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.

On April 1, 2020, the DOL issued its regulations on the paid leave provision of the Families First Coronavirus Response Act (i.e., the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Act).  While there is a lot to digest in the rule, the most significant aspect is the definition of and commentary surrounding quarantine or isolation orders.

The Rule defines “quarantine or isolation orders” to include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.  The commentary (page 14) to the Rule explains that:

An employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee. This is because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order. For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.1 That said, he may be eligible for state unemployment insurance and should contact his State workforce agency or State unemployment insurance office
for specific questions about his eligibility.

And just like legal briefs, the best stuff comes in a footnote explaining that:

This analysis holds even if the closure of the coffee shop was substantially caused by a stay-at-home order. If the coffee shop closed due to its customers being required to stay at home, the reason for the cashier being unable to work would be because those customers were subject to the stay-at-home order, not because the cashier himself was subject to the order. Similarly, if the order forced the coffee shop to close, the reason for the cashier being unable to work would be because the coffee shop was subject to the order, not because the cashier himself was subject to the order.

Consequently, the regulations provide that if a business is closed directly or indirectly by a shelter-in-place or stay-at-home order and the business has no work for its workers, paid leave under the FFCRA is not available.

You can see the full rule and commentary here.

 

 

As the paid leave provisions of the FFCRA take effect today, many employers are asking what information they should maintain so they can claim the tax credits that are available to pay for this leave.  Luckily, the IRS has come to the rescue describing the information that should be maintained.  The Service’s guidance explains that:

FAQ 44: An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:

  1. The employee’s name;
  2. The date or dates for which leave is requested;
  3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
  4. A statement that the employee is unable to work, including by means of telework, for such reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

The Guidance goes on to explain that:

FAQ 45:  An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if, in addition to the information set forth in FAQ 44 (“What information should an Eligible Employer receive from an employee and maintain to substantiate eligibility for the sick leave or family leave credits?”), the employer creates and maintains records that include the following information:

  1. Documentation to show how the employer determined the amount of qualified sick and family leave wages paid to employees that are eligible for the credit, including records of work, telework and qualified sick leave and qualified family leave.

  2. Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages. See FAQ 31 (“Determining the Amount of Allocable Qualified Health Plan Expenses”) for methods to compute this allocation.

  3. Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the employer submitted to the IRS.

  4. Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted to the IRS (or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on Form 941).

Employers should maintain their records for at least four years.  The IRS FAQ is full of other information related to the tax credits and other tax aspects of the FFCRA and can be found here.