MANAGING COVID IN THE WORKPLACE
Employers are grappling with how to manage COVID in the workplace.
- How do we keep our employees safe?
- What does the CDC say about masks, quarantines, and when employees can return to work after being sick or exposed to COVID?
- Can we require vaccines?
- What do we do about vaccine mandates?
- Can we share vaccination status of employees with co-workers and customers?
- What if we have employees who repeatedly call out because of COVID exposure?
Employee Safety
In early 2020, the world faced a global pandemic and for most organizations, it resulted in implementing protocols such as remote work, social distancing, and masking. Many governmental entities at all levels implemented mandates that required all but essential businesses to close and/or work remotely. As the initial ravages of COVID began to wane, states such as Florida and Texas opted to reopen in stages to allow individuals to safely return to work and resume their typical life activities. However, masking and hand sanitizing remained the norm. As other parts of the country and the world reopened and as vaccines become available, employers began to loosen some of their protocols. As remote employees returned to the workplace some employers were less diligent about requiring them to wear masks.
Today, COVID-19 and its variants continue to cause disruption. Because of this, employers are rethinking their strategies to manage their workplaces safely.
The Occupational Safety & Health Administration (OSHA) imposes an obligation for employers under the General Duty Clause to maintain a safe and healthful environment for their employees. OSHA has created a webpage dedicated to Coronavirus and has issued guidance that sets their expectations of what employers should do to help ensure a safe work environment is established and maintained to prevent the spread of COVID. OSHA also refers to the Centers for Disease Control (CDC) for additional guidance. Here is some of the guidance provided to protect employees in the workplace:
- Granting paid time off from work to employees in order for them to get the vaccine;
- Have a policy requiring all employees who have COVID-like symptoms to stay home from work per CDC guidelines. The CDC revised its Quarantine & Isolation guidelines in December 2021 and that guidance can be found here and here;
- Have a policy requiring unvaccinated employees who have been in close contact with someone who has tested positive for COVID to stay home per CDC guidelines available in the link above;
- Remote work;
- Implement social distancing protocols;
- Implement masking protocols; and
- Educate employees about COVID symptoms, prevention, and vaccination.
More information about OSHA’s guidance on preventing the spread of COVID in the workplace can be found in their webpage entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.
Employers may want to consider monitoring employees and visitors to their facilities for temperatures, COVID-like symptoms, etc. This was a protocol that many organizations implemented in 2020 but have since abandoned. This could literally stop the spread of disease, including flus and stomach viruses, at the door.
Centers for Disease (CDC) Control Guidance on COVID
While the CDC provides excellent information on its website, their guidance frequently changes and it’s not always easy to find the information you’re seeking. For example, the CDC recently revised its masking guidelines to recommend that vaccinated individuals continue to wear masks in public areas.
Here are the main CDC pages that will be of help to you and there is a chart provided after these links that will allow you to navigate the quarantine, masking, and return to work maze.
Interim Public Health Recommendations for Fully Vaccinated People
Quarantine & Isolation (Revised December 2021)
Interim Guidance on Ending Isolation and Precautions for Adults with COVID-19
The CDC provides special guidance for healthcare professionals regarding when they need to quarantine and when they can return to work.
Vaccines – Can We Require Them?
In most jurisdictions, non-unionized employers are permitted to require employees to obtain COVID vaccines. In a unionized workplace, an employer may need to bargain with the union over this requirement.
Before implementing such a policy, it’s important to understand that the EEOC has issued comprehensive guidance on What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. In this guidance, you’ll see that the EEOC does permit you to require the vaccine. Employers are also permitted to provide nominal incentives to employees in order to encourage vaccination.
Any documentation employees provide demonstrating their vaccination status is considered a medical record and must be maintained in a separate, confidential medical file following Americans with Disabilities Act (ADA) guidelines.
The employer is obligated to make reasonable accommodations for employees who have medical conditions that prevent them from receiving the vaccine and for those employees who are refusing the vaccine because of their sincerely held religious beliefs
Because a person’s vaccination status is considered a medical record, employers aren’t permitted to share that status with co-workers, vendors, customers, etc. Even though you may have contractors or customers that demand this information, you should consult with your employment law attorney before you make a decision to identify who is or isn’t vaccinated in your workplace.
When considering mandatory vaccines in your workplace, evaluate whether or not some of your employees may choose to leave your organization rather than get the vaccine. What will your plan be if your best employee opts to resign rather that get the vaccine? With today’s tight labor market, consider your organization’s ability to attract new employees if you mandate the COVID vaccine.
Federal Contractor Vaccine Mandate
On September 9, 2021, President Biden issued an Executive Order mandating COVID-19 vaccinations for employees of federal contractors and subcontractors. To implement the mandate, federal agencies, covered federal contractors and subcontractors must include a clause in all new, renewed, amended, or modified federal contracts that requires the signatory to comply with the Federal Contractor Vaccine Mandate (the “Contract Clause”) and any implementing guidance. The implementing guidance issued by the Safer Federal Workforce Task Force initially required all covered contractor employees to be fully vaccinated by December 8, 2021.
This mandate has been challenged in various circuit courts, resulting in a nationwide enjoinment of this rule.
On December 21, 2021, the Eleventh Circuit adopted a briefing schedule on the government’s appeal of the decision by the District Court to issue a nationwide stay of the federal contractor vaccine mandate. It appears that we may not know if the federal contractor vaccine mandate will survive until late February or early March, and potentially not until mid-April. It also appears likely that implementation of the federal contractor vaccine mandate will be delayed (if the mandate survives at all) until that same time frame.
OSHA Emergency Temporary Standard
In November 2021, the Occupational Health & Safety Administration (OSHA) issued rules mandating that private employers with 100 or more employees require vaccination or implement protocols such as regular COVID-19 testing and masking for those employees who are unvaccinated.
There were challenges in various circuit courts to these regulations. In early January 2022, the Supreme Court of the United States (SCOTUS) heard the case and ultimately upheld the nationwide stay on OSHA’s ETS rule. The Supreme Court has directed the Sixth Circuit to consider the substantive validity of the ETS. Enforcement of the ETS is stayed pending that review, and (potentially) a final review again by the Supreme Court.
This means that employers that were subject to the ETS now have additional time in which to prepare for compliance should the rule ultimately be upheld. It is also possible that, in light of the Supreme Court’s decision, OSHA may issue a more limited rule or adopt a different requirement by way of a permanent standard in the future.
Centers for Medicare & Medicate (CMS) Vaccine Mandate
In November 2021, the Centers for Medicare & Medicaid Services (CMS), in collaboration with the Centers for Disease Control and Prevention (CDC), issued interim regulations requiring vaccinations for health care workers beyond nursing homes to include hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, as a condition for participating in the Medicare and Medicaid programs. The decision was based on the continued and growing spread of the virus in health care settings, especially in parts of the U.S. with higher incidence of COVID-19.
This mandate has been challenged in various circuit courts. Because of these challenges, this rule is currently enjoined in 25 states while it is enforceable in the other 25.
In early January 2022, the Supreme Court heard arguments regarding the CMS vaccine mandate and ultimately vacated the injunctions that applied to it in 24 states. This allows CMS to enforce in all of the states except for Texas. (Texas remains subject to an injunction issued in a case that was not before the Supreme Court; accordingly, CMS is not currently enforcing the vaccine mandate in Texas. However, the Supreme Court’s decision likely means the Texas injunction will soon be lifted.)
New deadlines for compliance are as follows:
Phase 1: Policies must be implemented by covered facilities to ensure that all facility staff receive at least the first dose of an approved vaccine unless the staff member has been granted a qualifying exemption, has a pending request for an exemption, or has a medical condition that temporarily delays vaccination as recommended by the CDC.
- For facilities in states that were not subject to an injunction, the Phase 1 deadline is January 27, 2022.
- For facilities in states that were covered by an injunction, the Phase 1 deadline is February 14, 2022.2
Phase 2. Covered facilities must ensure that facility staff complete a vaccination series unless the staff member has been granted a qualifying exemption or has a medical condition that temporarily delays vaccination as recommended by the CDC.
- For facilities in states that were not subject to an injunction, the Phase 2 deadline is February 28, 2022.
- For facilities in states that were subject to an injunction, the Phase 2 deadline is March 15, 2022.
Coordination with State Law
Some states, such as Florida, prohibit organizations from asking or requiring customers to provide proof of vaccination. Other states, such as New York, have taken a different approach and are requiring individuals to show proof of vaccination for indoor dining, gyms, Broadway shows, etc. It’s important to find out what the requirements are for each state in which you operate.
Florida law also prohibits private employers from mandating COVID-19 vaccines for employees without opportunity for the employees to obtain an exemption. Violations of this law can carry fines of up to $50,000. Florida employees can choose to be exempt from private employer vaccine mandates for:
- Medical Exemption from COVID-19 Vaccination
- Religious Exemption from COVID-19 Vaccination
- Exemption from COVID-19 Vaccination Based on COVID-19 Immunity
- Exemption from COVID-19 Vaccination Based on Periodic Testing
- Exemption from COVID-19 Vaccination Based on Employer-Provided Personal Protective Equipment
Forms for these exemptions can be found on the website of Florida Department of Health & Human Services.
Florida’s law includes exemptions that are not articulated in the rules for Federal Contractors, Centers for Medicare & Medicaid (CMS), or other governmental agency mandates such as the Office of Head Start. Employers should consult with an employment law attorney to coordinate those rules with Florida’s law.
On a more positive note, some states, such as Florida (FS 678.38), have implemented laws that limit liability from claims that someone has contracted COVID on their property. For example, for such a claim to progress in Florida, the plaintiff must provide a doctor’s sworn attestation that within a reasonable degree of medical certainty that the plaintiff’s COVID-19 related harm was caused by the defendant. Employers are encouraged to determine whether or not the states in which they operate have similar protections.
Controlling Attendance
You may have employees who have had multiple exposures to COVID that have required them to self-quarantine following CDC guidelines.
Employees who are actually ill with COVID or who are caring for a child, spouse, or parent with COVID may be protected by the Family & Medical Leave Act since COVID would be regarded as a serious health condition. Otherwise, as an employer, you have a decision to make with respect to whether or not the third or fourth time an employee has had to quarantine because they’ve tested positive OR because they were exposed to a COVID positive person violates your attendance policy. Before making an adverse employment decision against that employee, it is recommended that you consult with your employment law attorney, and consider how it may be perceived by your other employees and in the community that you terminated someone for too many instances of COVID-related absences.
COVID continues to be a challenge for employers and there is uncertainty as to when this pandemic will end. It’s important for employers to refine and maintain the safety protocols they implemented when the pandemic first began in 2020. These protocols to limit the spread of COVID are an organization’s best line of defense.
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