Category Archives: COVID-19

Wage and Hour Questions on the Vaccine Mandate: Pitfalls for Illinois Employers Covered by the Executive Order   

Contributed by Michael Wong and Sara Zorich, September 16, 2021

Medicine doctor and vaccine dose syringe

On August 23rd Governor Pritzker issued Executive Order 2021-20 requiring  health care workers, school personnel, higher education personnel and students, and state-employees and contractors who work at state-owned or operated congregate facilities to get their first dose of a two-dose COVID-19 vaccine series, or a single-dose COVID-19 vaccine, within 10 days and be fully vaccinated within 30 days, subject to applicable medical and religious exemptions under federal and state law.

Two weeks later on September 3rd Governor Pritzker issued Executive Orders 2021-22 extending the time to get the first dose of a two-dose vaccine to September 19, 2021, and the second dose of a two-dose COVID-19 vaccine series within 30 days following administration of their first dose in a two-dose vaccination series (October 19, 2021).

Following the issuance of Executive Order 2021-22, the Illinois Department of Public Health (IDPH) issued guidance on the Executive Order. This guidance clarified that even if an employee did not have a medical or religious exemption, that they could alternatively choose to be tested for COVID-19 on a weekly basis rather than be vaccinated, unless their employer implements a stricter requirement that they be vaccinated, subject only to the applicable medical and religious exemptions.

REMEMBER: Executive Order 2021-20 only covers health care workers, school personnel, higher education personnel and students, and state-employees, and contractors who work at state-owned or operated congregate facilities.

If you have workers subject to Executive Order 2021-20, there are a lot of questions and potential pitfalls ahead, especially in the wage and hour realm. The following are common questions that should be asked not only about the Illinois Governor’s vaccine mandate, but the President’s proposed OSHA rule on vaccines and other state vaccine mandates.

Do employers need to pay for the time employees spend getting vaccinated? The answer depends on whether the employer is simply complying with the Executive Order or taking it a step farther by requiring employees get the COVID-19 vaccine. 

The Illinois Dept. of Labor (IDOL) guidance provides that if an employer requires employees to get vaccinated, the time spent obtaining the vaccination is likely compensable – even if it is non-working time. However, for optional vaccination programs, the IDOL states employees that choose to obtain the vaccine voluntarily should be allowed to utilize sick leave, vacation time or other paid time off. Based on the IDPH Guidance, there is an indication that compliance with the Executive Order is not considered a “mandatory vaccination program” for an employer, unless the employer imposes more stringent requirements. As such, unless an employer makes vaccinations mandatory, the current IDOL guidance indicates employers are not required to pay an employee for the time spent getting vaccinated.

The importance of local laws are highlighted here though due to Cook County Ordinance Sec. 42-122. Employers with a principle place of business in Cook County (which includes Chicago) must comply with Cook County Ordinance Sec. 42-122, which went into effect on July 1, 2021. The Ordinance provides that employers that have a primary business location in Cook County and who require their employees get the vaccine must compensate their employees for up to 4 hours of paid time per dose at the employee’s regular rate of pay if the employee chooses to get the vaccine during their work shift.  Further, regardless of whether a vaccination is voluntarily sought by an employee or required by an employer, employers cannot require that an employee get vaccinated only during non-shift hours and shall not take any adverse action against any employee for taking time during a shift to get vaccinated.

What about travel time and expenses to get the COVID-19 vaccine?  If an employer imposes a mandatory vaccine requirement, under federal and Illinois state law, employers would likely need to reimburse the travel time and expenses for the employee to get vaccinated.  Under the FLSA, the time spent traveling to undergo “special tests” required by the job (e.g. physical examinations, fingerprinting and drug testing) is compensable time. As such, if you put into place a mandatory vaccination policy, we would recommend employees report the time it took them to get to/from the vaccination site and such time would be compensable work time. In terms of travel expenses (e.g. mileage and tolls), Illinois law requires employers reimburse expenses that are required of the employee in the discharge of employment duties and inure to the primary benefit of the employer. Thus, it is recommended that employers also reimburse for the employee’s mileage to/from the vaccination site.

Is there a difference between Vaccinations vs. Testing? – YES! While the Executive Order indicates that vaccinations are optional, weekly testing if an employee is unvaccinated is not optional. As a result, under the FLSA and IDOL guidance, COVID-19 testing for covered employees under the Executive Order would likely be considered compensable time. Additionally, even though the IDPH guidance states that the Executive Order does not require employers to pay for testing, this does not take into consideration the FLSA and state laws that require employers to pay for the cost of business expenses, including medical tests that are required.

The vaccine mandate landscape is starting to heat up and will be continuously changing in the near  future. Employers are waiting on more information and guidance from the President’s proposed OSHA’s rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Illinois’ Executive Order vaccine mandate is a good primer on issues that employers throughout the United States will need to consider once the proposed OSHA rule is issued and in dealing with any state or local vaccine mandate. As these are new and complicated issues, employers should speak with experienced labor counsel in addressing vaccine mandates prior to implementing any policy requiring vaccinations.

Who is a Federal Contractor for Purposes of the Biden Vaccine Mandate?

Contributed by John R. Hayes, September 13, 2021

doctor hand wears medical glove holding syringe and vial bottle with covid 19 corona virus vaccine

On September 9, 2021 President Biden announced sweeping new vaccine mandates for federal employees, federal contractors, and an upcoming OSHA Emergency Temporary Standard Rule for companies with more than 100 employees. In light of this, already many employers are asking the question, “Am I a federal contractor subject to the vaccine mandate?” While the Executive Order regarding federal contractors is brand new, and we are awaiting more clarification from the Safer Federal Workforce Taskforce (Task Force), there is some language contained in the Order that can give employers an early roadmap.  The Executive Order applies to federal contracts that are:

  • Either a contract or contract-like instrument;
  • Entered into, extended, renewed, or has an option exercised on or after October 15, 2021; 
  • For any of the following:
    • services, construction, or leasehold interest in a property;
    • services covered by the Service Contract Labor Standards (formerly known as the Service Contracts Act);
    • concessions; and
    • work relating to federal property or lands and related to offering services for federal employees, their dependents, or the general public.

The Executive Order explicitly excludes:

  • Federal grants;
  • Contracts with Indian Tribes;
  • Employees who perform work outside of the United States;
  • Contracts equal or less than the simplified acquisition threshold (generally $250,000); and
  • Subcontracts solely for the provision of products.

However, the Executive Order leaves several unanswered questions that will hopefully be answered by the Task Force, which must issue its guidance by September 24, 2021.  For example, it is not clear if the mandate will be for onsite contractors only, but initially it appears to also cover employees working at the contractor’s facility.  It specifically states it applies to “workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.”  Thus, the Executive Order is phrased to apply to any workplace locations where contract work is performed, rather than to employees performing the work.  Also, it appears to eliminate the option for federal contractor employees, provided for in the July 29, 2021 federal employee vaccination mandate, that allowed those workers to choose to wear a mask, socially distance, and subject themselves to regular testing instead of getting vaccinated.

As with all vaccine mandates, there will likely be exceptions for disabilities or sincerely held religious beliefs.  Each employer will have to make individual determinations regarding these exemptions. 

Some general takeaways at this time are that if you are a business operating under an existing federal contract that is not being renewed or has options exercised, you are not subject to the Executive Order.  Similarly, if your contract is for less than $250,000 you are likely not subject to the mandate.  However, it appears as if it is not limited just to onsite contractors (such as those in the construction industry), and so the vaccine mandate could expand to many more businesses (such as banks) that are operating under a federal contract yet not providing onsite work to federal agencies. 

Of course, all this is very preliminary given the lack of guidance from the Task Force. But for now, employers can at least get an idea of whether or not they are a contractor for purposes of the Executive Order.  While the specific details of the mandate are still to come, businesses who have new or renewed federal contracts (greater than $250,000) coming up can expect some sort of vaccine mandate on at least part of its workforce, and should begin to plan accordingly. We will be monitoring this situation closely and will provide updates as they occur.

OSHA to Issue Mandatory Vaccination and Testing Rule for Certain Employers

Contributed by guest author Matthew Horn, September 9, 2021

In a purported effort to increase vaccinations, the Biden Administration just announced its plan to have OSHA issue an Emergency Temporary Standard requiring employers with one hundred or more employees to ensure their employees are either fully vaccinated or tested for COVID-19 on a weekly basis. The Emergency Temporary Standard will also require mandatory vaccinations for: 1) federal employees; 2) employees of federal contractors; and 3) employees at healthcare facilities receiving Medicare or Medicaid. The Emergency Temporary Standard will impact approximately 100 million American workers. 

Since the announcement was made today, and not many details were provided, applicable employers will have some time—possibly a few months—to process and comply with the new requirements. Additionally, while the rule making process is taking place, there will be no shortage of legal challenges to the planned rule. Moving forward, we will keep you advised as to any and all updates on this issue.

What to Consider Before Implementing a Health Insurance Surcharge for Unvaccinated Employees

Contribute by Kelly Haab-Tallitsch, September 7, 2021

stethoscope wrapped around health insurance policies, soft focus

The recent announcement that Delta Airlines will begin imposing a $200 per month health insurance surcharge on unvaccinated employees has prompted many employers to consider whether a similar surcharge may be an alternative to mandating COVID-19 vaccinations for employees.

But the myriad of laws governing group health plans require that employers tread carefully. This is an approach that comes with a multitude of regulatory requirements and may carry legal risks. Employers implementing a health insurance surcharge must comply with federal anti-discrimination laws requiring exceptions for medical conditions or a sincerely-held religious belief, and should consider the impact of a surcharge on the health plan’s affordability under the Affordable Care Act (ACA).

Exceptions for Medical Conditions and Religious Beliefs

Premium surcharges or other incentives tied to a group health insurance plan trigger the Health Insurance Portability and Accountability Act’s (HIPAA) wellness program rules.  HIPAA prohibits employers from charging employees different premiums based on a health factor; however, an exception exists for wellness programs, allowing employers to charge higher premiums or offer incentives to get employees to take certain actions or meet specific health-related goals, provided the wellness program meets certain requirements.

The requirements for wellness programs are different depending on whether a program is “participatory” or “health contingent.”  It is unclear whether a COVID-19 vaccination surcharge would be considered a “participatory” or “health contingent” wellness program. In order to avoid potential penalties for noncompliance, an employer should assume it is a health-contingent wellness program, similar to smoking cessation programs that impose a surcharge on smokers. Under a health-contingent wellness program an employer must offer a “reasonable alternative standard” to employees that are unable to receive the COVID-19 vaccine due to a medical condition. This means that these employees must be allowed to avoid the surcharge by meeting a different requirement. One example would be allowing an employee to avoid the surcharge by undergoing weekly or biweekly COVID-19 testing or by watching a video on vaccine safety and the dangers of remaining unvaccinated.

Under Title VII, employers must also provide an accommodation to an employee that is unable to receive the COVID-19 vaccine due to a sincerely-held religious belief.

ACA Affordability and Surcharge Limits

Under the HIPAA wellness plan rules, a surcharge cannot exceed 30 percent of the cost of employee-only coverage under the health plan. This is a fairly high limit and typically does not present an issue. But employers subject to the ACA employer mandate and considering surcharges should also confirm that the cost of the health plan including the surcharge still meets the ACA affordability requirements. In order to avoid triggering a penalty under the ACA, the cost for employee-only coverage under the lowest cost health plan option can be no more than 9.83% of the employee’s income. Depending on current health plan premiums, even a small surcharge can cause premiums to exceed the affordability threshold for lower wage employees.

Next Steps

An employer considering implementing a vaccine surcharge should consider the alternative standard(s) the employer is willing and able to offer employees who cannot receive the vaccine due to a medical condition or sincerely-held religious belief, taking into account the administrative requirements of the alternative standard (i.e., monitoring of weekly COVID-19 test results), and analyze the impact of the proposed surcharge on the employer’s compliance with the ACA affordability requirements. Employers should consult with employee benefits counsel before implementing a health insurance surcharge to ensure compliance.

Mandating Vaccines in the Workplace: How to Implement a COVID-19 Vaccine Policy

Contributed by Suzannah Overholt, August 26, 2021

Syringe and vial bottle with COVID-19 corona virus vaccine drug

Now that the Delta variant is surging, employers are venturing into the arena of mandating that their employees take the COVID-19 vaccine. But deciding to mandate vaccination and actually implementing such a requirement is no easy feat.

Rolling out a vaccine requirement involves a delicate balancing act. Employers are gauging the overall vaccine hesitancy in their workforce, the number of employees who may resign rather than be vaccinated, and the difficulty of filling the vacancies. Those considerations have led some employers to wait to impose a vaccine requirement until their competitors do so.

The realities of these considerations are apparent in nursing homes’ response to the announcement that their facilities will be required to mandate the vaccine for their employees or risk losing federal funding. Nursing homes are now concerned that, if the rest of the health care industry is not subject to the same requirement, they will lose even more employees than they have already. 

So how should an employer face this issue?  Some employers have chosen to use an incremental approach. First, they ask employees to let them know if they are vaccinated or plan to get vaccinated. As we reported previously, the EEOC has authorized such inquiries, but the information regarding an employee’s vaccination status must be kept confidential. 

Some employers offer incentives before mandating the vaccine.  As we noted in our previous blog, offering incentives for employees to be vaccinated has been approved by the EEOC. The amount of the incentive depends upon whether the employer is administering the vaccine (lower incentives allowed to avoid coercive effect of incentive) or whether it is being administered by an entity independent from the employer (higher incentives allowed). If the first round of incentives does not achieve the desired effect, some employers have increased the incentive.

Another approach is to implement an education campaign to increase awareness about the benefits and actual risks of the vaccine. This is generally done by directing employees to web sites and other resources with objective information about the vaccines.

Finally, if the incentives and education efforts are not sufficient, employers may mandate the vaccine. The concepts that apply to fostering positive employee relations are a good guide for how to do this. 

First, employers should develop a clear policy that lays out the following: 

  • A definition of what constitutes being vaccinated. Generally speaking, this would be receiving both doses of a two-dose vaccine or a dose of a single-dose vaccine. 
  • A clear deadline for being vaccinated.
  • A requirement that any booster doses also be taken and a timeline for those. 
  • The availability and process for requesting a disability or religious based exemption.
  • Whether PTO will be allowed for time spent taking the vaccine and for any potential side effects.
  • What disciplinary action will be taken for failure to comply.

Once the policy is established, communication is key. Employers should reiterate the benefits of the vaccine and explain the risk to everyone if someone is not vaccinated. A written communication should be distributed to all employees stating the basis for the policy and the expectations.

Finally, the policy must be implemented. Proof of vaccination provided by employees must be kept confidential. Requests for exemptions must be reviewed and acted upon.  Employees who do not comply with the vaccine requirement or accommodations granted pursuant to an exemption must be disciplined. 

Obtaining the advice of qualified counsel before embarking on this process is advisable.

OSHA Revises Its Mask Guidance and Encourages Vaccination of Employees

Contributed by Rebecca Dobbs Bush and Matthew Horn, August 17, 2021

Blue medical face masks isolated on white

Following the Centers for Disease Control’s updated mask and COVID-19 guidance dated July 27, 2021, OSHA finally updated its own mask and COVID-19 guidance on August 13, 2021. The updated guidance can be viewed here.  

Under the new guidance, OSHA recommends that employers require their employees—even those who are fully vaccinated—to wear masks when indoors in areas of substantial or high transmission of COVID-19.  Areas of substantial or high transmission are determined by county and updated by the CDC daily. The CDC’s updated map showing transmission rates by county can be viewed here.  As of today, the vast majority of the counties around the country are considered areas of substantial or high transmission, thereby implicating the updated guidance. 

The new guidance also recommends that fully vaccinated individuals with known or suspected exposure to COVID-19 be tested 3-5 days after exposure, and wear a mask while indoors for 14 days or until they receive a negative test result. Additionally, OSHA emphasizes that vaccination of individuals is the best way to prevent severe illness or death from COVID-19, and recommends that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing. Prior to this updated guidance, OSHA had only published this recommendation for healthcare employers.

If your business operates indoors in an area of substantial or high transmission, we recommend that you require all employees and visitors to wear a mask regardless of vaccination status. However, given the language of its press release and updated guidance, OSHA appears hesitant to enforce this updated guidance—likely acknowledging that many employers will struggle with the implementation of ever-changing mask rules based on local transmission rates.

Government Loans and Grants to Businesses – Beware of the “Fine Print”

Contributed by John R. Hayes, August 13, 2021

25983831 – hand giving money to other hand hands giving receiving money

Starting from the early days of the COVID-19 pandemic both federal and state governments have provided assistance to businesses struggling with the economic impact of the pandemic.  Specifically, federal, state, and public assistance in the form of grants and forgivable loans have proliferated to provide much needed financial support to businesses negatively affected by the pandemic. For example, on August 11, 2021 Governor Pritzker and the Illinois Department of Commerce and Economic Opportunity (DCEO) announced the $250 million Back to Business (B2B) grant program, its second grant program for businesses, which aims to deploy small business recovery grants for businesses hit hardest by the COVID-19 pandemic. This is just one of many grants and forgivable loan programs implemented by the government (both state and federal) to assist businesses that have been adversely impacted by the COVID-19 pandemic.

But, before jumping at that public money, businesses should be aware of the “fine print” found in government-sponsored grant or loan programs. For example, some of the stipulations required of a business accepting a B2B grant are:

  • A recipient of the grant may be required to participate in an audit of the program at a future date;
  • A recipient must maintain financial records required for tax and regulatory compliance;
  • The grant proceeds are taxable; and
  • A recipient must have complied, and will continue to comply, with all relevant laws, regulations and executive orders from the state and federal government, including the social distancing guidelines as promulgated by the Executive Orders of the Illinois Governor.

The application for the B2B grant is not available at this time (applications will open on August 18, 2021) but the previous grant program from Illinois, the Business Interruption Grant (BIG) Program provides a roadmap as to what a business must “certify” in order to receive the grant.   Some of the requirements for BIG were:

  • The recipient will continue to comply, as applicable, with the provisions of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), the Copeland Act (40 U.S.C. 276c and 18 U.S.C. 874), the Davis-Bacon Act (40 U.S.C. 276a-276-1), the Drug-Free Workplace Act of 1988 (44 CFR, Part 17, Subpart F), the Fair Labor Standards Act (29 U.S.C. 201), and the Illinois Prevailing Wage Act (820 ILCS 130/1);
  • The recipient is not presently suspended, debarred, proposed for debarment, or declared ineligible by any state or federal department or agency, and will not enter into a contract with a contractor who is on any federal or state debarred contractor list;
  • The recipient will prohibit employees, contractors, and subcontractors from using their positions for a purpose that constitutes or presents an appearance of personal or organizational conflict of interests or personal gain;
  • The recipient has no lawsuits, claims, suits, proceedings or investigations pending, to the knowledge of the subrecipient and its authorized representative, threatened against or affecting the recipient (or its officers and directors) in respect of the assets or the subrecipient nor, to the knowledge of the recipient and its authorized representative, is there any basis for any of the same, and there is no lawsuit, suit or proceeding pending in which the recipient is the plaintiff or claimant which relates to the recipient or its assets;
  • The recipient has no action, suit or proceeding pending or, to the knowledge of the recipient or its authorized representative, threatened which questions the legality or propriety of the grant moneys to be received;
  • The recipient has not received any notice of any investigation conducted or charges, complaints or actions brought by the State of Illinois or any governmental body within the State of Illinois regarding the business or its officers and directors; and
  • Neither the recipient nor its officers and directors have received any notice that it is the subject of any criminal investigations or charges.

The above is just a sampling of some of the certifications that Illinois required in order for businesses to receive the BIG funds. We would expect the B2B grant program (and other programs providing grants or forgivable loans to businesses) to have similar certifications and requirements by businesses receiving grants or loans from the state.

Another certification that has popped up – specifically in the CARES Act loan program for medium sized businesses – is that of labor neutrality. One of the certifications there requires businesses to “remain neutral in any union organizing effort for the term of the loan.”  While the legality of this has yet to be challenged, and to date it is found only in the CARES Act, businesses should be on alert for similar terms in other assistance programs offered by the government.

Of course, all this is not meant to scare businesses away from the B2B grant program, or any other COVID-19 business relief program implemented by the government. Rather, businesses should be aware of the myriad requirements they are expected to adhere to in return for receiving a loan or grant, and of the “certifications” they are making as part of the agreement to accept the loan or grant.  Businesses, and their legal counsel, should always read the “fine print” before accepting any governmental assistance.

Lingering COVID-19 Symptoms May Trigger ADA and FMLA Protection

Contributed by Suzanne Newcomb, August 10, 2021

Thin line icon with flat design element of medical diagnostics.

President Biden announced recently that those suffering “Post-Acute Sequelae of Sars-Cov-2 Infection,” aka long haul COVID-19, may qualify for protection under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).

Our understanding of the aftereffects of COVID-19 continue to evolve. The CDC currently lists the most common post-COVID symptoms on their website. These symptoms include:

  • Dyspnea or increased respiratory effort
  • Fatigue
  • Post-exertional malaise and/or poor endurance “Brain fog,” or cognitive impairment
  • Cough
  • Chest pain
  • Headache
  • Palpitations and/or tachycardia
  • Arthralgia
  • Myalgia
  • Paresthesia
  • Abdominal pain
  • Diarrhea
  • Insomnia and other sleep difficulties
  • Fever
  • Lightheadedness
  • Impaired daily function and mobility
  • Pain
  • Rash (e.g., urticaria)
  • Mood changes
  • Anosmia or dysgeusia
  • Menstrual cycle irregularities

Employers should treat requests for leave or accommodation relating to long haul COVID-19 as they would any other non-obvious impairment.

Employees seeking FMLA leave – whether intermittent or as a block of time:

Is the employer covered by the FMLA? If so, is the employee eligible (i.e. employer has 50 employees within 75 miles of employee’s work site; employee has been employed at least 12 months and worked at least 1250 in the past 12 months)? Provide Form WH-381. Provide the form even if the employee is not eligible for FMLA leave.

If the employee is eligible for FMLA leave, require healthcare certification that the claimed incapacity qualifies the employee for FMLA protection. Provide Form WH-380-E (for employees seeking leave for their own symptoms) or WH-380-F (for employee seeking leave to care for a family member).

Use Form WH-382 to designate the leave as FMLA leave or to notify the employee that the leave is not approved or that additional information is needed.

Individuals seeking ADA Accommodation for post-COVID-19 symptoms:  

Engage in an interactive process with the individual to determine what their limitations are and what  accommodations they seek. Remember, the ADA requires employers to reasonably accommodate employees and applicants for employment who have disabilities.

Conduct an individualized assessment to determine whether the individual has a disability as defined by the ADA. A “disability” in this context is an impairment that substantially limits major life functions. To this end, ask the individual to have their healthcare provider provide written confirmation of:

  • the nature of the impairment, its severity, expected duration, and the extent to which it substantially limits the individual’s major life functions;
  • the individual’s ability to perform the essential functions of the position, with or without reasonable accommodation; and
  • what accommodations the provider believes would allow the individual to safely perform the essential functions of the position.

If it appears the individual has a disability, further engage with the individual regarding potential accommodations. While the ADA does not allow the individual to dictate the accommodation the employer provides, it is preferable for the individual and the employer to agree.

Assess undue hardship on business operations.

Regardless of the outcome, carefully document all steps in the process and clearly communicate with the individual seeking accommodation both during the interactive process and as to the final decision on the matter.

I Don’t Want to Wear a Mask…Part 5: CDC Reversal…and School Supplies Include Masks?!?!

Contributed by Michael Wong, July 28, 2021

Vector attention sign, please wear face mask, in flat style

Just when we were starting to let loose and enjoy the summer without masks, as a result of rising number of COVID-19 cases and the Delta variant, the CDC revised their guidance for fully vaccinated individuals on July 27, 2021 with the following changes:

  • Fully vaccinated individuals are recommended to wear masks when indoors in areas of substantial or high transmission.
  • Fully vaccinated individuals who have a known exposure to someone with suspected or confirmed COVID-19 should be tested 3-5 days after exposure, and wear a mask in public indoor settings for 14 days or until they receive a negative test result.
  • Universal indoor masking for all teachers, staff, students, and visitors to schools, regardless of vaccination status.

Since OSHA adopted the CDC’s prior changes regarding fully vaccinated individuals not being required to wear masks, it is expected that OSHA will also adopt the CDC’s new guidance. 

What are Areas of Substantial or High Transmission? – It’s not a reference to a certain type of workplace (e.g. hospital), but rather the geographic county that you are in. The CDC’s COVID-19 Data Tracker shows the level of transmission and COVID-19 cases within counties and based on the CDC’s evaluation of community characteristics will identify a risk level. The CDC’s COVID-19 Data Tracker is updated on a daily basis at 8 p.m. EST with the map representing a 7 day period. Based on the current map over 63% of counties in the US are considered areas of substantial or high transmission.

What does that mean for your business? – While it is sometimes hard to turn back the clock, with the threat of OSHA violations and exposure to legal claims, employers should check whether their business falls within an area of substantial or high transmission. If the business does fall within an area of substantial or high transmission, then based on CDC guidance (and likely OSHA’s adoption), businesses will have to re-evaluate their mask policies and consider going back to requiring all individuals coming into their business wear a mask, regardless of whether they have been fully vaccinated or not.

Additionally, pursuant to the CDC guidance regardless of whether or not a business is in an area of substantial or high transmission, fully vaccinated employees who have a known exposure to someone with suspected or confirmed COVID-19 should be tested 3-5 days after exposure and wear a mask in indoor settings for 14 days or until they receive a negative test.

What risks do I face if my business ignores this guidance? – If OSHA adopts the CDC’s new guidance (which it is expected to do), and your business is located in an area of substantial or high transmission, you will be expected to require all employees and visitors, regardless of vaccination status, to wear a mask indoors. If you do not make changes and still allow employees, customers and visitors to go maskless indoors you will face potential fines from OSHA. Additionally, if there is an outbreak in your facility or one of your employees, customers or visitors claims that they contracted COVID-19 at your business, you could face civil claims (including workers’ compensation claims) which would be more difficult to defend based upon you not complying with the CDC and/or OSHAS’s current standard.

Impact on K-12 Schools – School Administrators that have been working long hours to figure out whether or not students and staff have to be masked, just got the answer to that question for this fall. The CDC’s guidance states children in K-12 should return to full-time in-person learning, but that all teachers, staff, students and visitors to K-12 schools, regardless of vaccination status, should wear masks indoors.

State and Local – The trickle down effect of the CDC’s new guidance will not just impact OSHA’s requirements, but those at the state and local levels. As such in the coming days businesses will need to keep up to date with local guidance. For the immediate future, businesses should anticipate being faced with state and local guidance that provide fully vaccinated individuals do not need to wear masks, while the CDC guidance states the opposite. In looking at those conflicts, businesses should recognize that the state and local guidance will likely be updated to comply with the CDC’s guidelines, much like it has in the past.

How to Address? – Businesses are now faced with the impossible task of addressing guidelines that can potentially change on a weekly basis. There is no simple answer.  For businesses that are in a county that is currently considered an area of substantial or high transmission, the best practice will be to err on the side of safety and require employees, customers and visitors to wear masks when indoors. This minimizes the potential risk and exposure to legal claims, while also protecting the business’s workforce from the surge in COVID-19 cases and the Delta variant. In this day and age where maintaining a workforce and recruiting employees is already difficult, keeping one’s workforce intact and working is of utmost importance.

Businesses will also be faced with potential issues in communicating and/or enforcing the new guidelines. When the CDC and OSHA issued the “mask free” announcement it was relatively easy for businesses to take down signs and allow customers, visitors and employees to not wear a mask if they were fully vaccinated. With the CDC backtracking, businesses will be faced with the same issues and problems from when mask mandates were instituted (e.g. viral video of customer and employee confrontations over not wearing masks). Even more problematic is how often will the business want to change its policy and procedures, with the understanding that whether or not the business is located in an area of substantial or high transmission could change on a daily or weekly basis.

Communicating your decision on how to address this issue and whether you will be updating your policy on a regular basis to stay in line with areas of substantial or high transmission, or are simply re-instituting your mask policy, will be key. Likewise training employees on addressing, managing and de-escalating conflicts with customers and other employees will play a major role in addressing these issues, while minimizing potential problems. With these changes, employers must also recognize their obligations to provide reasonable accommodations to employees based on a disability or religious belief. Needless to say, just when we felt we were getting out, we’ve been pulled back into the pandemic life.  

As these issues continue to change and evolve it will be important for businesses to consult with legal counsel experienced and knowledgeable in labor and employment law to help you continue to evolve your business for success during these times.

OSHA ETS: What Health Care Providers Need to Know

Contributed By John R. Hayes, June 18, 2021

On June 10, 2021 OSHA issued its COVID-19 Emergency Temporary Standard (ETS) for the health care industry, along with general guidance for all other employers, which we already touched on in a previous post. However, there remains a lot to unpack, as there are many unanswered questions, especially for the health care field.  Below we dig a bit deeper into the ETS and its practical implications for health care providers.

Are you covered? The first question—and it is not as clear cut as it may seem—is whether the ETS applies to your business. OSHA has issued a flowchart to attempt to answer this question. However, it still remains murky for some. Generally, the ETS applies to settings where coronavirus patients are treated (including hospitals, nursing homes and assisted living facilities) and covers “all settings where any employee provides health care services or health care support services.” These are defined as:

  • Health care services are services that are provided to individuals by professional health care practitioners (doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health, and are delivered through various means including hospitalization, long-term care, ambulatory care, home health and hospice care, emergency medical response, and patient transport.
  • Health care support services are services that facilitate the provision of health care services, which include patient intake/admission, patient food services, equipment and facility maintenance, housekeeping services, health care laundry services, medical waste handling services, and medical equipment cleaning/reprocessing.

The ETS contains several exemptions to its coverage, and it does not apply to:

(1) the dispensing of prescriptions by pharmacists in retail settings;

(2) non-hospital ambulatory care settings (outpatient settings such as doctor’s offices) where all non-employees are screened before entering and people with suspected or confirmed COVID-19 are not allowed to enter;

(3) well-defined hospital ambulatory care settings and home health care settings where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter those settings or are not present;

(4) health care support services not performed in a health care setting (off-site services); and

(5) telehealth services performed outside of a setting where direct patient care occurs. 

Moreover, in certain situations, such as where a health care setting is embedded with a non-health care provider (such as a medical clinic in a manufacturing facility), the ETS applies only to the embedded health care setting and not the other parts of the facility. 

Also, in well-defined areas in a health care setting where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present the ETS provisions for PPE, physical distancing, and physical barriers do not apply to fully vaccinated employees. To meet this exception, the COVID-19 plan for the employer must include policies and procedures to determine employee vaccination status.

ETS Mandates. If you are an entity covered by the ETS, then what exactly does it require of you? The main requirements are what you have likely had in place throughout the pandemic:

  • Development of a COVID-19 plan. This applies to all covered employers with 10 or more employees.
  • Provide PPE and ensure employees properly wear facemasks that meet OSHA standards when physical distancing is not possible.
  • Cleaning, disinfecting, installing barriers and maintaining social distancing. 
  • Follow general screening and management practices for COVID-19. 
  • Record Keeping/Reporting. Employers must retain all versions of their COVID-19 plan, log and record each instance an employee is COVID-19 positive whether or not the infection was at work, report each work-related COVID-19 fatality and in-patient hospitalization within 24 hours.
  • Vaccination PTO. Employers must provide reasonable time and paid leave for employees to receive COVID-19 vaccinations and recover from any side effects. OSHA defines “reasonable time” as four hours of paid leave for each dose, and 8 hours of leave for any side effects of the dose.
  • Training on the basics of COVID-19 and employer and workplace specific policies on all other ETS requirements, such as screening, cleaning, and sick leave policies.

Medical Removal Protection (MRP) Benefits. Employers with more than 10 employees must provide paid leave to employees if the employee is removed from the workplace under the ETS – basically if the employee is unable to work due to COVID-19 or COVID-19 exposure, regardless of whether the employee was exposed at work or outside the workplace.

  • For employers with more than 10 but fewer than 500 employees, the employee is entitled to their regular rate of pay, up to $1,400 per week for the first two weeks.  Beginning in the third week, if the removal continues that long, then the employee shall receive two-thirds the rate of their regular pay, up to $200 a day. 
  • For employers with 500 or more employees, the employer must pay up to the $1400 cap each week during the entire period of removal, until the employee meets the return to work criteria, which must be made in accordance with guidance from a licensed health care provider or applicable guidance from the CDC.
  • For all employers with more than 10 employees they must continue to provide the benefits to which the employee is normally entitled.
  • The employer is not required to provide overtime pay, even if the employee had regularly worked overtime hours in recent weeks.
  • The employer may reduce the amount paid to the removed employee by compensation the employee receives for lost earnings from any other source, such as employer-paid sick leave or other PTO.
  • For employers with fewer than 500 employees, tax credits are available under the American Rescue Plan for voluntarily provided COVID-19 sick leave through September 30, 2021.

Implementation Timeline. Covered employers must comply with most provisions of the standard within 14 days of publishing, and with the provisions regarding physical barriers, ventilation, and training within 30 days. OSHA states it will use its enforcement discretion to avoid citing employers who are making a good faith effort to comply with the ETS. However, OSHA has made no secret it is overall increasing its enforcement, and is encouraging more in-person inspections. Employers who believe they may be subject to the ETS should review it carefully and consult with experienced employment counsel regarding their obligations under the ETS.