On November 4, 2021, OSHA issued its Emergency Temporary Standard (“ETS”) on mandatory COVID-19 vaccination and/or testing. The ETS requires that employers with more than 100 employees require most employees get vaccinated or undergo weekly COVID-19 testing and masking. OSHA’s ETS preempts any conflicting state or local laws.

  1. What does the ETS require?

The ETS requires employers with more than 100 employees to implement written policies that either require vaccinations or require weekly testing and masking. Employees are considered “fully vaccinated,” and therefore are exempt from the testing and masking requirement, two weeks following a final dose of a COVID-19 vaccine.

  1. When does the ETS go into effect?

OSHA’s ETS goes into effect on or about November 5, 2021. Although the ETS is temporary and effective only for six months, it serves as a proposal for a permanent standard. The permanent standard, if adopted, must be finalized within six months after publication of the ETS. The compliance date for all provisions of the ETS, except COVID-19 testing for employees not fully vaccinated, is on or about December 5th. Employers must comply with COVID-19 testing requirements for employees not fully vaccinated by on or about January 5th.  Employer must implement their vaccine policies within 30 days of the effective date and employers have 60 days to establish a testing regime.

  1. How is the 100 employee standard determined?

In determining whether a company meets the 100-employee threshold, employers must include all employees across all U.S. locations, regardless of either the employees’ vaccination status or where the employees perform work. Exempt employees are also included to determine whether an employer meets the 100-employee threshold. Part-time workers count towards the 100-employee requirement, while independent contractors do not. Moreover, franchisor-franchisees, staffing agencies, and multi-employer worksites have specific rules regarding who constitutes an employee that must be counted towards the threshold. The ETS applies to any employer who has 100 employees at any time during the pendency of the ETS.

  1. Are any employees exempted from the ETS?

Yes, some employees of covered employers are exempt from the ETS. The ETS does not apply to either workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or those  subject to the requirements of the Healthcare ETS.

The ETS further does not apply to employees who are entirely remote and do not report to an office or workplace with others present, employees while working from home, or employees who work exclusively outdoors. An employee works “exclusively outdoors” when that employee works outdoors for the duration of every workday except for de minimis use of indoor spaces (including use of multi-stall restrooms).   Also excepted from the vaccine requirement are those employees for whom: a vaccine is medically contraindicated or medical necessity requires a delay in vaccination.  The standard also excepts employees who are legally entitled to a reasonable accommodation for disabilities or sincerely held religious beliefs.

  1. What is a written policy under the ETS?

Employers must create a comprehensive written policy, regardless of whether the employer plans to require vaccines or mandate testing and masking. This policy should include any exclusions from the policy, paid time and sick leave for vaccination purposes, the information required to be provided to employees, any testing and masking requirements, and disciplinary actions for those employees who do not comply with the policy. If an employer has employees who are both vaccinated and unvaccinated, the employer must develop and include the relevant procedures for two sets of employees.

  1. What records must employers make and maintain?

The ETS requires employers to determine and make a record of each employee’s vaccination status. These records are confidential medical information. Acceptable proof of vaccination status includes: (a) the record of immunization from a health care provider or pharmacy; (b) a copy of the COVID-19 Vaccination Record Card; (c) a copy of medical records documenting the vaccination; (d) 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). When none of the above can be obtained, a signed, sworn and dated employee attestation is acceptable.

For unvaccinated employees, employers must keep a record of each test result provided by each employee. All records must be kept for the duration of the ETS as confidential medical records.

  1. What types of testing and facial coverings are acceptable under the ETS?

An acceptable COVID-19 test is one that is FDA approved, administered via the test’s authorized instructions, and is not self-administered and self-read unless observed by the employer or authorized telehealth proctor. FDA-approved tests include those with Emergency Use Authorization. The tests must be completed once every seven days, irrespective of the number of days worked by the employee. An employee must provide their employer with a test result no later than the 7th day following the date on which they last provided a result.

An acceptable face covering has two layers of breathable fabric tightly woven and without any holes or openings. The face covering must fit snugly and completely cover the nose and mouth.

  1. What pay must employers provide to employees under the ETS?

An employer must provide up to four hours of paid leave to each employee, during work hours, to receive each of their COVID-19 vaccinations. The paid time may not be offset by any other leave that the employee has accrued. Additionally, employers must provide reasonable time and paid sick leave to recover from any side effects of the vaccine. This paid sick leave may be in the form of accrued sick leave but, if an employee does not have any sick leave accrued, leave must be provided. Employers are not, however, required to reimburse employees for transportation costs in traveling to and from the vaccine site(s).

If an employee chooses to get vaccinated outside of working hours, an employer is not obligated to grant paid time to the employee for the time spent receiving the vaccine. However, employers must still allow the employee reasonable time and paid sick leave to recover from any side effects that the employee experiences during scheduled work time. Employers are not required by the ETS to pay for the costs associated with testing employees who elect not to be vaccinated although state law or other agreements could require employment reimbursement of those costs.

  1. What information must be provided to employees under the ETS?

An employer must provide all employees, in a language and at a literacy level the employee understands, information on: (a) the requirements of the ETS and any employer policies and procedures established to implement those requirements, including specifics about vaccination availability and non-vaccinated employee requirements; (b) COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated; (c) OSHA’s prohibition against retaliation; and (d) the potential for criminal penalties for knowingly providing false information.

  1. What are an employer’s obligations when an employee tests positive for COVID-19?

If an employee tests positive for or is diagnosed by a licensed healthcare provider with COVID-19, the employer must immediately remove the employee from the workplace. The employee may not be permitted to return to work until: (a) the employee receives a negative COVID-19 nucleic acid amplification test result upon confirmatory testing; (b) the employee meets the return-to-work criteria in the CDC’s “Isolation Guidance;” or (c) the employee receives a recommendation to return to work from a licensed healthcare provider.

Following a positive COVID-19 test or diagnosis, the testing requirements of the ETS are suspended for the employee for 90 days.

You can review the ETS here.

On October 12, 2021, Texas Governor Greg Abbott issued an Executive order prohibiting businesses and employers from requiring employees and consumers who object to getting a COVID-19 vaccine for reasons of personal conscience, religious belief or medical reasons (including prior recovery from COVID-19) to be vaccinated.  The order states as follows:

No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such
vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19. I hereby suspend all relevant statutes to the extent necessary to enforce this prohibition.

This state Executive Order conflicts with President Biden’s Executive Order that applies to federal contractors to the extent it expands the reasons an employee can refuse to take the vaccine to include reasons of personal conscience and prior recovery for COVID-19.  In that regard, the Governor’s Executive Order is likely preempted and inapplicable but we will need to see what legal challenges are made to the state Executive Order.

A copy of the Executive Order can be accessed here.

 

Last week President Biden announced that he was directing OSHA to develop and publish an emergency temporary standard requiring employers with 100 or more employees to require employees to get a COVID-19 vaccination or undergo weekly testing.  According to the White House, this standard would apply to 80 million private sector employees.  Ohio employment lawyer Jon Hyman wrote an interesting analysis on why OSHA’s standard is unlikely to pass legal scrutiny.

Assuming that the standard passes legal muster, there are main significant practical problems with a covered employer’s ability to comply.  Assume that 30 percent of the 80 million workers the White House estimates will be covered by the standard refuse to be vaccinated and/or are granted a religious or disability related exemption.  That is 24 million workers that will be required to test weekly to work.

There are currently long wait times for COVID-19 testing.  And, the pre-mandate demand for testing is limited to those having symptoms or needing a test because had close contact with someone testing positive.  These are not ongoing, recurrent testing but merely one-time tests to confirm or rule out a COVID-19 testing and there are still lengthy wait times for such testing.  There is insufficient testing capacity to test 24 million workers weekly.  Similarly, what about employees that work in remote locations?  Oil field service workers routinely work seven days on and seven days off in remote locations.  These work locations make it difficult, if not impossible for the workers to access testing locations.  Employers will be placed in the position of placing employees who cannot get tested on leave of absence jeopardizing the employer’s ability to operate its business or violate the OSHA standard and run the risk of stiff fines.  And employees, who have objections to vaccination and are unable to get weekly tested, are likely to be placed on unpaid leave placing burdens on the worker and his or her family.

Similarly, there are many unanswered questions raised by the President’s announcement that will likely have to wait until the publication of the standard such as: who will pay for the testing?  Is time spent traveling to/from and waiting to be tested compensable for non-exempt employees?  What records must the employer maintain to show compliance with the standard?  What tests are acceptable (i.e., are the rapid, over the counter tests acceptable?

Hopefully OSHA will answer all of these questions and provide clarity on what is require of employers so that they can continue to operate their business while not subjecting themselves to substantial penalties.

Yesterday, President Biden announced that he is directing the Occupational Health and Safety Administration (“OSHA”) to engage in emergency temporary rule making and issue a standard requiring employers with more than 100 employees to cause their employees to either be fully vaccinated against COVID-19 or test negative for COVID-19 on a weekly basis.  The President’s directive also instructs OSHA to require private employers pay employees for the time it takes to get vaccinated.  Penalties for failing to comply with the anticipated standard could subject employers to fines of up to $14,000 per violation.

The President also issued, or intends to issue, Executive Orders requiring all Executive Branch employees; employees of federal contractors, and all health care employees serving Medicare and Medicaid become vaccinated.  Interestingly, the President’s Executive Orders do not cover large union-covered employees like U.S. Postal Service employees (estimated 469,934 career employees and 136,174 non-career employees) and teachers (3.2M public school teachers).  It is unclear if these workers will be covered by the contemplated OSHA emergency standard.

The President’s remarks leave many unanswered questions such as who must pay for the weekly testing (i.e., insurance plans, employers or the unvaccinated employees) and whether such time spent traveling to/from testing, waiting to be tested and the testing itself is compensable for non-exempt employees.

Until OSHA issues the text of the proposed rule, it is unclear whether it will face legal challenges in Court and what specific obligations will be placed on employers.

Employers are overcoming their reluctance to require that employees become vaccinated against the COVD-19 virus as a condition of employment.  Microsoft, Google, Tyson Foods and many health care providers have announced they will require their employees who work on-site to obtain and provide proof that they have received a COVID-19 vaccination.

At least two federal courts and the U.S. Department of Justice’s Office of Legal Counsel have upheld employers’ rights to require vaccines as a condition of employment.  In Texas, absent a bona fide religious objection or a disability or pregnancy-related condition, employers can mandate that their non-union employees become vaccinated and prove that they have done so as a condition of employment.

Before embarking on a mandatory vaccination requirement, an employer should consider whether it will face any negative consequences from imposing vaccination requirements for employees.  Employers who are already having difficulty recruiting and maintaining talent may find that a mandatory vaccine requirement only exacerbates the problem.  Amazon has expressed just such a concern.  And, there may be key employees that have strong objections to receiving the vaccination and may refuse to comply with the employer’s mandate which could result in the key employee having to be discipline or taking his or her talents to a competitor.

Once the employer has determined it will make its vaccination requirement mandatory, clear and effective communication to the workforce is important.  The communication should state why the company has elected to impose a mandatory requirement (i.e., for the general health and safety of the workforce).  If there are conditions or limitations on the vaccination requirement (i.e., only for on-site work or access to company property), those conditions or limitations should be detailed in the communication.  This communication should also advise employees on how they will confirm their vaccination status to the employer and what the employer will do with the information it receives.  Keep in mind, the EEOC guidance states that inquiring into an employee’s vaccination status is not a medical inquiry but the information obtained by the employer on the vaccination status is confidential medical information that must be treated as such.  The communication should also identify how and to whom requests for exemption from or accommodation to the vaccine requirement can be directed.

Employees should be given a reasonable amount of time for compliance.  With the widespread availability of the various vaccines 30 days or more should be sufficient.  A short time period is more reasonable if the employer is providing employees with time off (paid or unpaid) to get vaccinated.

Finally, like any work rule, employees should be told about the consequences for failing to comply with the requirement within the requested time period.  Consequences might include discipline up to and including termination (or some lesser form of discipline such as unpaid suspension until the employee complies) or a requirement that the unvaccinated employees wear masks and undergo frequent testing.  Employer should also ensure that they are consistent in their treatment of employees who fail to comply with the new rule.

And of course, employers should work closely with their labor and employment counsel in formulating and implementing a mandatory vaccination requirement.

 

 

 

Effective September 1, 2021, a pair of bills passed by the Texas Legislature will expand the scope of employer liability for claims of sexual harassment.  The bill makes four important amendments to the Texas Commission on Human Rights Act (“Act”).

First the amendment defines what constitutes sexual harassment under state law.  Sexual harassment means an unwelcome sexual advance, a request for a sexual favor, or any other verbal or physical conduct of a sexual nature if:

  • submission to the advance, request, or conduct is made a term or condition of an individual’s employment,
    either explicitly or implicitly;
  • submission to or rejection of the advance, request, or conduct by an individual is used as the basis for a
    decision affecting the individual’s employment;
  • the advance, request, or conduct has the purpose or effect of unreasonably interfering with an individual’s
    work performance; or
  • the advance, request, or conduct has the purpose or effect of creating an intimidating, hostile, or
    offensive working environment.

While Texas law did not previously provide a definition of sexual harassment, the definition does not meaningfully differ from the quid pro quo definition commonly used by the Courts.

Second, the law expands who can be a employer-defendant liable for sexual harassment. Under the current version of the statue, only employers employing 15 or more employees or agents acting on behalf of an employer are “employers” under the statute.  Similarly, individual managers and supervisor were rarely even charged for claims of sexual harassment.  Under the new law, an employer is any person that employs any employees — regardless of size.  Significantly, the amendment also adds to the definition of employer any person that acts directly in the interest of an employer in relation to an employee.  This change expands the reach of the statute to individual managers, supervisors, co-workers and potentially independent contractors and volunteers.

Third, the Act makes it an unlawful employment practice if sexual harassment of an employee occurs and the employer or the employer’s agents or supervisors know or should have known that the conduct constituting sexual harassment was occurring; and fail to take immediate and appropriate corrective action.

Fourth, a companion bill lengthens the amount of time an employee has to file a charge of discrimination under state law from 180 days to 300 days.

Actions Employer Should Take to Prepare for these New Obligations

Because businesses with few than 15 employees may not have adequate measures in place to prepare for these new obligations, small employers should consider implementing the following:

  • Employers of all sizes should promulgate anti-harassment policies that prohibit unlawful sexual harassment.  The policies should be distributed to and and made available to all employees and contractors.  Employer should also post these policies in break rooms and other common areas accessible to employees.
  • Adopt  and publish complaint procedures for employees to make complaints of potential discrimination and harassment.
  • Employers should treat all such complaints seriously and promptly and thoroughly investigate them. Where complaints are substantiated, the employer should take immediate and appropriate corrective action designed to end the harassment.
  • Train all employees on the employer’s anti-harassment policies, complaint procedures and all managers and supervisors on the employer’s compliance obligations and their potential individual liability for harassment.

You can access the HB 45 and HB 21 through these links.

 

With increase in infections from Delta COVID variant among the unvaccinated and the anticipated return to in-office work, employers are considering options to increase the percentage of fully vaccinated employees in the workforce.  These include mandatory vaccine requirements and incentive programs to increase the number of employees that are fully vaccinated.  Guidance from the EEOC provides some parameters for employer considering these options.

Employers Can Require COVID Vaccinations as a Condition of Employment

In Texas, employers can generally require that employees be fully vaccinated against COVID as a mandatory condition of employment.  Two exceptions apply to this general rule.  Where employees have religious objections to vaccinations or have a disability that makes the vaccination potentially unsafe (e.g., the immunocompromised or pregnant employees), employers have to provide reasonable accommodation to those barriers to vaccination.  Reasonable accommodation might include permitting or requiring wearing face masks, social distancing in the workplace, a modified work schedule, periodic COVID-19 testing, remote work, and reassignment.

Many employers have refrained from making fully vaccinated status a mandatory condition of employment and have instead offered encouragement and incentives to get workers and their families to voluntarily become vaccinated.

Employer Can Offer Incentives to Encourage Vaccinations

The EEOC has clarified that employers can provide incentives to employees to become vaccinated against COVID without violating the Americans with Disabilities Act or the Genetic Information Nondiscrimination Act. The guidance has several key takeaways.

First, asking employees about their vaccination status is not a medical examination.  Second, employers can provide incentives to encourage employees and their family members to become vaccinated.  What is a permissible incentive depends on whether the vaccination program is an employer-sponsored program or voluntary incentive to be vaccinated by a third party in the community such as the employee’s healthcare provider, pharmacy or public clinic.

If the employer incentives are offered in connection with a program offering voluntary vaccinations administered by the employer or its agent, the incentive must be not be so substantial as to be coercive.  The EEOC explains that “because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.”  If the incentive is not offered in connection with an employer sponsored program and merely offers employees an incentive to provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider, the limitations on the significance of the incentive do not apply.”

Common Incentives Offered by Private Employers

Some of the most common incentives and encouragement being offered by employers include:

  • Communication from the company educating employees on the benefits of vaccinations and encouraging vaccination;
  • Relaxed rules for the fully vaccinated (e.g., no mask wearing);
  • Offering PTO to get vaccinated or recover from side effects of vaccination;
  • Cash payment, gift cards or prizes (if the employer is providing vaccines on-site or through a contract with third parties, the incentive must be very small –e.g., t-shirt or water bottle –otherwise few limits);
  • Contribution to a flexible spending account (if the company has one)

The EEOC publication “What you Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws is attached here.

A day after reporting that Texas employees rejecting a return to suitable work for fear of contracting COVID-19 could lose unemployment benefits, Govenor Abbott announced that the TWC has promulgated rules allowing employees to continue receipt of benefits even if rejecting a return to suitable work. According to the Governor’s press release:

Each unemployment insurance claim is currently evaluated on an individual basis. However, because of the COVID-19 emergency, the following are reasons benefits would be granted if the individual refused suitable work.

Reason for refusal:

  • At High Risk: People 65 years or older are at a higher risk for getting very sick from COVID-19.
  • Household member at high risk: People 65 years or older are at a higher risk of getting very sick from COVID-19.
  • Diagnosed with COVID: The individual has tested positive for COVID-19 by a source authorized by the State of Texas and is not recovered.
  • Family member with COVID: Anybody in the household has tested positive for COVID-19 by a source authorized by the State of Texas and is not recovered and 14 days have not yet passed.
  • Quarantined: Individual is currently in 14-day quarantine due to close contact exposure to COVID-19.
  • Child care: Child’s school or daycare closed and no alternatives are available.

Any other situation will be subject to a case by case review by TWC based on individual circumstances.

This rule change allows high risk or COVID-19 infected employees and employees without childcare due to COVID-19 to maintain unemployment benefits despite being offered and rejecting a return to work

 

 

When Congress was drafting the enhanced unemployment benefits available under the FFCRA some lawmakers opposed the additional $600 per week benefit because it could incentivize workers to remain on unemployment rather than returning to work. As Texas prepares to return to work, those lawmakers concerns are coming to fruition.

There are anecdotal reports that some employers making plans to bring employees back to work are encountering some employees who do not want to return to work either due to COVId-19 fears or because they receive as much or more through unemployment benefits as they do through working.

According the Texas Tribune, a spokesperson for the Texas Workforce Commissioner announced that employees who refuse to return to work when asked by the employer risk losing their unemployment benefits.  However, employers should keep in mind that employees may be entitled to paid sick leave or expanded FMLA benefits, including job protection, in some situations.

Moreover, if employers are SBA PPP recipients who want to maintain their payroll to maximize their loan forgiveness, employers should keep in mind that the payroll comparison for loan forgiveness is not tied to specific employees.  Instead, the loan forgiveness is tied to the payroll numbers and total payroll during a specified period before receipt of the loan and in the eight weeks after receipt of the loan. Thus, should employers face employees who refuse return to work, the employer can still use it payroll on new employees and use that payroll for PPP loan forgiveness purposes.

The President and governors of individual states are discussing plans to reopen businesses in the coming weeks.  Some of the measures employers will be required to take will be dictated by governmental agencies and for particular industries.  A few of the most commonly discussed steps include: temperature checks, use of PPE, heightened hygiene maintenance, return to work certificates and testing.

Employers May Take Employee Temperatures

Usually (such as during the regular cold and flu season), taking employee temperatures is an impermissible medical exam under the ADA . The ADA prohibits medical exams during a person’s employment unless it is job related and consistent with business necessity . A medical exam is job related and consistent with business necessity if the employer has a reasonable belief based on objective evidence that 1) the employee has a medical condition that will impair their ability to perform essential functions of the job or 2) that the employee may pose a direct threat to others in the workplace due to a medical condition.

The EEOC recently clarified in its update to its Pandemic Preparedness in the Workplace and the ADA guidance that because the CDC and the WHO have designated COVID-19 as a pandemic, measuring employee temperatures meets the direct threat standard and is allowed during this public health crisis . Employers should remember that employee temperatures are medical information that must be kept confidential under the ADA and only shared with supervisors or other employees on a need to know basis. Employers should also protect the persons taking employee temperatures by issuing them some form of PPE (masks and gloves) and using no touch thermometers where possible.

Employers May Ask Employees Who Report Feeling Ill if They Are Experiencing COVID-19 Symptoms

The EEOC’s guidance says that employers may ask employees if they are experiencing COVID-19 symptoms (fever, cough, chills, shortness of breath, loss of taste, sore throat etc) if they report feeling ill . But, the EEOC’s guidance leaves it unclear as to whether employers can ask employees who are not feeling ill to disclosure whether they have a medical condition that would put them at risk of complications from COVID-19. The pandemic preparedness guidance updated by the EEOC says that employers may ask questions about medical conditions that predispose individuals to complications only if the pandemic creates a direct threat to the disabled individuals . Unlike other questions answered by the EEOC in their updated guidance (such as whether employers may take employee temperatures), the EEOC did NOT specify whether the current COVID-19 pandemic has reached this direct threat threshold . Because the EEOC has left this as somewhat of a grey area, the safest course of action for employers is to avoid asking these questions.

Employers Can Require Employees to Wear PPE and Wash Hands

Employers can and should require employees to wear personal protective equipment (PPE), like masks, while in common areas of the workplace and wash their hands while at work . However, employers still must engage in the interactive process if an employee requests an accommodation to deviate from these protocols if a disability would make these requirements difficult for them. For example, if an employee has eczema and using the hand sanitizer provided by the employer inflames their skin, the employer can offer an alternative of washing their hands with sensitive soap instead.

Employers Can Require Fitness For Duty Certification For Employees Returning to Work

The EEOC says that employers may require employees returning to the workplace after COVID-19 to first submit a note from a doctor certifying that they are fit for duty . However, doctors may be overwhelmed at this time and not have time to perform these kinds of exams.

Serology Testing Should Not be Used for the Time Being

Serology tests that would identify whether someone has the antibodies to combat COVID-19 (meaning they previously contracted the illness and are now potentially immune) have recently come on the market. Some businesses are wondering if they would be able to use these so called “immunity passports” to test employees and return those to work who are immune. There are multiple problems with this idea. First, these tests are still in development and have a high false negative rate. The World Health Organization issued guidance on April 24, 2020, that there is no evidence that persons who have recovered from COVID-19 and have antibodies are immune from contracting it again . Further, because these tests look for the presence of antibodies created to fight COVID-19, they will not identify a person who is currently infected by the virus and has not yet developed the antibodies. Moreover, under current EEOC guidance, these tests would most likely constitute a medical exam that is prohibited by the ADA. In the event that these tests are improved or become much more accurate, the EEOC may update its guidance to allow employers to use these during this pandemic.

While businesses may still be several weeks away from reopening, employers need to start developing their return to work plans for employees so that comprehensive health and safety measures can be implemented when those businesses reopen and employees return to work.