Debra S. Friedman, a labor and employment attorney with the Philadelphia law firm Cozen O’Connor, joins us to provide the latest information on OSHA guidelines related to COVID. A few items she highlighted for consideration include inquiries about vaccination status, legality and growth of mandatory vaccines, and continuing rules for masking and social distancing.
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By: Bill Hayes, Pennsylvania CPA Journal Managing Editor
On today's episode of CPA Conversations, we are joined by Debra S. Friedman, a member, labor and employment attorney, at Philadelphia law firm, Cozen O'Connor. She'll be discussing current OSHA guidelines related to COVID-19, including the ability for employers to inquire about vaccination status, the legality of mandatory vaccines, and the rules in place for masking and social distancing post-vaccine.
Can you give us a summary of the current guidelines OSHA has put out for COVID-19? What are employers expected to follow or uphold?
[Friedman] As most people listening to this podcast know, this is an ever-evolving area of the law and we need to keep tuned to changing developments based on the course of COVID and government regulations. OSHA fits right into this fact pattern. A good place to start is what is known as OSHA's general duty clause. This requires all employers to provide a safe workplace for their employees. Beyond the general duty clause, OSHA offers guidance to employers on different actions that they can take to demonstrate that they are indeed providing a safe workplace in light of the COVID-19 pandemic.
Importantly, this guidance does not have the force and effect of law. It is in the nature of recommendations. The current recommendations generally focus on an employer having a written COVID-19 plan in place to address safety in their workplace, and a recommendation that all employees, whether they're vaccinated or unvaccinated, be required to wear masks in indoor public settings, if those settings are in an area of substantial or high community transmission. This is something that changes very rapidly, so employers need to keep a note on where they have facilities and how it is being characterized in terms of the transmission rate in the community. Also, employers should require that all visitors to the facility, whether they're customers, vendors, or otherwise, also mask up in circumstances when employees are required or encouraged to do so.
OSHA also is encouraging employers to consider requiring employees to get vaccinated or to undergo regular COVID-19 testing and apply social distancing, especially with unvaccinated employees. OSHA has additional recommendations. If an employee has a known exposure to someone who is suspected or confirmed to have COVID-19, the employee should be tested three to five days after the exposure and should wear a mask in public indoor settings for 14 days or until they receive a negative COVID-19 test result. Employers also need to keep in mind if they have operations in a state that has their own OSHA plans. Now, Pennsylvania does not, but some other states do.
That's the background that applies to all employers, but OSHA also has a couple other standards out there that employers should be aware of. One, which is known as the Healthcare Emergency Temporary Standard, or ETS, applies to healthcare employers. This generally applies in settings where an employee provides healthcare or healthcare support services in a hospital, a nursing home, assisted living setting, home healthcare, emergency responders, and ambulatory care facilities that have cases of known or suspected COVID-19. Now, it doesn't apply to all healthcare settings. If you are an ambulatory care setting, such as a doctor's office, you are not covered by this standard if all of your employees are vaccinated, absent a medical or religious exemption, all employees are screened to entry and non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter the facility.
Those covered healthcare employers who must follow this mandate – and this is a mandate – have to have a written COVID-19 plan, they need to designate a safety coordinator, among other things. They have to train employees on the standard. They need to make sure they have certain physical barriers and proper ventilation, proper cleaning and disinfectant protocols in line with CDC guidance. They also have to provide employees with paid time-off to get vaccinated and recover from any side effects, and they also have to provide what's known as medical removal pay for employees who test positive for COVID-19 or who are exposed to it.
Then, finally, the one that most employers are waiting with baited breath for is what's known as the OSHA COVID-19 Vaccinations and Testing Emergency Temporary Standard, or ETS. Now, this one is broad-reaching because it's going to apply to all private employers with 100 or more employees. Today, it's October 26, and we're waiting with baited breath for the release of the standard because it's being kept under wraps and should come out literally any day. We don't know all of the details, but we can encourage employers to be prepared in certain respects.
The goal of this standard is for employers to either require that all of their employees be vaccinated, absent a medical or religious exemption, or that all unvaccinated employees get tested on a recurrent basis to make sure they don't have COVID-19 if they're coming into the workplace. Some of these details are fluid in terms of how frequent testing must be, who must pay for testing, but here are some general tips that employers can get under their belt to be prepared.
First, if you haven't done it already, employers should determine the vaccination status of their workforce. This may help the employer decide whether they're going to require all employees to be vaccinated or not, depending upon the percentage that they find is already vaccinated. Employers need to be prepared to think about who pays for testing. It may be required that employers pay, but if it's not, employers need to also look at state laws. Some states require employers to pay for all necessary business expenses, and paying for a COVID-19 test may be considered a necessary business expense under some state laws. Also, depending on the cost of a COVID test and the frequency, employers need to keep in mind that all employees need to be paid the minimum wage, so they need to factor in the cost of testing for lower-wage workers if they're not paying for it.
Employers also should be prepared to give employees paid time-off to get the vaccine, if they're not already vaccinated, and to recover from any side effects. It's not clear, but OSHA has indicated that employers likely will be able to require that employees use any available paid time-off for this purpose, if they have it. Employers should be thinking about remote work and whether they have employees, if they're not vaccinated, who can work in a fully remote environment if the emergency standard does not require those employees to be vaccinated or tested as well.
I know that's a lot, but that's the ground of what's going on with OSHA these days.
What's the Equal Employment Opportunity Commission's position on the ability for employers to inquire about vaccination status? Is there an issue there?
[Friedman] Thankfully, that's much clearer. The EEOC has said that employers absolutely can ask employees if they're vaccinated. They cannot, however, ask employees why they are not vaccinated without risking possible legal exposure. This is because, if employers ask the question why you're not vaccinated, they might uncover underlying disabilities and then they have to engage in what we call the interactive process to provide reasonable accommodations that may be required. Also, if you ask the why question, it could elicit information about an employee's disability or history of a disability, and then if the employee later suffers an adverse action, such as being terminated or being denied a raise or a promotion, then the employer may be at risk for a potential disability discrimination claim.
The EEOC has also stated that employers can require employees to provide proof of vaccination. It's important, though, that employers be careful that when they collect this data, that they treat it as confidential medical information and that they keep it separate and apart from an employee's medical file. The EEOC has gone even further. They've also said that employers can impose a vaccine mandate, if they so choose, in a workplace, as long as they provide reasonable accommodations for employees with sincerely held religious beliefs or who have a medical condition that would prohibit them from getting the vaccine.
What would be our most up-to-date information about mandatory vaccinations and their legality? Are they starting to become more popular or accepted?
[Friedman] The EEOC allows them, but employers also need to consider state law. For instance, in Montana, employers are prohibited from instituting vaccine mandates. We see different movements across the country where there may be other states that also try to restrict employers from imposing vaccine mandates on their private workforces. That's something that employers should keep an eye on, in terms of legality, but it is most likely going to be upheld, if challenged. We already see the courts upholding vaccine mandates across the country. They also are becoming more popular. Part of the reason is employers are feeling more comfortable that it is an appropriate legal stance and that the courts are upholding it, they're doing it out of concern for the safety of their workers, and some of them are doing it because they are required to do so, for instance, if they're healthcare employers or they're a federal contractor, as there's a new federal contractor vaccine mandate. They're also anticipating this new OSHA standard that we're talking about. There's varying reasons, but we've seen a huge wave of employers increasingly requiring it.
Now, you mentioned this to a certain degree before, but if a business chooses to pursue mandatory vaccination for its employees, what sort of recourse is there for employees that choose to remain unvaccinated?
[Friedman] There are, in certain circumstances. As I mentioned briefly before, an employer cannot require an employee to get a vaccination if it would hurt them due to a medical condition. An employer can require that an employee fill out a form or provide a doctor's note – or both – explaining the need for a medical exemption from the vaccine. If they have a medical exemption, then the employer cannot force it. But that's only half of the question: the employer then has to say, "Okay, this employee has a valid reason for not getting vaccinated, so what are my obligations as an employer to accommodate this employee in the workforce?" The employer needs to consider whether the workplace would be safe if the employee could wear a mask and social-distance and/or get tested on a recurring basis, or whether it would be appropriate for the employee's job to work remotely, at least for now.
Those are some of the types of accommodations employers need to consider, but they're always having to balance that as to whether the accommodation would constitute what is known as an undue hardship for the employer. It's really going to focus on the type of employer and the type of job, as to whether there's an accommodation.
These same principles also apply if an employee has a sincerely held religious belief that prohibits them from getting vaccinated. Again, too, an employer can require some proof, but this is a tricky area of the law because employers have to be careful about questioning the sincerity of an employee's religious belief. If it is sincerely held, then the employer needs to go through that same accommodation process as they do for a medical exemption to see whether there's a way that employee can remain employed in the workplace.
What sorts of rules remain in place in regard to masking and social-distancing. Vaccination status notwithstanding, is there an idea of how long these may continue?
[Friedman] Like everything else, this is evolving. Basically, the CDC is looking at local community transmission rates. What they're saying to employers is if you have a facility in an area of substantial or high-community transmission, then not only should your unvaccinated workers be masking up and social-distancing, but your vaccinated workers should be at least masking in public common areas where they may be in contact with both vaccinated and unvaccinated employees. That's what we see happening on the federal level as guidance.
You also have to consider state and local laws and ordinances. For instance, Philadelphia has its own guidelines on masking and social-distancing in facilities, essentially following the CDC's approach, looking at transmission rates, but this is something that evolves and it's going to continue to evolve as COVID either spreads or hopefully becomes defeated.
I have to assume most businesses are already doing this, but how important is it for a business to have mechanisms in place to address COVID-19 workplace requirements and to keep abreast of the developments in the area?
[Friedman] This is critical. If we go back to where we started and focus on OSHA and the duty to provide a safe workplace, one of the first things that the government or an employee who has a complaint is going to look to is what plan did you, the employer, have in place? We all know that COVID-19 can present hazardous conditions, so what are you doing about it? Your first line of defense is really to have some protocols in place, preferably in writing. It's also important to do this so that your employees know what to expect, both from a safety perspective and from a morale perspective. Employers, as we see the labor force contracting, it's more important than ever for employers to show their employees and potential new employees that they are providing a safe workplace, that they've thought through these important issues, and that they're taking the necessary actions to keep their workers safe and visitors and customers as well.
It's also important in terms of developments. Although employers are not supposed to know all the legal ins and outs, but because this is such a fast-changing subject, to keep abreast of local and national news and guidance really can be done these days with some Google searches, frankly, and checking the CDC, OSHA, and state and local government websites, which will all have the latest requirements and data.