Celebrating our Workforce and Nation Builders

The American work ethic is revered across the world for its strong roots and incredible contribution to the national economy. It is the individual workers in various industries who have given the edge to America as a financial behemoth of the world. On the 6th of September, we all celebrated Labor Day in honor of our nation builders. It was the late 19th century when the occasion got its legal recognition and was declared a federal holiday. Every year, on the first Monday of September the whole country takes a day off to rejoice and recognize the distinct contribution of every worker across different generations.

These are testing times for the whole world, but we can take these moments to reflect, take inspiration from those who came before us, and do our part.

COVID-19 Mask and Vaccine Mandates- What’s an Employer to do?!

Attorney Kathleen Misturak-Gingrich

For the last eighteen months, the COVID-19 pandemic has created havoc for nearly all aspects of daily living. There is virtually no one whose life has not been drastically impacted by COVID-19. Children have been kept from classrooms and taught “remotely”; families have refrained from attending celebrations of marriage and celebrations of life upon the loss of a loved one; even once simple decisions about whether to dine out or attend church have caused discord among family members as they struggle with conflicting beliefs about COVID-19, the various vaccines, and many times conflicting and downright contradictory information/guidance from the supposed “experts”.

Similar to the decisions and choices being foisted on families by these extraordinary events, employers are also faced with making difficult decisions for diverse work forces, many times in diverse geographic locations and involving diverse work environments, all with an eye towards the ever-changing set of rules and guidance. So, what should an employer do to protect its employees in light of all of this uncertainty?

As a starting point of reference, Employers are charged, under OSHA’s General Duty Clause at Section 5(a)(1), “to provide their workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm”. In addition, OSHA has provided some very specific and useful guidance, which is detailed below. This information is taken from OSHA’s “Protecting Workers-Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”, updated June 10, 2021.

Therein, OSHA suggests employers engage with workers and their representatives to determine how to implement policies and procedures to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19, including:

A. Facilitate employees getting vaccinated. Employers should grant paid time off for employees to get vaccinated and recover from any side effects. Businesses with fewer than 500 employees may be eligible for tax credits under the American Rescue Plan Act if they provide paid time off from April 1, 2021, through September 30, 2021, for employees who decide to receive the vaccine or to accompany a family or household member to receive the vaccine and to recover from any potential side effects from the vaccine. Employers should also consider working with local public health authorities to provide vaccinations in the workplace for unvaccinated workers. Finally, OSHA suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.

B. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes COVID-19. As recommended by the CDC, fully vaccinated people who have a known exposure to someone with suspected or confirmed COVID-19 should get tested 3-5 days after exposure and should wear a mask in public indoor settings for 14 days or until they receive a negative test result. People who are not fully vaccinated should be tested immediately after being identified, and, if negative, tested again in 5–7 days after last exposure or immediately, if symptoms develop during quarantine. Ensure that absence policies are non-punitive. Eliminate or revise policies that encourage workers to come to work sick or when unvaccinated workers have been exposed to COVID-19. Businesses with fewer than 500 employees may be eligible for refundable tax credits under the American Rescue Plan (ARP) Act if they provide paid time off for sick and family leave to their employees due to COVID-19-related reasons. The ARP tax credits are available to eligible employers that pay sick and family leave for qualified leave from April 1, 2021, through September 30, 2021. More information on the tax credits is available from the IRS.

C. Implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers. A key way to protect such workers is to physically distance them from other such people (workers or customers) – generally at least 6 feet of distance is recommended, although this is not a guarantee of safety, especially in enclosed or poorly ventilated spaces. In a workplace, workers often are required to work in close proximity to each other and/or customers or clients for extended periods of time. Maintaining physical distancing at the workplace for such workers is an important control to limit the spread of COVID-19.

Employers could also limit the number of unvaccinated or otherwise at-risk workers in one place at any given time, for example by implementing flexible worksites (e.g., telework); implementing flexible work hours (e.g., rotate or stagger shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video, or web); or implementing flexible meeting and travel options, for such workers.

At fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least 6 feet away from other people, transparent shields or other solid barriers can separate these workers from other people. Barriers should block face-to-face pathways between individuals in order to prevent direct transmission of respiratory droplets, and any openings should be placed at the bottom and made as small as possible. The height and posture (sitting or standing) of affected workers, directional airflow, and fire safety should be considered when designing and installing barriers, as should the need for enhanced ventilation.

D. Provide workers with face coverings or surgical masks, as appropriate, unless their work task requires a respirator or other PPE. In addition to unvaccinated and otherwise at-risk workers, CDC recommends that even fully vaccinated people wear masks in public indoor settings in areas of substantial or high transmission and notes that fully vaccinated people may appropriately choose to wear masks in public indoor settings regardless of community level of transmission, particularly if they are at risk or have someone in their household who is at risk or not fully vaccinated.

Workers should wear a face covering that covers the nose and mouth to contain the wearer's respiratory droplets and to help protect others and potentially themselves. Face coverings should be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents. They should fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face.

Employers should provide face coverings to workers who request them at no cost (and make replacements available to workers when they request them). Under federal anti-discrimination laws, employers may need to provide reasonable accommodations for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or who need a religious accommodation under Title VII of the Civil Rights Act of 1964. In workplaces with employees who are deaf or hard of hearing, employers should consider acquiring masks with clear coverings over the mouth to facilitate lip-reading.

Unless otherwise provided by federal, state, or local requirements, workers who are outdoors may opt not to wear face coverings unless they are at risk, for example, if they are immunocompromised. Regardless, all workers should be supported in continuing to wear a face covering if they choose, especially in order to safely work closely with other people.

When an employer determines that PPE is necessary to protect unvaccinated and otherwise at-risk workers from exposure to COVID-19, the employer must provide PPE in accordance with relevant mandatory OSHA standards and should consider providing PPE in accordance with other industry-specific guidance. Respirators, if necessary, must be provided and used in compliance with 29 CFR 1910.134 (e.g., medical determination, fit testing, training on its correct use), including certain provisions for voluntary use when workers supply their own respirators, and other PPE must be provided and used in accordance with the applicable standards in 29 CFR part 1910, Subpart I (e.g., 1910.132 and 133). There are times when PPE is not called for by OSHA standards or other industry-specific guidance, but some workers may have a legal right to PPE as a reasonable accommodation under the ADA. Employers are encouraged to proactively inform employees who have a legal right to PPE as a reasonable accommodation for their disability about how to make such a request. Other workers may want to use PPE if they are still concerned about their personal safety (e.g., if a family member is at higher risk for severe illness, they may want to wear a face shield in addition to a face covering as an added layer of protection). Encourage and support voluntary use of PPE in these circumstances and ensure the equipment is adequate to protect the worker.

For operations where the face covering can become wet and soiled, provide workers with replacements daily or more frequently, as needed. Face shields may be provided for use with face coverings to protect them from getting wet and soiled, but they do not provide adequate protection by themselves.

Employers with workers in a setting where face coverings may increase the risk of heat-related illness indoors or outdoors or cause safety concerns due to introduction of a hazard (for instance, straps getting caught in machinery) may wish to consult with an occupational safety and health professional to help determine the appropriate face covering/respirator use for their setting.

E. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in languages they understand. Train managers on how to implement COVID-19 policies. Communicate supportive workplace policies clearly, frequently, and via multiple methods to promote a safe and healthy workplace. Communications should be in plain language that unvaccinated and otherwise at-risk workers understand (including non-English languages, and American Sign Language or other accessible communication methods, if applicable) and in a manner accessible to individuals with disabilities. Training should be directed at employees, contractors, and any other individuals on site, as appropriate, and 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.
Workplace policies and procedures implemented to protect workers from COVID-19 hazards.

F. Suggest or require that unvaccinated customers, visitors, or guests wear face coverings in public-facing workplaces such as retail establishments, and that all customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission. This could include posting a notice or otherwise suggesting or requiring that people wear face coverings, even if no longer required by your jurisdiction. Individuals who are under the age of 2 or are actively consuming food or beverages on site need not wear face coverings.

G. Maintain Ventilation Systems. The virus that causes COVID-19 spreads between people more readily indoors than outdoors. Improving ventilation is a key engineering control that can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air and the risk of virus transmission to unvaccinated and otherwise at-risk workers in particular. A well-maintained ventilation system is particularly important in any indoor workplace setting and when working properly, ventilation is an important control measure to limit the spread of COVID-19. Key measures include ensuring heating, ventilation, and air conditioning (HVAC) systems are operating in accordance with the manufacturer’s instructions and design specifications, conducting all regularly scheduled inspections and maintenance procedures, maximizing the amount of outside air supplied, installing air filters with a Minimum Efficiency Reporting Value (MERV) 13 or higher where feasible, maximizing natural ventilation in buildings without HVAC systems by opening windows or doors, when conditions allow (if that does not pose a safety risk), and considering the use of portable air cleaners with High Efficiency Particulate Air (HEPA) filters in spaces with high occupancy or limited ventilation.

H. Perform routine cleaning and disinfection. If someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations.

I. Record and report COVID-19 infections and deaths: Under mandatory OSHA rules in 29 CFR part 1904, employers are required to record work-related cases of COVID-19 illness on OSHA’s Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related (as defined by 29 CFR 1904.5); and (3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7) (e.g., medical treatment, days away from work). Employers must follow the requirements in 29 CFR part 1904 when reporting COVID-19 fatalities and hospitalizations to OSHA. Employers should also report outbreaks to local health departments as required and support their contact tracing efforts.

In addition, employers should be aware that Section 11(c) of OSHA prohibits reprisal or discrimination against an employee for speaking out about unsafe working conditions or reporting an infection or exposure to COVID-19 to an employer. In addition, mandatory OSHA standard 29 CFR 1904.35(b) also prohibits discrimination against an employee for reporting a work-related illness.

J. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards: Section 11(c) of the OSH Act prohibits discharging or in any other way discriminating against an employee for engaging in various occupational safety and health activities. Examples of violations of Section 11(c) could include discriminating against employees for raising a reasonable concern about infection control related to COVID-19 to the employer, the employer's agent, other employees, a government agency, or to the public, such as through print, online, social, or any other media; or against an employee for voluntarily providing and safely wearing their own PPE, such as a respirator, face shield, gloves, or surgical mask.

In addition to notifying workers of their rights to a safe and healthful work environment, ensure that workers know whom to contact with questions or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities; also consider using a hotline or other method for workers to voice concerns anonymously.

K. Follow other applicable mandatory OSHA standards: All of OSHA's standards that apply to protecting workers from infection remain in place. These mandatory OSHA standards include: requirements for PPE (29 CFR part 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), and OSHA's requirements for employee access to medical and exposure records (29 CFR 1910.1020).

For more information or additional guidance contact Kathleen Misturak-Gingrich, Esquire at kgingrich@pjrlaw.com or her direct dial (717.283.4963).

We are seeking guest writers...

We are seeking guest writers to contribute to our email newsletter which reaches more than 2000 people per month. If you would like to consider a joint article (for example: How COVID has impacted on the wedding industry and the legal recourse you might have), we would be glad to work on something with you. For more information, please contact Ashley Malcolm via email amalcolm@pjrlaw.com or call 717-610-1639.

All Work and No Play?

There is no substitute for hard work. It requires effort to get things done and achieve your goals. However, it is also common for people to overdo it in the pursuit of success. As an ambitious worker, you can do a lot of things to strike a balance in your life which will further enhance the quality of your work. Some ideas include:

1) Taking out time to make time - Nothing works better than time management to increase your work efficiency. Make it a habit to plan out your day, week, and month in advance. Use time-tracking tools and make a list of all the activities and the time you spend doing them.

2) Enriching your social life - You should always make time for being with people and enjoying the fruits of your work. Having a good weekend with your friends will always help you to come back reenergized on a Monday morning.

3) Don’t slog hours, try to do more in short intervals - This aspect is quite important as it will give you the ability to smoothly accomplish the points mentioned above. Not being productive enough on your workdays would mean that you will bring work home on weekends. Always make it a point to block out time for your personal life.

Toward Enriched Health

Labor Day marks the end of the summer season. However, it should not mean that you overlook your health and physique just because there is no vacation in the coming weeks. Having an active lifestyle and a balanced diet will keep your health on track year-round. Multiple benefits come with dropping even a few pounds of weight off your body.

1) It enhances your overall mood - Losing as much as 5 to 10 percent of your body weight mainly in the form of fat will improve your energy levels and vitality.

2) Helps you sleep better - Fat loss reduces your bad cholesterol levels and helps you to manage your stress levels. Hence,

3) Good for your joints - Your lower body joints take a lot of stress throughout life and managing your weight can be highly beneficial for your bone and joint health.

Gaining lean muscle mass is a healthy way to lose weight. Building muscle doesn’t mean that you must become a gym rat. With proper nutrition and adequate strength training, you can turn your body into a fat-burning machine, strengthen your skeleton with increased bone mass, and improve your mental health as well. Here are a few steps that will go a long way in your journey to better health:

Eat 1.2 gm of protein per Kg of body weight. For example, iIf your weight is 80 kgs then you should try to eat 96 grams of protein throughout your day. Protein-dense meals keep you fuller for longer and help you to avoid overeating.
Walking a total of at least 60 minutes in a day. This helps you to burn extra calories and log consistent activity throughout the day.
Try to do 3 strength-based workouts in a week. Start slow and be as consistent as possible. Do bodyweight workouts at home if time is a constraint. Small efforts will add up over time to give a big payoff.