Although the U.S. has yet to hit 50% of its total population (all individuals) being fully vaccinated (as of this writing, the CDC reports that the U.S. is at 48%), those figures are higher for older Americans and also higher depending on where people live. For example, in Franklin County, Ohio, 49.1% of the country’s total population has been fully vaccinated. With vaccinations being highly effective against COVID-19, most states and local communities have “reopened” and dropped many, or all, of the public health restrictions that were in place throughout 2020 and the first half of 2021.
So, what are the top issues employers need to consider at this time regarding COVID-19 and their workplace?
The Occupational Safety and Health Administration (OSHA) has been very busy this past month issuing new guidance to employers, especially healthcare employers. Under the Occupational Safety and Health Act, every employer has a general duty to provide a safe and healthy workplace for its employees. The updated OSHA guidance regarding COVID-19 reiterates that even though many employers can relax restrictions for fully vaccinated employees (employees who are at least two weeks from having received their final dose of vaccine) in accordance with state and local regulations, employees who have not been fully vaccinated should continue to self-quarantine if they’ve been in close contact with a COVID positive individual, should continue to socially-distance themselves from co-workers, wear facial coverings, and all employees should continue to stay out of the workplace if they are infected with, or are showing symptoms of, COVID-19. OSHA also issued guidance by industry, which is available on its website and employers should take the opportunity to review their compliance with such.
If you are a healthcare employer, OSHA has issued Emergency Temporary Standards (ETS) effective June 21, 2021, and for the following 12 months, which are mandatory for all employees in healthcare settings. A healthcare setting under the OSHA ETS are “all settings where any employee provides healthcare services or healthcare support services.” All healthcare employers should immediately familiarize themselves with the requirements of the ETS and verify that their workplace is in compliance.
2. All Employees Should Continue to Monitor Symptoms
It is certainly exciting that restrictions are loosening and that most fully vaccinated individuals can get back to “normal” life. However, the fact remains that even fully vaccinated individuals can still become infected with COVID-19, particularly as new variants become the dominant strains. It is critical that employers continue to require vaccinated and unvaccinated individuals who are experiencing symptoms of COVID-19 to stay out of the workplace and get tested, even if the likelihood of contracting post-vaccine COVID is much lower than if they had not received the vaccine.
3. Remote Work
Many employers are now welcoming back employees to the workplace. They also face the reality that many of their employees would like to continue working remotely in some capacity. Unless the request for remote work is due to a disabling condition, it is generally at the employer’s discretion whether to allow an employee to continue working remotely. When making this determination, employers should establish metrics for determining how, when and to what extent employees will be permitted to work remotely. The more consistent the employer’s response and requirements to a work-from-home request, the easier it will be for the employer to enforce performance expectations for those working remotely. Employers with a remote workforce should also establish policies designed to implement employer policies remotely and protect employer information that is accessed remotely.
4. Incentivize Vaccines
The Equal Employment Opportunity Commission (EEOC) also updated its guidance regarding incentivizing employee vaccines. For most employers that will not be administering vaccine doses but will require proof that an employee has been fully vaccinated by an unrelated third party, the EEOC now permits employers to incentive their employees to receive the shots. An employer considering incentivizing its employees to be vaccinated should consult with legal counsel about what incentive will be offered in order to prevent running afoul of the ADA. This updated guidance provides at least some clarity as to whether or not employers can generally provide vaccine incentives to their workforce. For employers large enough to administer their own vaccines or have a vaccine program administered by an agent, however, the EEOC maintains that such an incentive cannot be so large as to coerce the employee to submit additional medical information to the employer, or the employer’s agent, in order to receive the dose(s). Employers must always keep all vaccine records stored as confidential employee medical records.
5. Updated Quarantine Rules
Fully vaccinated individuals do not have to quarantine after having been in close contact with a COVID-positive individual, so long as they do not exhibit any symptoms of COVID-19. Additionally, individuals who have tested positive for COVID-19 within 3 months of having been in close contact with someone who tested positive, also do not have to quarantine unless they show symptoms. All other individuals, however, must continue to report to their employers if they have been in close contact with an individual who tested positive for COVID-19, and quarantine according to CDC requirements. If the employer has elected to participate in the extension of the Emergency Paid Sick Leave Act and/or the Expanded Family Medical Leave Act (available through September 2021), the quarantining employee may be eligible for income during that time which the employer can deduct from quarterly payroll tax filings.
6. Accommodation Requests
As an employer, it is imperative that you remain alert to accommodation requests that may be protected by law, or that may require the employer to act, whether or not they are overtly COVID-related. Specifically, employers may notice an increase in mental health accommodation requests that could take the form of an employee requesting to work remotely, requesting leave, and/or requesting a modification to their work schedule. It is important to train HR managers and supervisors to be alert when an employee is struggling or makes a request so that the employer can address it promptly and within the requirements of the law. As the country emerges from the pandemic, individual mental health and well-being could be extremely difficult for some, and employers often play an important role in addressing these issues.
As always, an employer should consult with legal counsel before making decisions that impact its workforce, particularly during this time. If you have any questions regarding your specific workplace, CPM attorneys are happy to help.
Alicia Nesline Shaw