Dear Clients and Friends:
Welcome to our Friday Five Newsletter, where we share the Top Five Things You Need to Know This Week to Protect Your Work Community™ (in particular with respect to COVID-19) and help it thrive. Below are recent developments in the law, or questions that we find ourselves answering a lot. As always, please reach out with any questions, we are here for you. We can help you navigate the confusion of so many rules and recommendations for your unique work community. And if you are curious about our prior Friday Five or other Newsletters, you will find them here.
(1) Federal OSHA Issued an ETS Including Mandatory Vaccines or Testing for Employers with 100 or More Employees.
On January 20, 2021, President Biden established The Safer Federal Workforce Task Force (“the Task Force”) for the purpose of “Protecting the Federal Workforce and Requiring Mask-Wearing.” On September 9, 2021 President Biden by Executive Order indicated, among other expectations, that there would be vaccine requirements for employers with 100 or more employees. This week the Occupational Health and Safety Administration (“OSHA”) released an Emergency Temporary Standard (“ETS”) implementing that requirement. The ETS is a tome; here is what you most need to know today:
Is your Company covered by the ETS? Companies with 100 or more employees are covered. If in the next six months you hit 100 employees, you stay covered by the ETS, even if your company size fluctuates down. In calculating whether you hit the threshold:
- Employees who work remotely and part-time employees are included for purposes of determining whether you have 100 or more employees. Independent contractors are not included.
- Temporary employees (from a staffing agency) do not count toward the “host” company’s tally, but of course do count in determining whether the staffing agency is covered.
If you are covered under OSHA’s Healthcare ETS or are required to comply with the federal contractor mandate (see our October 1 newsletter for details), you are subject to those rules, and not this ETS.
If you are covered, what are your deadlines for complying? The ETS is effective November 5, 2021, and covered companies are required to be in compliance by December 5, 2021, with the exception of the testing requirements (as described below), for which the compliance deadline is January 4, 2021. The ETS will be in effect for 6 months, and may be extended further, if necessary.
Are all of your employees covered by the ETS? No. The following employees are not subject to the ETS requirements:
- Employees who do not report to a workplace where others are present;
- Employees while working at home; or
- Employees who work exclusively outdoors.
What are you required to do under the ETS? 15 key requirements.
- You must mandate vaccines or allow for weekly testing. Covered employers must have in place a mandatory COVID-19 vaccination policy or a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing (and wear a face covering at the workplace). Companies are allowed to require vaccination for only a portion of the workforce (for example, for employees that provide services directly to members of the public), while allowing other employees the choice of vaccination or testing.
- You must determine the vaccination status (but not boosters) of each employee, and obtain acceptable proof of vaccination. Let us know if you want to know what is "acceptable proof." In instances where an employee is unable to produce acceptable proof of vaccination listed above, an employee’s signed and dated statement that meets the ETS requirements will be acceptable.
- Whether you implement a mandatory vaccine policy or testing in lieu of vaccination, you must provide employees with paid time off to get vaccinated. Covered employers must provide employees with up to four (4) hours of paid time (including travel time) at the regular rate of pay to receive each vaccination dose (i.e., a maximum of 8 hours for a 2-dose vaccine). You are not required to pay for that time if the employee chooses to get vaccinated outside of work hours. This paid time cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation, and it may be accomplished by paying the employee for the time spent as work hours.
This does not mean, under federal law, that you are required to reimburse employees for expenses incurred in getting vaccinated, such as mileage, train/bus fair, etc. But be careful: reimbursement for such expenses may be required by other laws, regulations, collective bargaining agreements ("CBA") or other collectively negotiated agreements (for example, you may be required to pay this under California law under certain circumstances).
- Whether you implement a mandatory vaccine policy or testing in lieu of vaccination, you must provide employees with paid time off to recover from vaccine side effects. Covered employers must provide employees with up to 2 days paid sick leave per each dose (a maximum of 4 days for a 2-dose vaccine) to recover from side effects experienced following each dose. Employers may require that employees use accrued paid sick leave (COVID or regular) or accrued PTO to meet this requirement, but cannot require that employees use vacation hours or go in the negative or borrow against future paid sick leave to meet this requirement. In other words, if an employee has no sick leave on the books, the employer must provide additional sick leave beyond the regular sick or COVID leave for this purpose.
- For any employee who is not fully vaccinated, that employee must test for COVID-19 at least once a week (if they are in the workplace) or, if they are away from the workplace for a week or longer, within 7 days before returning to work. Covered employers are not required by the ETS to pay for any costs associated with testing or time spent testing (but may choose to do so), unless an employee is participating in the testing program because the employee has been granted a medical or religious exemption from mandatory vaccination. Having said that, employer payment for this time and cost may be required by other laws, regulations, CBA or other collectively negotiated agreements. An open question is whether California employers will need to pay for the time spent testing or costs associated with getting tested. Employees who do not provide a negative test result in accordance with the above requirement must be removed or excluded from work until they do so. Employees who tested positive in the past 90 days cannot be required to be tested weekly. Only certain tests will be acceptable, let us know if you'd like the details.
- For any employee who is not fully vaccinated, you must require that the employee wear a face covering when indoors or when occupying a vehicle with another person for work purposes, except in the following circumstances:
(i) When the employee is alone in a room with floor to ceiling walls and a closed door;
(ii) While the employee is eating or drinking at the workplace or for identification purposes (i.e., safety and security requirements);
(iii) When the employee is wearing a respirator or facemask; or
(iv) Where the use of face coverings is infeasible or creates a greater hazard that would excuse compliance (e.g., when it is important to see the employee’s mouth for reasons related to their job duties, when the work requires the use of the employee’s uncovered mouth, or when the use of a face covering presents a risk of serious injury or death to the employee).
Covered employers are not required by the ETS to pay for face coverings, but be mindful that this may be required by other laws, regulations, CBA or other collectively negotiated agreements (for example, California employers are required to provide face coverings to unvaccinated employees at no cost.)
- You may not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (e.g., interfering with the safe operation of equipment) and cannot prevent customers from wearing face coverings.
- You must require that employees promptly notify you when they receive a positive COVID-19 test or are diagnosed with COVID-19.
- You must immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider. You are not required to remove employees who have close contact with a positive person in the workplace.
- You must keep "removed" employees out of the workplace as outlined below, until they meet criteria for returning to work. Removed employees may return to work after at least one of the following has been met:
(i) The employee receives a negative result on a nucleic acid amplification test following a positive result on an antigen test (if the employee choose to seek a NAAT test for confirmatory testing); or
(ii) If the employee had symptoms: the employee may return after 10 days following the date symptoms first appeared, so long as it has been at least 24 hours with no fever without fever-reducing medications, and other symptoms are improving; or
(iii) If the employee did not have symptoms but tested positive: the employee may return after 10 days have passed since the date of the positive test; or
(iv) The employee receives a recommendation to return to work from a licensed healthcare provider.
- You are not required under the ETS to pay employees during the removal period, but employees are entitled to make use of any accrued leave in accordance with your policies and practices. Be aware: paid time may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements (for example, Cal/OSHA’s emergency temporary standard requires that employees be paid during the removal/exclusion period if the exposure is work-related and the employee does not receive workers’ compensation or temporary disability during the exclusion period).
- You are not required by the ETS to conduct contact tracing following a positive case in the workplace (but, state and local regulations may require you do so).
- You must provide in writing to employees: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation. This information must be provided in a language and at a literacy level the employees understand.
- You must report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours learning about them.
- You must maintain records and a roster of each employee’s vaccination status, and copies of employee test results while the ETS remains in effect, These records must be kept confidential as employee medical records, and must not be disclosed unless required or authorized by the ETS or other federal law. You must make these records available to the employee or the employee's authorized representative by the next business day following the request. You also must make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
There is a lot to know about the interaction between this and California law. And many of your policies, notices and certifications will need to change as a result of this ETS (and the proposed California ETS outlined below). Reach out; we can help make it easier for you.
(2) The Federal Government Has Clarified the Vaccine Mandate for Federal Contractors.
As detailed in our October 1, 2021 Newsletter, the Task Force issued Guidance on “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” This week, the Task Force clarified that Guidance with FAQ.
On the Topic of Vaccination:
Q: If a covered contractor can access a covered contractor employee’s vaccination documentation, consistent with relevant privacy laws, does the covered contractor need to require the employee to show or provide documentation?
A: No. If, consistent with all relevant privacy laws, a covered contractor can access its employee’s vaccination documentation directly, such as when the contractor previously requested the employee to provide vaccination documentation, has existing documentation from an employee vaccination program, or can access information through a state’s immunization database, the covered contractor does not need to require its employee to show or provide documentation.
Q: Do all requests for accommodation need to be resolved by the covered contractor by the time that covered contractor employees begin work on a covered contract or at a covered workplace?
A: No. The covered contractor may still be reviewing requests for accommodation as of the time that covered contractor employees begin work on a covered contract or at a covered workplace. While accommodation requests are pending, the covered contractor must require a covered contractor employee with a pending accommodation request to follow workplace safety protocols for individuals who are not fully vaccinated as specified in the Task Force Guidance for Federal Contractors and Subcontractors.
Q: When a covered contractor employee is not vaccinated because a covered contractor has provided the employee with an accommodation, what workplace safety protocols must the employee follow while in a federal workplace?
A: The relevant federal agency will determine the workplace safety protocols that individuals who are not fully vaccinated must follow while in a covered workplace. In most circumstances these employees need to follow applicable masking, physical distancing, and testing protocols. However, there may be circumstances in which an agency determines that the nature of a covered employee’s job duties requires heightened safety protocols. Also, in some cases, an agency may determine that the nature of a covered employee’s responsibilities are such that no safety protocol other than vaccination is adequate, in which case an unvaccinated covered employee could not perform the work. This would not relieve the contractor from meeting contractual requirements.
On the Topic of Scope and Applicability of the Task Force Guidance
Q: If a “corporate affiliate” of a covered contractor does not otherwise qualify as a covered contractor, are the employees of that affiliate considered "covered contractor employees"? For purposes of the Guidance, corporate affiliate is defined as (i) a business concern, organization, or individual that directly or indirectly controls or has the power to control the covered contractor; or (ii) a third party that controls or has the power to control both a covered and an affiliate entity/individual. Indicia of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees).
A: An employee of a corporate affiliate of a covered contractor is considered a covered contractor employee if the employee performs work at a covered contractor workplace.
Q: If the workplace where a covered contractor’s employees perform work on or in connection with a covered contract is a location owned, leased, or otherwise controlled by a corporate affiliate of a covered contractor that does not otherwise qualify as a covered contractor, is the workplace considered a covered contractor workplace?
A: Maybe. If any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance at a workplace controlled by a corporate affiliate of that covered contractor, that workplace is considered a covered contractor workplace. This means that if a covered contractor shares a workplace/building with an affiliated company, the employees of the affiliate also are covered by the Guidance. Also, if a covered employee visits a corporate affiliates facility, or is likely to visit, the employees of the corporate affiliate at that facility also are subject to the Guidance. This appears to be an inherent contraction to the Guidance though, which states specifically that the threshold test for employee and workplace coverage is the entity holding a covered government contract.
On the Topic of Compliance
Q: What steps should a covered contractor take if a covered contractor employee refuses to be vaccinated?
A: A covered contractor should determine the appropriate means of enforcement with respect to a covered employee who refuses to be vaccinated and has not been provided, or does not have a pending request for, an accommodation. This may include the covered contractor using its usual processes for enforcement of workplace policies. The Guidance includes the model for enforcement that is being followed by certain federal agencies. Let us know if you'd like the details.
Q: What steps should an agency take if a covered contractor does not comply with the requirements in the Guidance?
A: Where covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the agency contracting officer should work with them to address these challenges. If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.
(3) The EEOC Has Clarified Employer Options on Reviewing Requests for Religious Exemptions and the Impact of Pregnancy or Other Disability.
On October 13 and 25, 2021 the Equal Employment Opportunity Commission (“EEOC”) provided new guidance to employers evaluating requests for religious exemptions to COVID-19 vaccination mandates. Here are some key elements:
- Employees have an obligation to alert employers that a conflict exists between their religious beliefs and a vaccine requirement. There are no magic words required in making the request. Each request should be evaluated on a case-by-case basis.
- Employers are not required to accommodate requests that are based on social, political, or personal preference, or on nonreligious concerns about the possible effects of the vaccine.
- An employer generally should assume that a request for religious accommodation is based on sincerely held religious beliefs. However, employers can make inquiries, including requesting additional documentation as to the nature or sincerity of a purported religious belief when they have an objective basis to question either of these elements. This can include requests for additional documentation.
- Employers that are unable to reasonably accommodate an employee’s religious belief without an “undue hardship” are not required to accommodate an employee’s accommodation request. To establish undue hardship for a religious accommodation request, the employer needs to demonstrate the accommodation would cause it to bear more than a “de minimis” cost. Employers can consider the number of requests for similar exemptions and/or the cumulative cost or burden of granting accommodations to others when evaluating whether granting an accommodation request would impose undue hardship. The Company may consider other factors such as the nature of an employee’s workplace, whether the employee works in a solitary or group environment (i.e., the contact the employee has with other employees or the public).
- Employers do not need to provide an employee’s preferred accommodation and can instead provide an accommodation that is more effective for the Company.
- Employers can revisit religious accommodations if circumstances change, for example if the accommodation ceases to be reasonable or the Company learns that a requested accommodation is no longer utilized for religious purposes.
- The Americans with Disabilities Act ("ADA") and Pregnancy Discrimination Act may trigger accommodation requirements for pregnant employees in certain circumstances, including when a pregnant employee refuses to receive a COVID-19 vaccine due to pregnancy. The ADA may require reasonable accommodations, depending on the facts, for requests tied to pregnancy-related medical conditions that themselves constitute disabilities under the ADA.
(4) Cal/OSHA Released Proposed Updated COVID-19 Regulations.
On October 20, 2021, California’s Division of Occupational Safety and Health ("Cal/OSHA") published draft text for a proposed second re-adoption of its COVID-19 Emergency Temporary Standard (“ETS”). The proposed Cal/OSHA ETS include a continuation of the current ETS (effective as of June 17, 2021) with some changes. If adopted, the ETS will be effective January 14, 2022, through April 14, 2022. Cal/OSHA is considering a proposed permanent standard that would retain many of the same provisions for at least a two-year period. Don't get too attached to these proposed rules: in light of the new federal ETS (outlined in Section (1) above), this California ETS may well change.
The following new requirements are proposed:
- Employees would be required to wear a mask during indoor daily health screenings, regardless of vaccination status.
- Employers would be required to provide free testing (with paid time off) for all close contacts and all members of exposed groups following outbreaks, regardless of vaccination status or symptoms.
- Asymptomatic close contacts would be allowed to return to the workplace 14 days following the close contact, and these close contacts could return to work earlier under certain circumstances (some of which will look familiar as they are already in place per a California Department of Public Health Order, incorporated into the ETS by way of an Executive Order from Governor Newsom):
(i) 10 days after the last close contact if employee continues to wear a face covering and maintain physical distancing until 14 days have passed.
(ii) 7 days after the last close contact if employee obtains a negative PCR test taken at least five days after the last contact, and continues to wear a face covering and maintain physical distancing until 14 days have passed.
(iii) At their discretion, employers may allow fully vaccinated personnel to return to work immediately provided that they continue to wear a face covering and maintain physical distancing until 14 days have passed since the close contact, and get a COVID-19 test three to five days after the close contact.
(iv) Employers also may allow personnel who had COVID-19 in the past 90 days to return to work immediately provided that they continue to wear a face covering and maintain physical distancing until 14 days have passed since the close contact.
Personnel permitted to return to work under these exceptions should be provided with information about any applicable precautions recommended by CDPH for persons with close contacts.
- All symptomatic employees (regardless of testing, vaccination or immunity status) must isolate for at least 10 days from the date the symptoms first appeared, then may return to work provided at least 24 hours have passed since a fever has resolved without medication and COVID-19 symptoms have improved.
Cal/OSHA is considering a proposed “permanent” COVID-19 standard which, once finalized, would replace any ETS that is in place and remain in place for at least two years. This proposed permanent standard does not include a requirement that employers continue to provide wages to personnel who have been excluded from the workplace.
Worth noting as well, effective January 1, 2022, Cal/OSHA will have greater enforcement powers and the ability to impose greater penalties (including penalties for each instance an employee is exposed to the violation, which can be significant).
(5) The Centers for Medicare and Medicaid issued a vaccine mandate for health care staff, effective today.
Although this new federal vaccine mandate may not have a significant impact on California health-care employers already governed by California's health industry vaccine laws, there are some differences worth noting. Let us know if you want help understanding the differences. Here are the key elements:
Are you a "covered employer"? The following Medicare and Medicaid-certified providers and suppliers are covered:
- Ambulatory Surgery Centers
- Community Mental Health Centers
- Comprehensive Outpatient Rehabilitation Facilities
- Critical Access Hospitals
- End-Stage Renal Disease Facilities
- Home Health Agencies
- Home Infusion Therapy Suppliers
- Hospices, Hospitals, Intermediate Care Facilities for Individuals with Intellectual Disabilities
- Clinics, Rehabilitation Agencies, and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services
- Psychiatric Residential Treatment Facilities (PRTFs) Programs for All-Inclusive Care for the Elderly Organizations (PACE)
- Rural Health Clinics/Federally Qualified Health Centers, and
- Long Term Care facilities.
When is this effective and by when must we be compliant? The law is effective November 5, 2021. Employers must establish a policy to ensure employees receive the first vaccine dose within 30 days (by December 5, 2021) and the second dose within 60 days (by January 4, 2022).
May we offer testing in lieu of vaccination? No. Employees must be vaccinated, unless they have a recognized medical condition for which vaccines are contraindicated (as a reasonable accommodation under the ADA or sincerely held religious beliefs, observances, or practices), and cannot choose to be tested as an alternative. Medical exemptions must be supported by a statement signed by a licensed healthcare provider.
How is this enforced? State surveyors will conduct onsite compliance of reviews of these requirements during the standard recertification survey and during all complaint surveys. Penalties include civil monetary penalties, denial of payment, and termination from the Medicare and Medicaid program if there is no compliance after having been provided an opportunity to make corrections.
(Bonus Update) FEHA Issued New Guidance on Vaccinations and Accommodations for Customers and Visitors.
On October 18,2021, the Department of Fair Employment and Housing (“DFEH”) issued new FAQs on the subject of vaccine mandates for visitors and customers. Specifically:
Q: May a business ask customers if they have COVID-19 symptoms and/or take the temperature of customers to determine if they have a fever as a condition of entry onto its premises? May a business exclude or refuse service to someone with COVID-19 symptoms?
A: Yes. The business may also deny entry or service to someone who refuses to state whether they have COVID-19 symptoms or to have their temperature taken. The above steps are not required by the Unruh Civil Rights Act, but a business may decide to do so. A business may not ask only certain types of customers if they have COVID-19 symptoms, take the temperature of only certain types of customers, or deny service to only certain types of customers with COVID-19 symptoms.
Q: May a business require customers to show proof of vaccination against COVID-19 before permitting entry onto its premises? May a business exclude or deny service to someone who cannot show proof of vaccination against COVID-19?
A: Yes, but be mindful of reasonable accommodation requirements. California businesses are required to reasonably accommodate the known disabilities of customers, such as physical impairments. Let us know if you would like more information on reasonable accommodation requirements.
Q: Before permitting entry onto its premises, may a business require customers to show proof of a recent negative COVID-19 test? May a business exclude or deny service to someone who cannot show a recent negative COVID-19 test?
A: Yes. But remember the requirements for a reasonable accommodation (outlined above). Also, a business may not ask only certain types of customers to show proof of vaccination against COVID-19 and/or a recent negative COVID-19 test.
Q: As a condition of being on its premises, may a business require customers to wear a face covering, such as a mask or face shield, and may the business exclude those who refuse?
A: Yes. But consider the above reasonable accommodation requirements. An employer may not ask only certain types of customers to wear a face covering.
We Are Here For You
We hope this information is helpful as you navigate the recent developments and constantly changing laws. Please stay tuned, we will continue keeping you updated. And please, reach out if you have questions or just want to talk!