Tag Archives: OSHA

January 2022
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Employment Law

OSHA Vaccine Rule Is Blocked; CMS Vaccine Rule Is Not

This afternoon the Supreme Court issued two opinions pertaining to “mandatory vaccination rules” .

The Court blocked the OSHA vaccine or test mandate, which was applicable to employers with 100 or more employees. The Court voted 6-3 to stay or block the OSHA Rule.

In a 5-4 decision the Court allowed the CMS Mandatory Vaccination Rule to proceed, as it stayed two District Court decisions which had enjoined the Rule. The CMS Rule applies to facilities that receive Medicare and Medicaid Funding , their employees, and contractors who provide services to those facilities.

In Tennessee this means the Tennessee COVID Law will remain in effect, but businesses governed by the CMS Rule can apply with the Comptroller for an exemption from the Tennessee law.

Stay tuned for further developments.

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December 2021
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Employment Law

OSHA’s Mandatory Vaccination Rule Gets New Life

On Friday evening (December 17th) the Sixth Circuit Court of Appeals dissolved the stay of OSHA’s Emergency Temporary Standard (ETS) which requires employers with 100 or more employees to mandate that employees get vaccinated against Covid-19 or be subject to mandatory weekly testing. You can read my blogpost summarizing the ETS requirements here.

Later Friday night numerous states and interest groups filed emergency applications with the U.S. Supreme Court seeking a stay of the ETS, as well as petitions for certiorari, which are requests that the Supreme Court take the case for review. We do not yet know whether the Supreme Court will take the case (here is one bet that it will). Hopefully, we will know the answer to that soon. In the meantime, what should employers do?

Employers should prepare to comply with the ETS, though they now have more time to do so. In light of the Sixth Circuit ruling, and the likelihood of further court review, OSHA issued the following statement over the weekend:

To provide employers with sufficient time to come into compliance, OSHA will not issue any citations for noncompliance with any of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9th, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

Reasonable, good faith efforts to comply are key pending final resolution of the issue. This situation will continue to evolve. As always, check here for updates!

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November 2021
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Employment Law

OSHA Suspends Mandatory Vaccination Rule After 5th Circuit Issues Stay

Late Friday the 5th Circuit Court of Appeals issued a stay of the OSHA ETS, a/k/a/ the Mandatory Vaccination Rule. After that ruling OSHA announced yesterday that it would suspend “activities related to the implementation and enforcement of the ETS pending future developments in the litigation”.

Please remember that this action by OSHA does not apply to employers governed by the Executive Order for federal contractors and subcontractors, or employers governed by the CMS Rule (hospitals, ambulatory surgery centers and other CMS certified facilities).

Stay tuned for further developments.

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November 2021
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Employment Law

OSHA’s Mandatory Vaccination Rule- What Employers Need To Know

On November 4th OSHA released an Emergency Temporary Standard (ETS) to minimize the risk of COVID-19 transmission in the workplace. The ETS requires most employers that have a total of 100 or more employees to either require all employees to be fully vaccinated against COVID-19 or be subjected to weekly testing and wearing a face covering at work. The highlights are set forth below.

Who is covered? All employers with 100 or more employees. Employees at all locations count. Part-time employees count. Independent contractors do not count.

Who is not covered? 1. Federal Contractors and Subcontractors covered under the “Mandatory Vaccination Executive Order”; 2. Healthcare providers who receive Medicare and/or Medicaid and are covered by the “CMS Mandatory Vaccination Rule”.

Are some employees exempt? Yes. The ETS does not apply to employees of covered employers : 1. Who do not report to a workplace where other employees or customers are present; 2. While working from home; 3. Who work exclusively outdoors.

Do the disability and religious exemptions still apply? Yes. Those employees who are legally entitled to a reasonable accommodation because of a disability (under the ADA) or a sincerely held religious belief (under Title VII) do not have to be vaccinated. Additionally, vaccination is not required for any employee for whom a vaccine is medically contraindicated or for whom medical necessity requires a delay in vaccination. The ETS provides that if an employee has a positive test result for, or diagnosis of, COVID-19, vaccination cannot be required for 90 days.

Do employers have to publish a policy? Yes, within 30 days from when the ETS was published. So, employers must have a policy by December 4th. OSHA has issued a form policy for employers to use.

When does vaccination have to be completed? By January 4, 2022. For employees who are getting a two dose vaccine (Pfizer or Moderna) the first shot must occur on or before December 4, 2021.

What records must covered employers maintain? Employers must ensure all employees who are not exempt are fully vaccinated. As part of fulfilling that requirement employers must maintain a record of each employee’s vaccination status and preserve acceptable proof of vaccination. Acceptable proof is a vaccination card, a record of immunization or a medical record. The employer must also maintain a roster of each employee’s vaccination status. These records and roster must be maintained as confidential medical records in accordance with federal law. These records must be preserved so long as the ETS is in effect.

Does the ETS provide for paid leave? Yes. Employers must provide up to 4 hours of paid time at the regular rate of pay, including travel time, for employees to get vaccinated. Employers must also provide reasonable time and paid sick leave to recover from side effects experienced from any vaccination.

Can employers require testing instead? Yes. Employers can elect to require weekly testing for all unvaccinated employees instead of vaccination. These employees must be tested at least once every seven days and provide documentation of the test result no later than the 7th day. If the employee does not comply with these requirements the employer must keep the employee removed from the workplace.

Who pays for the test? Employees must pay for the test. But employers can choose to do so. And a “do it yourself/at home” test result is only acceptable if it is conducted in the presence of the employer.

Do unvaccinated employees have to wear masks/face coverings? Yes, whenever they are around others in the workplace. An exception exists for eating and drinking.

What about employees who test positive? Employers must require employees to immediately notify them if they test positive or are diagnosed with COVID-19. These employees must be immediately removed from the workplace until they receive a negative NAAT test result and meet the CDC return to work criteria.

Are there other notification requirements? Yes. In addition to the policy employers must provide employees with the document entitled “Key Things To Know About COVID-19 Vaccines” and advise them of their rights to be free from discrimination for reporting a work related injury or illness and free from retaliation from making a complaint.

Are there OSHA reporting and record keeping requirements? Of course. All COVID-19 fatalaties must be reported to OSHA within 8 hours. Each COVID-19 hospitalization must be reported with 24 hours. And most records must be made available to OSHA for inspection by the end of the next business day.

Does the ETS preempt state law? Ye, if the state law is contrary to or requires less than the ETS. So if the Bill recently passed by the Tennessee General Assembly actually becomes law the provisions in it which pertain to employers will be moot.

The big unknown is whether the ETS will survive legal challenges. On Saturday, November 6th, the United States Court of Appeals for the 5th Circuit, which covers Louisiana, Texas and Mississippi, issued a temporary stay preventing the ETS from taking effect. The government has until 5p.m. on Monday, November 8th, to respond. The Order did not specify whether the stay is nationwide or applies only to the states under its jurisdiction. However, there are similar legal challenges pending in other courts, including the 6th Circuit Court of Appeals, which includes Tennessee.

In the meantime employers should prepare to comply with the ETS. While it might be enjoined or withdrawn, that has not yet happened and might not happen. As always, the failure to plan is a plan to fail.

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April 2021
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Employment Law

OSHA Weighs In On Mandatory COVID-19 Vaccines

As you know from my prior posts, the EEOC has stated that employers can require employees to be vaccinated against COVID-19, subject to exceptions for those employees who have a disability that prevents them from being vaccinated and those employees who have a good faith religious belief which prohibits vaccinations. Recently, OSHA weighed in on the issue of mandatory vaccinations in the workplace.

OSHA also allows mandatory COVID-19 vaccinations. However, if an employer makes vaccinations mandatory and an employee has an adverse reaction, that is a recordable event under OSHA assuming the other factors are met for recording an event on the OSHA log. Those factors include any of the following: days away from work, restricted work, transfer to another job or medical treatment beyond first aid.

OSHA’s FAQs on COVID-19 are a helpful resource, and can be found at http://www.osha.gov

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February 2021
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Employment Law

OSHA’s Latest Guidelines on COVID-19

At the end of January OSHA issued another set of Guidelines for dealing with COVID-19 in the workplace. These Guidelines are not legal requirements. However, I suspect that if OSHA investigates and sees that a business is not following these Guidelines a determination that the business has violated OSHA’s General Duty clause, which states that employers have a general duty to keep the workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm”, is likely.

Among other things the Guidelines state:

  1. Employees who have been vaccinated against COVID-19 must still follow the protective measures, including wearing a mask, social distancing and hand washing.
  2. In adopting a workplace safety plan employers should engage employees to ensure their thoughts and concerns are considered. It is an interactive process.
  3. Employers should consider protections for workers at a higher risk. But be careful. This does not mean you automatically send all older employees, or employees with known underlying health issues, home. Doing so could lead to claims of age and/or disability discrimination. Instead, make a decision that applies to all high risk employees, not just a certain group or groups.
  4. Follow the CDC isolation guidelines for employees who have COVID-19 or have or may have been exposed to it.

The bottom line is employers should continue to be proactive, responsive and flexible.

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March 2020
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Employment Law

Coronavirus Concerns For Employers

Coronavirus concerns are international.  Universities are cancelling in-person classes.  Professional and collegiate sporting events are being cancelled.  Travel bans are in place.  In New York state, the National Guard was deployed in an effort to create a “containment zone” in New Rochelle.  But what can employers do when faced with issues created by the Coronavirus?

The EEOC weighed in on this issue last week, and provided some helpful guidance on how employers can manage Coronavirus concerns and still comply with the ADA.   I have summarized the EEOC’s answers to 3 key questions below.

In an effort to protect their workforce, how much information may an employer request from an employee who calls in sick?

The EEOC stated that ADA-covered employers may ask the employees if they are experiencing flu-like symptoms, such as fever or chills and a cough or sore throat.  This information must be maintained by the employer in a  confidential medical record in compliance with the ADA.  Furthermore, the EEOC stated that these inquiries are not disability related if Coronavirus is like the seasonal flu.  And, if the Coronavirus becomes more severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of Coronavirus poses a direct threat to the health and safety of other employees. 

Does the ADA allow employers to require employees to stay home if they have Coronavirus symptoms?

Yes.  Employees who become ill at work with flu-like symptoms should leave work and advising them to do so is not a disability-related action.  And, sending them home would be permitted if the illness were more severe, as the individual would pose a direct threat to the health and safety of others. 

While not addressed by the EEOC, sending an employee who has a severe case of Coronavirus home may be required under OSHA’s “General Duty Clause”, which requires employers to furnish a “place of employment … free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.”

The EEOC also confirmed that the  ADA allows employers to require a doctor’s note certifying the employee’s fitness for duty when returning to work.  Again, this is not a disability-related inquiry, and if the illness is severe, the inquiry would still be justified to avoid a direct threat.

The EEOC’s Guidance does not address whether an employee who is sent home must be paid, because that is not one of the laws the EEOC enforces. That answer depends on whether any work is performed and whether the employee is non-exempt or exempt under the FLSA.

Hourly employees are only paid for hours worked, so if an employee will be working from home he or she must be paid for the actual time worked.  If the hourly employee will not be working from home, he or she gets no pay while out of work.  An employer can allow the employee to use accrued PTO or sick leave. Salaried, exempt employees must be paid their normal weekly salary if the employee performs any work that week.

The Coronavirus is definitely cause for concern.  Employers who act responsibly and in accordance with the EEOC and other guidance, don’t have to add employment law concerns to the list.

 

 

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