies to identify and correct pay disparities and allow the EEOC to more effectively and efficiently root out and address pay discrimination,” they argued.

Business groups, however, have opposed the requirement. “The EEOC’s pay-data collection rule creates another administrative burden for companies while raising questions about how the data will be used and analyzed,” said Brett Coburn, an attorney with Alston & Bird in Atlanta.

“Employers in today’s environment are acutely aware of the gender wage gap and recognize the importance of ensuring compliance with applicable federal and state requirements,” he said. “Without formal guidance on how the EEOC will assess and publish the data, the only certainty is that this new rule will create opportunities for litigation.”

Compliance Tips

Many feel that HR professionals can and should start preparing for expanded EEO-1 reporting now.

HR professionals should identify where employee pay and hour data are stored and begin gathering that information or figuring out how to extract it, he said.

Once all data is collected, employers should then tackle the task of filling out the actual form and may even want to check with vendors (i.e. HRIS or payroll vendors) to see if they can assist with the process.

Employers will report data through the Component 2 EEO-1 online filing system or by creating a data file and inputting their data in the appropriate fields in accordance with the data file specifications, but the data file specifications have not yet been released.

EEOC Instructs Employers of New Sept 30th Deadline for Reporting Pay Data

April 25 - Posted at 2:01 PM Tagged: , ,
A federal judge announced on April 25th that mid-size and large employers will now have until September 30, 2019 to provide 2018 pay data to the EEOC, instead of the previous deadline of May 31st.

U.S. District Judge Tanya Chutkan accepted the agency’s proposal to make employers submit their 2018 pay data this fall in a bench ruling and also ordered the EEOC to collect a second year of pay data, giving it a choice between collecting employers’ 2017 data or making it collect 2019 data down the road.

Judge Chutkan said she accepted the agency’s proposed due date “even though the court harbors its own doubts” about why it would take so long to collect pay data.

The judge gave the agency until April 29 to put a statement on its website informing employers of her decision and until May 3 to decide which second-year dataset (2017 or 2019) to collect. The agency must also give the court a compliance update on May 3 and provide further updates every 21 days after that and must take “all necessary steps” to meet the Sept. 30 deadline, she said.

Judge Chutkan’s decision Thursday ends weeks of stakeholder debate about when to set the filing deadline following her early March ruling reinstating the data collection, which the Obama administration adopted to root out gender- and race-based pay gaps. The form supplements the agency’s long-running collection of employers’ demographic data. Both components apply to all employers with 100 or more employees and federal contractors with 50 or more employees.

The Trump administration rolled back the pay data component in 2017, citing its paperwork burden on employers, among other things. The National Women’s Law Center and the Labor Council for Latin American Advancement challenged this rescission as unfair and poorly reasoned in November 2017 and won summary judgment last month, days before the EEOC started accepting employers’ demographic data for 2018.

The ruling apparently blindsided the EEOC, which said earlier this month it did not have the infrastructure to accept and secure employers’ pay data, but could set a Sept. 30 deadline if it hired a contractor.

Business groups, including the U.S. Chamber of Commerce, likewise claimed to have been taken unaware by the collection’s reinstatement, saying member employers have not kept data in a form transmissible to the EEOC and would need at least 18 months to complete the survey.

Judge Chutkan chided the EEOC for its lack of preparation at a hearing last week on when to set the deadline, saying she did not understand why the agency had not restored a page on its website telling employers how to submit their pay data. She said Thursday it was clear the EEOC never crafted a contingency plan in the event that the plaintiffs won and that the administration’s actions before and since her March order “indicate that the government is not committed to a prompt collection of Component 2 information.”

According to EEOC, Sexual Harassment Charges Increase Once Again

April 12 - Posted at 5:59 PM Tagged: , , ,

Despite a 10 percent overall drop in the number of charges of employment discrimination, the EEOC recently reported that sexual harassment charges filed with the agency jumped by 13.6% from the previous year. The 7,609 sexual harassment charges received clearly demonstrate that the #MeToo movement is in no way slowing down. What do employers need to know about this development?

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Employers Get A Pay Data Reporting Reprieve – But For How Long?

March 18 - Posted at 3:34 PM Tagged: , , , , ,
Despite a recent court ruling resurrecting the requirement that employers turn over compensation information along with standard demographic figures, the EEOC this morning unveiled its 2019 EEO-1 reporting system that fails to include any request for such pay data. It appears as though employers will not have to provide information about their employees’ 2018 compensation for the time being – although you should still be prepared for this to change at a moment’s notice, and should begin preparing for such pay disclosures in the near future.

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