COVID-19 FAQs

 In


In the face of the COVID-19 emergency, employers are struggling with many questions about the impact in the workplace. This document provides answers to many Frequently Asked Questions. As this is a fast-moving and volatile situation, we will be constantly updating this document. New information as of January 19, 2022 will be shown in red.

The materials presented in this resource are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of this resource does not create an attorney-client relationship between the participant and Shawe Rosenthal LLP.

TABLE OF CONTENTS

BACKGROUND ON CORONAVIRUS

Q: What Is Coronavirus and How Does It Spread? (Updated 11/12/20)

A: The current outbreak is 2019 Novel Coronavirus (COVID-19), which is a new respiratory disease in the coronavirus family, with the source currently unknown, although bats are suspected. Past coronavirus outbreaks include SARS, which came from civet cats, and MERS, which originated from camels.

COVID-19 can spread person-to-person close contact through respiratory droplets from coughing, sneezing, and speaking. The disease can also possibly be transmitted through hard surface contamination, although it is unclear how long the virus will survive on a hard surface. Studies suggest that coronaviruses may persist on surfaces for a few hours or up to several days. The CDC also notes that transmission may be airborne.

Q: What Is “Close Contact” For Purposes Of Determining Exposure To COVID-19? (Updated 8/18/20)

A: The CDC defines the following as “close contact,” which may require an individual who is not fully-vaccinated to self-monitor and quarantine for up to 14 days following exposure:

  • Being within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated
  • Providing care at home to an infected person
  • Having direct physical contact with the infected person (hugged or kissed them)
  • Sharing eating or drinking utensils
  • They sneezed, coughed, or somehow got respiratory droplets on the other individual

The CDC also sets forth factors to consider when defining close contact, including: proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). The CDC further makes clear that the use of a face covering is not relevant in assessing close contact.

Q: What Are The Symptoms Of Coronavirus? (Updated 11/12/20)

A: According to the CDC, the symptoms appear in the form of a fever or chills, dry cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, sore throat, loss of taste or smell, congestion or runny nose nausea or vomiting, and diarrhea. Symptoms appear 2-14 days after exposure. Individuals may be contagious up to 48 hours before becoming symptomatic or while remaining asymptomatic.

Q: What Are Complications Of The Coronavirus? (Updated 8/18/21)

A: According to the CDC, there are a number of long-term symptoms that can last for weeks or months after recovery from acute illness (i.e. “Long COVID”). These include fatigue, shortness of breath, cough, joint pain, chest pain, difficulty with thinking and concentration (“brain fog”), depression, muscle pain, headaches, intermittent fever, and heart palpitations.

More serious complications include inflammation of the heart muscle, lung function abnormalities, acute kidney injury, hair loss, rash, neurological issues (loss of smell/taste, brain fog, sleep issues), and psychiatric issues (depression, anxiety, mood changes), and death.

Note that Long COVID may constitute a disability under the Americans with Disabilities Act.

THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT

The applicable provisions under this law are no longer in effect, and this section has been deleted from our FAQs.

THE CORONAVIRUS AID RELIEF AND ECONOMIC SECURITY ACT 

The applicable provisions under this law are no longer in effect, and this section has been deleted from our FAQs.

THE CORONAVIRUS RESPONSE AND RELIEF SUPPLEMENTAL APPROPRIATIONS ACT 

The applicable provisions under this law are no longer in effect, and this section has been deleted from our FAQs.

THE AMERICAN RESCUE PLAN ACT

The applicable provisions under this law are no longer in effect, and this section has been deleted from our FAQs.

THE PRESIDENTIAL MEMORANDA (Added 9/10/20)

What Is The Presidential Memorandum On Payroll Tax Withholdings? (Added 9/10/20)

A: The Presidential Memorandum on payroll tax withholding, which was issued on August 8, 2020, directs the Secretary of the Treasury to defer the withholding of the employee’s share of the 6.2 percent social security tax. The deferral shall be made available to employees earning less than $104,000 per year. The Secretary of the Treasury is directed to issue guidance to implement the Memorandum. The Memorandum also directs the Secretary of the Treasury to explore ways, including legislation, to make the deferral permanent. Absent such action, employees will still need to pay the deferred taxes when their 2020 income taxes returns are due.

The U.S. Department of the Treasury subsequently issued, on August 28, 2020, a Notice providing further guidance on the Presidential Memorandum. Here are the key points:

  • The Presidential Memorandum permits employers to defer the withholding and payment of FICA taxes, which consist of the 6.2 percent social security tax and the 1.45 percent Medicare tax.
  • The deferral is available only to employees making less than $4,000 per bi-weekly pay period.
  • The deferral is available only during the period September 1 to December 31, 2020.
  • The Notice is not entirely clear, but we read it as making the deferral optional. (The Notice defers the deadline for collecting and withholding taxes—it does not forbid employers from collecting and filing before the deadline.) The choice is up to the employer—employees do not get to decide.
  • The employer must pay the deferred payroll taxes between January 1 and April 30, 2020, or interest and penalties will be applied.
  • The obligation to pay the deferred taxes is on the employer, not the employee. To recover the cost, employers can impose an additional withholding on employees next year, subject to state laws concerning deductions from wages. The Notice does not say what happens if employees are terminated or laid off before the employer has deducted enough to satisfy the deferred tax liability allocable to that employee.

Employers may consider waiting for further developments, including the outcome of likely legal challenges, and the possibility that the Memorandum will be superseded by legislation, if the House of Representatives, Senate and White House can reach agreement on a new relief package.

What Is The Presidential Memorandum On Unemployment Insurance? (Added 9/10/20)

A: Under the Presidential Memorandum on unemployment benefits, participating states will administer an additional benefit of $400 per week, to people receiving at least $100 per week in unemployment benefits. This additional benefit would partially replace the $600 per week additional benefit that expired July 30, 2020. The additional benefit will last until December 6, 2020 or until the funding runs out. The federal government will supply 75 percent of the funds for the program, while the state must supply 25 percent. The federal share is funded by reallocating $44 billion from the CARES Act appropriation. The Memorandum was plainly intended to spur legislation, as it specifically provides that the program will “terminate upon enactment of legislation providing, due to the COVID-19 outbreak, supplemental Federal unemployment compensation, or similar compensation, for unemployed or underemployed individuals.”

The Memorandum on employment benefits requires no action on the part of employers. If it is not replaced by legislation, the additional benefit will be available in each state when it enters into a cost-sharing agreement with the Federal Emergency Management Administration and set up a program to process the benefits.

WORKPLACE SAFETY AND HEALTH

Q: What General Safety And Health Obligations Do Employers Have With Regard To Their Workplace? (Updated 1/19/22)

A: The Occupational Safety and Health Administration oversees workplace safety and health, and establishes relevant workplace standards. During the COVID-19 pandemic, OSHA has issued various Emergency Temporary Standards and guidance, while other agencies have issued final rules and mandatory guidance regarding COVID-19. Many of these are currently subject to challenge in the courts.

On January 29, 2021, OSHA issued non-binding COVID-19 guidance for workplaces. This guidance was updated and significantly revised on June 10, 2021– taking into account the impact of vaccinations. At the same time, OSHA issued its long-awaited first Emergency Temporary Standard (ETS), which is applicable only to healthcare (and which was withdrawn in December 2021). OSHA then further updated its general workplace guidance on August 13, 2021. Both the updated guidance and the healthcare ETS are discussed in Q&As below.

Notably, on September 9, 2021, President Biden issued COVID-19 Action Plan that, among other things, (1) directed the Occupational Safety and Health Administration to issue an Emergency Temporary Standard requiring employers with 100+ employees to mandate vaccinations or weekly testing for their workforce; (2) required those larger employers to provide paid time off to get vaccinated and recover from any adverse effects; (3) mandated COVID-19 vaccinations without a testing option for federal employees and contractors; and (4) required healthcare employers to ensure their employees are fully vaccinated in order to receive Medicare or Medicaid reimbursements.

The Safer Federal Workforce Task Force updated its mandatory guidance for contractors to include the vaccination requirement on September 24, 2021. OSHA issued the vax-or-test ETS on November 5, 2021, while the Centers for Medicare and Medicaid Services issued the vaccination final rule the same day. After some back and forth at the federal appellate court level, the U.S. Supreme Court has stayed the vax-or-test ETS, while permitting the CMS rule to take effect. The contractor EO has been stayed nationwide as well by federal district and appellate courts, but has not yet been addressed by the Supreme Court. Further details of these mandates are discussed in Q&As below.

Generally and additionally, under the General Duty Clause of the Occupational Safety and Health Act, employers are required to provide a safe and healthy working environment, which would include taking appropriate steps to prevent and address COVID-19 in the workplace. Employers must furnish a place of employment free from recognized hazards that may cause death or serious physical harm.  Employers should conduct a workplace hazard assessment and take control measures in accordance with the updated OSHA COVID-19 guidance. Given the Supreme Court’s stay of the vax-or-test ETS, the Secretary of Labor has stated that OSHA will rely on the General Duty Clause in ensuring that workplaces are protected against COVID-19.

Some states have implemented workplace safety standards specific to the COVID-19 pandemic. Employers should check to see if such state-specific standards are applicable to their facilities.

Q: What Updated Guidance Has the Biden OSHA Provided For Workers? (Added 8/18/21)

A: On January 29, 2021, the Occupational Safety and Health Administration (OSHA) provided guidance for employers and employees on COVID-19 in the workplace, which was updated on June 10, 2021 and again on August 13, 2021.

OSHA emphasizes that vaccination is key to workplace protections. It also asserts that workers should follow workplace precautions and policies.

For vaccinated individuals, OSHA recommends that they wear masks in public indoor settings if they are in an area of substantial or high COVID-19 transmission rates, as identified by the CDC. Such individuals are not otherwise required to wear masks or observe other preventive measures (except as directed by local/state requirement or by their employer).

OSHA continues to reiterate that workers who are not fully-vaccinated should maintain a distance of at least six feet from others (if possible), wash hands, cover their nose and mouth with a tissue or elbow when sneezing or coughing, and use face coverings. OSHA emphasizes that face coverings do not eliminate the need for other measures, such as distancing or handwashing, and should still be worn even after vaccination, given the uncertainties as to how vaccination affects transmissibility. Workers should also get tested regularly and ask their employers about other steps that have been taken in their workplace.

Q: What Updated Guidance Has the Biden OSHA Provided for Employers? (Updated 1/19/22)

Although OSHA issued Emergency Temporary Standard applicable to employers with 100+ employees that will require employees to be vaccinated or tested, and provide for paid vaccination leave, this ETS has been stayed by the Supreme Court, as discussed in a separate Q&A.

In addition, OSHA has provided general guidance to employers, which it has revised several times throughout the pandemic. In his statement responding to the Supreme Court’s stay, the Secretary of Labor pointed to this Guidance.

OSHA’s most recent version contains a new and explicit emphasis that “vaccination is the most effective way to protect against severe illness or death from COVID-19.” And OSHA pointedly suggests “that employers consider adopting policies that require employees to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”

In addition, the prior iteration of the workplace guidance provided that protective measures were not required for fully-vaccinated individuals. However, given a change in CDC guidance for fully-vaccinated individuals, OSHA revised its guidance to align with the CDC, and now recommends that fully-vaccinated individuals in areas of substantial or high transmission should mask in public indoor settings.

OSHA sets forth a number of steps that employers should consider, preferably in consultation with employees and/or their representatives (such as a union):

  • Grant paid time off for vaccine-related reasons. This includes for the employee to get a vaccine and to recover from any adverse effects, as well as to accompany family members to get a vaccine and to care for them if they have adverse effects.
  • Instruct infected workers, unvaccinated workers in close contact with a COVID-19-positive individual, and those with COVID-19 symptoms to stay home. Workers should comply with the isolation and return to work requirements discussed elsewhere in our Q&A resource.
  • Implement physical distancing (at least 6 feet) for unvaccinated/at-risk workers in communal work areas. OSHA also suggests minimizing contact through telework, flexible work hours, and virtual technologies, among other things. Where distancing is not possible, employers should consider transparent shields and other solid barriers. In constructing barriers, employers should take into account employee posture (sitting or standing), employee height, directional airflow, and fire safety.
  • Provide face coverings or surgical masks at no cost, unless respirators or other PPE is required. Reasonable accommodations to a masking requirement may need to be provided to workers for disability or religious needs, and clear masks may be necessary to enable hearing-impaired workers to lip read. OSHA further notes that masking is not required outdoors, unless mandated by state or local requirements. In addition, OSHA emphasizes that employees should be permitted to use masks if they so wish, regardless of vaccination status.
  • Educate and train workers on the employer’s COVID-19 policies and procedures, using accessible formats and in the language spoken by the workers. Managers should be trained on how to implement the policies and procedures. Worker training should include basic facts about COVID-19, including how it is spread and the importance of physical distancing (including remote work), ventilation, vaccination, use of face coverings, and hand hygiene. It should also include policies and procedures implemented to protect them. Employers should also ensure that workers understand their right to a safe workplace, whom to contact with workplace safety concerns, and their right to be free from retaliation for raising such concerns.
  • Consider requiring that unvaccinated customers, visitors, and guests wear face coverings if there are unvaccinated/at-risk employees in the workplace. In areas of substantial/high transmission, consider requiring all such individuals wear face coverings in indoor public settings. OSHA suggests posting a notice.
  • Maintain ventilation systems. OSHA notes that some measures to improve ventilation are discussed in CDC’s Ventilation in Buildingsand in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace. Key measures include proper HVAC operation, complying with inspection/maintenance schedules, maximizing outdoor air supplies, installing air filters meeting certain efficiency standards, and considering the use of HEPA filters.
  • Perform routine cleaning and disinfection, with enhanced protocols in compliance with CDC recommendations if someone infected with or exhibiting COVID-19 symptoms has been present within the past 24 hours.
  • Record and report COVID-19 infections and deaths that are work-related, as required by OSHA (and discussed elsewhere in this Q&A resource).
  • Implement protections from retaliation and set up an anonymous process to report COVID-19 health hazards.
  • Comply with other applicable OSHA Standards, such as PPE, respiratory protections, sanitation, protection from bloodborne pathogens, and access to medical and exposure records.

Q: What Guidance Has the Biden OSHA Provided for Higher-Risk Workplaces? (Added 8/18/21)

In its latest Guidance, OSHA also offers measures specifically for higher-risk workplaces with a mix of vaccinated and unvaccinated workers. As noted above, the guidance does not apply to fully-vaccinated workplaces. Factors in determining whether a mixed workplace is higher risk include close contact between workers, duration of contact, types of contact, and other “distinctive factors” (such as employer-provided shared transportation, frequent contact with unvaccinated individuals in areas with high community transmission, and communal worker housing). Examples of these types of higher-risk workplaces include: manufacturing; meat, poultry and seafood processing; and high-volume retail and grocery.

  • For all higher-risk workplaces:
    • Stagger break times, or provide temporary break areas and restrooms to minimize interaction.
    • Stagger arrival and departure times.
    • Provide visual cues (e.g. floor markers) for social distancing.
    • Improve ventilation in the workplace.
  • For workplaces with assembly or processing lines:
  • Ensure adequate ventilation in the facility, or if feasible, move work outdoors.
  • Space such workers out, ideally at least 6 feet apart, and ensure that such workers are not working directly across from one another.
  • If barriers are used where physical distancing cannot be maintained, they should be made of a solid, impermeable material, like plastic or acrylic, that can be easily cleaned or replaced. Barriers should block face-to-face pathways and should not flap or otherwise move out of position when they are being used. Barriers do not replace the need for face coverings or physical distancing.
  • For retail workplaces:
    • Suggest or require masks for unvaccinated (or where vaccination status is unknown) customers and other visitors.
    • Ensure social distancing or the use of barriers (with pass-through openings at the bottom).
    • Move payment readers further away from the worker.
    • Shift primary stocking activities of unvaccinated/at-risk workers to off-peak or after hours, when possible.
  • For workers on employer-provided shared transportation, employers should notify them of the risk of transmission, limit the numbers of riders, and ensure that unvaccinated/at-risk employees are wearing face coverings.

Q: What Is OSHA’s COVID-19 Emergency Temporary Standard for Healthcare? (Added 1/19/22)

A: In conjunction with updating its COVID-19 guidance for employers generally, as discussed above, on June 10, 2021, the federal Occupational Safety and Health Administration (OSHA) issued a long-awaited COVID-19 Emergency Temporary Standard (ETS) – but limited its coverage only to employers providing healthcare services or healthcare support services. Typically, an ETS lasts for six months, and in December 2021, OSHA announced that it was withdrawing all but the recordkeeping provisions of the ETS, even as it continues to work towards issuing a regular standard. Thus, at this time, the ETS is no longer in effect, and there is no replacement as of yet. OSHA encourages healthcare employers to continue implementing the ETS’ provisions, and also refers employers to OSHA’s General Duty Clause, which requires employers to provide a safe workplace.

Q: What Is CMS’ Final Rule for Federally-Funded Healthcare Employers? (Added 1/19/22)

A:  On November 5, 2021, the Centers for Medicare and Medicaid Services (“CMS”) released its Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (the “CMS Vaccination Rule” or the “Rule”).  The CMS Vaccination Rule requires certain healthcare providers to mandate vaccination against COVID-19 for all applicable staff.  The Rule, which permits medical and religious exemptions only as required by law, does not require testing of unvaccinated staff.

Following several legal challenges, stays were issued that impacted approximately half the states. The Supreme Court, however, lifted all the stays and is allowing the rule to take effect. Thus, covered healthcare employers need to come into compliance with the Rule by the updated deadlines. In states where the rule was not stayed, employees must receive their first dose of a vaccine by January 27, 2022, and must complete their vaccination series by February 28, 2022. In those states where the rule had been stayed, the first deadline is now February 14, 2022, and the completion deadline is March 15, 2022.

The extensive scope of the Rule is beyond the general information intended to be included in this Q&A resource. For a detailed discussion of the Rule, we refer you to our November 8, 2021 E-lert.

Q: What Measures Should Employers Take With Regard To Workplace Hygiene And Disinfection? (Updated 4/9/20)

A: Employers should communicate with and train employees on its expectations of hygiene, which should be consistent with current CDC and OSHA guidance. According to that guidance,

Employees should be trained or reminded to take preventive steps in the workplace to avoid spreading 2019-nCoV as well as other infections, like the flu or a cold. These steps include:

  • Washing hands frequently with soap and water for at least 20 seconds at a time.
  • Using an alcohol-based hand sanitizer in areas without soap and water.
  • Covering the mouth and nose with a tissue or sleeve (not hands) when coughing or sneezing.
  • Staying at least 6 feet away from others.
  • Refraining from touching face.
  • Refraining from using other employees’ equipment.
  • Staying home if they are showing any symptoms of COVID-19 or other illness.
  • Seeking medical treatment immediately if symptoms appear following travel or other exposure to 2019-nCoV. The CDC suggests calling ahead to the medical center or doctor’s office before arriving, to allow them to prepare to minimize contact with other patients.
  • Reporting to a designated Company official if the employee or household member has been diagnosed with or exposed to COVID-19.

Employers should also take the following steps to facilitate prevention and mitigation in the workplace:

  • Review sick leave policies to ensure that they are flexible, and communicate them to employees.
  • Report diagnoses and possible exposure to the local Department of Health, which will provide further guidance on appropriate steps for the employer to take.
  • Provide soap and handwashing facilities.
  • Provide alcohol-based hand sanitizer.
  • Provide cleaning spray and/or wipes.
  • Provide tissues.
  • Perform regular housekeeping, with particular attention to sanitizing and disinfecting frequently-touched surfaces (e.g. light switches, door handles, desktops, countertops, refrigerator and cabinet handles, etc.), using the appropriate products that meet EPA’s criteria for use against SARS-CoV-2.
  • Review building ventilation to increase ventilation rates and increase the amount of outdoor air.
  • Place OSHA’s new posters on “Hand Hygiene”and “Help Stop the Spread” at the entrance to the workplace and in other workplace areas where they are likely to be seen.

Q: What Is The Difference Between Face Coverings, Surgical Masks And Respirators? (Updated 11/12/20)

A: There is a distinction between cloth face coverings, surgical masks, and respirators, as noted by the Occupational Safety and Health Administration in its FAQs on the topic.

According to OSHA, cloth face coverings are used to contain potentially infectious respiratory droplets (from talking, sneezing and coughing), and (as of November 10, 2020) the CDC has stated that they also provide some protection from infection. They are not considered PPE and are not an adequate substitute for PPE (where PPE is required). They may be homemade or commercially manufactured, and may be disposable or reusable (after washing/cleaning).

Surgical masks are commercially manufactured and disposable after a single use. They are typically FDA-cleared as a medical device. They can be used to contain respiratory droplets to prevent the spread of COVID-19. They can protect workers against potentially infectious splashes and sprays, and may reduce exposure to airborne transmission of infectious agents. If employers determine that they should be used to protect against splashes and sprays, they are considered PPE. OSHA notes, however, that the use of surgical masks may be a means of source control to prevent the spread of COVID-19 in the context of an employer’s responsibility to provide a safe workplace under OSHA’s General Duty Clause. If the masks are used solely for this preventive purpose, and not the protective reason, they are not PPE.

Respirators are certified by the National Institute of Occupational Safety and Health to prevent the inhalation of airborne transmissible infectious agents (and other small particles). These include the notoriously elusive N95 masks (which OSHA and the CDC have requested to be reserved for the use of healthcare providers). If respirators are required for a particular job, they are subject to OSHA’s respiratory protection standard, which requires a respiratory protection program including proper training, fit testing, availability of appropriate medical evaluations and monitoring, cleaning, and oversight by a knowledgeable staff member. Because of the COVID-19 pandemic, OSHA is temporarily exercising its enforcement discretion with regard to many of the standard’s requirements, including fit testing, extended use or reuse, recommended shelf life, foreign supplies, and decontamination.

Q: Must Employers Permit Employees To Wear Gloves, Masks, Or Other Personal Protective Equipment? (Updated 12/2/21)

A: The CDC and OSHA are recommending, and in some cases requiring, the use of cloth face coverings in the workplace for workers who are not fully vaccinated. With certain exceptions (e.g. healthcare), the CDC does not currently recommend use of medical masks, respirators and gloves (personal protective equipment or “PPE”).  Employers are not required to allow the use of PPE unless the employee has a disability and his or her doctor has identified the use of a medical mask, respirator, or gloves as a possible accommodation. If that is the case, the employer should engage in an interactive discussion with the employee regarding the requested accommodation. The employer may obtain relevant medical information regarding the employee’s condition and how the use of PPE would be a reasonable accommodation.

Under OSHA’s respiratory protection standard, 29 C.F.R. § 1910.134, a respirator (which includes N-95 safety masks) must be provided by the employer “when such equipment is necessary to protect the health of such employees.” The rule also provides that “an employer may provide respirators at the request of employees or permit employees to use their own respirators, if the employer determines that such respirator use will not in itself create a hazard.” (Emphasis added). The language does not require employers to permit such use, absent the need to protect the health of the employee.

Q: What If The Employer Chooses To Allow Employees To Wear A Mask Or Gloves? (Updated 4/9/20)

A: If employees are permitted to wear medical masks, respirators, or gloves (personal protective equipment or “PPE”) at at their choice, there may be employer obligations relating to their use. There are no such obligations if the employee is using a standard surgical mask or cloth mask, because that is not considered a respirator under the OSHA respirator standard. If they are using a NIOSH 95 (N95) mask, however, it is considered a respirator and OSHA has stated that the employer must provide Appendix D of the OSHA respiratory standard to such employees. The employer does not need to provide any further information or take any additional actions beyond that.

If employers permit the use of nitrile gloves, they must conduct training on their use, § 1910.132(f).

Q: May The Employer Require Employees To Wear A Mask Or Gloves? (Updated 1/19/22)

A: The CDC and OSHA are recommending, but not mandating, that employers encourage workers who are not fully vaccinated to wear face coverings at work. Many state and local jurisdictions have mandated the use of face coverings in certain businesses, like retail and food service. Some orders even extend to other private workplaces. But in many jurisdictions, no such mandates exist or they have been lifted. An additional complication is the CDC’s guidance that fully-vaccinated individuals no longer need to mask, whether indoors or out, in areas of low or moderate community transmission, but should do so in public indoor areas in areas of high or substantial transmission, subject to more stringent state or local requirements.

For these employers not subject to a mask mandate, the use of face coverings is left to their discretion, and they can certainly require the use of masks in the workplace for their workers – even those who are fully vaccinated. This use is a scientifically-supported best practice to reduce or prevent the spread of infection for unvaccinated or partially vaccinated individuals, and even fully vaccinated individuals with immune system concerns or in light of COVID-19 variants – and arguably may even be considered part of an employer’s obligation to provide a safe workplace under OSHA’s general duty clause – but there are different levels of use that may be required:

  • All employees may be required to wear face coverings or masks at all times within the office, regardless of vaccination status.
  • All employees, regardless of vaccination status, may be required to wear face coverings or masks only if they will be within 6 feet of any other person while in the workplace, whether in a communal area or private office.
  • All employees, regardless of vaccination status, may be required to wear face coverings/masks if they are walking through or working in communal areas of the workplace (entrances, hallways, conference rooms, break rooms, rest rooms, etc.) or are within 6 feet of anyone else. If they are alone in an enclosed private office, they could remove the face coverings/masks to work.
  • Fully-vaccinated individuals need not mask at all in areas of moderate or low community transmission, while unvaccinated or partially-vaccinated individuals may be required to wear face coverings/masks in accordance with one of the options above.
  • None of the employees are required to wear masks/face coverings in the workplace – as long as permitted by state/local requirements and recognizing the possibility that permitting unvaccinated employees to go maskless could potentially be found to be a violation of OSHA’s General Duty requirement.

There may be situations in which employers would need to make exceptions to any face covering requirement. One is if the face covering poses a hazard to the employee during the performance of a particular task – such as potentially being caught in machinery, trapping dangerous chemicals, or interfering with the use of required PPE. Another is if the employee has a disability that prevents them from wearing a face covering – in which case the employer must engage in the interactive process under the Americans with Disabilities Act to determine if a reasonable accommodation can be made. Similarly, an employee may make a request not to wear a face covering for religious reasons, which would trigger the interactive process under Title VII. Whether or not an employer would have to excuse an employee from wearing a mask as a reasonable accommodation would depend on the circumstances and the outcome of the interactive process.

If the face coverings/masks are being used as source control and not PPE, employers may wish to consider providing the face coverings/masks, but do not have to, except in states where employers are required to reimburse all business expenses (like California and Illinois, among others). But it may be wise to do so to reinforce the employer’s commitment to a safe workplace, to encourage the use of face coverings/masks, and for purposes of employee morale. If the masks are being required as PPE, however, employers must provide and/or pay for them. (Remember that face covering are never PPE).

If employers choose to require the use of face coverings in the workplace, they should instruct employees on how to wear the face coverings/masks (i.e. over the nose and mouth). Unfortunately, many people do not seem to understand how the face covering should be worn. The instruction doesn’t have to be a formal, in-person training. Written directions or, better yet, a graphic is sufficient. (A formal “training” is only required for respirators such as N95 masks, which are not at issue here.) The CDC has provided a poster on this topic, which may be displayed throughout the workplace: https://www.cdc.gov/coronavirus/2019-ncov/downloads/cloth-face-covering.pdf.

The CDC has issued additional guidance on the use of face masks: Types of Masks guidance and Your Guide to Masks. The CDC continues to emphasize that masks should fit snugly. Both cloth masks and disposable masks should have multiple layers and nose wires, and the cloth masks should be tightly woven. The CDC also offers the following recommendations to improve fit and protection:

  • Wear two masks (disposable mask underneath ANDcloth mask on top)
  • A cloth mask can be combined with a fitter or brace
  • Knot and tuck ear loops of a 3-ply mask where they join the edge of the mask

As to other types of face coverings, the CDC cautions that KN95 masks should not be layered. It also warns of counterfeit KN95 masks. Neck gaiters should have two layers or be doubled. And the CDC states that face shields are not recommended, as their effectiveness is still unknown. Scarves, balaclavas, and ski masks are not a substitute for masks, and should be worn over a mask.

In light of this guidance, employers who choose to require some or all employees to mask may wish to consider recommending those employees to double-mask in order to further reduce the risk of spread. If so, they should consider providing disposable masks to employees, who may not otherwise be able to find or afford them, to use with their own cloth masks (unless the employer is also already providing cloth masks). Of course, employers must be receptive to concerns about difficulty breathing through a double mask, and may need to provide reasonable accommodations for disabled employees who may not be able to tolerate a double mask.

Q: Must Employees Be Paid for the Time Spent Donning or Doffing PPE? (Added 6/2/21)

A: If an employer determines that PPE or other safety gear (beyond face coverings and gloves) is required for employees to safely and effectively perform their duties, then the time spent donning PPE prior to beginning their primary duties and doffing PPE after the completion of such duties would be compensable.

Q: What If Employees or Workplace Visitors Refuse to Mask? (Updated 6/2/21)

A: Companies that choose to require employees and patrons to wear masks should prepare to deal with challenges and be thoughtful about how to address “robust” ones, especially by clients or customers. The CDC has offered suggested  strategies to try to avoid potential incidences of violence that may arise from masking opponents. Among them, make sure the masking requirement is clearly communicated via signage and online, like on websites and FaceBook pages. Retail outlets should continue curbside pickup, personal shopping services, and home delivery to provide alternatives to those who view masks as an infringement on their autonomy. Training employees to recognize threats and defuse tense situations is another suggested measure.

Employees and members of management present different challenges, with those demanding the continued use of masks being as vocal as those who chafe at these continued restrictions. Be prepared to clearly communicate expectations and, before doing so, get buy in from those at the top. The “safest” choice is to continue to follow the CDC’s and Occupational Safety and Health Administration’s (OSHA) recommendations – masks and social distancing for the unvaccinated and partially-vaccinated, plexiglass barriers, etc. Moreover, the failure to do so could arguably leave a business open to a claim for failure to comply with the Occupational Safety and Health Act’s General Duty Clause to provide a safe workplace environment. Employees who refuse to comply with mask mandates may be disciplined or discharged.

For companies that do not require masking, disciplinary action against those who protest the policy as unsafe is risky, as claims of retaliation under OSHA for insisting on workplace safety may be viable. It is advisable to consult with legal counsel before taking action with such employees.

Q: Can Employers Require Employees To Get The COVID-19 Vaccine? (Added 12/3/20)

A: Generally, yes, although employers may need to make reasonable accommodations for employees who cannot take the vaccine because of a disability, and for employees who have a need for an exemption because of religious reasons. Employer-required vaccinations may also be subject to state law restrictions.

Q: How Else Can Employers Protect Their Employees Still Working On Site? (Updated 6/2/21)

A: Employers should encourage “social distancing” for their unvaccinated and partially-vaccinated employees.  Those employees should keep a reasonable distance (at least six feet) from other employees (including fully-vaccinated employees).  Some ideas for social distancing include:

  • Relocating work stations or desks to maximize distance.
  • Staggered work schedules to decrease the number of employees in the workplace at once.
  • Split shifts, under which employees alternate coming to work and teleworking.
  • Eliminate or modify shared meals for employees.
  • Suspend or limit on site and off site group meetings. These may actually be required under state emergency orders.
  • Consider closing offices to visitors and the public, if possible.
  • Increasing physical space between employees and customers.
  • Downsizing operations.
  • Delivering services remotely.
  • Delivering products through curbside pickup or delivery.

The CDC has also issued guidance on cleaning and disinfecting, including at the workplace. Of note, the CDC has also provided additional considerations specific to employers.  In particular, employers should:

  • Educate workers performing cleaning, laundry, and trash pick-up to recognize the symptoms of COVID-19.
  • Provide instructions on what to do if employees develop symptoms within 14 days after their last possible exposure to the virus.
  • Develop policies for worker protection and provide training to all cleaning staff on site prior to providing cleaning tasks. Such training should include when to use personal protective equipment (PPE), what PPE is necessary, how to properly put on, use, and take off PPE, and how to properly dispose of PPE.
  • Ensure workers are trained on the hazards of cleaning chemicals used in the workplace in accordance with OSHA’s Hazard Communication standard.
  • Comply with the Occupational Safety and Health Administration’s (OSHA)standards on Bloodborne Pathogens, including proper disposal of regulated waste, and PPE.

Q: What Are Common COVID-19 Citations By OSHA? (Added 12/3/20)

A: According to OSHA guidance, the most frequently-cited standards include Respiratory Protection, Recording and Reporting Occupational Injuries and Illnesses, Personal Protective Equipment and the General Duty Clause. In its guidance, OSHA provides descriptions of the various violations, as well as links to relevant resources and other information. With regard to the General Duty Clause, which is applicable to all employers, OSHA noted that “employers must protect employees from COVID-19 hazards at the workplace by, for example, installing plastic barriers or ensuring social distancing.”


OSHA has also provided examples of requirements employers have most frequently failed to follow, such as:


• Provide a medical evaluation before a worker is fit-tested or uses a respirator.
• Perform an appropriate fit test for workers using tight fitting respirators.
• Assess the workplace to determine if COVID-19 hazards are present, or likely to be present, requiring the use of personal protective equipment (PPE).
• Establish, implement, and update a written respiratory protection program with required worksite-specific procedures.
• Provide an appropriate respirator and/or other PPE to each employee when necessary.
• Train/retrain workers to safely use respirators and/or other PPE in the workplace.
• Store respirators and other PPE properly in a way to protect them from damage, contamination, and possible deformation of the facepiece and exhalation valve.
• For any fatality that occurs within 30 days of a work-related incident, report the fatality to OSHA within eight hours of finding out about it.
• Keep required records of work-related fatalities, injuries, and illness.


OSHA also reminds small and medium-sized employers that it offers a no-cost, confidential On-Site Consultation Program to help them identify workplace hazards, provide advice for compliance with OSHA standards, and assist in establishing and improving safety and health programs. The consultation program is separate from enforcement and will not result in penalties or citations.

Q: What Is OSHA’s COVID-19 National Emphasis Program? (Updated 7/19/21)

A: A national emphasis program is a temporary program focusing OSHA resources on particular hazards and high risk industries – in this case, the COVID-19 pandemic and industries experiencing greater COVID-19 challenges. Through this program, originally issued in March 2021, OSHA focuses its enforcement efforts on companies placing the largest number of workers at serious risk of COVID-19 infection,  and prioritizes employers who retaliate against whistleblowing employees. The program was revised in July 2021 to adjust the targeted industries. It also continues to enforce protections for workers in non-healthcare industries who are unvaccinated or not fully vaccinated. Additionally, where respirator supplies and services are readily available, OSHA will stop exercising enforcement discretion for temporary noncompliance with the Respiratory Protection standard based on employers’ claims of pandemic-related supply shortages, among other things.

Q: What Is OSHA’s Interim Enforcement Response Plan? (Added 3/17/21)

A: In May 2020, OSHA issued an Interim Enforcement Response Plan regarding its use of workplace inspections during the pandemic. OSHA has now updated its Interim Enforcement Response Plan, effective March 18, 2021, to prioritize the use of on-site inspections where practical, and a combination of on-site and remote methods otherwise. Remote-only inspections will be conducted only where OSHA determines that on-site inspections cannot be performed safely in OSHA’s determination.

Q: Is Hazard Pay Required for Essential Employees Required to Work Onsite? (Added 6/2/21)

A: Hazard pay is not required by federal law. State or local laws may require such pay. If paid, it must be included in the calculation of a non-exempt employee’s regular rate for purposes of determining overtime pay.

VACCINES 

Q: May Employers Require Employees to Be Vaccinated? (Updated 1/19/22)

A: Yes, in the context of the current pandemic, subject to exemptions as reasonable accommodations for disability or religious needs, or as limited by state law. (See Q&As below for further discussion of reasonable accommodations). The EEOC, OSHA and President Biden have all issued guidance, statements, or orders that support the employer’s right – or even require an employer – to do so.

There was an argument that individuals may have the right to refuse vaccines while under Emergency Use Authorization approval; however, this argument has not found much traction. In July 2021, the U.S. Department of Justice (DOJ) released an opinion definitively stating that the Emergency Use Authorization (EUA) statute, under which current COVID-19 vaccines were approved by the Food and Drug Administration (FDA), “does not prohibit entities from imposing vaccination requirements” including “to return to work or be hired into a new job.” Additionally, the argument has also been rejected by several federal courts, including Bridges v. Houston Methodist Hospital, in which a hospital’s vaccine mandate for its employees was upheld. However, we caution employers that other courts may not necessarily agree. It is possible that another court could come to a different holding and find that an employee who was terminated for refusing the COVID-19 vaccine could, in fact, sustain a wrongful discharge in violation of public policy claim. Nonetheless, the grant of regular approval for the various vaccines renders the EUA argument moot.

However, many states have enacted or are considering restrictions on a company’s right to require proof of vaccination (e.g. bans on so-called “vaccine passports”). These bans come in many different forms. Some are limited to governmental or public entities. Others (including Alabama, Florida, North Dakota, and Texas) prohibit private entities from requiring vaccine passports in providing goods, services, or access to the public, but do not govern employers’ ability to impose a vaccine mandate on their employees. Montana and Tennessee prohibit employers from requiring proof of vaccination, and many other states have similar legislation pending before their state legislatures. It is critically important for employers seeking to impose vaccine mandates to stay on top of any changes in state law on this issue.

Another type of state law or order requires employers to provide exemptions to any vaccine mandates beyond religious and medical exemptions. Such exemptions may need to be provided for personal or philosophical objections, as well as “natural immunity.” States that have passed such a law or order include Florida, Tennessee, and Texas. Many other states are considering similar legislation.

Q: Should Private Contractors and Temporary Employees Be Vaccinated? (Added 1/22/21)

A: Yes. According to the CDC, companies should encourage everyone at a work site to be vaccinated – including contractors and temporary employees, including staffing agency employees. If the company is offering an on-site vaccination program, it can open the program up to these other individuals. If there is no on-site program, it can provide information about vaccination options in the community.

Q: Does Emergency Use Authorization Mean the Vaccine Is Not Safe? (Updated 11/2/21)

A: No, according to the Food and Drug Administration, which is responsible for issuing the EUA, as well as for the normal drug approval process. EUA drugs must meet rigorous safety standards. And there will be continued safety monitoring, just as there is for drugs that are approved through the normal process.

Note, however, that under the statutory authority for the EUA, FDA must ensure that recipients of the vaccine are informed that that they have the option to accept or refuse the vaccine, along with other information, including that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, and of any available alternatives to the product. This information is contained in an FDA fact sheet on the vaccine.

At this point, several of the vaccines have now been fully approved by the FDA.

Q: Can Employers Specify Which Vaccine Employees Should Take? (Added 12/18/20)

A: Technically yes, although realistically, given the limited supply of vaccines, there may not be a choice.

Q: Can Employers Require Employees To Get A Booster Shot? (Updated 11/2/21)

A: Yes, as recommended by the CDC.

Q: Who Pays for the Vaccine? (Updated 1/22/21)

A: The Government says it will be free. According to the CDC, vaccination providers may be able to charge an administration fee that will be reimbursed by insurance or, for the uninsured, by the Health Resources and Services Administration’s Provider Relief Fund.

Q: Are Employers Required to Pay Employees for Time Being Vaccinated? (Updated 1/19/22)

A: It depends on whether the vaccine is being required or recommended. If the employer is requiring the vaccine, it should pay for the time required to get vaccinated, if not done during regular working time. If the vaccine is recommended, but not mandated, then the employer need not compensate the employee for off-duty time spent being vaccinated.

Note, however, that pursuant to the now-withdrawn OSHA ETS for healthcare employers, they were required to provide paid leave for vaccination and to recover from any adverse effects, although they could have used existing paid leave to cover the requirement. In addition, the currently-stayed vax-or-test ETS for employers with 100+ employees also requires paid time to receive a vaccination, and paid leave to recover from any adverse effects. At this time, there is no federal requirement to provide such leave. State COVID-19 leave laws, however, may require such leave.

Q: What Are Vaccination Options Available to Employers? (Added 6/2/21)

A: The CDC suggests that employers assess options for vaccinating the workplace. These include on-site, through existing occupational health clinics, or employer-run temporary or mobile vaccination clinics. They also include off-site, at community-run temporary or mobile vaccination clinics, pharmacies, hospitals, health care provider offices, or federally qualified health centers and other community clinics.

The CDC also recommends that employers consider an on-site workplace vaccination program if they have a large number of on-site workers with predictable schedules, the ability to either enroll in a jurisdiction’s immunization program as a vaccine provider or engage an enrolled provider, and the space to observe social distancing protocols throughout the entire vaccination process.

According to the CDC, employers should consider an off-site program if they do not have the resources to host an on-site program, have a mobile workforce, have workers with highly variable schedules, and/or have workers who would prefer to use a community-based clinic.

Q: What Are the Considerations for an On-Site Vaccination Program? (Added 6/2/21)

A: In addition to referring employers to the National Institute of Health’s Key Elements of a Model Workplace Safety and Health COVID-19 Vaccination Program, the CDC offers the following guidance for on-site programs:

  • Include input during the planning process from management, human resources, employees and, if present, labor representatives.
  • Contact local departments of health for guidance.
  • Consider using a community vaccination provider/vendor, who will have trained nursing staff, can bill insurance, and report immunization data to vaccine registries.
  • Prepare for potential anaphylaxis after vaccination.
  • Offer vaccinations at no charge and during work hours.
  • Provide easy access for all workers, including temporary workers and independent contractors.

Q: What Are the Considerations for Off-Site Vaccination Programs? (Added 6/2/21)

A: The CDC suggests that employers encourage employees to become vaccinated through the following steps:

  • Pay employees for their time getting vaccinated.
  • Support transportation, such as by providing taxi or ridesharing fare, and checking with local health departments for transportation support.
  • Inform employees as to what information they need to bring with them to verify eligibility.
  • Communicate with employees about the importance of vaccination through company intranet, email, newsletters, and portals.
  • Educate and assist employees on how to register for a vaccine appointment.
  • Ensure employees know that there should be no cost for the vaccine.
  • Identify and address barriers to vaccination in the specific workplace.

Q: May Employers Ask Pre-Screening Vaccine Questions? (Updated 1/22/21)

A: Yes, if administering the vaccine. The CDC states that health care providers should ask screening questions to ensure that there is no medical reason that would prevent the individual from receiving the vaccination. The EEOC states that an employer or employer’s agent who is administering the vaccine may ask those pre-screening vaccination questions. Because such questions may elicit information about a disability, however, they may be subject to the ADA’s standard for disability-related inquiries – meaning that the employer must be able to show that such inquiries are job-related and consistent with business necessity. The EEOC notes that, in order to meet this standard, “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.” Any medical information obtained in the course of the vaccination process must be kept confidential under the ADA.

The EEOC notes two exceptions to the “job-related and consistent with business necessity” standard. First, if the vaccine is offered on a voluntary basis, then employees can choose not to answer the pre-screening questions, and the employer can then decline to administer the vaccine but may not retaliate against the employee for that choice. Second, and importantly, if the employee receives the vaccine from an unrelated third-party provider (like a pharmacy or other health care provider or clinic), then the ADA does not apply to that provider’s questions.

Q: Can Employers Require Proof of Vaccination? (Updated 6/2/21)

A: Yes, except as may be prohibited by state law. As the EEOC notes, requiring proof of vaccination is not a medical inquiry under the ADA. However, asking why an employee did not get a vaccination might be covered by the ADA as it may elicit information about a disability. The EEOC recommends, and the CDC reiterates, that employers warn employees not to provide any medical information as part of the proof. In addition, any proof of vaccination that the employer receives is considered and must be treated as confidential medical information.

Note that some states prohibit employers from requiring proof of vaccination. It is important to check any applicable state or local prohibitions on “vaccine passports” or other proof before requiring such documentation from employees.

Q: Does HIPAA Apply To Vaccination Status and Proof of Vaccination? (Added 11/2/21)

A: Many employers and employees alike believe that the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA) protects the employee’s vaccination information. It does not. In fact, the Privacy Rule does not apply to employee medical information in the employment context, as the U.S. Department of Health and Human Services recently explained in its Guidance, HIPAA, COVID-19 Vaccination, and the Workplace. Other laws, like the Americans with Disabilities Act, however, protect the confidentiality of employee medical information.

HHS confirms that HIPAA’s Privacy Rule only controls the disclosure of an individual’s Protected Health Information (PHI) by health plans, health care providers and certain business associates. The Privacy Rule does NOT apply to an individual’s own disclosure of their health information – including vaccination status. And it does NOT apply to employment records. As HHS states, “[T]he Privacy Rule does not regulate what information can be requested from employees as part of the terms and conditions of employment that an employer may impose on its workforce.”

Q: Can Employers Dictate When the Vaccine Is Taken? (Added 12/18/20)

A: Yes. There are reportedly some side effects to the vaccine, which may result in an employee being out of work for a day or two. Employers may schedule vaccinations to ensure that the entire workforce is not impacted at the same time. In addition, employers may require employees to get the vaccination before a weekend or other days scheduled off, so that the employee does not miss work time if they experience side effects.

Q: Should Employees Who Had COVID-19 Still Get the Vaccine? (Added 12/2/21)

A: Yes. It is still unknown for how long antibodies will protect an individual after recovering from COVID-19, and whether such antibodies will protect against variants. Note that some state laws, however, require exemptions from a vaccine mandate for those with “natural immunity” based on past infection.

Q: Must Employers Provide Exemptions from a Vaccine Mandate as a Reasonable Accommodation? (Updated 12/2/21)

A: Yes, as long as the accommodation does not pose an undue hardship. Under the Americans with Disabilities Act (for disability) and Title VII (for religion), employees are entitled to a reasonable accommodation, unless it would pose an “undue hardship” on the employer. “Undue hardship” means “significant difficulty or expense” under the ADA (a high standard), and “more than a de minimis cost” under Title VII (a lower standard).

In its May 28, 2021 updated guidance, the EEOC recommends that, as part of any vaccination mandate, employers make clear that they will consider reasonable accommodations for such individuals on a case-by-case basis. Additionally, employers may not disclose that an employee is receiving an accommodation.

Some state laws require exemptions for reasons beyond religion or medical needs. It is important to check for any applicable state restrictions.

Q: What Are Possible Reasonable Accommodations to a Vaccine Mandate? (Added 6/2/21)

A: The EEOC provides some suggestions for reasonable accommodations for those unable to receive a vaccine. Whether or not any of these accommodations would actually be reasonable would depend on the circumstances. Some possible accommodations are: masking; social distancing from coworkers or non-employees; working a modified shift; getting periodic tests for COVID-19; teleworking; and being reassigned to another position.

Q: What Are the Requirements for a Vaccine Exemption Based on a Disability? (Updated 6/2/21)

A: The employee must have a disability and that disability must prevent them from taking the vaccine. The standard ADA analysis applies – the employee must be substantially limited in a major life activity. Generalized fears about the safety of the vaccine are not protected by the ADA.

In addition, it is the employee’s responsibility to request the exemption.

Q: What Documentation May Employers Require to Support a Disability Request? (Added 12/18/20)

A: Employers may request medical documentation about the employee’s disability and functional limitations, as with any disability. Employers may need to be flexible with regard to the timing of the documentation, given the burdens on the healthcare system.

Q: What About Vaccine Exemptions for Pregnancy? (Updated 11/2/20)

A: As noted by the EEOC, the CDC is recommending vaccination for pregnant employees and those trying or planning to get pregnant. However, certain pregnant employees may be entitled to an exemption as an accommodation as well.  As the EEOC notes in its COVID-19 guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, pregnancy-related conditions may be ADA disabilities. In addition, the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. Thus, the ADA reasonable accommodations analysis above applies to pregnant employees seeking an exemption as well.

Q: What Are the Requirements for a Vaccine Exemption Based on a Religious Need? (Updated 11/2/20)

A: The employee’s belief must be religious and it must be sincerely held. In its October 25, 2021 update to its COVID-19 Guidance, the EEOC states that employees must make a request for reasonable accommodation under Title VII. Although no “magic words” are required, they must inform their employers if they are requesting an exemption from the COVID-19 vaccines, whether generally or to a specific vaccine, due to a conflict between their religious belief and a vaccination mandate.

The EEOC suggests that, as a best practice, employers provide employees and applicants with a contact person and information about the procedures for submitting a request for religious accommodation.

Q: What Is “Religion” Under Title VII? (Added 11/2/21)

A: Religion under Title VII is a very broad concept. In addition to traditional or standard religions, the EEOC notes that “religion” under Title VII includes non-traditional beliefs, which employers should not assume to be invalid. Moreover, employers should not assume that the belief is not sincere because the employee’s belief deviates from commonly-followed tenets of their organized religion, or because they adhere to some practices but not others. The EEOC further cautions that religious beliefs may change over time such that newly adopted or inconsistent practices may still be sincere.

Moreover, under Title VII, “religion” also encompasses moral or ethical beliefs that are held with the strength of traditional religious views. Such beliefs must address fundamental and ultimate questions having to do with deep and imponderable matters. Note that beliefs about the safety or necessity of a vaccine, even though strongly held, would be considered medical rather than religious beliefs.

On the other hand, Title VII does not protect social, political or personal preferences, or “nonreligious concerns about the possible effects of the vaccine,” and no accommodation is required for these non-religious beliefs.

Q: How Can The Employer Evaluate the “Sincerity” Of The Religious Belief? (Added 11/2/21)

In its COVID-19 Guidance as well as its previously issued Religious Discrimination guidance, the EEOC has identified four (non-dispositive) factors to be used in determining whether a belief is sincerely held:

(a) Whether the employee has behaved in a manner markedly inconsistent with the professed belief;

(b) Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;

(c) Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons);

(d) Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

Q: What Documentation May Employers Require to Support a Religious Exemption Request? (Updated 11/2/21)

A: Employers may require employees to explain – in their own words – the religious nature of the belief, and to explain how it conflicts with the vaccine mandate. Beyond that, a limited amount of documentation may be required. The EEOC states that “if the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.” Thus, as the EEOC noted in its Religious Discrimination guidance, employers may request oral statements, affidavits, or other documents from the employee’s religious leader(s), as well as from fellow adherents (if applicable), family, friends, neighbors, managers, or co-workers who may have observed the employee’s past adherence or lack thereof, or discussed it with them.

However, because religion encompasses more than traditional views, employees may not be required only to submit such letters from religious leaders to support their beliefs. The EEOC recognizes that a statement from the employee describing their beliefs and practices, including information regarding when the employee embraced the belief or practice, as well as when, where, and how the employee has adhered to the belief or practice, may be sufficient support.

Q: Does A Vaccine Exemption Pose An Undue Hardship? (Added 11/2/21)

A: If the vaccine exemption poses an undue hardship – meaning a significant difficulty or expense – on the employer’s operations, no accommodation is required.

Under the ADA, this is a very high burden to meet. The EEOC has not issued any guidance specifically as to when a vaccine exemption is an undue hardship under the Americans with Disabilities Act, but has given general guidance on the principles of undue hardship under the ADA in the pandemic, as discussed elsewhere in these FAQs.

In an October 25, 2021 update to its COVID-19 Guidance, the EEOC noted that, under Title VII, more than a de minimis (i.e. minimal) cost is considered an undue hardship. This includes direct monetary costs, as well as other burdens on the employer’s business, specifically including “the risk of the spread of COVID-19 to other employees or to the public.” The EEOC notes that courts have found undue hardship where the accommodation would impair workplace safety, diminish efficiency in other jobs, or require co-workers to take on additional potentially hazardous or burdensome work.

Whether there is an undue hardship must be assessed on a case-by-case basis and cannot be speculative. In the context of religious accommodations, the EEOC has identified certain “common and relevant considerations during the COVID-19 pandemic” to include:

  • whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors,
  • whether they work in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals), and
  • the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).

Q: May Employers Require Employees With Disabilities To Become Vaccinated to Enable Their Return to the Workplace? (Updated 11/2/21)

A: The EEOC has not addressed this issue specifically, but has stated that employers may mandate the vaccine for their employees subject to exemptions for religious or medical reasons. If an employee is teleworking as a reasonable accommodation for a disability, but could receive a vaccine that would enable them to return to the office, it would seem that they could be required to get the vaccine – unless their condition also prevents their becoming vaccinated, in which case they may be entitled to a reasonable accommodation of an exemption from the vaccine requirement.

In addition, the Department of Labor’s Job Accommodations Network has provided guidance that if an employee is teleworking because of a disability, an employer may ask whether getting a vaccine will allow them to return to the workplace. Employers can also require employees to notify them if they become vaccinated (and consequently, no longer need telework as an accommodation).

JAN cautions that employers should not assume that they can end telework once at-risk employees are vaccinated – that would be a case-by-case determination based on the employee’s individual medical situation. If the disability-related limitation does not require telework, then the employer can stop the telework. If other accommodations are available to enable the employee to return to the workplace, those can be provided in lieu of telework. If the employer temporarily suspended essential functions of the employee’s job in order to enable telework, such change would not be deemed permanent or that telework would always be a feasible accommodation.

According to JAN, it is “questionable” whether employers could require an employee with a teleworking accommodation to get a vaccine in order to return to work when the vaccine is not otherwise being mandated. Employers should explore other reasonable accommodations to enable the employee to return to the workplace, and if no such accommodations are available, consider continuing telework as long as the employee is able to perform all of their essential job functions and it is not an undue hardship.

Q: Do Employers Have to Provide Accommodations to Fully-Vaccinated Individuals? (Added 6/2/21)

A: According to the EEOC, an employee that required reasonable accommodations because of a disability that placed them at higher risk for severe illness from COVID-19 may still require reasonable accommodations for underlying disabilities, such as being immunocompromised, even after being fully-vaccinated, since the vaccine may not provide them with as much protection. Employers should engage in the interactive process described above if a fully-vaccinated individual continues to request accommodations.

Q: Does a Vaccine Exemption Pose a Direct Threat? (Updated 11/2/21)

A: It depends on the circumstances. In some circumstances, given that the CDC is asserting that masks both prevent the spread of COVID-19 and can offer some protection to the wearer (depending on fit, material, etc.), the use of masks and other preventative measures may be deemed an effective substitute for the vaccine, and thus a reasonable accommodation for an employee’s request for a mask exemption. This is not necessarily the case in all circumstances, however.

In the context of religious accommodations, the EEOC’s updated Guidance states that workplace safety concerns depend on the specific factual context. Employers may consider, for example, the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation.

The EEOC states that an employer may exclude from the workplace an unvaccinated employee who poses a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” This requires an individualized assessment that considers four factors: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.  The assessment should be based on a reasonable medical judgment based on current medical knowledge about COVID-19 from the CDC and the employee’s health care provider. This may include information about community spread. The EEOC also states that the assessment should take into account the type of work environment, such as: working alone or with others, working inside or outside, ventilation, frequency of interaction with others, percentage of vaccinated individuals in the workplace, masking requirements, testing requirements, and social distancing capabilities. Based on this assessment, the employer must determine that an unvaccinated individual will expose others to the virus at the worksite and, further, that there is no reasonable accommodation that would reduce or eliminate the risk.

The EEOC notes that, although an employer can bar the unvaccinated employee from the workplace where it determines a direct threat exists, it may need to consider whether other accommodations are possible or rights are available – such as remote work or leave under the Family and Medical Leave Act, state or local laws, or employer policy. The employer may rely on CDC recommendations or OSHA guidance in determining whether these accommodations pose a direct threat or an undue hardship.

Q: Can Employers Impose Other Requirements in Lieu of a Vaccine? (Updated 11/2/21)

A: Yes. Depending on the circumstances, employers could require employees who cannot or will not be vaccinated to wear masks/face coverings, comply with social distancing protocols (maintain 6 feet distance), utilize additional protective clothing or equipment, telework, take leave, offer a transfer to a position for which a vaccine is not required, or engage in some other appropriate action.

In its updated Guidance, the EEOC reminds employers to consider “all possible alternatives” when assessing these other actions as a medical or religious accommodation to a vaccine requirement. If more than one reasonable accommodation is available, the employer has the ability to choose which one will be used. Although the EEOC states that the employer should consider the employee’s preference, it also acknowledges that the employer is not obligated to honor that preference as long as the proffered accommodation is effective. The employer should explain, however, why the preferred accommodation is not being granted.

Q: May Employers Change/Stop The Accommodation To A Vaccine Requirement? (Added 11/2/21)

A: In the context of religious accommodations, but equally applicable to medical ones, the EEOC states that the accommodation obligation takes into account changing circumstances. On the employee side, their religious beliefs and practices (or medical conditions) may evolve or change over time, resulting in requests for different or additional accommodations. On the employer side, an accommodation may be discontinued if it is no longer being utilized for a religious purpose (or required for a medical reason) or if it ends up posing an undue hardship. The EEOC suggests that a best practice would be for the employer to discuss concerns about the accommodation before revoking it, and to explore other possible accommodations.

Q: Must Employers Require Employees to Be Vaccinated in Order to Provide a Safe Workplace? (Added 8/18/21)

A: Likely not. Under OSHA’s General Duty clause, employers have the obligation to provide a safe work environment. As long as the employer is complying with OSHA and CDC workplace guidance on preventative and remedial measures for COVID-19 in the workplace (which currently does not require vaccinations), an employer would likely be found to have met its obligations under the General Duty clause. We note, however, that in its most recent August 13, 2021 guidance, OSHA encourages employers to consider policies requiring either vaccination or regular testing.

Employers should be careful in how they manage employees who raise vaccine-related safety concerns. Under OSHA, those employees are protected from retaliation for raising such concerns.

Q: Are Employers Liable If an Employee Experiences Adverse Effects from a Vaccine? (Added 12/18/20)

A: Likely not. Any related illnesses or injuries would likely be covered by state workers’ compensation programs.

Q: Are Adverse Effects to the Vaccine a Recordable or Reportable Event Under OSHA? (Added 6/2/21)

A: OSHA initially stated that adverse effects to the vaccine that met its workplace illness and injury recording requirements would need to be recorded on OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Illness and Injury Incident Report) if the vaccine was mandatory, but not if it was voluntary. It subsequently revised its guidance to state that it will not enforce such recording requirements through May 2022, at which time it would reevaluate its position.

There are reporting requirements under OSHA for any illness resulting from the vaccination – employers have 24 hours to report if the employee is hospitalized within 24 hours of the vaccination, and 8 hours to report if the employee dies within 30 days of the vaccination.

Q: What Should Employers Do If Employees Experience Adverse Effects from the Vaccine? (Added 1/22/21)

A: In post-vaccination guidance for healthcare personnel, the CDC has suggested approaches for evaluating and managing post-vaccination symptoms. In addition, employees should be encouraged to report adverse effects to the federal Vaccine Adverse Event Reporting System. Employees may also be encouraged to enroll in a new smartphone-based tool called “v-safe,” which CDC uses to check in on people’s health after they receive a COVID-19 vaccine. The CDC recommends that employees experiencing a fever should stay home pending further evaluation, which could include COVID-19 testing. If the employee’s soreness from a shot extends past 24 hours or other symptoms do not abate within a few days, the employee should be directed to stay home and contact their health care provider.

Q: Are Employees Entitled to Paid Leave Due To Adverse Effects from a Vaccine? (Updated 1/19/22)

A: Under OSHA’s Emergency Temporary Standard, employers with 100+ employees would be required to provide up to two days of paid leave per dose to employees experiencing adverse effects from the vaccine. The ETS, however, is currently stayed, meaning that this requirement is not in effect at this time.

Regardless of the ETS, statutory sick leave or PTO will apply. And if the employer provides other paid leave, such as vacation or non-statutory sick/PTO, and employees who meet the criteria for the leave may use such leave.

Note that leave for this purpose under the Families First Coronavirus Response Act, as extended by subsequent laws, is no longer available.

Q: Are Employees Entitled to Paid Leave If They Refuse a Vaccine and Get COVID-19? (Updated 11/2/21)

A: If an employee has statutory sick leave or PTO available, they may use that.

If an employee chooses not to be vaccinated and willfully engages in high risk activity that results in their becoming sick, employers may be able to assert that non-statutory employer-provided paid leave is not available for use. This may be subject to state law restrictions regarding the use of paid leave – even paid leave voluntarily provided by the employer.

Note that leave for this purpose under the Families First Coronavirus Response Act, as extended by subsequent laws, is no longer available.

Q: Should Vaccinated Employees Wear Masks/Face Coverings? (Updated 8/18/21)

A: The CDC had previously asserted that fully-vaccinated individuals need not wear masks/face coverings; however, given the spread of the Delta variant, the CDC has revised its guidance to state that fully-vaccinated individuals should wear a mask in public indoor settings if they are in an area of substantial or high transmission (such areas are indicated on a CDC map). This includes much of the country, and most major metropolitan areas. We note that the CDC does not define “public indoor settings.” One reasonable interpretation is anywhere where the public (i.e. non-employees) has access, such as retail space but also reception areas and multi-employer building lobbies, for example. Another, more expansive but still reasonable interpretation may include internal common areas, such as conference rooms, bathrooms and hallways.

The CDC also states that fully-vaccinated individuals may choose to mask regardless of the level of transmission, particularly if they or someone in their household is immunocompromised or at increased risk for severe disease (including older adults or those with certain medical conditions, like diabetes, obesity or heart conditions), or if someone in their household is unvaccinated.

 

Q: What Can/Should Employers Do About Employees’ Vaccine-Related Concerns? (Updated 1/19/22)

A: Listen, do not dismiss. This is an uncertain time and people understandably are fearful. Employers should take the time to hear the concerns and try to address them with facts and explanations. Document the discussions. Ultimately, if the employee’s concerns are unreasonable or unwarranted, the employer can still move forward with vaccine requirements, absent any state law that prohibits such mandates. And if an employee refuses to be vaccinated as part of a mandatory vaccination program, and no reasonable workplace accommodation is required or available, the employer may place the employee out of work unless and until they comply with the mandate or the mandate is no longer necessary.

Some employers may question whether they may terminate an employee who refuses to be vaccinated. Absent state laws protecting such refusal, employers may do so. In addition, the employer might consider other options, such as telework or leave. However, this is complicated, and employers should consult with counsel.

Employers should be careful, however, with any employee expressing workplace safety concerns, as OSHA protects employees who raise such concerns from retaliation. In other words, employees cannot be disciplined for raising such concerns. This is different than not allowing an employee who refuses to be vaccinated to work, as the latter is a safety consideration, not a disciplinary one.

If there is a group of employees expressing concerns about a vaccine mandate – or concerns that an employer is not mandating the vaccine for all employees – this would likely be considered protected concerted activity under the National Labor Relations Act. This does not mean that the employer must yield to their objections, just that those employees may not be disciplined or terminated for merely voicing the concerns.

To the extent that employees are expressing concerns about a vaccine mandate as a political matter, some states have laws that protect legal off-duty political activity. But off-duty laws do not protect workplace activity.

Q: How Can Employers Build Confidence in Vaccinations? (Added 6/2/21)

A: The CDC sets forth steps to build worker confidence in the vaccine, the vaccine providers, and the processes by which the vaccine was developed, authorized, manufactured and used:

  • Encourage company leaders to be vaccine champions.
  • Communicate transparently to all workers about vaccination.
  • Create a communication plan to share key messages, including the protection of workers and their families, through various channels like posters and emails.
  • Provide regular updates on the benefits, safety, side effects, and effectiveness of the vaccine.
  • Celebrate the decision to be vaccinated, through stickers, selfies, and other visible means.

Q: Must Unionized Employers Bargain Over Vaccine Policies? (Updated 12/2/21)

A: Yes, vaccination policies are mandatory subjects of bargaining, absent contractual authority granting unilateral employer implementation or extra-contractual evidence of a union waiver of its right to bargain over the policy.

A unionized employer should first look to its CBA to determine whether it may unilaterally implement a mandatory vaccination program without first notifying and bargaining with the union.  If no contractual authority exists, the employer should review any past practice of implementing or altering vaccination programs.  Even if the employer is privileged to act unilaterally, either via an expansive management rights clause or a previous waiver-by-inaction on the union’s part, the employer must remain mindful of its obligation to bargain over the effects of its decision to implement a mandatory vaccination program, if requested to do so by the union. Employers should provide sufficient notice to the union before implementing vaccination policies to provide the union with time to bargain over the decision or effects of the mandatory vaccination program.

Q: May Employers Offer an Incentive to Employees to Encourage Vaccination? (Updated 11/2/21)

A: Generally, yes, although the permissible type and amount of incentive may vary depending on the employer’s vaccination program.

In its updated guidance, the EEOC has set forth guidelines on permissible incentives under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

Employers may provide a limited incentive to employees receiving a vaccine through an employer-administered program. Such a program involves the employer asking screening questions. Under the ADA, the incentives cannot be so large as to pressure employees to reveal their medical information in response. The screening questions do not require genetic information, so GINA does not apply.

Employers may not provide any incentive to employees for family members receiving a vaccine through the employer-administered program. GINA prohibits employers from requesting employee genetic information, which may be revealed by family medical information, and vaccination screening questions solicit the family member’s medical information.

Employers may provide an unlimited incentive to employees who provide proof that they received a vaccine from a community provider (e.g. health department, pharmacy, health care provider, etc.). Because the employer is not asking screening questions, the concerns about the coercive effect of a large incentive does not apply. Additionally, because requiring proof of vaccination is not a medical inquiry under the ADA and does not solicit genetic information under GINA, giving an incentive for providing such proof does not implicate either law.

The DOL has stated that vaccine incentive payments are not included in the calculation of non-exempt employees’ regular rate for purposes of determining overtime pay rates.

Employers should consult with counsel before implementing such incentives.

Q: How Else May Employers Encourage Employees to Become Vaccinated? (Updated 6/2/21)

A: The CDC suggests that employers host a vaccination clinic in the workplace, during work hours and at no cost to employees, and refers employers to local health departments for further guidance, along with its Guidance for Planning Vaccination Clinics Held at Satellite, Temporary, or Off-Site Locations and Resources for Hosting a Vaccination Clinic. If a workplace vaccination clinic is not possible, the CDC also recommends: allowing employees to take paid leave to get a vaccination elsewhere; supporting transportation to off-site clinics; displaying posters/flyers in breakrooms, lunchrooms and high-traffic areas with information about vaccine clinic locations in the community; use company communications (e.g. emails, newsletters, intranet, portals) to inform employees about the importance of vaccinations and where to obtain them.

Many of these recommendations are echoed by the EEOC. Some additional recommendations from the EEOC include the following:

  • To help employees identify vaccination locations, the EEOC notes there are helpful websites, includinggov and through local health departments.

Employees with little or no English-speaking skills may require assistance to obtain the vaccine, such as through the CDC’s hotline: 800-232-4636; TTY 888-232-6348.

Q: What Vaccine Resources Has the CDC Provided to Employers? (Updated 6/2/21)

A: The CDC has provided Frequently Asked Questions and created toolkits for employers of essential workers, medical centers/clinics/clinicians, and long-term care facilities, although the resources are certainly applicable to employers generally. The toolkits contain FAQs for employers and employees, sample communications, posters, social media content, and more. The CDC has also issued guidance on workplace vaccination programs that reiterates and expands upon prior guidance on this topic, with the intent of increasing vaccine uptake among essential (and other) workers.

Q: What Is the Workplace Impact of the CDC’s Rules About Vaccinated Individuals? (Updated 1/19/22)

A: The CDC has issued guidance on the activities in which fully-vaccinated individuals (meaning at least two weeks are the second/only required shot for the vaccine in question) may engage, and more recently updated its isolation and quarantine guidance. The CDC recommends that, in areas of substantial or high transmission rates, fully-vaccinated individuals wear a mask in indoor public settings.  Additionally, an employer may establish stricter protocols than recommended by CDC or OSHA. But based on the CDC’s guidance on vaccinated individuals, employers could take the following approach to workplace mandates:

  • Workspace generally: Most workplaces will have a mix of vaccinated and unvaccinated individuals. In areas of high or substantial transmission, where the workplace is also accessible to the public, the CDC recommends that all employees as well as vendors, clients or other visitors be masked regardless of vaccination status.

Otherwise, in areas of low or moderate transmission or in non-public workspaces, vaccinated employees need not wear masks or observe social distancing protocols. However, even in these areas, the CDC still says that unvaccinated employees should continue to maintain all COVID-19 protocols generally, including masking and distancing. Additionally, in these areas, if all employees in a particular enclosed and non-public workspace are vaccinated, those employees need not wear masks or stay at least six feet apart – unless there is a state or local masking mandate that still applies to the workplace (or indoor spaces, more generally). Vaccinated vendors, clients or other visitors to the workplace also need not wear a mask, while unvaccinated ones should continue to do so.

  • Small group meetings: If all participants in a non-public, small group meeting have been vaccinated, they need not wear masks or stay at least 6 feet apart during the meeting. Although the CDC guidance permits vaccinated individuals to be within 6 feet of unmasked, unvaccinated ones, the guidance for unvaccinated individuals continues to emphasize the need for a mask and distancing, apparently even from vaccinated individuals. The best practice would be to require unvaccinated employees to continue to wear a mask when meeting with their vaccinated, mask-free colleagues.
  • Outdoor work: Fully vaccinated employees working outdoors need not wear masks or socially distance from other employees, regardless of how many people are around or the transmission rate in their area. Again, unvaccinated employees should continue to mask, socially distance (where possible) and avoid large groups.
  • Lunchrooms: If fully vaccinated employees wish to eat together, they can be permitted to do so. Arguably, unvaccinated colleagues could join them, although the CDC guidance for those individuals is to continue to observe measures such as masking and social distancing.
  • Business travel: Employers can allow fully-vaccinated employees to resume business travel, both domestic and international. Domestic travelers need not test before or after travel, while international travelers must be tested before returning to the U.S., with testing recommended 3-5 days following return. Both domestic and international travelers need not quarantine following travel.  Be aware that there may be additional testing and quarantine requirements imposed by the travel destination or local/state mandates, however. Employers should continue to try to minimize any required travel for unvaccinated employees. Moreover, employers should be thoughtful in responding to employee concerns about required travel – particularly for older employees or those with underlying health conditions, even if they have been fully vaccinated.
  • Exposure to COVID-19: The CDC states that fully-boosted individuals or those who have recovered from COVID-19 within the past 90 days need not quarantine if they come into close contact with a COVID-19 positive individual.  These individuals should still monitor for symptoms and should wear a mask for 10 days following exposure. Those who had COVID need not test, while the others should test at least 5 days after exposure.  All other individuals should quarantine for at least 5 days, with testing after 5 days, and wear a mask for another 5 days after release from quarantine.
  • Symptomatic Employees and Those Testing Positive: Because the vaccine is not 100%, some vaccinated employees will still get COVID-19. Of course, if any employee develops symptoms of COVID-19 following exposure, they should isolate in accordance with the CDC’s guidelines, seek a medical evaluation, and be tested. Those testing positive should isolate. Employees with symptoms or who have tested positive may be able to work remotely, or may need leave. If sick leave is available or mandated by state or local they will be entitled to take such leave during the isolation period.
  • Reasonable accommodations: Vaccinations do not eliminate the need to provide reasonable accommodations, if the employee has a disability. Thus, for example, employers should not be quick to assume that an employee with a condition that put them at higher risk of serious illness from COVID-19 no longer needs to telework following vaccination. Reasonable accommodations should always be considered on a case by case basis, and a disabled employee may still need to telework following vaccination, if the medical provider supports that requirement.

THE VACCINATION AND TESTING EMERGENCY TEMPORARY STANDARD FOR EMPLOYERS WITH 100+ EMPLOYEES (Added 12/2/21)

Q: What Is The Vax-or-Test ETS? (Added 12/2/21)

A: The federal Occupational Safety and Health Administration has now issued the Emergency Temporary Standard (ETS) implementing President Biden’s September 9, 2021 COVID-19 Action Plan that requires employers with 100+ employees (1) to mandate vaccinations or weekly testing/face coverings for their workforce and (2) to provide paid time off to get vaccinated and recover from any adverse effects. Although the ETS is effective upon publication in the Federal Register on November 5, 2021, employers were initially given until December 6, 2021 to come into compliance with everything but the testing requirement, which has a compliance date of January 4, 2022. The ETS will likely be in effect for six months.

At this time, however, the ETS is stayed, as explained further in the next Q&A.

Q: What Is The Status of the ETS? (Added 1/19/22)

A: On January 13, 2022, the U.S. Supreme Court issued a stay of the ETS, pending resolution of the merits of the challenges by the U.S. Court of Appeals for the Sixth Circuit. This means the ETS is currently not in effect. 

Q: What About Conflicting State/Local Laws/Orders? (Added 12/2/21)

A: OSHA is quite clear that the ETS preempts all state or local laws or orders to the contrary.

Q: Which Employers Are Covered by the ETS? (Added 12/2/21)

A: The ETS applies to employers with 100 or more employees – but not workplaces covered either by the vaccination Executive Order appliable to government contractors or by the healthcare employer ETS (both of which are discussed in other Q&As).

With regard to whether an employer meets the 100-employee threshold, the ETS states as follows:

  • Company-wide, regardless of location. Employees are counted company-wide, not by individual location. This includes remote employees and those working outside.
  • Regardless of hours worked. All employees are counted: full-time, part-time, temporary, and seasonal.
  • As of November 5, 2021 – or when there are 100 employees. The count is made on the effective date of the ETS. If an employer subsequently crosses the 100-employee threshold, they become covered by the ETS on that date. However, if a covered employee drops below 100 employees, they continue to be covered by the ETS while it remains in effect.
  • Not counted. Host companies do not count independent contractors or contractor employees, staffing agency employees, or employees of other employers at the same worksite.

Q: Which Employees Are Covered by the ETS? (Added 12/2/21)

A: While generally employees in the workplace are covered (certainly those who come into the workplace at least once every seven days), not all of an employer’s employees are necessarily covered by the ETS or are subject to all the requirements.

  • Prior COVID-19 infection. Those individuals are not considered vaccinated and are still subject to the ETS’ requirements. They should not be tested for 90 days following their positive test result or diagnosis, however. They must comply with testing/face covering requirements.
  • Fully remote employees. Those who work from home or somewhere where they do not interact with others are not covered by the ETS. If they occasionally come into the workplace, however, they must be tested within 7 days prior to entry and provide documentation of a negative result, as well as comply with the face covering requirement.
  • Outdoor employees. Those working exclusively outdoors are not covered by the ETS.

Q: What Is The New Vaccination-or-Test Rule? (Added 12/2/21)

A: Covered employers must require either vaccination or weekly testing/face coverings for their covered employees. Although the ETS sets forth a vaccination-or-test requirement, employers may choose to implement a vaccination-only mandate (subject to medical and religious exemptions). They may also mandate vaccinations for certain groups of employees (e.g. those directly interacting with the public or working in close contact with others) and not others.

If the employer chooses not to impose a vaccination mandate, they must require employees who are not fully-vaccinated to undergo weekly testing and wear face coverings in the workplace.

Q: What Is Fully-Vaccinated? (Added 12/2/21)

A: “Fully vaccinated” means two weeks after the second dose of a two-shot regimen or the only dose of a single-shot regimen of an approved vaccine. Booster shots are not required in order to be fully-vaccinated.

Q: What Are the Acceptable Vaccines? (Added 12/2/21)

A: The acceptable vaccines are those:

  • Approved or authorized for emergency use by the FDA;
  • Listed for emergency use by the World Health Organization (WHO); or
  • Administered as part of a clinical trial (including of WHO emergency-use vaccines) at a U.S. site, as long as they received the active (not placebo) COVID-19 vaccine candidate, and the vaccine’s efficacy has been independently confirmed (e.g., by a data and safety monitoring board).

“Mix-and-match” vaccinations, meaning any combination of two doses of an FDA- or two doses of a WHO-approved COVID-19 vaccine, are also acceptable.

Q: What Is Proof of Vaccination Status? (Added 12/2/21)

A: Employers are required to maintain records of each employee’s vaccinated status and a roster of all employees, showing their vaccination status. The employer must keep a physical or digital copy of the documentation. OSHA lists the following as acceptable proof:

  • the record of immunization from a health care provider or pharmacy;
  • a copy of the U.S. COVID-19 Vaccination Record Card;
  • a copy of medical records documenting the vaccination;
  • a copy of immunization records from a public health, state, or tribal immunization information system; or
  • a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). (Note that all this information should also be reflected in the above-listed forms of proof).

Although the ETS does not require employers to monitor for or detect fraud, they must notify employees that there are criminal penalties under the OSH Act for knowingly providing false statements or documentation.

Q: What If The Employee Lost Their Proof of Vaccination? (Added 12/2/21)

A: If an employee has lost their card or other proof of vaccination, they should first contact the vaccination provider to obtain a replacement or utilize the state health department’s immunization information system. (And it is our opinion that an employer can require the employee to go on the system to obtain the verification of immunization).

If they have no other means to obtain proof of vaccination, they may attest to their vaccination status. The circumstances under which this applies should be quite limited – OSHA gives examples of migrant workers, those without access to a computer, and those who cannot remember their provider (because it was at a temporary location, like a church). The signed and dated attestation must include the following:

  • Attest to their vaccination status (fully vaccinated or partially vaccinated);
  • Attest that they have lost or are otherwise unable to produce proof required by the standard;
  • Include the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”; and
  • Include the following information in their attestation: the type of vaccine administered; date(s) of administration; and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

Q: What Is The Vaccination Roster Requirement? (Added 12/2/21)

Employers must maintain a roster of all employees, showing whether they are or are not fully-vaccinated. The roster must list all employees and clearly indicate for each one whether they are fully vaccinated, partially (not fully) vaccinated, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated because they have not provided acceptable proof of their vaccination status.

The proof of vaccination and the roster are confidential medical records that must be maintained in a secure file, separate from employee personnel files, and accessible only to those with a need to know.

Q: What Is The Mandatory Vaccination Policy Requirement? (Added 12/2/21)

A: OSHA requires employers to implement either a policy requiring vaccination or one that requires testing/masking for unvaccinated employees. If an employer chooses to implement a policy requiring vaccination of all employees, the mandatory vaccination policy must be in writing and should contain the following provisions:

  • Requirement for COVID-19 vaccination and to whom it applies;
  • Applicable exclusions from the vaccination requirement (e.g., medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs);
  • Information on determining an employee’s vaccination status and how this information will be collected;
  • Paid time and sick leave for vaccination purposes;
  • Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace;
  • Masking and testing requirements for those unable to be vaccinated;
  • How information is to be provided to employees;
  • The policy’s effective date;
  • Deadlines (e.g., for submitting vaccination information, for getting vaccinated); and
  • Procedures for compliance and enforcement, which would include disciplinary action for employees who do not abide by the policy.

Q: What Are The Required Exemptions From A Vaccination Mandate? (Added 12/2/21)

A: Those who fall into one of three categories are exempt from a vaccination requirement, although they must comply with the testing and face coverings requirements discussed below:

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

Q: What Do Employers Do About Non-compliant Employees? (Added 12/2/21)

A: Employers may take disciplinary action – up to and including discharge – for employees who refuse to comply with a mandatory vaccination requirement.

We note that in the context of the guidance on the separate vaccination mandate applicable to federal contractors, the government offered its own protocol as an option for how to address non-compliant employees, which other employers may find useful:  a limited period of counseling and education, followed by additional disciplinary measures, thereafter resulting in removal for continued non-compliance.

Q: What Is The Testing Requirement? (Added 1/19/22)

A: Employees who are not vaccinated – including those with medical or religious exemptions – were supposed to undergo weekly testing starting January 4, 2022. That requirement is stayed at the current time.

Q: Do Employers Have to Pay for the Costs of the Tests? (Added 12/2/21)

A: Employers do not have to pay for the cost of the test under the ETS, but other federal or state laws may require payment for the tests. For example, the ADA requires employers to pay for the costs of reasonable accommodations for employees with disabilities, absent an undue hardship, including a disability requiring a vaccine exemption – presumably that would include the costs associated with testing. State laws may also require employers to pay for the costs of the tests or more generally for business expenses, which would include testing costs. Regardless, employers may choose to pay such costs.

Q: Do Employers Have to Pay for Testing Time? (Added 12/2/21)

A: Unfortunately, the ETS does not address whether the employer must pay for the time that an employee spends being tested. The DOL has stated that it will be updating its guidance to address this issue. But in the meantime, we need to look to other laws and guidance on this issue.

If the testing is being done during the workday, the time is compensable, as the DOL previously stated in guidance that it issued early on in the pandemic.

If the testing is done while off-duty, the DOL’s guidance states that it is compensable if “the testing is necessary for [the employees] to perform their jobs safely and effectively.” The DOL gives the example of the grocery store clerk with significant interaction with the public. Given that the ETS does not require employers to pay for the costs of the tests themselves, (and in fact OSHA states it does not believe it is appropriate to impose such costs on employers for employees who choose a less protective measure) we believe that employers likely need not pay for off-duty testing time for employees whose jobs do not require close interaction with those whose vaccination status is unknown.

State laws may also require payment for time spent at the employer’s direction, or at the employer’s workplace (if tests are conducted there). And if the test is being provided in connection with a medical exemption under the ADA, the employer is responsible for all costs associated with the accommodation that do not pose an undue hardship, which may include payment for testing time.

Q: What Are Acceptable Tests? (Added 12/2/21)

A: Any FDA-approved/authorized/cleared viral test is acceptable. The test must be administered in accordance with the instructions. But self-administered and self-read tests are not acceptable, unless they are observed by the employer or a telehealth proctor. This means at-home tests will not be permitted, unless they are done in the presence of an employer-representative or telehealth proctor.

Pooled specimen testing (running a single test on combined specimens, with individual follow up in the case of a positive result) is permitted.

Q: What Should Employers Do With The Test Results? (Added 12/2/21)

A: Employers must keep copies of each employee’s test results while the ETS is in effect. The results are confidential medical records that must be retained in a secure file, separate from the employee’s personnel file, and accessible only to those with a need to know. Employees may access their own test results by the end of the next business day following their request.

Q: What Is The Requirement Regarding Removal from the Workplace? (Added 12/2/21)

A: Employees are required to notify their employer promptly of a positive test result and must be removed from the workplace. Employees testing positive cannot return until they meet the CDC’s criteria for release from isolation, meet certain testing criteria, or are released to return to work by their health care provider.

Unvaccinated employees who come into close contact with a COVID-positive individual do not need to be removed from the workplace under the ETS.

Q: Must The Employer Provide Paid Leave for a Positive Test Result? (Added 12/2/21)

A: The ETS does not require an employer to provide paid leave to employees testing positive who are unable to work remotely. Employees may be entitled to paid leave (whether general sick or COVID-specific) under employer policy, or local or state laws.

Q: What Is The Face Coverings Requirement? (Added 12/2/21)

A: In addition to being tested on a weekly basis, employees who are not fully-vaccinated must also wear face coverings indoors or when in a vehicle with another person for work-related reasons. Employers may not preclude employees, customers and visitors from wearing face coverings if they wish to do so.

These must completely cover and fit snugly over the nose and mouth, consist of at least two layers of tightly-woven but breathable fabric, and not have any slits, valves or other openings. Clear face coverings that otherwise meet these criteria are also permitted where necessary to facilitate communication.

Face coverings are not required when those who are not fully-vaccinated are alone in an enclosed room, they are eating or drinking (briefly), the covering must be briefly removed for identification purposes, the face covering creates a hazard, or the employee is wearing a respirator/facemask.

Employers are not required by ETS to cover the cost of required face coverings; however, other federal, state or local laws may do so.

Q: What Is The Mandatory Paid Vaccine Leave Requirement? (Added 12/2/21)

A: The employer must provide reasonable time – up to four hours – during the employee’s work hours to get each dose of the vaccine (but not boosters). Only the actual time spent getting the vaccination is required to be paid. Employers cannot require employees to use existing paid leave for this purpose. But if an employee chooses to be vaccinated during off-duty time, the employer does not have to pay for that time.

As for adverse effects, an employer can require an employee to use existing and available sick leave, or if they only provide one type of leave (e.g. PTO), to recover from any adverse effects from vaccination. If employers provide different types of leave, they can only require employees to use sick leave – not the other non-sick forms of leave. And if there is no existing paid leave available, the employer must provide such new leave – up to two days per dose. They cannot require employees to “borrow” against future sick leave.

Q: What Is the Information Requirement for Employees? (Added 12/2/21)

A: Employers must provide employees with certain information about the ETS in a language and at an literacy level that the employee understands. This includes:

  • Information about the requirements of the ETS, and the policies and procedures used to implement the ETS.
  • A copy of the document, “Key Things to Know About COVID-19 Vaccines,” available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html
  • That the employer cannot discharge, discriminate, or retaliate against an employee for reporting work-related injuries or illness, or exercising rights under the ETS.
  • That OSHA provides for criminal penalties for knowingly supplying false statements or documentation.

The means of communication is flexible, depending on the workplace – such as email, printed fact sheets, or discussion at a team meeting.

Q: What Is the Reporting Requirement for COVID-19 Fatalities and Hospitalizations? (Added 12/2/21)

A: Employers must report to OSHA any work-related COVID-19 fatality within 8 hours of learning of it and any in-patient COVID-19 hospitalization within 24 hours of learning of it. Reporting may be done through the OSHA website or by calling OSHA.

Q: What Are the Penalties for Employers Who Fail to Comply? (Added 12/2/21)

A: OSHA has the authority to cite employers for failure to comply – for each instance and for each affected employee, where appropriate. OSHA also asserts that the ETS will facilitate its ability to find “egregious” and “willful” violations, subject to heightened penalties. At this time, the penalty for serious and other-than-serious violations is $13,653 per violation, while willful or repeated violations can be up to $136,532 per violation.

Many employers are concerned about the availability of testing, as well as delays in results. OSHA asserts that there should be sufficient testing capability to meet employer needs. But if the employer is unable to comply with the testing requirement because of test supply or lab capacity, OSHA will look at whether the employer has made good faith efforts to comply.

Q: What Are the Bargaining Obligations for Unionized Employers Regarding the ETS? (Added 12/2/21)

A: On November 10, 2021 National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum expressing her office’s views concerning employer bargaining obligations related to the ETS. Where the ETS provides an employer with discretion concerning implementation of the ETS, the employer will have a decisional bargaining obligation. In addition, an employer may have an effects bargaining obligation over aspects of its implementation of the ETS where it may be excused from a decisional bargaining obligation – because, for example, the CBA’s management rights clause gives the employer unilateral authority on the subject, or because changes in the law require the employer’s compliance. For example, if an employer requires vaccination, how the employer will treat unvaccinated employees – e.g., unpaid administrative leave until a date certain after which termination occurs – is one such subject that could be dealt with during effects bargaining.

VACCINATION AND OTHER REQUIREMENTS FOR FEDERAL CONTRACTORS AND SUBCONTRACTORS (Added 11/2/21)

NOTE THAT THE EO IS CURRENTLY STAYED AND IS NOT IN EFFECT PENDING LITIGATION.

Q: What Are The Vaccine Requirements For Federal Contractors? (Updated 1/19/22)

A: Following an earlier order that onsite federal contractor employees were subject to a vaccination-or-testing requirement, President Biden has now expanded the vaccination requirement. On September 9, 2021, he issued an Executive Order requiring that certain contracts that are renewed, extended or entered into after October 15, 2021 must contain a clause that mandates contractor/subcontractor compliance with Guidance from the Safer Federal Workforce Task Force. This Guidance requires all contractor/subcontractor employees at covered locations to be vaccinated, subject to legally required exemptions and absent an undue hardship. It also requires compliance with masking and distancing protocols, and for the contractor/subcontractor to designate a workplace safety coordinator. Each of these requirements is discussed further below.

Q: What Is The Status of the Contractor Vaccination Mandate? (Added 1/19/22)

A: The EO has been subject to legal challenges. At this time, a federal court has issued a stay of the EO, meaning that it is not currently in effect.

Q: Who Must Comply With The Guidance? (Added 11/2/21)

A: Not all contractors are covered by the Guidance. First, the Guidance applies to certain contracts that are renewed or extended on or after October 15, 2021 and to new contracts awarded on or after November 14, 2021. Note that the agency should notify the contractor if it is subject to this Guidance. Federal agencies are also encouraged to incorporate the Guidance’s requirements into other contracts and have been actively seeking to do so – so contractors should pay attention to any changed requirements from their contracting agencies, particularly with regard to contracts that are entered into, renewed or extended before the October 15 date. This is also true with regard to those contracts that are not otherwise covered by the EO.

Those with existing, unmodified federal contracts are not subject to this Guidance but will continue to be subject to the vaccination-or-test protocol previously established.

The Guidance also applies to all lower-tier subcontractors, except for those who are only providing products. The contractors must ensure that it incorporates a clause requiring compliance with the Guidance in its contracts with its direct subcontractors, who are then required to incorporate the same clause in lower level subcontracts. Contractors may assume subcontractor compliance with the requirements, unless they have creditable evidence otherwise.

Q: Which Employees and Locations Are Covered by the Guidance? (Added 11/2/21)

A: All employees working on or in connection with (this includes those whose services are indirectly necessary to the performance of a contract – such as human resources, billing, and legal review) a covered contract and all employees working at the contractor’s workplace.

The workplace is any location where the employee(s) working on or in connection with a contract are likely to be present, including outdoor locations, but does not include employees’ homes.

The Guidance specifically provides that if a covered employee works only in one area of a building, or one building in a series of buildings, the entire building, facility or site is still covered unless the contractor can establish that none of their other employees will come into contact with the covered employee during the contract period in any common area, including lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.

Q: What About Corporate Affiliates? (Added 12/2/21)

A: If companies are considered corporate affiliates because one controls or has the power to control the other, or another company controls both, then employees of the affiliate will be considered covered employees if they perform work at a covered contractor workplace. In addition, the affiliate’s workplace will be considered a covered contractor workplace if a contractor employee performs work there. In other words, affiliate employees in a shared workplace will be covered by the Guidance’s requirements.

Q: What’s the Vaccination Requirement? (Updated 1/19/22)

A: Originally, all covered employees were required to be fully-vaccinated by December 8, 2021. This was extended so that the second or only vaccination shot must be received by January 4, 2022 (meaning that the employee will be considered fully-vaccinated as of January 18, 2022). However, the EO is now stayed, meaning that the deadline is no longer in effect.

Those who previously had COVID-19 are still required to be fully-vaccinated. The requirement also applies to employees working remotely on a covered contract (although the rest of the Guidance’s requirements for workplaces, such as masking and distancing, do not apply to them). After January 18, employees must be fully-vaccinated by the first day of performance on the covered contract.

“Fully-vaccinated” means two weeks after the second dose of Pfizer-BioNTech or Moderna, or two weeks after the single dose of Johnson & Johnson/Jannsen. The Task Force also states that certain clinical trial participants may also be considered fully-vaccinated.

Employers do not need to provide onsite vaccinations, but should inform their employees of convenient vaccination options.

Q: Are There Exceptions to the Vaccine Requirement? (Added 11/2/21)

A: Contractor employers must provide exemptions as reasonable accommodations for employees with disabilities or religious needs, to the extent that such exemptions do not pose an undue hardship. If the agency is a joint employer with the contractor of the employee in question, both will be responsible for reviewing and assessing the request for accommodation. (This also applies to any request for a medical or religious exemption to the masking requirement, discussed below).

The CDC recognizes only two medical contraindications to the COVID-19 vaccine: (1) severe allergic reaction to a previous dose or a component of a COVID-19 vaccine; or (2) immediate allergic reaction of any severity to a previous dose or a known allergy to a vaccine component. The Task Force notes that even if an individual is allergic to one component, they may not be allergic to all components in other COVID-19 vaccines.

If an employee’s accommodations request for an exemption to the vaccine requirement is denied, the contractor must set a timeline for the employee to promptly become fully-vaccinated.

If unable to be vaccinated because of an exemption, the individual may be prohibited from performing work at government locations if the agency finds no safety protocol other than vaccination is adequate for the job responsibilities. Contractors must still meet their contractual requirements, however.

Q: Can The Vaccination Requirement Be Delayed For Certain Employees? (Added 11/2/21)

A: The Guidance states that, based on “urgent, mission-critical need,” agency heads may approve exceptions to the fully-vaccinated requirement for contractor employees, but that the contractor must ensure that such employees are fully-vaccinated within 60 days of commencing work on the contract or at a covered workplace, and that they comply with masking and distancing requirements.

Even where the employee does not legally qualify for a medical exemption, there may be some limited circumstances in which the contractor may grant an extension to the vaccination deadline based on a documented medical necessity (e.g. the CDC recommendsdelaying COVID-19 vaccination for at least 90 days after receiving monoclonal antibodies or convalescent plasma for COVID-19 treatment).

The CDC recommends delaying (but not excusing) vaccination in the following circumstances, recognizing that there may be other clinical considerations supporting a delay: current COVID-19 infection; multisystem inflammatory syndrome in adults (MIS-A); monoclonal antibody or convalescent plasma treatment for COVID-19 infection; immunosuppressive therapies; and myocarditis or pericarditis.

Vaccination is recommended for pregnant individuals and those trying to get pregnant. The Task Force, however, states that a contractor may allow a delay based on the employee’s particular medical circumstances, consistent with its process for reviewing delay requests.

The contractor should require full vaccination promptly after clinical considerations no longer recommend delay. During the delay, the individual must follow all masking and distancing requirements for unvaccinated individuals.

COVID-19 vaccination should not be delayed based on the receipt of other vaccines.

Q: What Should Employers Do If An Employee Refuses To Be Vaccinated? (Updated 1/19/22)

A: At this time, given the stay, employers need do nothing. But if they have chosen to move forward with a mandate, if an employee refuses to comply with the vaccination requirement, absent an authorized exemption or delay, the employer determines the appropriate means of enforcement. They are not necessarily required to terminate the employee as of that date (although they can choose to do so, or to place the employee on an indefinite leave pending compliance or removal of the vaccination requirement). The Safer Federal Workforce Task Force’s FAQs for contractors state that employers can rather use their usual process for enforcement of workplace policies, as set forth in a handbook or collective bargaining agreement.

The Task Force also offers the process being followed by the federal agencies as an example of a process that the contractor could choose to follow: a limited period of counseling and education, followed by additional disciplinary measures, thereafter resulting in removal for continued non-compliance.

Notably, the employee may continue working during this process, but must comply with safety protocols for unvaccinated individuals (e.g. masking, distancing, etc.). The Task Force also notes that, during the process in some cases, such unvaccinated individuals may be denied entry to a federal workplace, consistent with that agency’s safety protocols.

Q: What Is Acceptable Proof of Vaccination? (Updated 1/19/22)

A: The Guidance lists the following, which may be provided in digital format (e.g. digital photograph, scanned image, or pdf):

  • a copy of the record of immunization from a health care provider or pharmacy,
  • a copy of the CDC’s COVID-19 Vaccination Record Card
  • a copy of medical records documenting the vaccination,
  • a copy of immunization records from a public health or State immunization information system, or
  • a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine

An employee’s attestation of vaccine status or an antibody test is not acceptable. If an employee loses their vaccination record, they should contact their vaccination provider site for a copy. They may also contact their State or local health department’s immunization information system (IIS) for assistance and their State or local health department for further questions.

If a contractor can legally access an employee’s vaccination records, the employee does not need to then provide separate proof of vaccination

As of January 18, 2022, those onsite vaccinated employees will need to show only their government-issued personal identity verification (PIV) card. Employees who are not vaccinated must be able to provide proof of a negative COVID-19 test within the 3 days prior to entering the federal location (unless they are tested through the agency’s testing program).

Q: What Are the Masking/Distancing Requirements? (Added 11/2/21)

A: Fully-vaccinated employees need not physically distance. In areas of low or moderate community transmission, they need not mask. In areas of substantial or high transmission, however, they must mask while indoors. Any increase in the transmission level requires an immediate change in protocol, while reduction in the community transmission level must be in place for two weeks before a change may be implemented.

Those who are not fully-vaccinated must mask while indoors. They must also mask outdoors in crowded settings or where they will be in sustained close contact with other unvaccinated individuals. At all times, they must physically distance from others to the extent possible.

Exceptions to the masking requirement are permitted consistent with CDC guidance, which includes:

  • when an individual is alone in an office with floor to ceiling walls and a closed door
  • for a limited time when eating or drinking and maintaining appropriate distancing
  • when engaging in activities in which a mask may get wet
  • when unable to wear a mask during high intensity activities because of difficulty breathing; or activities for which wearing a mask would create a risk to workplace health, safety, or job duty as determined by a workplace risk assessment

The exceptions must be approved in writing by an authorized employer representative. In addition, contractor employers may need to provide an exemption to the masking requirement as a reasonable accommodation for medical or religious needs, unless that poses an undue hardship.

Employees may briefly lower their masks for identification purposes.

Q: What Is the COVID Workplace Safety Coordinator Requirement? (Added 11/2/21)

A: Contractors must designate one or more persons to coordinate implementation of and compliance with the Guidance, including the vaccination documentation requirement. The coordinator must also ensure that the protocols are communicated in a readily understandable manner to contractor employees and others present in the workplace. This can be done by email, websites, memoranda, flyers, or posting signage.

Q: What If There Are Conflicting State or Local Requirements? (Added 11/2/21)

A: The Guidance specifically states that it “supersede[s] any contrary State or local law or ordinance,” including those that seek to prohibit compliance with any of the protocols in the Guidance.

Several states have already filed legal challenges to the Executive Order, however. Unless and until a court sustains such a challenge and enjoins the Order/Guidance, contractors must comply with the requirements.

Q: How Does This Interact With Other Workplace Safety Standards? (Added 11/2/21)

A: Contractors must comply with these requirements regardless of whether others (like the forthcoming OSHA Emergency Temporary Standard) also apply.

Q: Will the Guidance Be Updated? (Added 11/2/21)

A: Yes, if circumstances change. Covered contractors will be required to comply with any revised guidance immediately.

TELECOMMUTING

Q: Should Employers Permit Employees To Work Remotely?

A: Employers must assess their ability and capacity to permit remote work. Employers should test their capabilities for remote work as soon as possible. Permitting employees to work remotely is a good option where feasible. Doing so will also reduce the risk of creating an unsafe work environment as such employers will be following the guidance of public health officials. If remote work is permitted or required, employers should consider the following:

  • Whether employees have the necessary equipment and remote access
  • Security considerations for company equipment and information.
  • Whether employees have a safe work environment at home. While OSHA does not govern home workspaces, any illness or injuries resulting out of telework may be subject to the reporting requirement under OSHA.
  • Workers’ compensation may apply to illnesses or injuries suffered in the course of teleworking.
  • Establish clear expectations regarding schedules, availability, and modes of communication.

Reinforce that employees are expected to maintain productivity and quality standards while working remotely.

Q: Must Employers Cover Equipment Costs For Telecommuting Employees?

A: Employers should consider providing remote work equipment to their employees, or reimbursing employees for the necessary equipment. Federal law does not require reimbursement, however employers must reimburse employees to the extent such costs brings a non-exempt employee’s wages below minimum wage. As to exempt employees, requiring them to bear the cost or deducting such costs from their salary would violate the salary basis requirement, and thus the employer should cover any related telecommuting costs for these employees. Employers must also be mindful of state laws addressing reimbursement of business expenses, as some states require employers to cover any such costs.

Additionally, if remote work equipment is considered a reasonable accommodation under the ADA, the employer must cover the expenses. Similarly, the ADA requires that reasonable accommodations be provided to enable disabled employees to enjoy the terms and privileges of employment; so if the employer if the employer is permitting employees to telework, they may need to provide equipment to disabled employees that would allow them to work remotely.

Q: If Employers Permit Remote Work, Are They Setting A Precedent? (Updated 9/10/20)

A: The EEOC states that an employer that required its employees to telework is not automatically required to grant telework as a reasonable accommodation when the workplace reopens. Telework is not required if there is no disability-related need for telework, or if there is an effective alternative. Moreover, if the pandemic-related telework required the employer to excuse the performance of an essential job function, the employer need not continue excusing such performance, as that would not be a reasonable accommodation. A fact-specific inquiry as to what is reasonable is required.

If an employee had requested telework as a reasonable accommodation prior to the pandemic but was denied because of concerns that the employee could not perform their essential job functions remotely, their telework experience during the pandemic might be relevant to a renewed request for a telework accommodation. Essentially, the pandemic-related telework functions as a trial period to see if the employee can satisfactorily perform all their essential job functions while working remotely, and the EEOC states that employers should consider any new accommodations requests for telework “in light of this information.”

If an employer permits telecommuting where it would not generally do so, it should make clear that it is making such accommodations as a result of the extraordinary circumstances of COVID-19 and this does not serve as a precedent moving forward. Consider requiring employees to execute telework agreements that make clear that this is a temporary measure, and that teleworking full time does not permit the employee to perform all essential functions of the employee’s job, if in fact this is the case.

Q: How Do Employers Compensate Employees Working Remotely? (6/2/21)

A: In the context of the pandemic, the DOL has issued guidance on telework pay , which it updated in April 2021, reiterating that employers must pay for all hours worked, including hours not requested but “suffered or permitted” to be worked – meaning hours the employer knew or should have known about through reasonable diligence. However, employers are not required to pay for those hours worked that it did not know about and had no reason to know about: “[t]he reasonable diligence standard asks what the employer should have known, not what it could have known.”

Thus, non-exempt employees should accurately track their working time and be paid for all time spent working, in accordance with all federal, state, and local laws.  Employers should ensure that there is a means by which employees can easily record their time, whether electronically or even on paper.

Specifically as to telework, the DOL states: “One way an employer generally may satisfy its obligation to exercise reasonable diligence to acquire knowledge regarding employees’ unscheduled hours of work is by establishing a reasonable process for an employee to report uncompensated work time.” The employer, of course, cannot discourage accurate reporting under this process. It is also important that the employee knows that the process exists and how to use the process.

Notably, if an employee fails to report unscheduled hours worked through the procedure, the DOL specifically states that “the employer is generally not required to investigate further to uncover unreported hours.” Therefore, as a normal matter, the employer does not need to sort through all its records/data to determined hours worked. As the DOL states, “Though an employer may have access to non-payroll records of employees’ activities, such as records showing employees accessing their work-issued electronic devices outside of reported hours, reasonable diligence generally does not require the employer to undertake impractical efforts such as sorting through this information to determine whether its employees worked hours beyond what they reported.”

Unless a telecommuting employee is subject to a collective bargaining or other employment agreement, or telecommuting is being permitted as a reasonable accommodation under the Americans with Disabilities Act (ADA), the DOL states that an employer may reduce the pay of such non-exempt employees as long as they receive at least the applicable minimum wage rate.

Exempt employees must be paid their full salary if they perform any work during the workweek, which could involve tasks as minor as regularly checking email.

An employer may prospectively reduce the salary of exempt employees, including those who are able to telecommute, due to economic reasons related to COVID-19 or an economic downturn, as long as the employee continues to receive the required minimum weekly salary ($684).

In order to accommodate childcare needs, an employer that allows employees to telework with flexible hours during the COVID-19 emergency does not need to count as hours worked all the time between an employee’s first and last principal activities in a workday, as is typically required. Rather, only those hours actually worked need be paid – but the employee and employer should be very clear as to what the arrangement is.

Q: What Reasonable Accommodations Must Be Provided to Enable Disabled Employees to Telecommute? (Added 3/23/20)

A: Under the Americans with Disabilities Act, employers must provide reasonable accommodations to employees with disabilities to enable them to perform their essential job functions or to enjoy the privileges and benefits of employment. If the employee requires workplace accommodations, such as specialized equipment, the employer may need to ensure that the employee continues to have access to such accommodations when working at home. The employer should engage in the required interactive discussion to determine whether such at-home accommodations are reasonable under the circumstances.

The EEOC recognizes, however, that under the current circumstances, there may be delays in the normal interactive process. It encourages employers and employees to use interim solutions to enable the employees to continue working.

Q: Must Employers Extend Workplace Accommodations To Disabled Employees Who Are Now Telecommuting? (Added 9/10/20)

A: It depends. If an employer requires its employees to telework, an employee who receives workplace accommodations is entitled to reasonable accommodations while telecommuting. However, such accommodations may be the same or different from the workplace accommodations, depending on the particular situation. The EEOC acknowledges that accommodations that were feasible in the workplace may be an undue hardship in a telecommuting situation. In particular, the EEOC notes, “the fact that the period of telework may be of a temporary or unknown duration may render certain accommodations either not feasible or an undue hardship. There may also be constraints on the normal availability of items or on the ability of an employer to conduct a necessary assessment.” The EEOC encourages employers and employees to be creative and flexible, and to consider interim accommodations.

TRAVEL

Q: How Should Employers Handle Business Travel? (Updated 6/2/21)

A: The CDC has updated its guidance for fully-vaccinated individuals to allow them to resume travel, which would include business travel. For unvaccinated and partially-vaccinated employees, however, it is best practice, and may be mandated by state and local government, to avoid all non-essential business travel.  Employers should explore substitute options for travel, such as teleconferencing and video conferencing.

Employers can still require essential business travel for unvaccinated or partially-vaccinated employees at this time.  Employers should carefully decide what travel is essential.  They should, however, avoid requiring any business travel to all CDC Level 2/3 countries.

There are quarantine requirements for certain overseas travel that apply to unvaccinated/partially-vaccinated individuals, although not fully-vaccinated individuals. In addition, a number of jurisdictions are imposing quarantines for travel to certain states and areas with positivity levels exceeding a certain amount. Moreover, with regard to international travel the CDC is recommending getting tested 1-3 days before travel and again 3-5 days after travel, applicable regardless of vaccination status. States may also have testing requirements or recommendations. Please check for any applicable restrictions before requiring any travel.

Q: What If Employees Express Concern Regarding Travel? (Updated 6/2/21)

A: Assuming that travel is permitted by governmental authorities and/or the travel is deemed essential, if employees express concerns regarding the means of travel, or travel in and of itself, the employer should perform a risk assessment.  Assess the location of travel and means of travel.  Air travel will potentially pose a greater risk than driving.  Evaluate risk factors possessed by the employee such as vaccination status, age, pregnancy, underlying medical conditions, and mental health disorders.  Employers should assess whether ADA accommodations are available that pertain to travel.  If an employee, regardless of vaccination status, expresses concern regarding travel, evaluate other options such as teleconferencing, videoconferencing, or whether another employee can travel instead.

Q: Can Employers Place Limits On Personal Travel? (Updated 11/2/21)

A: Employers can require employees to report on personal travel and can require compliance with CDC travel restrictions, although this is likely unnecessary or unwarranted for fully-vaccinated individuals.  Whether other travel may be prohibited depends on state law.  Some states have legal off-duty conduct laws that prohibit employers from taking any adverse employment action based on such conduct, which would include travel. In states without such laws, employers may prohibit such travel by unvaccinated/partially-vaccinated workers and/or may take disciplinary or other action based on such travel.

Employers can and should require unvaccinated/partially-vaccinated employees traveling to CDC Level 2 or 3 countries or areas with positivity levels that exceed a particular percentage (often addressed by state emergency orders or travel advisories) to self-quarantine for 14 days or, if permitted by the local public health department, for 7 days with a negative test or 10 days without a test before return to work, even if the employee exhibits no symptoms. Moreover, the CDC is recommending getting tested 1-3 days before travel and again 3-5 days after travel, regardless of vaccination status. States may also have testing requirements or recommendations. At this time, many employers are taking the precaution of requiring self-quarantine for any travel by unvaccinated/partially-vaccinated workers, given the community spread occurring within the U.S.  If such self-quarantine is not required by the employer, it can still require employees who have traveled, regardless of vaccination status, to self-monitor and report any COVID-19 symptoms or exposure to COVID-19.

Employers may also require employees to get tested following travel, although the CDC no longer recommends such testing for fully-vaccinated individuals traveling domestically. The EEOC permits such testing before allowing an employee to return to work. Some jurisdictions also provide for testing in lieu of quarantine, in some cases after a several-day waiting period. However, the CDC notes that it can take up to 14 days for the infection to appear. That means that even after someone tests negative, even if they waited several days to do so, they may still test positive later.

As for what leave employees may take during any quarantine period, state and local COVID-19 leave laws may also apply to quarantine periods. If these COVID-19 leaves are not available, an employer could allow them to use whatever other accrued paid leave they have, although likely not sick leave since they are not actually sick – unless their doctor is recommending that they stay home.

Absent a doctor’s order that triggers the use of sick leave, employers may also state that employees must take the time off unpaid, even if they have accrued paid leave. A cautionary point about unpaid leave, however—under the FLSA, if exempt employees are ready, willing and able to work and do not work due to the employer’s directive, they must be paid their full salary in any workweek in which they perform work.  In that instance, requiring exempt employees to use available paid leave is a better option.

In addition, we believe that an employer may deny an unvaccinated/partially-vaccinated employee’s request for leave (during which the employee would travel) based on the negative impact on the business if the leave were to be granted – i.e. that following the leave, the employee would have to remain out of work for an additional 14 days (or, as permitted by a local public health department, for 7/10 days). This assumes, of course, that the employee could not telework during the quarantine period.

SCREENING AND TESTING EMPLOYEES AND OTHERS

Q: Can Employers Require An Employee To Notify Them If They Have Been Exposed To COVID-19, Have Symptoms, Or Tested Positive? (Updated 6/2/21)

A: Yes, such employees should be required to notify their supervisors if they are experiencing symptoms of or if they have been diagnosed with COVID-19. In addition, unvaccinated or partially-vaccinated employees can be required to report if they have been exposed to COVID-19. An employee with COVID-19 poses a direct threat to the health and safety of others, and therefore employers are entitled to know about any such diagnosis or exposure.

Q: What Restrictions Does The ADA Place On Employers’ Ability To Ask Questions About An Employee’s Health Or Medical Condition? (Updated 3/23/20)

A: The ADA restricts medical inquiries to those that are job related and consistent with business necessity. This standard is met if the employer has a reasonable belief that the employee poses a direct threat to the health or safety of the individual or others in the workplace.

Employers are generally prohibited from asking employees whether they have compromised immune systems or a health condition that would make them more susceptible to COVID-19. The EEOC has now announced, however, that the COVID-19 emergency constitutes a direct threat, as determined by the CDC and public health officials. Therefore, employers may ask employees whether they have compromised immune systems or chronic health conditions that makes them more susceptible to COVID-19. This information can be used for business planning purposes, in case these individuals are affected by COVID-19, but should not be used to force employees out of the workplace, as that may lead to a discrimination claim.

Q: Can Employers Ask Employees Whether They Have Been Experiencing Symptoms Of Illness, Been Diagnosed With Or Tested For COVID-19? (Updated 6/2/21)

A: Yes. The Equal Employment Opportunity Commission has released guidance with regard to the current COVID-19 pandemic, which also relies on their earlier pandemic guidance. According to the EEOC, asking about an employee’s symptoms is not a medical inquiry. Therefore, employers may ask if employees are experiencing symptoms of COVID-19.  In addition, The EEOC confirms that employers may ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19. This is to ensure the health and safety of others in the workplace. The EEOC states that employers generally are not permitted to ask such questions of teleworking employees who are not physically interacting with others. (One exception, of course, would be if an employee is requesting emergency paid sick leave under the Families First Coronavirus Response Act because they have been advised by a health care provider to quarantine or they are symptomatic and are seeking a diagnosis).

Employers may also ask a particular employee (as opposed to all employees generally) questions to determine if they have COVID-19 or require them to undergo screening or testing only where they have a reasonable belief based on objective evidence that the employee might have the disease.

Employers may not ask employees if a family member has COVID-19 or symptoms, as that would violate the Genetic Information Nondiscrimination Act’s prohibition on medical inquiries about family members. Employers are permitted to ask, however, if employees have had contact with anyone who has the disease or symptoms, although such questions may be less useful if the employee has been fully-vaccinated.

Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. COVID-19-related information may be retained in existing employee medical files; new COVID-19-specific files are not required. If managers are unable to follow the normal confidential information protocols while teleworking, they must ensure the confidentiality of records as much as possible, including by securing hard copy documents and limiting access to electronic records.

Q: May Employers Take Employees’ Temperatures To Determine Whether They Are Infected? (Updated 6/2/21)

A: While the EEOC takes the position that taking an employee’s temperature is generally an improper medical examination, under the current circumstances the EEOC has revised its guidance to state that employers may take do so during the COVID-19 pandemic, as the situation has risen to the level of a direct threat.  As a practical matter, employers may choose not to take the temperature of fully-vaccinated employees, although certainly they can be required to report if they have a fever or other symptoms of COVID-19.

As a practical matter, temperature readings are not always accurate.  Additionally, an individual with COVID-19 does not always have a fever or symptoms, so a temperature check may not be the most effective method to protect the workplace and it may instill a false sense of security amongst employees.

Note that OSHA recommends that employees conduct self-checks of their temperature at home, before reporting to work, in order to avoid bringing infection into the workplace. If an employer chooses to conduct temperature checks at the workplace should be aware of several issues:

  • Because temperature checks are a medical exam, they should not be conducted where those waiting for the checks can see them.
  • If employees are conducting the temperature checks, they must be provided with training and PPE to protect them from potential infection. In addition, they must be trained to treat the results as confidential medical information.
  • Employers who conduct daily temperature checks may retain a confidential log of the results. OSHA notes that employers who create records of health screening or temperature checks might be governed by the Access to Employee Exposure and Medical Records standard, which requires employers to retain such records for the duration of each worker’s employment plus 30 years, in addition to following confidentiality requirements. This requirement applies if the records are made or maintained by a physician, nurse, other health care personnel, or technician.

If thermal imaging devices are used, there may be biometric data concerns. Thermal imaging systems that use facial recognition may collect personal information that is regulated by privacy laws in various states. Many of these state laws, like Maryland’s Personal Information Protection Act, define “personal information” to include biometric data. These state laws generally require businesses collecting and storing personal information to notify all affected individuals in the event of a data breach. Some, like Illinois, may also require employers to provide notice and obtain consent to collect biometric data.

Q: Must Employees Be Paid for Time Spent Getting a Temperature Check? (Added 6/2/21)

A: The time spent performing a temperature check before an employee begins work may be compensable if it is necessary for the employee to perform their job. In addition, an employee must be compensated for any time required to undergo a temperature check or health screening during the workday.

Q: How Else Are Employers Permitted To Screen Employees To Protect Against COVID-19? (Updated 6/2/21)

A: Employers may conduct other non-medical screenings by asking employees about travel or close contact with an individual who has traveled to an area of outbreak.  Employers may also ask employees about possible exposure to COVID-19 or household members’ exposure to COVID-19.  Such questions, however, will likely not be necessary for fully-vaccinated employees.

When screening employees, exercise caution to ensure employees are not targeted for screening based on race or national origin.  Preventative measures and screening should be implemented and enforced uniformly and consistently.

Q: What May Employers Do If An Employee Refuses To Answer Questions Or Undergo Screening/Testing? (Added 9/10/20)

A: An employer may bar an employee from the workplace if they refuse to undergo screening or answer questions about testing, symptoms or infection with COVID-19. The EEOC recommends, however, that the employer ask about the reasons for the refusal, as the employer may be able to address the employee’s concerns about providing the information (e.g. privacy, needing accommodations for screening).

Q: Are Employers Permitted To Screen Visitors? (Updated 11/2/21)

A: Employment laws do not apply to visitors. Employers may conduct screening to determine whether a visitor has traveled to or had close contact with someone who has traveled to an area of outbreak. Employers may also ask about possible exposure to COVID-19, and whether the prospective visitor is experiencing symptoms of illness. Employers can ban all or some visitors from the workplace.

Note that some states prohibit businesses from requiring proof of vaccination from customers and other visitors to the workplace. Employers should check for any applicable state or local restrictions.

Q: Are Employers Permitted to Screen Applicants? (Updated 6/2/21)

A: According to the EEOC, employers may screen applicants for COVID-19 symptoms and exposure and take their temperature after a conditional offer of employment has been made, as long as it does so for all entering employees in the same type of job. Employers may also delay the start date, or even withdraw a job offer, if the applicant has COVID-19 and cannot start work immediately if required.

If an employer has a vaccine mandate, they may ask if the applicant is vaccinated or is able to comply with the vaccine mandate if hired. Employers should be careful not to solicit medical information from applicants beyond the initial vaccination question. Additionally, employers would need to provide reasonable accommodations for disability or religious needs.

Q: May Employers Require COVID-19 Testing Before Allowing Employees To Return To The Workplace? (Updated 11/2/21)

A: Yes. According to the EEOC, under the current circumstances, employers may administer (or require to be administered) a COVID-19 test to employees before they enter the workplace to determine if they have the virus. Such testing, however, is not necessary for fully-vaccinated employees, unless they are experiencing symptoms of COVID-19. Employers should ensure that such tests are accurate and reliable, in accordance with guidance from the U.S. Food and Drug Administration. Keep in mind, however, that there may be false negatives or positives, and that testing will not reveal future infection. In addition, any test results are confidential medical information.

Note that there are different types of tests. Rapid tests and at-home, while they provide results more quickly, have been found to be less accurate. Certain lab-based PCR tests are considered to be more reliable, but results take longer. Employers may specify which type of test employees must take.

Q: May Employers Require Antibody Testing Before Allowing Employees To Return To The Workplace? (Added 7/13/20)

A: No. The EEOC states that employers may not require antibody testing before permitting employees to re-enter the workplace. Antibody testing is a medical examination, which, under the American with Disability Act, must be “job-related and consistent with business necessity.” In light of the Centers for Disease Control and Prevention’s earlier guidelines that antibody testing “should not be used to make decisions about returning persons to the workplace,” the EEOC states that such testing does not meet the ADA’s standard for medical examinations. (This is in contrast to COVID-19 viral tests for active infection, which the EEOC has stated meet the ADA standard.)

Q: May Employers Test Employees Periodically for COVID-19? (Updated 11/2/21)

A: Yes, the EEOC states that, in addition to testing before permitting employees to enter the workplace, employers may also conduct periodic testing. Such testing meets the Americans with Disabilities Act’s (ADA) requirement that testing be both job-related and consistent with business necessity – in the context of the pandemic, to determine if the presence of such employees in the workplace poses a direct threat to the health of others. The EEOC notes that the ADA does not interfere with employers’ following the workplace testing recommendations of the Centers for Disease Control and Prevention (CDC), and that compliance with the CDC’s current guidance meets the ADA’s “business necessity standard.”

The CDC has stated that such testing is not necessary for fully-vaccinated employees. In its updated guidance, OSHA suggests that employers consider policies that require either vaccination or regular testing.

Q: Must Informed Consent Be Part of Any Testing Program? (Added 2/2/21)

A: Yes, according to the CDC in its guidance on workplace testing programs, which adds to its previous guidance, Testing Strategies: Considerations for Non-Healthcare Workplaces.

Q: What Measures Should Be Taken To Ensure Informed Consent? (Added 2/2/21)

A: The CDC states that employers should take the following measures when developing a testing program in order to support appropriate decision-making by employees:

  • Ensure safeguards are in place to protect an employee’s privacy and confidentiality.
  • Provide complete and understandable information about how the employer’s testing program may impact employees’ lives, such as if a positive test result or declination to participate in testing may mean exclusion from work.
  • Explain any parts of the testing program an employee would consider especially important when deciding whether to participate. This involves explaining the key reasons that may guide their decision.
  • Provide information about the testing program in the employee’s preferred language using non-technical terms. Consider obtaining employee input on the readability of the information. Employers can use this tool to create clear messages.
  • Encourage supervisors and co-workers to avoid pressuring employees to participate in testing.
  • Encourage and answer questions during the consent process. The consent process is active information sharing between an employer or their representative and an employee, in which the employer discloses the information, answers questions to facilitate understanding, and promotes the employee’s free choice.

Q: What Information Should Be Included In The Testing Disclosures To Ensure Informed Consent? (Added 2/2/21)

The CDC recommends that the following be contained in testing disclosures, acknowledging that much of the following information are addressed in the FDA’s Emergency Use Authorization Fact Sheet, which must be given to all individuals prior to receiving the vaccine:

  • The manufacturer and name of the test
  • The test’s purpose
  • The type of test
  • How the test will be performed
  • Known and potential risks of harm, discomforts, and benefits of the test
  • What it means to have a positive or negative test result, including:
    • Test reliability and limitations
    • Public health guidance to isolate or quarantine at home, if applicable

Q: What Other Topics Should Employers Be Prepared To Address As Part Of The Informed Consent Process? (Added 2/2/21)

A: The CDC states that employers should also be prepared to address the following:

  • General considerations, such as why testing is being offered, frequency of testing and consequences of refusing the test.
  • Scheduling and payment, including who schedules the appointments, whether the employee is paid for travel and testing, who pays for the test and any required follow-up care, and accommodations or alternatives to testing.
  • Testing site, such as who administers the test, where the test will be done, and whether any screening will be required prior to the test.
  • Communication and interpretation of results, including who interprets the results, how and to whom results are communicated, and what happens if the employee tests positive.
  • Privacy, such as what personal information must be provided by the employee, how and for what period it is retained, and how it will be kept confidential and secure.
  • Seeking additional help or reporting injuries, such as who to contact for additional information or assistance.

Q: When Else May Employers Require Testing Of Employees? (Updated 11/2/21)

A: According to the CDC, testing is recommended for: those with symptoms of COVID-19; those who have been in close contact (unless fully-vaccinated); and those who have been asked or referred for testing by their healthcare provider, or local/state health department. Individuals should home-isolate pending their test results.

The CDC defines “close contact” as:

  • Being within 6 feet of an infected individual for a cumulative total of 15 minutes or more during a 24 hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the infected individual is isolated
  • Providing care at home to an infected individual
  • Having direct physical contact (e.g. hugging or kissing) with an infected individual
  • Sharing eating or drinking utensils with an infected individual
  • An infected individual sneezed, coughed or somehow got respiratory droplets on the person

Of significance, the CDC suggests that there may be immunity for up to three months following infection with COVID-19. Specifically, the CDC states that those who have had COVID-19 do not need to quarantine or get tested again following close contact with an infected individual for a period of three months, unless they have symptoms. Those who are fully-vaccinated, including all recommended boosters, should get tested 5 days following exposure, but need not quarantine. Both those who had COVID and those who are fully boosted should still wear a face covering for 10 days following contact. All others should stay at home for a 5-day quarantine period following their last contact with the infected individual, test after 5 days, self-monitor for symptoms, and wear a face covering for 10 days following contact.

As noted above, employers may specify what type of COVID-19 test is required (e.g. rapid test, at-home test, or lab-based PCR test).

Q: Must Employees Be Paid for Time Spent Obtaining a COVID-19 Test? (Added 6/2/21)

A: The time spent obtaining a COVID-19 test, whether it is during the normal workday or during off-duty hours, may be compensable if it is necessary for the employee to perform their job.

REASONABLE ACCOMMODATIONS UNDER THE ADA FOR EMPLOYEES

Q: What Are Employers’ Reasonable Accommodation Obligations Under the ADA During The COVID-19 Pandemic? (Updated 6/2/21)

A: The Americans with Disabilities Act requires employers to provide reasonable accommodations to employees with disabilities to enable them to perform the essential functions of their jobs or to enjoy equal benefits and privileges of employment. This obligation continues regardless of the pandemic, and applies equally to critical infrastructure or essential workers. Thus employers must engage in the interactive process with all employees with regard to any request for accommodation, which includes obtaining medical information to support the request where the need for accommodation is not obvious, as well as an exploration of possible accommodations. Because of the pandemic and if the need is urgent, however, employers may choose to forego or shorten the exchange of information and provide an accommodation on a temporary basis, subject to changing circumstances.

Accommodations need not be provided if they pose an undue hardship. The circumstances of the pandemic may cause an undue hardship where it would not have done so prior to the pandemic. The EEOC recognizes that current circumstances may create “significant difficulty” in acquiring or providing certain accommodations. For example, it may be significantly more difficult at the current time to conduct a needs assessment or to obtain certain items required for an accommodation. Additionally, it may be significantly more difficult to provide temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.

Moreover, the EEOC acknowledges that, while expense is not normally a significant consideration (as compared with an employer’s overall budget and resources), current economic conditions, such as the loss of some or all of the employer’s income stream or the amount of discretionary funds available in consideration of other expenses, makes expense relevant to the undue hardship assessment. The employer must still weigh the cost of an accommodation against its current budget, and must consider no-cost or low-cost alternatives.

As noted above in the Vaccines section, employers that choose to impose a vaccine mandate must consider reasonable accommodations for employees who cannot get a vaccine due to a disability or religious needs.

Q: What Are Employers’ Obligations With Regard To Employees With Mental Health Conditions Triggered By COVID-19? (Added 3/23/20)

A: Under the Americans with Disabilities Act, employers must provide reasonable accommodations to employees with disabilities, including mental health conditions. Such conditions could, in fact, be triggered by fears about the current COVID-19 pandemic. With regard to employees reporting such mental disabilities, the employer must engage in the requisite interactive process under the ADA. The employer is entitled to obtain information from the employee’s health care provider to establish that the employee does, in fact, have a disability and to identify possible accommodations. Whether such accommodations are reasonable or pose an undue burden are part of the interactive process.

Q: May Employers Exclude Employees With Underlying Conditions At Increased Risk Of Severe Illness From The Workplace? (Added 7/13/20)

A: No. If an employer knows that an employee is at higher risk of severe illness due to COVID-19 but the employee has not requested an accommodation, the employer may not simply refuse to bring the employee back into the workplace. The employer must engage in an analysis to determine if the employee poses a “direct threat” to their own health, meaning a significant risk of substantial harm, by returning to the workplace. The employer must consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. And even if there is a direct threat, the employer must engage in the interactive process to determine if there a reasonable accommodation that would eliminate or reduce the risk to an acceptable level. If no reasonable accommodations are available to enable the employee to return to their job position in the workplace, the employer must consider alternative accommodations like telework, leave, or reassignment to another position (perhaps in a safer location or that permits telework).

Examples of accommodations that may eliminate or reduce an employee’s direct threat to self include additional or enhanced protective gowns, masks, gloves, or other gear beyond the norm. They also include additional or enhanced protective measures such as barriers or increased space between the high-risk employee and others, as well as the elimination or substitution of non-essential, “marginal” job functions. Modifications of work schedules and work locations are other possible accommodations. In addition to discussing possibilities with the employee, the EEOC suggests that the Job Accommodation Network, www.askjan.org, may provide assistance in identifying accommodations.

Q: Must Employers Provide Reasonable Accommodations To Employees At Greater Risk From COVID-19? (Updated 7/13/20)

A: If an employee has a disability that puts them at a greater risk from COVID-19, employers may need to provide reasonable accommodations to eliminate possible exposure and reduce the “direct threat” of harm to the employee’s health that is posed in the workplace. According to the EEOC, these may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace. An employee must request such an accommodation, whether verbally or in writing. A third party, like a doctor, may make the request for the employee. The terms “reasonable accommodation” and “ADA” are not required, as long as the employee communicates that they have a medical condition that requires some workplace change. The employer is then required to engage in the interactive process, which may involve asking questions and obtaining medical documentation, to determine if a reasonable accommodation is available.

According to the EEOC, these accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others. They ma also include elimination or substitution of particular “marginal” functions (but not the “essential” functions of a particular position). In addition, accommodations may include temporary modification of work schedules to minimize contact with co-workers or the public, including while commuting, or moving the location where work is performed.

Q: Is A Request For An Alternative Screening Method A Request For Accommodation? (Added 7/13/20)

A: Yes. The EEOC notes that if the requested change is easy to provide and inexpensive, an employer may choose to make it available to anyone without going through the interactive process. If the requesting employee’s disability is not obvious or known, however, the employer is entitled to ask for information to establish the existence of a disability and its limitations, such that an accommodation is required. The employer may then determine if that accommodation or an alternative effective accommodation can be provided without undue hardship. Such requests may also be made for religious needs under Title VII.

Q: Are Employers Required To Accommodate Family Member’s Increased Risk Of Severe Illness? (Added 7/13/20)

A: No. Employers are not required to accommodate a non-disabled employee due to the disability-related needs of a family member. Although the ADA prohibits discrimination based on association with a disabled individual, it does not require accommodations in order to protect an employee’s family member with a disability from potential exposure. Employers may choose to do so, however, but must be consistent in extending such flexibility in order to avoid other discrimination claims.

Q: May Employers Exclude Older Workers At Increased Risk Of Severe Illness From The Workplace? (Added 7/13/20)

A: No. Although older workers may be at a higher risk of severe illness from COVID-19, employers may not involuntarily exclude employees from the workplace due to their age.

Q: Are Employers Required To Accommodate Older Workers At Increased Risk Of Severe Illness? (Updated 9/10/20)

A: No. Older workers do not have a right to reasonable accommodations based on age. The EEOC notes that employers may choose to provide flexibility to workers age 65 and older, but not those age 40-65, without violating the ADEA. In addition, if employers provide such flexibility to other workers, they cannot refuse to provide such flexibility to older workers because of their age. Older workers with underlying medical conditions may be entitled to reasonable accommodation under the ADA.

Q: May Employers Exclude Pregnant Workers From The Workplace? (Added 7/13/20)

A: No. As with older workers, employers may not involuntarily exclude pregnant employees from the workplace.

Q: Are Employers Required To Accommodate Pregnant Workers? (Added 7/13/20)

A: Maybe. Pregnant employees may be entitled to accommodations under the ADA if they have pregnancy-related medical conditions that increase their risk of severe illness from COVID-19. Additionally, under the Pregnancy Discrimination Act, an employer must provide job modifications like telework, scheduling or assignment changes, or leave to pregnant employees if such job modifications are provided to other employees similar in their ability or inability to work.

Q: What About Employees With Caregiving Responsibilities? (Added 7/13/20)

A: No accommodations are required for those with caregiving needs, although employers should try to work with employees to be flexible. The EEOC warns employers about possible sex discrimination in granting telework, modified schedules or other benefits to employees with school-age children due to school closures during the pandemic. Employers should not make gender-based assumptions about who may have caretaking responsibilities.

Q: What Are An Employer’s Reasonable Accommodations Obligations for COVID-19 Long-Haulers? (Added 6/2/21)

A: Many individuals are “long haulers,” meaning that they are experiencing lingering symptoms of COVID-19 – a condition known as Post-acute COVID-19 Syndrome or Long COVID. Such people may meet the ADA definition of having a “disability”: a physical or mental impairment that substantially limits one or more major life activities. And if so, they would be entitled to reasonable accommodations to enable them to perform the essential functions of their jobs. On this issue, the Department of Labor’s Job Accommodations Network offers the following guidance from the perspective of long haulers.

Long haulers are encouraged to ask employers for an accommodation, whether or not they technically meet the disability definition, since employers are free to provide accommodations even if not required. Such requests would be subject to the normal interactive process described above. Because long-haul symptoms may eventually resolve, accommodations may be provided on a temporary basis. JAN reiterates that employers need not remove essential job functions, lower production standards, provide personal need items (e.g. hearing aids or wheelchairs), or experience an undue hardship. They also need not provide the employee’s preferred accommodation as long as the provided accommodation is effective.

If the employer denies the accommodation, JAN suggests that the employee ask why (and we suggest that the employer explain why when denying the request). If the employer believes there is no disability, the employee could provide additional medical information to establish one. If the employer believes the requested accommodation is an undue hardship, the employee could propose other accommodations (although we suggest that employers explore all possible reasonable accommodations before denying a request altogether). If the employee believes the denial was not valid or the employer refuses to explain the denial (we do not advise employers to do that), JAN suggests that the employee go up the chain of command, file a grievance if a union member, or file a complaint with the federal Equal Employment Opportunity Commission or state fair employment practices agency, which are charged with enforcement of disability statutes.

(We note that, although the DOL is offering this guidance documents, it does not have enforcement authority for the ADA).

EMPLOYEES WHO HAVE BEEN EXPOSED TO COVID-19

Q: What Are the CDC’s Recommendations for Employees Who Have Been Exposed to COVID-19? (Added 1/19/22)

A: Under the CDC’s latest guidance, the following individuals need not quarantine following close contact with a COVID-positive individual:

  • Those age 18 or older who have received all recommended doses of the COVID vaccine – including boosters. (Note that, for the J&J vaccine, a booster is recommended two months after the single primary shot).
  • Those age 12-17 who have received all primary doses of the COVID vaccine.
  • Those who had COVID within the past 90 days, as confirmed by a viral test.
  • These individuals should still wear a well-fitting mask for 10 days following the exposure. Those who had COVID need not test, while the others should test at least 5 days after exposure.

All other individuals should quarantine for 5 days. They should also mask around others and monitor for symptoms for 10 days. If symptoms develop, they should test immediately. If there are no symptoms, they should test at least 5 days after exposure, but if no test is available, they can stop quarantine while continuing to mask and monitor. The CDC states that if the person cannot quarantine, they should continue to wear a mask for 10 days.

These exposed-but-not-fully-vaccinated/boosted individuals should avoid those who are immunocompromised or high-risk for severe disease during the 10-day time period. They should  also avoid travel during the 5-day quarantine period.

Although the CDC recommends a 10-day quarantine (regardless of vaccination status) for residents in high-risk congregate settings like correctional facilities, cruise ships, and homeless shelters, it recognizes that employers facing critical staffing shortages can apply a shorter quarantine period for employees. And for healthcare employers facing crisis staffing situations, there are no work restrictions at all.

Q: What Is The CDC’s Rule On Essential Workers’ Ability To Work Following Exposure? (Updated 8/18/21)

A: If the worker is fully-vaccinated, the CDC does not require them to quarantine following exposure to COVID-19. They should be tested 3-5 days following exposure, self-monitor for symptoms and wear a mask during the next 14 days (they can stop with the mask if they test negative), and if symptoms develop, they should be removed from the workplace, sent for testing and medical treatment, and required to isolate in accordance with CDC guidelines.

As to unvaccinated workers, in order to ensure continuity of operations of essential functions, the CDC has issued guidance that critical infrastructure workers may be permitted to continue work following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented to protect them and the community. The CDC states that such exposed workers may continue to work, but emphasized that this should be used only as “a last resort and only in limited circumstances, such as when cessation of operation of a facility may cause serious harm or danger to public health or safety.” If employers choose to require those employees to work, the following actions should be taken:

 

  • Self-Screen: Employees should self-screen at home prior to reporting to work. They should not report to work if they have COVID-19 symptoms, a temperature equal to or higher than 100.4 oF, or are waiting for the results of a viral test.
  • Pre-Screen: Employers should conduct an on-site symptom assessment, including a temperature check, prior to each work shift. Ideally, this assessment should happen before the individual enters the facility.
  • Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
  • Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
  • Disinfect and Clean work spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.

Obviously, if an employee starts showing symptoms of COVID-19, they must immediately be removed from the workplace and quarantined. The employer must perform a deep-cleaning of the workspace, and other employees who have come into contact with that employee would be considered exposed and subject to the actions above.

The CDC recommends that critical infrastructure employers reduce the need to reintegrate exposed critical infrastructure workers by:

  • Identifying and prioritizing job functions essential for continuous operation,
  • Cross-training employees to perform critical job functions so the workplace can operate even if key employees are absent, and
  • Matching critical job functions with other equally skilled and available workers who have not experienced an exposure to a person with confirmed COVID-19.

Q: What If An Employer Requires Employee(s) To Self-Quarantine Because Of Exposure To COVID-19? (Updated 1/19/22)

A: For those non-critical infrastructure workers who are unvaccinated, not fully-boosted, or have not been infected with COVID-19 within the past 90 days, the CDC recommends that employees who have been exposed should quarantine for 5 days following exposure, with testing at the end of the 5 day period. Those individuals should continue to self-monitor for symptoms, wear a face covering, and observe other social distancing and infection prevention protocols during the next 5 days after quarantine. If an employer imposes such a quarantine requirement, the FMLA does not apply because such a quarantine does not meet the definition of a “serious health condition.”  State FMLA provisions may provide more protection.  Unemployment insurance benefits may apply depending on state law interpretation. The U.S. Department of Labor has issued guidance that states have the discretion to grant such benefits where an individual is quarantined with the expectation of returning to work after the quarantine is over or an individual leaves employment (temporarily) due to a risk of exposure or infection.

Q: What If The Government Requires Quarantine? (Updated 11/2/21)

A: State law may provide employment protections for employees under health care or government mandated quarantines.  FMLA may apply as well, if the employee is being checked on a regular basis by a health care provider at the behest of the government, since that may meet the required definition of a serious health condition (which covers continuing treatment, including seeking a diagnosis, by a health care provider on two or more occasions within 30 days).

As noted above, states have the discretion to grant unemployment benefits under such circumstances. Several states have passed emergency legislation specifically providing for unemployment insurance benefits in such a scenario.  The Families First Coronavirus Response Act previously provided leave for this reason, but is no longer in effect.

State and local sick leave laws may allow use for quarantines.  Paid family leave benefits laws may also apply.

Q: In The Event Of A Quarantine, How Are Employees Paid? (Updated 11/2/21)

A: Exempt employees are paid for a full week of work if they do any work during the week. This includes checking email on their phones.  Exempt employees can be told not to perform any work during a full week and they will not be paid for the week (assuming no other paid leave protections apply).  Additionally, exempt employees can be required to use paid vacation or PTO to cover partial weeks so that they still receive a full week of pay.  They must be paid for a full week if they do not have paid leave to cover such time.  If sick leave applies and the exempt employee has no sick leave left, employers can deduct whole day absences.

Non-exempt employees are paid for all time spent working, and must accurately track hours worked.  Non-exempt employees may be required or allowed to use PTO or vacation.  Employers should consider allowing the use of sick leave, if not mandated by state law.

The Families First Coronavirus Response Act previously provided leave for this reason, but is no longer in effect.

EMPLOYEE REFUSAL TO WORK

Q: Can An Employee Refuse To Work Because Of Concerns About Workplace Safety? (Updated 11/2/20)

A: OSHA has provided guidance as to when an employee may refuse to work because of safety concerns. https://www.osha.gov/right-to-refuse.html. This guidance states that an employee may refuse to perform a task if all of the following conditions are met:

  • Where possible, the employee has asked the employer to eliminate the danger, and the employer failed to do so; and
  • The employee refused to work in “good faith.” This means that the employee must genuinely believe that an imminent danger exists; and
  • A reasonable person would agree that there is a real danger of death or serious injury; and
  • There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

If an employee expresses a concern about coming to work because of possible exposure to COVID-19, employers should assess whether the employee is more susceptible to the virus due to age, pregnancy, or an underlying medical condition (the latter two may trigger obligations under the Americans with Disabilities Act, although at least one court has held that the possibility of become disabled is not covered by the ADA). Employers should also assess whether an employee refusing to work has a reasonably held concern, such as regarding other individuals visiting the workplace from areas of outbreak, being allowed to use gloves or masks, or even just a generalized fear of leaving home at this time.

If the concerns are not reasonable, the employer may insist that the employee report to work and may take appropriate disciplinary action against those who refuse to do so. However, under the current circumstances, with the increasing community spread of COVID-19 and the governmental limitations or directions to remain at home as much as possible, we believe that generalized fears of exposure may not necessarily be deemed unreasonable.

Notably, some employers have concerns that treating older employees differently than younger ones may be a violation under the Age Discrimination in Employment Act or state antidiscrimination laws. We note that, given the medical fact that such individuals are more susceptible to the virus or may experience more serious outcomes, and given the governmental recommendations that such older individuals stay home as much as possible, permitting older individuals to stay home while not extending that courtesy to younger employees will not likely be considered a violation of antidiscrimination laws at this time.

If several employees express common concerns as a group, or one employee speaks on behalf of a group, it may be considered protected concerted activity under the National Labor Relations Act. This is true in both unionized and non-unionized workplaces. Employees need only have a “reasonable held, good-faith belief that the health or safety conditions being protested are unsafe,” and the conditions need not actually be unsafe. Employees engaging such in concerted activity remain protected even where they are honestly mistaken about the conditions believed to be unsafe. Therefore, employers may not discipline employees engaging in protected concerted activity who refuse to work based on the reasonably held, good-faith belief that working conditions are unsafe. Employers must examine such situations on a case-by-case basis, and should consult with counsel regarding what actions, if any, they can take as to these employees.

The Department of Labor has specifically reminded employers that they cannot retaliate against employees who express concerns about workplace safety during this COVID-19 pandemic.

EMPLOYEES TESTING POSITIVE FOR COVID-19

Q: What Should An Employer Do If An Employee Tests Positive For COVID-19? (Updated 1/19/22)

A: Isolate and immediately send the employee home. Immediately contact the local Department of Health for guidance on what steps should be taken. At a minimum, however, the employee should remain in home isolation for in accordance with CDC recommendations, or until they have been cleared to return to work by their health care provider. The CDC states that infected individuals with symptoms may be released from isolation when: (1) at least 5 days have passed since the onset of symptoms; (2) they are fever-free for at least 24 hours without the use of medication; and (3) other symptoms have improved. Infected individuals without symptoms may be released from isolation after 5 days from the date of the positive test.

Regardless of whether there are symptoms or not, the CDC also recommends, but does not require, antigen testing at the end of the 5 day period, and remaining in isolation if the test is positive. In addition, during that post-isolation period of days 6-10, all individuals should continue to wear a mask around others for up to ten days after the first day of isolation, and should avoid those who are immunocompromised or high-risk for severe disease. They should avoid travel during this post-isolation period, but if travel is required, they should wear a well-fitting mask.

The CDC recommends a 10-day isolation period for residents in high-risk congregate settings, but recognizes that employers facing critical staffing shortages can apply a shorter isolation period for employees. And for healthcare employers facing crisis staffing situations, there are no work restrictions at all for infected employees, with prioritization of those with no or mild symptoms.

The employer should communicate with those who may have been in contact with the infected employee. Therefore, employers should ask the employee with whom he or she came into contact in the last 14 days, which is the incubation period for COVID-19. These individuals should be informed, without disclosing the name of the infected employee, that they have been exposed to an individual who has tested positive, that the Health Department has been contacted and the company is following all recommendation of the Department, and identify those recommendations. This may involved a quarantine period, depending on the vaccination status of the employee, as described in a Q&A above. 

There are also reporting requirements. Employers should inform the Department of Health and CDC of a positive test, and may disclose the name of the infected employee. In cases of work-related infections, there may also be reporting and/or recording requirements under the Occupational Safety and Health Act, as discussed further below.    Also, it may also be a workers’ compensation event, requiring employers to notify their workers’ compensation carrier.

Employers should also ask the infected employee to identify all areas in the office where they were physically present in the previous 14 days.  Deep clean the employee’s work area, surrounding areas, and all areas the employee indicated they were physically present during the previous 14 days.  Building management should be called so they can take precautionary sanitizing and notification measures.

Remember that any medical information received with regard to this situation is considered confidential medical information under the ADA, the FMLA, and, if the employer is a covered entity, the privacy provisions of the Health Insurance Portability and Protection Act (HIPAA). Any written information must be kept in a separate and secure medical file. This information should only be shared with management officials on a need to know basis. If other employees must be informed that they may have been exposed, the name of the infected employee must not be shared as part of the communication. While, realistically, other employees will know who the infected individual is, employers may not disclose that information.

Q: What Actions Should Employers Take When an Employee Exhibits Symptoms of COVID-19 or Has Been Exposed to Someone With COVID-19? (Updated 1/19/22)

A: Under CDC guidance, individuals who are fully-vaccinated, including boosters, or who have recovered from COVID-19 within the past 90 days need not quarantine if they are exposed to COVID-19. They should undergo testing 5 days following contact, and wear a mask for 10 days unless they test negative. They should also continue to self-monitor for symptoms during the next 14 days. If they develop symptoms, however, they should be handled in the same way as unvaccinated or not fully-vaccinated employees.

If any employee, regardless of vaccination status, is at work when they report symptoms of COVID-19, they should be immediately isolated from others and sent home. They should also be instructed to follow up with a health care provider and update the employer as to whether the health care provider believes it may be COVID-19 or some other illness.

If an employee tests positive or is diagnosed with COVID-19, we recommend contacting the local Department of Health for further guidance on next steps. Such steps may include quarantining the employee, communicating with other employees about possible exposure, and possibly quarantining other employees. In our experience thus far, it appears that the latter two actions are not being required by the Departments of Health where the employee has been exposed to COVID-19 but is not showing symptoms; nonetheless employers may make the decision that such steps are appropriate.

Notably, when informing others about possible exposure to the infected employee, the employer must not disclose the employee’s name, as that would be a violation of the duty to keep medical information confidential. As a practical matter, it is likely that other employees can easily figure out who the infected employee is, but that does not relieve the employer from its duty to maintain employee confidentiality.

The employer should perform deep cleaning of any work areas where an infected employee has been present.

Q: Is An Employee Who Contracts COVID-19 Protected Under The Americans With Disabilities Act? (Updated 3/17/21)

A: Employees are protected by the Americans with Disabilities Act (ADA) if they have a disability, have a history of a disability, or are regarded as having one. A disability is a substantial limitation of a major life activity. Because COVID-19 is a transitory and typically minor condition for most people, it will generally not be considered a covered disability. A particularly severe and long-lasting case of COVID-19, or the existence of long-term effects (i.e. “Long COVID” or COVID-19 “long-haulers”), may substantially limit a major activity and implicate the ADA.

Employers must ensure not to make assumptions about an employee’s illness and treat them as disabled, as they risk a “regarded as” claim under the ADA.

Q: Is An Employee Who Contracts COVID-19 Protected Under The Family And Medical Leave Act? (Updated 11/2/21)

A: Under the Family and Medical Leave Act, employees may receive up to 12 weeks of unpaid leave for their own serious health condition. COVID-19 does not necessarily rise to the level of a “serious health condition,” as mild cases are similar to the flu, which is not a covered serious health condition absent complications. Certainly more serious infections would meet that standard. At this point, given the intense focus on COVID-19 protections, however, employers may wish to err in favor of coverage even for those mild cases, if so desired by the employee. On the other hand, if the employee’s COVID-19 infection would not be considered a serious health condition, it should not be counted as FMLA leave, as that would deprive the employee of access to that leave if he or she later experiences a true serious health condition. Illnesses other than COVID-19, unless they are sufficiently severe, would not be covered by FMLA.

Notably, the DOL has made clear that leave taken to avoid exposure to COVID-19 is not covered by FMLA. We note, however, that an employee may, in fact, have an underlying serious health condition that may require them to avoid exposure to COVID-19, and therefore might be entitled to FMLA leave on that basis.

Q: What Other Leave Is Available To Sick Employees? (Updated 11/2/21)

Some states and local jurisdictions have passed laws or instituted Executive Orders requiring employers to provide paid leave or family leave benefits specific to COVID-19. In addition, a number of states and local jurisdictions have laws requiring employers to provide general paid sick leave, and employees would certainly be able to use such leave for a COVID-19 infection or other illnesses.  In addition, several states have implemented paid family leave benefits, which provide pay replacement benefits for unpaid leave through a state program similar to unemployment insurance. These benefits may also apply. Employees may be eligible to use employer-provided leave, vacation, or paid time off, depending on the employer’s policies.

The Families First Coronavirus Response Act previously provided leave for this reason, but is no longer in effect.

If no paid leave is available, employers should make unpaid leave available to employees with COVID-19.  Employers may also want to consider, in the absence of formal paid leave policies and where economically feasible, simply to provide pay to cover the unpaid leave.  This can come in the form of continuing employees’ regular pay, allowing employees to borrow against future paid leave (where the employee has exhausted all available paid leave) and permitting employees to enter into a negative state of accrual, or partial pay. Some employers are also exploring the idea of a leave donation program, where other employees can donate extra accrued leave for use by those without any paid leave available.

Q: Are COVID-19 Illnesses Covered By Workers’ Compensation? (Updated 7/13/20)

A: If an employee contracts the virus at work, including while teleworking, it will likely be covered by workers’ compensation. The employer should report this to its carrier. As a practical matter, it may be difficult to make this determination as community spread becomes more prevalent. Some states are presuming that COVID-19 was contracted in the workplace.

Q: Is An Employee Contracting COVID-19 At Work A Recordable Event Under The Occupational Safety And Health Act (OSHA)? (Updated 7/13/20)

A:According to OSHA, employers must record confirmed cases of COVID-19 if they are work-related and meet the criteria for recording, such as medical treatment beyond first aid or days away from work. Such illnesses must be recorded on OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Report). OSHA has issued an enforcement guidance providing that all employers “must make reasonable efforts, based on the evidence available to the employer, to ascertain whether a particular case of coronavirus is work-related.”

OSHA states that employers, especially small ones, should not be expected to undertake extensive medical inquiries. Rather, it is sufficient in most circumstances for the employer: (1) to ask the employee how they believe they contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.

OSHA states that the following types of evidence are relevant to the determination:

  • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if their job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely not work-related if they are the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

Q: Is An Employee Contracting COVID-19 At Work A Reportable Event Under The Occupational Safety And Health Act (OSHA)? (Added 11/12/20)

A: OSHA has issued FAQs regarding the reporting of work-related COVID-19 hospitalizations and fatalities.

With regard to hospitalizations, employers must report (within 24 hours) those that occur within 24 hours of a work-related incident. In the context of COVID-19, OSHA states that the work-related exposure to COVID is the triggering “incident” and thus is reportable if the hospitalization occurs within 24 hours of such exposure. The employer must report such hospitalization within 24 hours of knowing both that the employee has been hospitalized and that the reason for the hospitalization was a work-related case of COVID-19.

As for fatalities, employers must report any that occur within 30 days of the work-related incident, meaning the work-related exposure to COVID-19. The employer must report the fatality within eight hours of knowing both that the employee has died, and that the cause of death was a work-related case of COVID-19.

OSHA clarifies that these limitations only apply to reporting; employers who are required to keep illness and injury records must still record any work-related hospitalizations or fatalities of COVID-19 that occur outside of the reporting period.

Q: When May An Employee Who Tested Positive With Symptoms Return To Work? (Updated 1/19/22)

A: The employee should follow their health care provider’s instructions with regard to when they can return to work, which will likely track the CDC’s recommendations, as summarized below.  Although employers may require return to work clearance from a physician under the Americans with Disabilities Act and, if applicable, under the Family and Medical Leave Act (assuming that the employer has complied with the FMLA requirements as to fitness for duty certifications, discussed below), the CDC and the Equal Employment Opportunity Commission (EEOC) are both recommending that employers refrain from requiring such clearance at this time, given the expected burden on health care providers resulting from the anticipated widespread nature of the outbreak. The EEOC has suggested that a short form certification, such as an email or stamp, should be accepted.

At this point, the CDC’s Guidance on Discontinuation of Isolation for Persons With COVID-19 Not In Healthcare Settings  recommends that individuals with a positive diagnosis and symptoms continue isolation (and thereby not return to work) until they are fever-free for at least 24 hours without the use of fever-reducing medicines, there has been an improvement in symptoms, and at least 5 days (more for those with severe illness) have passed since symptoms first appeared.

Of significance, the CDC suggests that there may be immunity for up to three months following infection with COVID-19. Specifically, the CDC states that those who have had COVID-19 do not need to quarantine or get tested again following close contact with an infected individual for a period of three months, unless they have symptoms.

The CDC had previously also recommended a test-based strategy for being released to work. However, it no longer generally recommends this since studies have shown that the vast majority of those who test negative also meet the criteria of the symptom-based strategy. The test-based strategy may still be used for those who are severely immunocompromised, in consultation with infectious disease experts. If testing is being used, the individual must be fever-free without the use of fever-reducing medicines, there has been an improvement in symptoms, and they have tested negative from at least two consecutive specimens collected 24 or more hours apart.

An employer may require that an employee who has taken FMLA leave for their own serious health condition submit a fitness for duty certification from a health care provider before returning to work. The employee must be notified of this requirement in the Designation Notice and the employee’s job description or other written description of essential job functions should be attached for the healthcare provider’s use. Employers may require a fitness for duty certification only with regard to the particular condition that caused the employee’s need for FMLA leave.  An employer may delay the employee’s restoration to his or her position until the fitness for duty certification is submitted so long as the employer has provided written notice of the certification requirement.

An employer may require a doctor’s note to verify that an employee is healthy and able to return to the workplace, although such documentation may not be available in a timely manner during periods of community transmission, when health care providers may be extremely busy. Note that many state and local sick leave laws prohibit an employer from requiring a doctor’s note if the employee has been out of work for less than a certain number of days (two or three, depending on the law). If an employee has been in quarantine, however, their absence should well exceed this number of days.

Q: When May An Employee Who Tested Positive Without Symptoms Return To Work? (Updated 1/19/22)

A: According to the CDC, such employees who remain asymptomatic may stop self-isolation, and therefore return to work, when at least 5 days have passed since the date of their first positive COVID-19 diagnostic test. For 5 days following discontinuation of isolation, these individuals should continue to limit contact (stay 6 feet away from others) and wear a face covering.

Note that the CDC had previously also recommended a testing strategy for release from self-isolation. However, it no longer generally recommends this since studies have shown that the vast majority of those who test negative also meet the criteria of the symptom-based strategy. The test-based strategy may still be used for those who are severely immunocompromised, in consultation with infectious disease experts. If testing is being used, the individual must be fever-free without the use of fever-reducing medicines, there has been an improvement in symptoms, and they have tested negative from at least two consecutive specimens collected 24 or more hours apart.

An employer may require a doctor’s note to verify that an employee is healthy and able to return to the workplace, although such documentation may not be available in a timely manner during periods of community transmission, when health care providers may be extremely busy.

Q: What If A Temporary Staffing Agency Employee Or Contractor Tests Positive For COVID-19? (Added 4/15/20)

A: Temporary staffing agencies and contractors may notify the host employer if any assigned worker has COVID-19. The agency or contractor should disclose the name of the infected worker, as that information may be important for exposure, cleaning and mitigation purposes.

FURLOUGHS, LAYOFFS, AND CLOSURES

Q: What Are Considerations For Employers Who Need To Implement A Reduction In Force (“RIF”)? (Updated 11/2/21)

A: If employers conduct layoffs, they must ensure such selections are job-related and do not have an adverse impact on the basis of a protected characteristic, such as race, age, sex, national origin, religion, or disability. In addition, employees should not be selected for layoff because they have used FMLA leave or other protected leave, or complained about workplace safety, or engaged in protected concerted activity regarding terms and conditions of employment (including in connection with pandemic-related actions).

If a covered employer closes a facility or operating unit affecting at least 50 employees or lays off more than 50 or more full-time employees at a single site of employment during any 30 day period, and those layoffs constitute a third of the workforce at that site and will last at least six months, the employer must comply with specific Worker Adjustment and Retraining Notification (WARN) Act notifications. Covered employers must also comply with WARN Act notifications if they lay off 500 or more employees at a worksite for at least six months, regardless of whether the number of employees laid off constitutes a third of the workforce at that site. Employers with 100 or more employees, excluding part-time employees, are subject to WARN’s requirements. Some states have “mini-WARN” Act requirements that apply to lower thresholds, as well as state, county, and local laws and ordinances that may require notices for certain workforce reductions or changes. Some states have made COVID-19-related changes to their mini-WARN Acts, however.

Q: What Must Employers Be Mindful Of If They Furlough Employees? (Updated 11/2/21)

A: A furlough is a temporary leave of absence, with the intention of returning the employee to work. It can be for certain day(s) in a week, or for entire weeks or more at a time.

If employers furlough an exempt employee for the entire workweek, no salary is owed for that week. If an exempt employee, however, performs any work during the workweek, he or she must receive their entire salary. It is possible to reduce an exempt employee’s salary for a period of time if the employee is expected to perform less work during that period. This may be subject to state law notice requirements as to changes in pay or benefits. Because of the fraught nature of this action, employers should consult with counsel if considering this option.

Non-exempt employees must be compensated for all hours worked, whether they are in or out of the office. They need not be compensated for hours not worked. An employer may also reduce the hourly rate of non-exempt employees as long as they receive at least the applicable minimum wage rate. State law may require a certain amount of notice of any change in pay rate.

When employees are furloughed, employers should communicate the expectation that employees will not work, including checking email and voicemail. Work is not authorized during the furlough period absent written approval. If an employer implements furlough days, employees may be able to obtain unemployment insurance benefits for the reduction in wages. This will vary by state. Additionally, a furlough of six months that otherwise meets WARN requirements will trigger WARN’s 60-day notice requirement.

Q: What Notice Must Be Provided Under WARN? (Added 5/7/20)

A: Under the Worker Adjustment and Retraining Notification Act (WARN), employers must provide 60 days’ notice of any employment reductions to (1) non-Union employees affected by the employment action, (2) the state’s dislocated worker unit, (3) the chief elected official of the unit of local government in which the closing or mass layoff is to occur, and (4) representative(s) of affected employees (in the event the work force is unionized, this will be the employee’s exclusive bargaining representative).

Q: Are There Exceptions To WARN For Employment Reductions In Which 60 Days’ Notice Is Not Feasible? (Updated 6/2/21)

A: Yes, but this depends on the specific circumstances of the employment action, and operates as an exception to the 60 days’ notice requirement, and not the remainder of the obligations imposed by the Worker Adjustment and Retraining Notification Act (WARN). Employers implementing an employment action triggering WARN obligations need not give 60 days’ notice if the action is caused by an unforeseeable business circumstance, a natural disaster, or if a site of employment closes after a faltering company fails to obtain capital or business it had sought which was necessary to maintain operations. These inquiries are very fact specific, as noted by the DOL in its Frequently Asked Questions resource on WARN and COVID-19.

Many employers may not issue WARN notices, despite meeting otherwise meeting WARN’s requirements because, under the unforeseeable business circumstances exception, the need for the layoff or shutdown was not reasonably foreseeable 60 days’ in advance due to the sudden and dramatic onset of COVID-19. The application of any one of these exceptions, however, does not eliminate employer’s need to issue WARN notices if they otherwise meet WARN’s requirements. Although 60 days’ notice may not have been required, employers must still send WARN notices for employment actions covered by one of WARN’s exceptions as soon as practically possible, even if they are issued after the employment action occurs. The notice should include a brief statement of the reason for giving less than 60 days’ notice.

Note that some state mini-WARN laws do not contain the same exceptions as under federal law.

Q: How Do Employers Know If They Meet The Foreseeable Business Circumstances Exception? (Added 5/7/20)

A: As noted by the DOL in its Frequently Asked Questions resource on WARN and COVID-19, this is a very fact specific inquiry determined on a case-by-case basis. The Department of Labor’s WARN regulations provide:

The “unforeseeable business circumstances” exception… applies to plant closings and mass layoffs caused by business circumstances that were not reasonably foreseeable at the time that 60-day notice would have been required.

(1) An important indicator of a business circumstance that is not reasonably foreseeable is that the circumstance is caused by some sudden, dramatic, and unexpected action or condition outside the employer’s control. A principal client’s sudden and unexpected termination of a major contract with the employer… and an unanticipated and dramatic major economic downturn might each be considered a business circumstance that is not reasonably foreseeable. A government ordered closing of an employment site that occurs without prior notice also may be an unforeseeable business circumstance.

(2) The test for determining when business circumstances are not reasonably foreseeable focuses on an employer’s business judgment. The employer must exercise such commercially reasonable business judgment as would a similarly situated employer in predicting the demands of its particular market. The employer is not required, however, to accurately predict general economic conditions that also may affect demand for its products or services.

Q: Should Employers Continue To Monitor Layoffs For Potential WARN Obligations? (Added 5/7/20)

A: Yes. As noted by the DOL in its Frequently Asked Questions resource on WARN and COVID-19, many employers did not issue WARN notices because they did not intend layoffs to last longer than six months. WARN provides that a layoff of more than six months that at the outset was not expected to last six months, is not subject to immediate WARN notices if: (1) the extension beyond six months is caused by business circumstances not foreseeable at the time of the initial layoff; and (2) notice is given at the time it becomes reasonably foreseeable that a layoff beyond six months will be required. A layoff extending beyond six months for any other reason is treated as an employment loss from the date the layoff or furlough starts. Accordingly, employers should not wait until 60 days prior to the end of the six month period to issue WARN notices. They must continue to monitor the layoff and analyze the likelihood of whether the layoff will last beyond six months. As soon as it becomes reasonably foreseeable that the layoff may extend beyond six months, employers should issue WARN notices as soon as possible to avoid WARN liability.

Q: Is There A Distinction Under WARN Between Laying Off Workers And Furloughing Them? (Added 5/7/20)

A: No, there is no distinction between a layoff and a furlough under WARN.

Q: Can Employers Escape WARN’s Requirements By Making Multiple Small Layoffs? (Added 5/7/20)

A: Some employers are taking a step-by-step approach in conducting reductions in force, attempting to lay off as few workers as possible at a time. In determining whether a plant closing or mass layoff triggers WARN notification requirements, covered employers must look forward 90 days and backwards 90 days from each employment loss. Separate employment losses that do not otherwise meet WARN’s requirements aggregate over a 90 day period, and if the losses over those 90 days involve the requisite number of employees, WARN requirements are triggered as to all of the employees suffering an employment loss and apply as of the date of the first employment action. Employment actions will not be aggregate if the employer is able to prove they are the result of separate and distinct causes.

Employers needing to make multiple layoffs as this crisis continues should closely track layoffs across the 90 day aggregation period and consult with counsel to determine whether WARN is triggered.

Q: May Employers Send WARN Notices By Email? (Added 5/7/20)

A: The regulations implementing the WARN Act state that: “Any reasonable method of delivery…

which is designed to ensure receipt of notice” is an acceptable form of notice. See 20 § C.F.R. 639.8. This includes e-mail. A WARN notice sent via email must still be specific to the individual employee, and comply with all requirements of the WARN Act statute and regulations regarding written notifications.

Q: What Are The Extended Deadlines For COBRA Notices? (Added 5/7/20)

A: Under normal circumstances, the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) provides that employees must receive notice of their right to elect continued healthcare coverage following a triggering event, such as a termination of employment or a certain reduction in hours. They then have 60 days in which to elect such coverage, and 45 days following election to pay the premium. The DOL has announced a final rule, however, that extends these deadlines beyond the “Outbreak Period,” which is defined as between March 1, 2020 and 60 days after the National Emergency has been declared at an end. Thus, the 60-day period to elect coverage will only begin at the end of this Outbreak Period. The DOL has provided additional guidance in a Q&A resource.

PLANNING FOR COVID-19

Q: For Unionized Employers, What Bargaining Obligations Exist When Developing Response Plans? (Updated 6/2/21)

A: Employers should begin by examining their collective bargaining agreement. The management rights clause, or provisions regarding leave, telework, vaccinations, and other pertinent subjects may dictate determine whether the employer may unilaterally act. Employers may be required to provide notice and an opportunity to bargain to the Union as to any changes in leave administration.

Employers with unionized workforces have a duty to bargain in good faith regarding mandatory subjects of bargaining. Mandatory subjects of bargaining are typically summarized as employee wages, hours, and working conditions. Generally, where an employer wishes to alter a mandatory subject of bargaining, it must first notify the Union of the proposed change and, upon request, bargain with the Union over the change. Under the NLRA, this principle is applicable even where the change may be precipitated by emergency conditions.

The duty to bargain may be suspended where an employer faces a compelling economic exigency, and the exigency compels immediate action. Such events are generally defined as extraordinary, unforeseen events having a significant economic impact requiring an employer to act immediately. The NLRB assesses each assertion of “compelling economic exigency” on a case-by-case basis.

Potential bargaining issues include:

  • Paid time off for testing
  • Periodic mandatory testing
  • Payment for testing
  • Longer or additional shifts for coverage
  • Relaxing the prohibition against cross-classification work or management performance of work
  • Relaxation/modification of attendance and leave rules
  • Salary continuation for quarantine/school closures/family illness
  • Support programs for quarantined/ill employees
  • Workplace safety concerns
  • Vaccine mandates

Notably, the NLRB’s Office of General Counsel issued an advice memorandum, Mercy Health General Campus, in which it stated that, in COVID-19 emergency situations, employers should be permitted to act unilaterally provided the unilateral action is “reasonably related to the emergency situation.” However, after the unilateral decision is implemented, the employer “must negotiate over the decision (to the extent there is a decisional bargaining obligation and its effects within a reasonable time thereafter.”

Employers must also be sure to comply with existing CBA provisions such as layoff and recall, shutdowns, filling vacancies, attendance and leave rules, short term disability, accommodations and return to work, and illness reporting.

When employees are furloughed, employers should communicate the expectation that employees will not work, including checking email and voicemail. Work is not authorized during the furlough period absent written approval. If an employer implements furlough days, employees may be able to obtain unemployment insurance benefits for the reduction in wages. This will vary by state. Additionally, a furlough of six months that otherwise meets WARN requirements will trigger WARN’s 60-day notice requirement.

Q: What Should An Employer Response Plan Contain?

A: As recommended by the CDC guidance, a thorough response plan should consider the following:

  • Identify leadership and points of contact.
  • Possible exposure and health risks should be identified and addressed.
  • Explore social distancing strategies and physical changes to the workplace to facilitate social distancing.
  • Identify essential business functions and roles and how to cover these functions when employees fall ill or are unavailable to work due to widespread school closures.
  • Inform staffing agencies that their sick employees should stay home, and they should administer non-punitive leave policies.
  • Plan communications to its workforce, clients, and vendors as necessary.
  • Institute flexible workplace and leave policies, as appropriate for the individual workplace.
  • Communicate with public health officials and community resources that can assist both the employer and its employees during this pandemic.

Q: What Should Be Contained In Written Policies Specific To COVID-19? (Updated 11/2/21)

A: Employers should implement an illness policy informing employees whether there are restrictions on travel or other activities.  The employer’s policy should contain reporting requirements for illnesses/exposures, including to whom reporting should be made.  Dictate when employees are required to stay home due to illness or quarantine, and whether employees will be paid for absences.  Employers should set forth the benefits available to its employees, and whether return to work clearances are required.  If the employer is requiring or recommending the vaccine, this should be made clear, along with any incentives, reasonable accommodations for disability or religion, and other pertinent matters, as discussed above in the Vaccine section. Given the fluidity of the pandemic, make clear that the policy may be subject to revision.

Employers should implement state-mandated sick leave policies if they have not done so.  If sick leave policies are in place, they should be reviewed and modified as necessary.  Consider whether a COVID-specific leave policy is warranted.  Additionally, if permitted by plan documents, employers should determine whether modifications to health plan eligibility because of reduced hours are warranted.

Q: What Discrimination or Harassment Concerns Should Employers Be Thinking About? (Updated 6/2/21)

A: There has been a significant increase in anti-Asian incidents generally, based on the fact that COVID-19 began in China. Employers should ensure that employees understand that fear of COVID-19 should not be misdirected against individuals because of a protected characteristic. The EEOC offers various resources, including policy tips and checklists, to help employers with that effort.

In addition, in implementing policies and protocols to deal with the COVID-19 pandemic, employers must take care that such implementation does not impact certain protected classes more than others. The EEOC has specifically noted the possibility of disparate impact by a vaccine mandate on certain protected classes, for example.

Q: What Happens If Employees Are Called Up For National Guard Duty Due To COVID-19? (Added 4/15/20)

A: As reported in the media, the National Guard has been called out to assist with certain COVID-19 related activities. The DOL’s Veterans’ Employment and Training Service offered Frequently Asked Questions regarding COVID-19-related National Guard service under the Uniformed Services Employment and Reemployment Rights Act (USERRA). VETS noted that there are no new rights and obligations under USERRA, but explained those rights and obligations in light of COVID-19.

According to VETS, USERRA’s employment and reemployment protections apply if an employee is called to National Guard duty under federal – but not state – authority. (State law protections may apply, however). The authority can change during the employee’s service.

VETS notes that an employee may still be laid off or furloughed upon return from their military (including National Guard) service if they would have been subject to that action unrelated to their service.

Employers are cautioned that they cannot delay reemployment based on a concern that the employee may have been exposed to COVID-19 during their service in a COVID-19 affected area. If the employee has been exposed to or has become infected with COVID-19, the employer must make reasonable efforts in order to qualify the returning employee for their proper reemployment position. According to VETS, these efforts can include temporarily providing paid leave, remote work, or another position during a period of quarantine. While VETS does not address whether unpaid leave would be reasonable, other agencies would apparently allow for leave that is unpaid if paid leave is otherwise unavailable.

Q: Do School Closures Impact Payment Obligations? (Updated 11/2/21)

A: The state or local sick leave laws in some jurisdictions will apply in the event of school closures.  Employers are encouraged to permit employees to use paid leave, including sick leave, to cover resulting absences.  The DOL has specifically stated that regular FMLA is not available for school or child care closures.

Q: Is The Small Business Administration Offering Any Assistance To Impacted Employers?

A: The Small Business Administration is working with state governors to provide low-interest disaster recovery loans to small businesses and nonprofits that have been severely impacted by COVID-19. These Economic Injury Disaster Loans offer up to $2 million in assistance for small business to help overcome the temporary loss of revenue they are experiencing. These loans may be used to pay fixed debts, payroll, accounts payable, and other bills that cannot be paid because of the disaster’s impact. The interest rate is 3.75% for small businesses without credit available elsewhere; businesses with credit available elsewhere are not eligible. Get the latest information by visiting the SBA’s Guidance for Business and Employers to Respond to Coronavirus, by contacting the SBA’s national disaster relief helpline by calling 1-800-659-2955 or e-mailing disastercustomerservice@sba.gov, or by contacting your local SBA office.

The SBA also provides export loans to help small businesses achieve sales through exports and can help these businesses respond to opportunities and challenges associated with trade, including COVID-19. The loans are available to small businesses that export directly overseas, or those that export indirectly by selling to a customer that then exports their products. For more information, please see the SBA’s Guidance linked above.

Q: In The Case Of A Furlough, Shutdown, Layoff Or Closure, When Are Employees Entitled To Unemployment Insurance? (Updated 11/2/21)

A: Unemployment insurance benefits are controlled by state law. Generally speaking, regardless of the terminology used, employees will be eligible for UI if the employer lays them off, shuts down, or reduces their hours, whether on a temporary or permanent basis. If the government orders the business to shut down, employees will be entitled to UI.

Notably, state law will govern the interaction of paid leave (vacation, paid time off, and/or sick leave) and severance with UI benefits.

Expanded COVID-related UI benefits under the CARES Act have now expired.

RETURNING TO THE WORKPLACE

Q: What Guidance Have OSHA And The CDC Provided On Returning To The Workplace? (Added 7/13/20)

A: Both agencies have issued both general and industry-specific guidance and other resources of relevance to the workplace, which are linked in the Federal Agency Guidance section below. Most recently of general interest:

The CDC’s considerations for reopening include the following, which are further detailed in questions below: Create a COVID-19 workplace health and safety plan; Before resuming operations, check the building to see if it’s ready for occupancy; Identify where and how workers might be exposed to COVID-19 at work; Implement engineering controls; Implement administrative controls; and Educate employees and supervisors about steps they can take to protect themselves at work.

Q: What Are OSHA’s Three Phases Of Reopening? (Added 7/13/20)

A: OSHA issued a “Guidance on Returning to Work” for non-essential businesses. The guidance sets forth three phases for reopening, and OSHA states that “During each phase of the reopening process, employers should continue to focus on strategies for basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training.” The phases are as follows:

Phase 1: Businesses should consider making telework available, when possible and feasible with business operations. For employees who return to the workplace, consider limiting the number of people in the workplace in order to maintain strict social distancing practices. Where feasible, accommodations (i.e., flexibilities based on individual needs) should be considered for workers at higher risk of severe illness, including elderly individuals and those with serious underlying health conditions. Businesses should also consider extending special accommodations to workers with household members at higher risk of severe illness. Non-essential business travel should be limited.

Phase 2: Businesses continue to make telework available where possible, but non-essential business travel can resume. Limitations on the number of people in the workplace can be eased, but continue to maintain moderate to strict social distancing practices, depending on the type of business. Continue to accommodate vulnerable workers as identified above in Phase 1.

Phase 3: Businesses resume unrestricted staffing of work sites.

Q: Has A COVID-19 Workplace Health And Safety Plan Been Created? (Added 7/13/20)

A: The CDC refers employers to its CDC Interim Guidance for Businesses and Employers for guidelines and recommendations on creating a plan. Such plan should:

  • Be specific to your workplace,
  • Identify all areas and job tasks with potential exposures to COVID-19, and
  • Include control measures to eliminate or reduce such exposures.

Q: Before Resuming Operations, Has The Building Been Checked To See If It’s Ready For Occupancy? (Added 7/13/20)

A: The CDC recommends making sure the ventilation systems are operating properly and increasing the circulation of outdoor air as much as possible. In addition, employers should check for hazards such as mold growth, pest control, and stagnant water systems.

Q: Where And How Might Workers Be Exposed To COVID-19 At Work? (Added 7/13/20)

A: Employers should conduct a hazard assessment, and identify areas where employees may come into close contact. They should also establish communication plans that include all employees, as well as contractors, as necessary to prevent transmission.

Q: What Engineering Controls Can Be Implemented? (Added 7/13/20)

A: The CDC and OSHA recommend social distancing and infection prevention actions such as:

  • Moving furniture and workstations
  • Installing barriers
  • Using markers to show where people should stand
  • Improving ventilation by increasing airflow, filtration, and use of outside air
  • Replacing high-touch communal items, such as coffee pots, water coolers, and bulk snacks, with alternatives such as pre-packaged, single-serving items
  • Consider using ultraviolet germicidal irradiation (UVGI) as a supplement to help inactivate the virus

Q: What Administrative Controls Can Be Implemented? (Updated 8/18/21)

A: The CDC and OSHA propose the following, as adapted for fully-vaccinated individuals.

  • Those with symptoms or with sick family members should notify their supervisor and stay home. (We note, however, that under CDC’s guidance for fully-vaccinated individuals as adopted by OSHA, those individuals need not quarantine following exposure, which would include contact with sick family members). Enhanced cleaning and disinfection of their workspace should take place.
  • Consider conducting daily symptom and temperature screening. (However, we believe that screening is not required for fully-vaccinated employees).
  • Stagger shifts and break times. A new suggestion is to have employees and visitors phone from their cars to enable them to enter at staggered times.
  • In accordance with CDC guidelines, clean and disinfect high touch surfaces, like work stations, keyboards, telephones, handrails, copiers/printers and doorknobs. Provide cleaning and disinfection materials, including wipes.
  • Prohibit handshakes, hugs, and fist bumps (except as to fully-vaccinated individuals)
  • Limit use and occupancy of elevators to maintain social distancing of at least 6 feet
  • Incentivize forms of transportation that minimize close contact, such as offering reimbursement for parking or single-occupancy rides
  • Require employees who are not fully vaccinated to wear a cloth face covering to cover their nose and mouth in all areas of the business. If in an area of substantial or high transmission, however, require all employees regardless of vaccination status to wear a mask/face covering in indoor public settings.
  • Consider asking or requiring visitors and guests who are not fully vaccinated to wear face coverings (as well as to not enter the building if sick and to stay 6 feet away from employees). If in an area of substantial or high transmission, however, require all visitors and guests regardless of vaccination status to wear a mask/face covering in indoor public settings.

Q: May Employers Require Employees To Sign A Liability Waiver Before Returning To Work? (Added 7/13/20)

A: Generally not. Workers’ compensation is the remedy for workplace injuries and illnesses, including COVID-19, and workers’ compensation rights cannot be waived.

Q: What Education Should Be Provided To Employees and Supervisors? (Added 7/13/20)

A: Training on a variety of infection prevention, response, and mitigation topics should be provided and should be easily understood, in the preferred language of non-English-speaking workers. Post signs on hand hygiene, COVID-19 symptoms, and respiratory etiquette, available from the CDC.

Q: What Should Employers Do About Ventilation In the Workplace? (Added 12/3/20)

A: OSHA has released a COVID-related safety alerts on ventilation in the workplace. OSHA recommends that employers work with a heating, ventilation, and air conditioning (HVAC) professional to optimize building ventilation. In addition, OSHA offers a number of tips, including the following:

  • Ensure all HVAC systems are fully functional, especially those shut down or operating at reduced capacity during the pandemic.
  • Remove or redirect personal fans to prevent blowing air from one worker to another.
  • Use HVAC system filters with a Minimum Efficiency Reporting Value (MERV) rating of 13 or higher, where feasible.
  • Increase the HVAC system’s outdoor air intake. Open windows or other sources of fresh air where possible.
  • Be sure exhaust air is not pulled back into the building from HVAC air intakes or open windows.
  • Consider using portable high-efficiency particulate air (HEPA) fan/filtration systems to increase clean air, especially in higher-risk areas.
  • Make sure exhaust fans in restrooms are fully functional, operating at maximum capacity, and are set to remain on.

FEDERAL AGENCY GUIDANCE ON COVID-19 (Updated 11/2/21)

Centers for Disease Control and Prevention (CDC) (Updated 3/17/21)

DOL Occupational Safety and Health Administration (OSHA) (Updated 7/19/21)

DOL Employment and Training Administration (DOLETA)

DOL Veterans’ Employment and Training Service (VETS)

DOL Veterans’ Employment and Training Service (VETS)

Presidential Memoranda (Added 9/10/20)

Treasury Department (Updated 9/10/20)

Food and Drug Administration (Added 12/18/20)

Department of Health and Human Services (Added 11/2/21)

Centers for Medicare and Medicaid Services (Added 12/2/21)