OSHA Issues ETS Requiring COVID-19 Tests or Vaccinations for Most Employers

Less than two months after receiving direction from President Joe Biden, the Occupational Safety and Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS) covering employers with at least 100 employees. Employers must comply with many of the requirements within 30 days and begin required testing within 60 days of the November 5, 2021, effective date. 

The ETS places additional burdens on employers (and employees) already straining under workforce shortages, supply chain issues, and varying standards and guidance related to COVID-19. The ETS is expected to face multiple legal challenges.

Employers Covered

The OSHA ETS applies to employers with at least 100 employees company-wide.

It does not apply to:

• Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or
• Settings where any employee provides healthcare services or healthcare support services when subject to the Emergency Temporary Standard for healthcare employers (Subpart U – 29 CFR §1910.502).

The ETS also does not apply to the employees of covered employers:

• Who do not report to a workplace where other individuals, such as coworkers or customers, are present;
• While working from home; or
• Who work exclusively outdoors.

At any time during the duration of the ETS, if an employer employs at least 100 workers, the requirements of the ETS will apply regardless of fluctuations in the size of the employer’s workforce.

Required Policy

OSHA’s ETS requires employers who have at least 100 employees (company-wide, not just at one facility) to institute either a mandatory vaccine policy or a weekly testing and mask policy.

Employers must inform employees of their policies and procedures designed to comply with the ETS, the Centers for Disease Control and Prevention’s “Key Things to Know About COVID-19 Vaccines,” OSHA’s prohibition against retaliation for reporting workplace illnesses or injuries and OSHA’s whistleblower protections, and the criminal penalties associated with knowingly supplying false statements or documentation.

Vaccination Exceptions Allowed in a Mandatory Vaccination Policy

If an employer adopts a mandatory vaccination policy to comply with the OSHA ETS, it must require vaccination of all employees (and of all new employees as soon as practicable), other than those:

• For whom a vaccine is medically contraindicated;
• For whom medical necessity requires a delay in vaccination; or
• Who are legally entitled to a reasonable accommodation under federal civil rights laws, because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

How is Vaccination Status Determined?

The employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated.

Acceptable proof of vaccination status is:

• The record of immunization from a healthcare provider or pharmacy;
• A copy of the COVID-19 Vaccination Record Card;
• A copy of medical records documenting the vaccination;
• A copy of immunization records from a public health, state, or tribal immunization information system; or
• A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
• Where an employee is unable to produce acceptable proof of vaccination (as outlined above), a signed and dated statement by the employee:
  • Attesting to their vaccination status (fully vaccinated or partially vaccinated);
  • Attesting that they have lost and are otherwise unable to produce proof required by this section; and
  • Including the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”
  • An employee who attests to their vaccination status, to the best of their recollection, should include the following information in their attestation: the type of vaccine administered; date(s) of administration; and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

What Records Must Be Maintained?

According to the OSHA ETS, the employer must maintain a record of each employee’s vaccination status. The employer must preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated, along with a roster of each employee’s vaccination status. Significantly, employers that have already ascertained vaccination status prior to the effective date of the ETS through another form, attestation, or proof and retained records, are exempted from re-determining the vaccination status of individuals whose fully vaccinated status has been previously documented.

In addition, the employer must maintain a record of each test result provided by each employee.

These records and roster are considered employee medical records and must be maintained as such records. They must not be disclosed except as required or authorized by federal law. These records and roster must be maintained and preserved while this section remains in effect, but are not subject to OSHA’s standard 30-year retention requirement.

Paid Time Off for Vaccine Time

According to the ETS, employers must provide paid time off for employees to get vaccinated (up to four hours) and to recover from any side effects. The ETS requires up to four hours of paid time to receive each dose of the vaccine, including travel time, at the employee’s regular rate of pay. The ETS requires “reasonable time and paid sick leave” to recover from the side effects of each dose of the vaccine.

Who Pays for Testing?

OSHA permits employers to pass the expense for testing to employees, subject to the requirements of other laws.

Whether employers can require employees to pay for their own tests will depend on state law and whether testing is offered as a reasonable accommodation. Many states have laws requiring employers to pay the cost of any required medical exams or tests or expense reimbursement laws, which may be implicated.

The Fair Labor Standards Act (FLSA) and state law will govern whether employers have to pay for the time associated with getting testing and awaiting results.

It is also unclear at this time whether, under the FLSA, the cost of testing may drop an employee’s effective rate of pay below the federal minimum wage.

Conflicting State Law?

Although some states have their own state OSHA plans, such plans generally must be “at least as effective as” the standard set by OSHA. In those states, the federal OSHA ETS will not apply immediately. 

There are currently 22 states that have OSHA-approved State Plans regulating private sector employers. (Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Tennessee, South Carolina, Utah, Vermont, Virginia, Washington, Wyoming, and Puerto Rico.) Those states have 30 days to adopt the federal standard or inform OSHA of their plans to do something else. In addition to their own OSHA plans, some states have passed laws prohibiting or limiting employers’ ability to require COVID-19 vaccines.

OSHA’s ETS is intended to comprehensively address the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19. It, therefore, preempts any state or local requirements on these issues, except those from an OSHA-approved State Plan. Thus, the ETS preempts any state or local requirements banning or limiting an employer from requiring vaccines, face coverings, or testing.

What Type of Tests are Required?

According to the OSHA ETS, the COVID-19 test must be:

• Cleared, approved, or authorized, including in an Emergency Use Authorization, by the Food and Drug Administration to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
• Administered in accordance with the authorized instructions; and
• Not both self-administered and self-read, unless observed by the employer or an authorized telehealth proctor.

Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens that are processed individually or as pooled specimens), proctored over-the-counter tests, point-of-care tests, and tests where specimen collection and processing is done or observed by an employer.

When Must Testing Occur?

Employees who are not fully vaccinated must submit to testing at least weekly if present in the workplace at least once a week or within seven days before returning to work if away from the workplace for a week or longer.

For individuals who have received a positive COVID-19 test or who have been diagnosed with COVID-19, the ETS provides an exception from testing for the 90-day period following the positive diagnosis or test.

Employees who are not fully vaccinated and do not meet the testing requirements must be removed from the workplace pending a test result.

Removal for Positive Tests

Regardless of vaccination status, employees who test positive for COVID-19 or who are diagnosed with COVID-19 must be removed from the workplace until they meet certain return-to-work criteria. The ETS does not require paid leave for employees who are removed, but acknowledges that other laws may impose such obligations.

What Other Requirements Apply?

Masking: Subject to limited exceptions, employers are required to enforce the wearing of masks for those who are unvaccinated when indoors and when occupying a vehicle with another person for work purposes. Like testing costs, the ETS does not mandate employers to pay for face coverings required by the ETS.

Reporting: Employers are required to report work-related COVID-19 hospitalizations and fatalities to OSHA (within 24 hours of hospitalization and eight hours of a fatality). Under OSHA’s normal reporting standards, work-related hospitalizations and fatalities must be reported only if they occur within a certain time period following the work-related incident (24 hours for hospitalization and 30 days for a fatality). Those time periods do not apply to work-related COVID-19 hospitalizations or fatalities, meaning, employers must still notify OSHA even if the hospitalization or fatality occurs after those time periods.

Notice: Employers must require employees to provide prompt notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.

When Does the ETS Take Effect?

The OSHA ETS takes effect immediately, except in those states that have their own state plans. However, employers have 60 days to comply with the testing requirements of the ETS and 30 days to comply with the remaining provisions. State plan states have 30 days from the effective date to adopt the federal standard or inform OSHA of their plans to do something else.

Fake Vaccine Cards May Become Employers’ Next New Headache: 5 Steps to Protect Your Company

As vaccine mandates increase, employers may face yet another headache in the continuing stream of pandemic-related concerns: employees presenting fake cards when asked to establish proof of vaccination. What can you do if you believe an employee has presented a fake vaccine card? And can your company be liable for relying on such falsified records?

How Widespread Is the Practice?

There are a growing number of Americans who are attempting to avoid vaccine mandates by using fake or bogus vaccination cards. As with the fake IDs used by underaged students to obtain alcohol, the internet has spawned a cottage industry marketing the bogus cards. The fake cards are increasingly available for vaccine hesitant customers, students, and employees who are willing to pay for the cards. 

Fake vaccination documents can be purchased through a variety of social media sites, the black market, and other internet platforms. Vaccine-hesitant employees and customers have also been caught making homemade versions of vaccine cards.

Bogus vaccination cards are illegal under federal and certain state laws. Indeed, workers using counterfeit vaccine cards are running a significant legal risk. The use and forgery of government seals such as the CDC vaccination card is illegal, with violations ranging from a fine of up to $5,000 or up to five years imprisonment. Many state laws also prohibit such activity.

Unfortunately, there is increasing evidence that many vaccine-hesitant people are willing to take the risk of criminal prosecution.

• One high profile example of the growing problem was evidenced by the recent 21-game suspension of an NHL player who was alleged to have used a fake vaccination card in response to the league’s COVID-19 policy. As a result of his actions, he will forfeit over a million dollars in pay.
• Three Vermont state troopers were forced to resign from their jobs after they were accused of playing a role in manufacturing counterfeit vaccination cards.
• In another reported case, a New Jersey woman calling herself the “AntiVaxMomma” on Instagram was arrested for selling hundreds of fake vaccine cards online for $200 apiece.
• The increasing demand for false documentation is also evidenced by a recent report that S. Customs agents in Tennessee and Alaska seized thousands of fake vaccination cards that came from China.

There have been increasing demand by some leaders, including Senator Chuck Schumer (NY), for law enforcement to step up efforts to shut down internet or online sales of fraudulent certification cards.

What’s at Risk?

Regardless of how many counterfeit vaccine cards are floating around, the key question is whether you may face safety or legal exposure if any of your employees have falsified or misrepresented their vaccination status.

From a workplace safety standpoint, there is no doubt that someone who has skirted your rules can present a threat to other workers, members of the public, and other third parties at the worksite. If you have eased safety and social distancing measures for employees who are vaccinated, and/or discontinued any COVID-19 testing requirements for inoculated workers, an unvaccinated person who slips through the cracks could pose a danger to those around them. This concern alone requires you to take this emerging problem seriously.

Fortunately, your company’s legal liability in such a scenario is most likely low. As long as you have taken reasonable measures to check the vaccination status of your workforce, someone who has misled you by using a fake vaccine card is unlikely to subject the company to a high level of legal exposure. Certainly, your company could be sued, but your odds of successfully defending such a claim would hinge on the reasonableness of your verification process. This means that you should establish reasonable parameters to check vaccine cards, not simply allowing managers or other gatekeepers to give them a quick, cursory glance without reviewing key details. The more reliable your verification system, the better your odds of defeating any negligence claims relating to an employee’s use of a phony vaccine card. The obvious implication is that simply using an “honor system” appears less likely to withstand challenges, from plaintiffs’ lawyers or agencies such as OSHA.

What Can You Do About It?

If you suspect that an employee has presented a falsified vaccine card – what can you do about it? You can certainly take serious action, up to an including termination of employment. If you are concerned about this issue, thee following five steps can put your company in a much stronger position:

1. Identify factors that reasonably indicate the need for further inquiry. Develop a list of factors that would lead you to make additional inquiries. This tool can save time, improve the effectiveness of your process and ensure consistency. Factors should include things like the absence of information called for on the now-familiar CDC Vaccination Record card, such as the manufacturer, lot number, date and identification of the vaccine provider. Other red flags could be misspellings (such as the woman who was arrested after presenting a counterfeit card saying she received the “Maderna” vaccine); inconsistent dates; the name of an unfamiliar manufacturer or provider; apparent “corrections” or illegible portions of the card; thin-cut paper rather than a card; a card that appears to have been cut with scissors; a card that appears to be fully printed instead of being at least partially handwritten; handwriting that appears to be entirely uniform (in an environment where shots were given on more than one date); or other objective information that would reasonably raise questions about the authenticity of a card. At the same time, avoid acting on speculation or unsubstantiated rumors. OSHA, CMS or other regulators may promulgate additional guidance on this process, which you should of course incorporate into your policies.
2. Apply to your practices consistently. When making additional inquiries, recognize the inherent risk of taking an action toward one employee (or group of employees) without treating others the same way. Singling out individuals or groups by asking more questions, seeking further documentation, or taking additional other steps raises the potential for discrimination or retaliation claims. Claims could of course be based on differences in gender, age, race, disability, sexual orientation, gender identity, religion, or any other protected categories. This makes consistent application of your process especially important.
3. Document the reasons why you are seeking more information about a specific card. If one or more factors lead you need more information or to question the authenticity of a vaccine card, clearly and objectively document your specific concerns. Such documentation not only reflects legitimate non-discriminatory reasons for making further inquiry, it also demonstrates that the company is exercising reasonable care before accepting vaccination cards, in the event OSHA or another agency challenges the integrity of your process.
4. Recognize the sensitivity of the subject matter. In posing questions about a card, you should of course respect the personal, confidential nature of each employee’s vaccination status. Also keep in mind that the pandemic and vaccine issues often stir strong feelings. Thus, make it a point to seek clarifying information in a respectful, non-accusatory manner. Staying focused on the objective factors that led to your inquiry and give the employee a fully opportunity to explain. Assure the employee of the confidentiality of your discussion and safeguard all information obtained in the process.
5. Ensure that your policies are clear. As we have discussed many times, it is important to clearly communicate your company’s approach to vaccines and workplace safety, in the form of policies, postings, meetings and emails. You should also confirm that your policies are up-to-date regarding the requirement that all employees must be truthful and accurate in all communications with the company, spelling out that dishonesty or other violations of this policy may result in termination, even for a first offense. Policies should leave no doubt as to how serious the company is about its commitment to workplace safety and honest, accurate communications.

President’s Path Out of the Pandemic Adds Hurdles for Employers

On September 9, 2021, the White House issued Path Out of the Pandemic: President Biden’s COVID-19 Action Plan (the Plan). The Plan outlines a six-pronged approach, portions of which will impose new obligations on employers across the country.

Most notably for employers, the first prong of the Plan, “Vaccinating the Unvaccinated,” includes:

• Direction to the Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) requiring all employers with 100 or more employees to ensure that all employees are fully vaccinated or able to produce a negative COVID-19 test result on at least a weekly basis;
• A new Executive Order that requires certain government contractors to comply with guidance, to be published later this month by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance), which presumably will require that employees who work on or in connection with certain government contracts be vaccinated, regardless of whether they work on a federal site;
• A statement that the Centers for Medicare & Medicaid Services (CMS) will be taking action to require COVID-19 vaccination for workers in most health care settings that receive Medicare or Medicaid reimbursement as a condition of Medicare/Medicaid reimbursement (similar to what was previously announced by the President in August 2021 for nursing homes); and
• Direction to OSHA to require covered employers to provide paid time off for employees to get vaccinated or recover from vaccination.

The Plan also calls on states to adopt vaccination requirements for all school employees as part of the effort to “keep schools safely open.”

The Plan indicates that the administration will increase the amount of COVID-19 testing by ramping up production of testing products, offering at-home rapid COVID-19 tests at cost through certain retailers, and expanding free testing at retail pharmacy sites, among other things.

While the Plan is far-reaching, there are still many unknowns. Employer obligations arising from OSHA’s ETS will be dictated by the timing and the specific ETS provisions and corresponding requirements. The only thing we know for certain about the forthcoming ETS is that employers will need to continue to adapt and be prepared to pivot if necessary.   It is also unclear how the new ETS will fit in with OSHA’s current COVID-19 Healthcare ETS, in 29 C.F.R. 1910 Subpart U, or impact OSHA’s current guidance for non-healthcare employers. Further, the 27 states with OSHA-approved State Plans, such as California, Washington, Oregon, and Virginia, will need to determine how to respond to the ETS, once it is issued, and if certain provisions require implementation alongside the state’s standards and regulations.

CMS also issued a press release urging Medicare and Medicaid-certified facilities to “make efforts now to get health care staff vaccinated.” However, the agency noted that it is still developing an Interim Final Rule with Comment Period that will be issued in October.

Employers who are impacted by the Plan, and who may be impacted by an ETS once issued, are advised to start thinking through how they will navigate many legal issues and operational challenges related to required vaccination and testing. These issues include policy requirements, workplace testing strategies, vaccination tracking and management, medical record collection and retention, and accommodations for religion, disability and pregnancy, as well as wage and hour implications, bargaining obligations for unionized workplaces, employee confidentiality and privacy issues. Further, employers should consider the logistical impact on federal contracts and how these obligations will interplay with other state or local mandates or restrictions on vaccinations.

Stay tuned as we dive into the Plan and corresponding guidance documents, as well as await further information from federal agencies responsible for complying with the Plan and its directives. 

Same Old Situation for Employers? Top 10 Takeaways as OSHA Updates COVID-19 Workplace Guidance

In response to the surge of delta variant cases across the country, federal workplace safety officials just issued updated guidance to help employers and workers identify current COVID-19 risks for unvaccinated or otherwise at-risk workers – making many employers feel like they are in the same ol’ situation they were in just a few months ago. The Occupational Safety and Health Administration’s (OSHA’s) updated guidance, released on August 13, revises its June 2021 guidance applicable to those not covered by OSHA’s COVID-19 Emergency Temporary Standard (ETS) for healthcare workplaces and adheres to updated Centers for Disease Control and Prevention (CDC) coronavirus guidance issued last month. What are the top 10 takeaways employers need to know about with respect to OSHA’s most recent guidance?

OSHA’s Updated Recommendations

As most are aware by now, the CDC updated its recommendations for fully vaccinated individuals to reduce their risk of becoming infected with the delta variant and potentially spreading it to others. The CDC’s guidance addresses mask wearing in public indoor settings; choosing to wear masks regardless of the potential level of transmission (particularly if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated); and revised testing recommendations for known exposures.

In its revised guidance, OSHA has essentially adopted analogous recommendations for employers. To follow this guidance, you should implement multi-layered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19. In light of OSHA’s recent guidance, it is clear the agency is focused at facilitating higher vaccination rates via imposing new standards on employers.

Top 10 Employer Takeaways

Here are the top 10 takeaways from OSHA’s new guidance.

1. Employers should implement methods to facilitate and encourage employee vaccination. OSHA recommends providing employees with paid time off to get vaccinated and paid time off to recover from any ill side effects of the vaccine. Employers are also encouraged to work with local public health authorities to provide vaccinations in the workplace for unvaccinated workers. Finally, OSHA suggests employers consider adopting policies requiring workers to get vaccinated or undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.
2. Employers should instruct infected workers, unvaccinated workers who have had close contact with a positive COVID-19 case, and all workers with COVID-19 symptoms to stay home from work. As recommended by the CDC, fully vaccinated individuals who have a known COVID-19 exposure should get tested three to five days after the exposure event and wear a mask in public indoor settings for 14 days (or until they receive a negative test result). Individuals who are not fully vaccinated should be tested immediately, and if negative, tested again in five to seven days after their last exposure (or immediately if symptoms develop). OSHA expects all absentee policies to be non-punitive and that employers will promptly eliminate policies that might encourage workers to come to work sick.
3. Employers should implement physical distancing in all common areas where unvaccinated and otherwise at-risk workers may be present. OSHA believes a “key way” to protect workers is to require physical distancing in the workplace – generally this means at least six feet. However, as workplace conditions may require employees to work close to one another and/or customers for extended periods of time, employers may consider limiting the number of unvaccinated or otherwise at-risk employees in one place at any given time. For example, employers might implement flexible schedules, allow remote/telework, rotate/stagger shifts, deliver services remotely (e.g., phone, video, or web), etc.

   At sites where unvaccinated or otherwise at-risk workers cannot physically distance, transparent shields (or other like barriers) may be considered. These types of barriers should block face-to-face pathways between individuals to prevent direct transmission of respiratory droplets. Any openings should be placed at the bottom, made as small as possible, and the height should consider the employee’s posture while working (i.e., sitting or standing). Ventilation, fire safety, and other safety considerations should be incorporated when designing and installing barriers.

4. Unless their work task requires a respirator or other PPE, employers should provide workers no-cost face coverings or surgical masks as appropriate. OSHA’s guidance mirrors that of the CDC by recommending even fully vaccinated individuals wear masks in public indoor settings, noting that fully vaccinated people may desire to wear masks in public indoor settings regardless of community level of transmission. OSHA reiterates that workers should wear a face covering that covers both the nose and mouth to contain the wearer’s respiratory droplets and to help protect others and potentially themselves.

   Face coverings should be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents. They should fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face. Workers who are outdoors may opt not to wear face coverings unless they are at risk. Regardless, employers should support employees who continue to wear a face covering, especially when working closely with others. If an employer determines PPE is necessary to protect unvaccinated and otherwise at-risk workers from exposure to COVID-19, the employer must provide PPE per the relevant OSHA PPE standards.

5. Employers should educate and train workers on their COVID-19 policies and procedures using accessible formats and in languages they understand. Employers should train managers on how to implement their COVID-19 policies. These policies should be communicated clearly, frequently, and using multiple methods to promote a safe and healthy workplace. OSHA suggests that communications should be in plain language that unvaccinated and otherwise at-risk workers understand (including non-English languages, and American Sign Language or other accessible communication methods, if applicable) and in a manner accessible to individuals with disabilities. 

   Training should include basic facts about COVID-19, including how it is spread and the importance of physical distancing (including remote work), ventilation, vaccination, use of face coverings, hand hygiene, and workplace policies and procedures to protect workers from COVID-19 hazards. In addition, employers should implement a means of tracking which (and when) workers receive this information.

6. Employers should suggest or require unvaccinated customers, visitors, or guests to wear face coverings in public-facing workplaces, such as retail establishments. All customers, visitors, or guests should wear face coverings in public, indoor settings in areas of substantial or high transmission. This could include posting a notice or otherwise suggesting or requiring individuals wear face coverings, even if no longer required by your jurisdiction.

7. Employers should maintain workplace ventilation systems. As COVID-19 spreads more easily indoors, improving and maintaining ventilation systems is a key engineering control. Such a maintenance program can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air (and consequently reduce the risk of transmission to unvaccinated and otherwise at-risk workers in particular). A well-maintained ventilation system is essential in any indoor workplace setting, and when working properly, ventilation is a primary control measure to limit the spread of COVID-19.

   Specific recommendations can be located within the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Guidance for Building Operations and Industrial Settings during the COVID-19 Pandemic. Key measures include ensuring HVAC systems are operating in accordance with the manufacturer’s specifications, conducting regularly scheduled inspections and maintenance, maximizing the amount of outside air supplied, installing air filters with a Minimum Efficiency Reporting Value (MERV) 13 or higher where feasible. Buildings without HVAC systems should maximize natural ventilation by opening windows or doors, when conditions allow (if that does not pose a safety risk) and consider using portable air cleaners with High Efficiency Particulate Air (HEPA) filters in spaces with high occupancy or limited ventilation.

8. Employers should perform routine cleaning and disinfection. This is especially important if someone who has been in the facility within 24 hours is suspected of having COVID-19 or is a confirmed COVID-19 case. In those situations, OSHA recommends following the CDC’s cleaning and disinfection recommendations.

9. Employers must record and report workplace COVID-19 infections and deaths: Under OSHA’s recordkeeping standard, employers are required to record work-related cases of COVID-19 illness on OSHA’s Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related; and (3) the case involves one or more relevant recording criteria (e.g., medical treatment, days away from work). Likewise, employers must follow the requirements when reporting work-related COVID-19 fatalities and hospitalizations.

10. Employers should implement protections from retaliation and set up anonymous methods for workers to raise concerns about COVID-19-related hazards. Employers should ensure workers know whom to contact with questions and/or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities. This could be accomplished by using an employee hotline or other method for workers to voice concerns anonymously.

Conclusion

The guidance also reminds employers to follow all other applicable mandatory OSHA standards. These mandatory OSHA standards include requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and OSHA’s requirements for employee access to medical and exposure records.

CDC Reverses Course and Recommends Fully Vaccinated Individuals in “Substantial” and “High” Transmission Areas Continue to Wear Masks

The U.S. Centers for Disease Control and Prevention (CDC) announced yesterday that the agency now recommends that people in areas with “substantial” and “high” COVID-19 transmission should wear masks indoors, regardless of vaccination status. This announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. The updated guidance comes on the heels of what some call the third (or fourth) surge of COVID-19 infections due to the highly transmissible Delta variant, which CDC Director Dr. Rochelle Walensky indicated behaves “uniquely differently” from prior virus strains. While Director Walensky stressed that the vast majority of severe illness and death is among unvaccinated people, she also indicated data shows breakthrough infections can happen in 1 out of 10 vaccinated individuals in a “substantial” or “high” transmission area.  So what does this mean for employers and your masking policies?

What Has Changed and Why?

The announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. Since then, new data shows the Delta variant is more transmissible than earlier strains of COVID-19, with those infected with the Delta variant carrying the same viral load as unvaccinated individuals with COVID-19.

Indeed, the CDC indicates while most COVID-19 transmission occurs in unvaccinated people, the amount of the virus in breakthrough infections caused by the Delta variant (e.g., viral load) is comparable to unvaccinated infections. This led the CDC to conclude that – although rare – breakthrough infections of vaccinated individuals have the same potential level of transmissibility as unvaccinated persons. Accordingly, the agency urged communities with substantial and high transmission rates to enforce masking guidelines to prevent the spread of COVID-19.

What About OSHA’s Emergency Temporary Standard?

Last month, OSHA issued its Emergency Temporary Standard (ETS), which gave wide latitude to most employers on their masking policies for vaccinated workers. OSHA provided that, except for workplace settings covered by the agency’s healthcare ETS and the remaining mask requirements for public transportation settings, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. 

Yesterday’s CDC guidance could change that, particularly in areas with substantial and high transmission. That’s because the OSHA ETS specifically cited to the CDC’s May 13 guidance on masks as a factor to justify many of its recommendations.

According to the CDC, “high” transmission equals more than 100 cases per 100,000 people over a seven-day period, while “substantial” transmission equals 50-100 cases per 100,000 people over a seven-day period. The CDC recommended using its COVID-19 data tracker, which is updated daily by state and county. Much of the nation is currently in a substantial or high transmission category.  

Of course, employers should still take measures to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces, but many may need to implement masks for fully vaccinated workers in specific communities. 

What Should Employers Do?

The CDC’s new guidance provides important considerations for employers who may be thinking about implementing or rescinding masking policies. Even though CDC guidance is not directly binding  on employers, it is critically important. This is because OSHA’s guidance repeatedly refers to CDC guidance and clearly emphasizes the protection of people who are unvaccinated or otherwise at risk, which is the focal point of the CDC’s updated guidance.

If you have locations in areas which do not meet the criteria for “high” or “substantial” transmission, no immediate action is necessary. But it may still be prudent to have a plan in place to address how your company will adjust its masking policies if necessary. You should also consider state and local laws before making any changes to masking policies, given that states, such as Arkansas, have passed legislation barring entities (local governments) from imposing mask mandates.

If you are encouraging or mandating vaccines, you should also be prepared to address employee concerns over vaccination policies. This is especially true given the CDC’s position that infections are possible in vaccinated individuals and that those individuals may transmit the virus to others at a greater rate than previously understood. 

Part 3 of Myra’s Minutes- OSHA

Business owners and HR professionals alike say that it’s nearly impossible to keep up with all the changes, but as the Employer Advocate, we’re here to help. AAG has compiled a series of informative videos and articles to help your business navigate the upcoming changes.

This episode covers conflicting CDC & OSHA unmasking guidance as well a preview of what employers can expect from OSHA once the new chief Douglas Parker is confirmed.

Check out Part 3 of our 4 part series of Myra’s Minutes here!

The Feds Are Coming, Is Your Business Ready? Part 1: New DOL Outreach

The Department of Labor (DOL) has launched a new concentrated outreach initiative. For business owners, that means the DOL has promised to actively reach out via radio announcements, social media platforms and neighborhood posters informing employees of their rights under the Fair Labor Standards Act (FLSA). 

You may now be thinking “What does that have to do with me? I pay my employees to work”.  While this may be mostly true, often we (or our managers) inadvertently allow or encourage our employees to work off the clock.  Before your internal defenses kick into high gear, let me provide a few examples of how this could occur: 

• Have you or one of your managers ever interrupted an employee during lunch to ask a “quick” work related question?
• Do you auto deduct time for lunch each day?
• Do your managers understand that if they need to reach out to employees before or after hours, even if it is a quick text or phone call, they should ensure the employee accounts for that time on their timesheet?
• Do non-exempt employees have access to their work email on their personal phone?
• How do you confirm time worked for remote employees is accurate?
• Do you have a policy for your employees to report unauthorized or unapproved overtime?

Over the past year, business owners and managers have dedicated their time, energy and focus to keeping the essential business doors open or attempting to reopen and get employees back in the office.  To allow employees to safely return to work, you have had to operate/reopen your business within CDC guidelines, transition your business to accommodate a remote workforce, follow OSHA’s recommendations, keep up with Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic, as well as the interaction between the Americans with Disability Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).  It is no wonder some of our focus on day-to-day compliance may have slipped. 

My company’s mission is to be The Employer Advocate.  Under the new administration, changes are happening at lightning speed and, as your advocate, we are here to help you navigate through changes as they occur.  Administrators Advisory Group (AAG) is a benefits brokerage that works with small to mid-size businesses, specializing in human resources compliance.  We work alongside your human resource team to keep you up to date with the latest workplace rules and regulations.

The Department of Labor (DOL) campaign is the first in our four-part series designed to let you know what changes have taken place that may affect your business. In the following weeks, we will cover changes regarding the Family First Coronavirus Response Act (FFCRA) as amended under the CARES Act, changes occurring within OSHA, and a new federal taskforce created whose goal is to unionize your employees. 

While Wage & Hour rules have not changed, the informational outreach by the DOL has just begun.  The biggest change comes in the form of visibility and accessibility of the information, beginning with the revamp of their website.  The DOL has promised to proactively reach out to employees using radio public service announcements, national webinars, social media messages, and posters. 

Reminding employers and employees alike that employees must be paid for ALL hours worked is the center of this outreach!  Even if you don’t ask an employee to work overtime, even if it’s done remotely, and even if you aren’t aware (but should have been), the employee is entitled to be paid.

Wage & Hour rules can be one of the many landmines that employers have to navigate on a daily basis. With AAG on your side, we will help you ensure you are prepared in case the DOL shows up on your doorstep. Let us know if you have questions or would like to review some of your existing practices or policies.

 

Intro to New 4 Part Series of Myra’s Minutes

Business owners and HR professionals alike say that it’s nearly impossible to keep up with all the changes, but as the Employer Advocate, we’re here to help. AAG has compiled a series of informative videos and articles to help your business navigate the upcoming changes.

Check out the intro to our newest 4 part series of Myra’s Minutes here!

Unmasking the Challenges: 7 Options for Managing a Partially Vaccinated Workforce

Now that most states, the CDC, and OSHA have (or may soon) lift mask mandates for vaccinated workers, what is an employer to do about revealing an employee’s vaccination status? Under any relaxed masking guidance applicable to those who are fully vaccinated, customers, visitors, and co-workers are likely to draw their own conclusions about the vaccination status of everyone else in the workplace based upon whether or not they are wearing a mask. This addresses some of the legal and practical considerations for employers dealing with a partially vaccinated workforce and provides seven options for you to consider as you navigate this rapidly evolving area.       

The Push to Unmask

Anxious to get back to normal after more than a year of mask mandates and social distancing, employers and employees are ready to do away with COVID-19 restrictions. Employees in certain industries (such as health care workers and educators) will likely continue to be required to mask up and social distance for the foreseeable future. However, other employers are developing various approaches and policies to lift masking requirements for employees (and others) who are fully vaccinated following new CDC and OSHA guidance.   

• For a summary of the CDC’s guidance on scrapping mask mandates for fully vaccinated workers and a seven-step blueprint for employers to overcome risks and hurdles, click here.
• For a summary of the three options that employers have in light of OSHA’s subsequent unmasking announcement, click here.

Unmasking Employees Based On “Proof” of Vaccination

“Proof” of vaccination status is and will continue to be a significant consideration for employers when lifting mask mandates. Indeed, many employees are under the mistaken belief that an employer cannot ask vaccine status. However, per the guidance of the EEOC and other state agencies, you are permitted to request vaccination status. In California, local health authorities such as in Santa Clara County, have already mandated that businesses and government entities ascertain the vaccination status of all employees, independent contractors, and volunteers who are or will be working at a facility or worksite in the county.

Indeed, the inquiry may be required to determine which employees can and which employees cannot unmask. As an example, the Oregon Occupational Safety and Health Administration has already issued guidance that requires employers to “verify the vaccination status” of workers before permitting them to unmask. The CDC, OSHA, and many state authorities agree that only those employees who are fully vaccinated can follow relaxed COVID-19 protocols, while those who are not fully vaccinated must continue to observe safety protocols such as mask wearing and social distancing. During COVID-19 inspections, OSHA will likely require employers to show how they have documented or “verified” vaccination status where employees are permitted to work under the relaxed COVID-19 safety protocols.  

In determining an employee’s vaccine status, however, you must carefully limit any vaccine-related inquiry only to vaccination status and not inquire further, as such follow-up could improperly elicit information about an employee’s medical disability or other family medical information. Given that this is likely considered medical information, such information should be kept separate and confidential. Additionally, employers subject to the CCPA in states such as California need to understand that collecting vaccine-related information triggers the CCPA notice obligation.

Navigating State Limitations on Requiring Proof of Vaccination Status

Even though some federal, state, or local agencies may require or request that employers track employee vaccine status, there is a growing move in some states to protect vaccine status as confidential, private information. States are literally all over the map when it comes to vaccine disclosure or use of so called “vaccine passports.” Some states have adopted or are considering laws that promote vaccine passports. New York, for example, launched a COVID-19 vaccine passport initiative known as the Excelsior Pass that allows users to provide proof of vaccination where required. Other states, like Hawaii, have or are considering similar passport systems that promote vaccine disclosure to assist in safe reopening of business and public access. 

However, many other states have gone in the opposite direction to protect individual privacy rights. These states have acted to restrict vaccine passports, with government entities and businesses barred from requiring proof of vaccinations. For example, Florida Governor Ron DeSantis recently signed into law a statute that prohibits the use of vaccine passports by government entities or businesses, stating that “in Florida, your personal choice regarding vaccinations will be protected and no business or government entity will be able to deny you services based on your decision.” Other states such as Alabama, Arizona, Idaho, Indiana, Iowa, Georgia, South Carolina, South Dakota, Texas, and Wyoming have also restricted vaccine passports or requirements. 

Arkansas and Montana have taken a more aggressive approach to address individuals’ privacy concerns and limit disclosure of vaccination status. Governor Hutchinson signed into law a statute that prevents state and local government entities from requiring proof of vaccinations as a condition of employment or to access goods and services. The law provides some exceptions for state-owned medical facilities. Montana Governor Gianforte has signed into law a statute that provides even greater protections for the unvaccinated, generally prohibiting employers from requiring any of the current vaccinations.   

Given the fluidity in this area, you should remain mindful of the need to monitor these developments and check with counsel before implementing any vaccine-tracking policies.

Additional Landmines if Fully Vaccinated Employees Unmask

Aside from the spate of state and local government restrictions and mandates, employers face other potential legal landmines and practical problems when tracking and/or disclosing an employee’s vaccination status. As mentioned above, you should consider the legal privacy considerations in requesting and maintaining the vaccination status of employees.

As employers move to allow fully vaccinated workers to unmask employees, there will likely be legal, privacy, and employee morale issues related to any express or perceived disclosure of employee vaccination status. Indeed, even without an explicit disclosure, others will likely be able to decipher the vaccination status of employees. While employees are choosing to voluntarily disclose their vaccination status to their co-workers, you should not adopt such a casual attitude. You should consider the ramifications of disclosure of vaccine status without employee consent or as a result of a “company policy” or practice. Such practices could potentially give rise to exposure in areas of breach of confidentiality, privacy, discrimination, retaliation, and more.  

Company disclosure of vaccine status may also inadvertently expose employees with legitimate disability issues or religious objections related to the vaccine. Employee morale could be compromised if employees believe they are being pitted against each other due to their vaccine status, especially if the company is somehow involved in the disclosures. Additionally, a policy of company-wide disclosure might even boomerang, potentially discouraging employees who do not want to be ridiculed or harassed by co-workers who are opposed to the vaccination.    

What Should Employers Do? 7 Options to Address a Partially Vaccinated Workforce

How to relax restrictions for those who are fully vaccinated while maintaining confidentiality and a safe workplace for all? How to balance the possible exposure and potential federal and state safety agency fines if you don’t get it right? While there are rarely clear answers, and legal liabilities remain unclear, below are some options employers have been adopting to deal with the dilemma of the partially vaccinated workforce.

1. Continue to Mask Up. As noted, most jurisdictions can ease up on the COVID-19 safety protocols for those who are fully vaccinated (with certain exceptions such as healthcare workers). Nonetheless, some employers are choosing to require the entire workforce to continue to follow COVID-19 protocols. The protocols for all workers will remain in place until further guidance is issued. For non-healthcare employers, this may likely be an unpopular choice. But this option avoids landmines and morale issues created by a workforce that is partially masked and partially unmasked.
2. Vaccine Mandate. In certain locations, you may have the option of adopting a vaccine mandate where permitted by state laws. Under this option, you would eliminate unvaccinated employees from the workplace and the remaining vaccinated workforce could unmask without concern. This option comes with increased legal risks and other practical issues in implementing the mandate, including exploring reasonable accommodations for those with protected reasons to remain unvaccinated. The mandates also create morale and employee defection issues. And your organization could be considered an outlier depending on your location and industry, as a recent FP Flash Survey revealed that fewer than one in 20 employers (4%) were mandating or considering mandating the vaccine.
3. A Pure Honor System – Permit Fully Vaccinated to Unmask Without “Proof.” Employers who are choosing this option would not mandate the vaccination or require documentation to prove COVID-19 vaccination status. You would notify your workforce that fully vaccinated employees can ease up on COVID-19 safety protocols while all those who are not fully vaccinated are instructed to maintain the protocols and continue to mask up. This option comes with risk that employees who are not fully vaccinated will not appropriately follow the honor system. Without verification, this honor system may run afoul federal or state safety requirements. This option may also lead to employee morale issues and third-party liability concerns of those fully vaccinated workers, clients, or customers who do not trust the honor system. In addition, this is not a workable option in jurisdictions that require tracking of COVID-19 vaccination status.
4. Employee Audits. Under this option, you would advise your workforce that fully vaccinated employees can dispense with relaxed COVID-19 protocols – subject to random audits of those employees who have dispensed with the relaxed COVID-19 protocols. If an employee is subject to a random audit, the unmasked employee would be required to provide proof of COVID-19 vaccination status. Effective management auditing and policing would be a key variable. This will not be a workable option in jurisdictions that require tracking of COVID-19 vaccination status.
5. Employee Self-Certification. Another option is to allow employees to provide a self-certification of their COVID-19 vaccination status. Employees that self-certify they are fully vaccinated would be permitted to dispense with relaxed COVID-19 safety protocols. Those who certify that they are not fully vaccinated or decline to complete the self-certification would be required to maintain COVID-19 safety protocols. A template self-certification form may be found here. It is important to be mindful that self-certification may not be an acceptable form of “proof” in certain jurisdictions that have specific heightened criteria specifying what meets the verification or proof of COVID-19 vaccination standard.
6. Requiring Certain “Proof” of Vaccination Status. For some employers that want to choose to permit employees to unmask, the above options may not go far enough. You could instead choose to require that all employees provide certain documented “proof” that they are fully vaccinated to designated personnel. Based upon the response, the employer will permit those who have provided the required proof that they are fully vaccinated to dispense with relaxed COVID-19 safety protocols. All others would be required to continue to follow COVID-19 protocols. Under this option, you would monitor and police employee violations. Obtaining proof and policing may limit liability concerns but also places a greater administrative burden on the employer.
7. Requiring Proof and Disclosing Vaccine Status. Under this final option, you would request “proof” of vaccine status (similar to that required under option number 6) but would provide a sticker, badge, or lanyard to fully vaccinated employee once they submit “proof” of full vaccination. Those who have the company-issued sticker, badge, lanyard, etc. indicating they are fully vaccinated would be allowed to dispense with relaxed COVID-19 protocols, while all others are required to follow safety protocols. Unlike option number 6, you would take an affirmative step to identify those who unmask as fully vaccinated. Though this option provides greater clarity in the verification process and compliance with the policy, it also comes with greater risk of breach of privacy and confidentiality concerns – as well as potential employee morale issues. You should proceed with caution and consider obtaining written authorization from employees to disclose their vaccination status. It is also important to remain cognizant that some states such as California impose specific legal requirements that must be followed when asking for an employee’s consent to disclose confidential medical information such as vaccine status.

Conclusion

Each of these options come with some level of risk. You should explore the various paths available to you with your legal counsel before adopting any of them, especially in light of rapidly changing state and local laws in this area. Also, note that every option in which some employees are masked and some are unmasked includes the risk of employee conflict or harassment issues. This risk should be evaluated and addressed up front through training, ongoing communications emphasizing the importance of mutual respect in the workplace, adoption of written policies and procedures, and effective management oversight. 

CDC Removes Mask Requirement For Fully Vaccinated In Some Settings – What Should Your Business Do?

In a surprise move today, CDC followed the lead of the various states that have lifted their masking and physical distancing recommendations. However, CDC’s new recommendations come with a twist. The CDC’s recommendations only apply to fully vaccinated people in non-healthcare settings.  Here’s what your business should consider as it decides whether to “unmask.”

The May 13, 2021 CDC Interim Public Health Recommendations for Fully Vaccinated People states that fully vaccinated people no longer need to wear a mask or physically distance in any non-health care setting (except prisons and homeless shelters and public transportation), except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. According to the CDC, prevention measures (including masks and physical distancing) are still recommended for unvaccinated people.

Employers who are interested in relaxing mask requirements in the workplace should first consider the following.

• Check state and local laws and orders.  If a state executive order or local order requires employers to have employees wear masks or impose physical distancing requirements, employers should follow those rules.  In addition, keep in mind that some states have their own OSHA rules (e.g., VA, MI, CA, OR) or recently enacted laws such as New York’s Hero Act.  Employers must follow all applicable state and local laws and standards regardless of CDC’s relaxed recommendations.
• OSHA has yet to come out with new guidance and currently recommends that all employees must continue to follow protective measures such as wearing a face mask and remaining physically distant regardless of vaccination status.  However, this guidance was issued on January 29, 2021, so it is now several months old.  It is unclear whether OSHA will change this guidance given the CDC’s position.
• Determine whether removing mask and physical distancing requirements makes sense given your employee populations and preferences.  Many employees may be reluctant to return to work without masking and physical distancing rules in place.  Assess whether removing such requirements is likely to help or hurt the effort to return employees to work.  Generally, employers can choose to continue to require masks and physical distancing regardless of vaccination status.
• Consider how removing mask and physical distancing requirements will impact your customers.  You may also want to maintain a consistent practice across all your locations so that you are not dealing with a patchwork of state and local COVID-19 requirements.  To the extent you decide not to relax your requirements, you may need to accommodate customers who have medical conditions that make wearing a mask unsafe.
• Consider whether it makes sense to continue to require or encourage physical distancing (regardless of masking) until more is learned, for everyone’s comfort and to avoid isolating unvaccinated individuals who may have protected reasons for being unvaccinated or who may fall into a protected classification, or where any isolation or exclusion may set back diversity efforts.  And, of course, if an individual needs an accommodation in connection with masking for religious or medical reasons, engage in the interactive process.
• Clarify that fully vaccinated employees and customers are permitted to wear masks or face-coverings.
• Reinforce that employees must respect employee and customer decisions to wear masks and engage in physical distancing regardless of their vaccination status.
• Avoid actions that would suggest a correlation between vaccination status and mask wearing and/or employee observance of other COVID-19 safety practices.
• Consider whether and how the company will monitor whether unvaccinated employees are properly wearing masks and engaging in physical distancing practices.  It is lawful to ask employees if they are vaccinated, however, asking employees why they are not vaccinated may implicate the Americans With Disabilities Act.  To enforce such a rule, employers will need to know who is vaccinated. If such information is gathered, the best practice is to treat this information as confidential. Make sure it is securely maintained with limited access.  Employers may also consider having all employees certify that if they are not fully vaccinated they will continue to wear masks and physical distance.
• If you choose to relax your mask and physical distancing requirements, make clear that fully vaccinated employees should make their own personal decision regarding whether to wear a mask and physically distance at work.  In this manner, if an employee chooses not to wear a mask, it will be the employee who is disclosing his or her vaccinated status.
• Consider adopting a formal policy or issuing a communication clarifying the company’s policy and position on these issues so that everyone knows your expectations.
• If you have a union, consider whether you need to bargain with the union over changes to your COVID-19 policy and practices.