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Can We Require Our Employees to Take the COVID-19 Vaccine? Should we?
The short answer to this question is that federal law allows private employers to require vaccinations as a condition of employment if the requirement is job-related and consistent with business necessity. It is anticipated that the law will not treat the adaption of a COVID-19 vaccination policy any differently. Indeed, during March, 2020, when we were in the very early stages of the COVID-19 pandemic, the EEOC published guidance expressly answering the question whether employers subject to the Americans with Disabilities Act and Title VII (which includes religious discrimination protection) are permitted to require employees to get flu vaccinations (state law may also provide other reasons for employees to be exempt from vaccination requirements). The EEOC answered the question in the affirmative advising employers to encourage, but not require, employees to get flu vaccines while noting that employees claiming health-related or religious reasons may be exempt from the employer's policy. Consequently, the rule does come with exceptions.
For employees claiming a disability prevents them from getting vaccinated, the question becomes whether the employer can provide the employee a reasonable accommodation that would allow the employee to continue to perform the essential functions of their job without being a direct threat to the employee's own safety and the safety of others in the workplace. The direct threat standard is a high one - there must be a significant risk of substantial harm that cannot be eliminated with reasonable accommodation. The EEOC has already opined that COVID-19 presents a direct threat. The employee claiming a health-related exemption from the vaccination policy is, in effect, asking for an accommodation in the form of a waiver of the policy as it applies to him or her. Providing this accommodation may mean subjecting this employee to other screening measures in the workplace, such as temperature taking or requiring this employee to wear a face mask in the workplace. Be careful, though, because some employees are objecting to wearing masks in the workplace for health-related reasons, which begins the analysis all over again.
Similarly, employers also have a duty to reasonably accommodate an employees' sincerely held religious beliefs, practices, or observances, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion, such as waiving the requirements of the vaccination policy as it applies to this employee.
In either instance, if no reasonable accommodation exists that eliminates the direct threat in the workplace, the employee is without employment protection under either the ADA or Title VII.
Employers that choose to require their employees to get vaccinated will also need to consider whether the time employees spend getting vaccinated is compensable working time under the Fair Labor Standards Act, and whether the cost is reimbursable to the employee. Generally, if your company determines that requiring the vaccination is job-related and consistent with business necessity, time employees spend getting vaccinated will be compensable work time. Further, the cost for the vaccine may be reimbursable, particularly if the cost of the vaccine has the effect of bringing your non-exempt employees' pay for the week below minimum wage.
What about OSHA? Under the Biden Administration, there will be efforts to publish a standard addressing the COVID-19 hazard in the workplace. Whether such a standard will impose upon employers the duty to require or administer vaccines in the workplace remains to be seen. If the past is any indication, back in 2014, OSHA did opine that during a pandemic, employers may offer appropriate vaccines to workers to reduce the number of those at risk of infection in their workplace. At that time, OSHA did not impose upon employers the duty to require employees to get vaccinated, but only suggested employers should encourage employees to get a seasonal flu vaccination as part of its pandemic preparedness guidance.
Separate from the legal considerations discussed above, before adopting a COVID-19 vaccination policy, be sure to also consider the possible fall out in employee morale, particularly with employees who are against getting vaccinated for reasons other than health related or religious reasons. Indeed, Time Magazine recently published an article citing a Pew survey which suggests that as much as 39% of the population "probably" or "definitely" will not take the COVID-19 vaccine. Are you going to terminate the employee who refuses to get vaccinated without having a protected reason for doing so? You may have a group of employees that approach you in a united effort to object to a mandatory vaccine policy. That concerted activity by your employees concerning the terms and conditions of employment is protected activity under the National Labor Relations Act.
While very little of this is clear at this point, what is clear that in anticipation of the COVID-19 vaccine become available, employers should implement a COVID-19 vaccination policy that addresses all of the issues raised above. Clearly, in drafting such a policy, there is a lot to consider. As they say, "Do not try this at home!" Please contact either Philip Siegel, Ben Lowenthal, or Scott Calhoun to assist. You can e-mail all three by clicking here.
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CDC Revises COVID-19 Guidance with Options to Reduce Quarantine
On December 8, the CDC updated its COVID-19 guidance with options to reduce the length of quarantine for people who have been in close contact with someone who has COVID-19. Additional guidance is available for critical infrastructure workers, as discussed in our article below.
"Close contact" means that:
- You were within 6 feet of someone who has COVID-19 for a total of 15 minutes or more; or
- You provided care at home to someone who is sick with COVID-19; or
- You had direct physical contact with the person (hugged or kissed them); or
- You shared eating or drinking utensils; or
- The person sneezed, coughed, or somehow got respiratory droplets on you.
While the CDC continues to support a quarantine period of 14 days and advises people to follow the recommendations of their local public health authorities who make the final decisions about how long to quarantine, the CDC recognizes the need to balance the possibility of spreading the virus with the burden imposed by a 14-day quarantine period. In an effort to increase compliance and reduce economic hardship and burdens on physical and mental health, the CDC provides the following options for local authorities to consider, based on local circumstances and resources, as acceptable alternatives to the 14-day quarantine period:
- Quarantine can end after day 10 without testing if no symptoms have been reported during daily monitoring; or
- Quarantine can end after day 7 and after receiving a negative test result (test must occur on day 5 or later) if no symptoms have been reported during daily monitoring.
After stopping quarantine, the person must:
- Continue to monitor for symptoms until 14 days after exposure;
- Immediately self-isolate and contact the local health authority or healthcare provider; and
- Wear a mask, stay at least 6 feet from others, wash hands, avoid crowds, and take other recommended steps to prevent the spread of COVID-19.
Note that people who have tested positive for COVID-19 within the past 3 months and have not developed symptoms again after their quarantine and isolation period do not need to quarantine again or get tested again for up to 3 months after their first bout with COVID-19.
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CDC Updates its COVID-19 Guidance for Critical Infrastructure Workers Exposed to a Person with Suspected or Confirmed COVID-19
The CDC has recently updated its guidance on reintegrating critical infrastructure workers who have had exposure to a person with suspected or confirmed COVID-19 but do not have symptoms and have not received a positive test back into onsite operations. In its updated guidance, the CDC reiterated that reintegrating exposed workers carries considerable risk to other workers because many people with COVID-19 are asymptomatic but can still spread disease, and the available tests are imperfect. Indeed, the CDC starts its updated guidance by affirming that all individuals, including critical infrastructure workers, exposed to a person with suspected or confirmed COVID-19 should be quarantined for 14 days.
Citing growing evidence of asymptomatic and pre-symptomatic spread and on-going community transmission in many parts of the country, the CDC's updated guidance emphasizes that reintegrating critical infrastructure workers exposed to suspected or confirmed COVID-19 who are not experiencing any symptoms and have not tested positive back into onsite operations should be done as a last resort and only in limited circumstances. The limited circumstance cited as an example by the CDC is where, without the worker, the operations of a facility may cease resulting in serious harm or danger to public health or safety.
The CDC also added to their guidance that that employers should work with state, tribal, local, and territorial public health officials to determine the safest way to reintegrated exposed workers who are not experiencing any symptoms and have not tested positive back into onsite operations. Finally, the updated guidance clarifies that all workers should wear a cloth mask in accordance with CDC and OSHA guidance and any state or local requirements.
Where necessary, an exposed critical infrastructure worker may be reintegrated into onsite operations provided the worker remains asymptomatic and has not tested positive. In addition, the CDC recommends that the following risk mitigation precautions be implemented prior to and during the work shift:
- Pre-Screen: Employers should encourage employees planning to enter the workplace to self-screen at home prior to coming onsite. Employees should not attempt to enter the workplace if any of the following are present: symptoms of COVID-19; temperature equal to or higher than 100.4 oF; or are waiting for the results of a viral test.
- Screen at the workplace: Employers should conduct an on-site symptom assessment, including temperature screening, prior to each work shift. Ideally, screening should happen before the individual enters the facility.
- Regularly monitor: As long as the employee doesn't have a fever or symptoms, they should self-monitor under the supervision of their employer's occupational health program or their workplace COVID-19 coordinator or team.
- Wear a cloth mask: Ensure all employees wear a cloth mask in accordance with CDC and OSHA guidance and any state or local requirements.
- Social Distance: Employees should stay at least 6 feet apart from others and practice social distancing as work duties permit in the workplace.
- Clean and disinfect workspaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared equipment routinely.
The CDC's complete updated guidance can be found here. If you have any questions as it concerns the CDC's guidance for critical infrastructure workers, please contact J.T. Gallagher. You can e-mail J.T. by clicking here.
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Families First Coronavirus Response Act Set to Expire on December 31
Companies employing less than 500 employees have been grappling with the Families First Coronavirus Response Act (FFCRA) since it became effective last Spring. Full-time eligible employees are entitled to up to 80 hours of paid sick leave for any of the six qualifying reasons provided in the law. Eligible employees may also be entitled to up to 12 weeks of expanded family medical leave provided under the FFCRA. Both the paid sick leave benefit and the expanded family medical leave benefit involve the payment of wages while employees miss work for any of the qualifying reasons. Importantly, the law itself provides that it sunsets, or expires, on December 31, 2020.
Employees who are out of work for a reason protected under the FFCRA lose that protection after December 31, 2020, unless Congress acts to extend the law. In light of the recent spike of COVID-19 cases, it is anticipated that the country will see more school closings, with students compelled to learn remotely. While you may have employees who are on paid expanded family medical leave because they need to care for a child whose school is closed because of COVID-19, that leave, and protected absence, is no longer available after December 31.
Should Congress amend the FFCRA and extend its benefits beyond December 31, we will be certain to inform you immediately. In the meantime, if you have any questions about how to administer both the paid sick leave and expanded family medical leave benefits under the FFCRA, please contact either Philip Siegel or Ben Lowenthal. You can e-mail Philip by clicking here, and you can e-mail Ben by clicking here.
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DOL Opines on Compensable Travel Pay for Foremen and Laborers
On November 3, the Wage and Hour Division of the Department of Labor published an opinion letter that responds to the question whether the travel time of non-exempt foremen and laborers employed by a construction company is compensable working time under the Fair Labor Standards Act (FLSA). The opinion letter addressed three separate scenarios: (1) Local job sites; (2) Remote job sites involving an overnight stay; and (3) Employees commute to remote job site. In each scenario, foremen are required to travel to the employer's place of business to retrieve a company truck, drive the truck to the worksite, where it is used to transport tools and materials around the job site, and return the truck to the employer's place of business at thee end of the work day to secure it.
In the first scenario, the job site is local, meaning close to or within the same city as the employer's principal place of business. In this scenario, the foremen act as provided above, while the laborers may choose to drive directly to the job site or drive to the company's principal place of business and get a ride to the job site with the foremen. The DOL opined that because the foremen are required to drive to the employer's principal place of business at the start and end of each day, that travel time is compensable working time. As for the laborers in this scenario, those that choose to drive to the job site are engaged in normal home-to-work travel, which is non-compensable, non-working time. Similarly, those laborers that choose to take a ride with the foremen are engaged in home-to-work travel, as long as those laborers do not perform any work while waiting for the ride with the foremen.
In the second scenario, again, the foremen are engaged in compensable travel, which does count as working time. This scenario does involve the laborers being away from home overnight. The opinion notes that laborers traveling from the hotel to the job site are engaged in non-compensable normal home-to-work travel. The real issue arises with the travel to and from the remote location. For laborers that choose to drive, as opposed to being directed to drive, to the remote worksite, the travel time is only compensable to the extent it cuts across their normal working hours, even if the travel occurs on the weekend. The rule is no different for the laborer that travels to the remote job site as a passenger. Travel as a passenger that cuts across the laborer's normal working hours is compensable working time. But what about the laborer that chooses to drive to the remote job site when the employer is providing transportation? In those instances, the DOL opines that the employer can either treat as compensable working time the time the employee actually spends driving to the job site, or it can treat as compensable working time only the time the employee would have been compensated as a passenger accepting the employer's offer of transportation.
In the third scenario, the foremen are again engaged in compensable working time during their travel time. As for the laborers who choose to drive between the remote job site and their homes each day, the opinion letter first notes that the travel to and from the job site at the beginning and end of the job is no different than the second scenario. Important, the intervening drives home and back to the remote job site are not compensable and the time is not working time. Rather, this travel is interpreted as the laborers using the time effectively for their own purposes, after being completely relieved from duty.
If you have any questions about how you are compensating your non-exempt employees for travel, please contact Philip Siegel. You can e-mail Philip by clicking here, and you can reach him directly at (404) 469-9197.
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New OSHA Case Limits Potential Repeat Liability for Successor Entities
The Tenth Circuit Court of Appeals issued its much-anticipated opinion in the Wynnewood case on October 27, 2020. The case offers guidance for interpreting when a successor company is subject to liability for repeat violations based on the predecessor's prior safety history. Prior law has established that a successor company can have repeat liability if the new company amounts to a substantial continuation of the predecessor. In Wynnewood, the court held that substantial continuity between the two organizations did not exist.
The case involved safety violations related to the management of hazardous chemicals at Wynnewood's refinery, which resulted in the explosion of a boiler at the plant and the death of two employees. After investigating, OSHA cited Wynnewood for numerous violations, including several which were characterized as repeat violations due to previous issues at the plant. However, the refinery had changed ownership in the year prior to the accident, and the owners asserted that the violations should not be treated as repeat violations. The ALJ and the Commission agreed, and the Commissioner appealed.
The earlier Wynnewood, Inc. and its parent company had been acquired by CVR Energy, Inc. in September 2011 (the explosion occurred in September 2012), and a separate entity Wynnewood, LLC was established to own and operate the facility. However, under OSHA precedent, repeat liability can apply to successor entities as long as there is "substantial continuity" between the two enterprises. The court applied the three-factor test for substantial continuity to determine whether repeat liability was appropriate.
The three factors involved are: (1) the nature of the business, including continuity in the type of business, products/services offered, and customers served; (2) the jobs and working conditions, because of their close correlation with particular safety and health hazards; and (3) the continuity of the personnel, focusing particularly on the personnel who specifically control safety and health decisions. The test is applied based on the totality of the facts and circumstances.
In this case, after the acquisition by the new owner, the nature of the refinery's business remained the same, and the jobs and working conditions at the refinery also remained much the same. The court noted, however, that the changeover in ownership resulted in changes in management practices, procedures and culture significant enough to break the chain of liability stemming from Wynnewood Inc.'s previous action. Management personnel with the new owner became very involved in safety and health practices and procedures, which demonstrated that substantial continuity between the two organizations did not exist to justify a finding of repeat liability for the OSHA violations.
We should emphasize that the substantial continuity test is based on all the facts and circumstances of each particular case. Accordingly, the Wynnewood case does not necessarily mean that any policy shift has occurred regarding successor liability for repeat violations. The case does, however, provide guidance as to how the three factors of the substantial continuity test are analyzed and offers some assurance that acquisitions of existing business operations do not necessarily expose the acquiring company to OSHA repeat liability, provided that the new entity demonstrates that substantial continuity does not exist between the two organizations.
If you have further questions about substantial continuity involving new business acquisitions or related to OSHA repeat violation liability generally, please contact Scott Calhoun or Philip Siegel. You can e-mail them both by clicking here.
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