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CDC Issues New Back-to-School Guidance with Emphasis on In-Person Learning

July 20 - Posted at 12:55 PM Tagged: , , , , ,

The Centers for Disease Control and Prevention (CDC) just substantially relaxed its pandemic guidance for K-12 schools. While certain restrictions remain and the guidance may continue to evolve in the coming months, especially if the COVID-19 vaccine becomes available for younger children, this new guidance provides schools with more information as they plan for the 2021-2022 school year. What do you need to know about this July 9th update?

What Has Changed?

The new CDC guidance has three important changes. First, it clarifies that fully vaccinated employees, staff, and students do not need to wear masks or facial coverings when indoors. Also, masks are not recommended for outdoor use unless your school is in an area of “substantial to high transmission,” and individuals are in crowded settings or engaging in activities that involve “sustained close contact” with others who are not fully vaccinated.

Second, the CDC’s guidance has a strong emphasis on full re-opening with in-person learning, regardless of whether all the prevention strategies can be implemented at your school. For example, the new guidance continues to recommend that students be spaced at least three feet apart, but with a new caveat: If maintaining physical distancing would prevent schools from fully reopening for in-person learning, schools could instead rely on a combination of other strategies like masking, testing, and improved ventilation.

Finally, the CDC strongly urges schools to promote vaccination among eligible students as well as teachers, staff, and household members, which it describes as “one of the most critical strategies to help schools safely resume full operations.”

What Has Not Changed?

The CDC continues to recommend prevention strategies, such as:

  • consistent and correct mask use where appropriate, particularly for unvaccinated individuals;
  • screening testing;
  • enhanced ventilation;
  • promoting handwashing and respiratory etiquette;
  • staying home when sick and getting tested;
  • contact tracing in combination with isolation and quarantine; and
  • frequent cleaning and disinfection.

What Do These Changes Mean for Schools?

Of course, children under 12 are not yet eligible for vaccination so elementary students and some middle school students will need to continue to wear masks indoors. Even for students ages 12 and older, schools wanting to go mask-less will have to determine the best way to go about it. Because the masking guidance only applies to fully vaccinated individuals, your school may have an inconsistent patchwork of some employees and students wearing masks while others are not. These inconsistencies may be disruptive, difficult to enforce, and may unintentionally single out those who do not get the vaccine, including for medical or religious reasons.

The CDC seems to be encouraging schools to collect information on vaccine status before allowing employees and students to go mask-less inside. The CDC guidance includes a description of times when school administrators may want to require the universal wearing of masks and this includes when the school lacks a system to monitor the vaccine status of employees and students or if there is difficulty monitoring and enforcing mask policies that are not universal. Therefore, in states where there is no local restriction, discussed more below, schools that want to allow vaccinated employees and students to go mask-less should implement a process to collect information on vaccination status, track that information, and use it to inform their masking and distancing practices.

Local Laws

All schools also have to consider local and state law implications before implementing new policies on vaccinations and masks. For example, Florida private businesses, including schools, are free to establish their own mask policies. However, under the so-called vaccine passport law, Florida schools are prohibited from requiring vaccination documentation for students and parents to enter the campus or receive a service from the school. Nothing in the law prohibits schools from asking that parents and students provide proof of vaccination on a voluntary basis if they want to be mask-less on campus. Some Florida schools, however, are choosing to simply rely on parents’ and students’ representations that they are vaccinated or to ask them to sign an attestation certifying that they have been fully vaccinated because schools are not comfortable asking families for documentary proof of vaccination.

In Texas, meanwhile, while Governor Greg Abbott issued an executive order prohibiting the use of masks in public schools, private schools are also free to implement masking policies at their own discretion. Texas private schools should consider seeking proof of vaccination if they intend to allow vaccinated students and employees to go mask-less. Keep in mind, however, that the Texas legislature passed a bill prohibiting private schools from requiring students be vaccinated. Therefore, requiring vaccinations of all age-appropriate students is not a solution to the inevitable monitoring and enforcement challenges associated with a partially masked student body.

Finally, despite the CDC guidance, California currently still requires students and faculty to wear masks in indoor settings regardless of vaccination status. Schools should expect more guidance from the California Department of Public Health in the next several days.

Conclusion

As schools prepare for the new normal, you should keep up to date with the rapidly changing developments at the federal, state and local level. We will continue to monitor the developing COVID-19 situation and provide updates as appropriate. 

Unmasking the Challenges: 7 Options for Managing a Partially Vaccinated Workforce

June 02 - Posted at 9:00 AM Tagged: , , , , , , , , ,

Now that most states, the CDC, and OSHA have (or may soon) lift mask mandates for vaccinated workers, what is an employer to do about revealing an employee’s vaccination status? Under any relaxed masking guidance applicable to those who are fully vaccinated, customers, visitors, and co-workers are likely to draw their own conclusions about the vaccination status of everyone else in the workplace based upon whether or not they are wearing a mask. This addresses some of the legal and practical considerations for employers dealing with a partially vaccinated workforce and provides seven options for you to consider as you navigate this rapidly evolving area.       

The Push to Unmask

Anxious to get back to normal after more than a year of mask mandates and social distancing, employers and employees are ready to do away with COVID-19 restrictions. Employees in certain industries (such as health care workers and educators) will likely continue to be required to mask up and social distance for the foreseeable future. However, other employers are developing various approaches and policies to lift masking requirements for employees (and others) who are fully vaccinated following new CDC and OSHA guidance.   

  • For a summary of the CDC’s guidance on scrapping mask mandates for fully vaccinated workers and a seven-step blueprint for employers to overcome risks and hurdles, click here.
  • For a summary of the three options that employers have in light of OSHA’s subsequent unmasking announcement, click here.

Unmasking Employees Based On “Proof” of Vaccination

“Proof” of vaccination status is and will continue to be a significant consideration for employers when lifting mask mandates. Indeed, many employees are under the mistaken belief that an employer cannot ask vaccine status. However, per the guidance of the EEOC and other state agencies, you are permitted to request vaccination status. In California, local health authorities such as in Santa Clara County, have already mandated that businesses and government entities ascertain the vaccination status of all employees, independent contractors, and volunteers who are or will be working at a facility or worksite in the county.

Indeed, the inquiry may be required to determine which employees can and which employees cannot unmask. As an example, the Oregon Occupational Safety and Health Administration has already issued guidance that requires employers to “verify the vaccination status” of workers before permitting them to unmask. The CDC, OSHA, and many state authorities agree that only those employees who are fully vaccinated can follow relaxed COVID-19 protocols, while those who are not fully vaccinated must continue to observe safety protocols such as mask wearing and social distancing. During COVID-19 inspections, OSHA will likely require employers to show how they have documented or “verified” vaccination status where employees are permitted to work under the relaxed COVID-19 safety protocols.  

In determining an employee’s vaccine status, however, you must carefully limit any vaccine-related inquiry only to vaccination status and not inquire further, as such follow-up could improperly elicit information about an employee’s medical disability or other family medical information. Given that this is likely considered medical information, such information should be kept separate and confidential. Additionally, employers subject to the CCPA in states such as California need to understand that collecting vaccine-related information triggers the CCPA notice obligation.

Navigating State Limitations on Requiring Proof of Vaccination Status

Even though some federal, state, or local agencies may require or request that employers track employee vaccine status, there is a growing move in some states to protect vaccine status as confidential, private information. States are literally all over the map when it comes to vaccine disclosure or use of so called “vaccine passports.” Some states have adopted or are considering laws that promote vaccine passports. New York, for example, launched a COVID-19 vaccine passport initiative known as the Excelsior Pass that allows users to provide proof of vaccination where required. Other states, like Hawaii, have or are considering similar passport systems that promote vaccine disclosure to assist in safe reopening of business and public access. 

However, many other states have gone in the opposite direction to protect individual privacy rights. These states have acted to restrict vaccine passports, with government entities and businesses barred from requiring proof of vaccinations. For example, Florida Governor Ron DeSantis recently signed into law a statute that prohibits the use of vaccine passports by government entities or businesses, stating that “in Florida, your personal choice regarding vaccinations will be protected and no business or government entity will be able to deny you services based on your decision.” Other states such as Alabama, Arizona, Idaho, Indiana, Iowa, Georgia, South Carolina, South Dakota, Texas, and Wyoming have also restricted vaccine passports or requirements. 

Arkansas and Montana have taken a more aggressive approach to address individuals’ privacy concerns and limit disclosure of vaccination status. Governor Hutchinson signed into law a statute that prevents state and local government entities from requiring proof of vaccinations as a condition of employment or to access goods and services. The law provides some exceptions for state-owned medical facilities. Montana Governor Gianforte has signed into law a statute that provides even greater protections for the unvaccinated, generally prohibiting employers from requiring any of the current vaccinations.   

Given the fluidity in this area, you should remain mindful of the need to monitor these developments and check with counsel before implementing any vaccine-tracking policies.

Additional Landmines if Fully Vaccinated Employees Unmask

Aside from the spate of state and local government restrictions and mandates, employers face other potential legal landmines and practical problems when tracking and/or disclosing an employee’s vaccination status. As mentioned above, you should consider the legal privacy considerations in requesting and maintaining the vaccination status of employees.

As employers move to allow fully vaccinated workers to unmask employees, there will likely be legal, privacy, and employee morale issues related to any express or perceived disclosure of employee vaccination status. Indeed, even without an explicit disclosure, others will likely be able to decipher the vaccination status of employees. While employees are choosing to voluntarily disclose their vaccination status to their co-workers, you should not adopt such a casual attitude. You should consider the ramifications of disclosure of vaccine status without employee consent or as a result of a “company policy” or practice. Such practices could potentially give rise to exposure in areas of breach of confidentiality, privacy, discrimination, retaliation, and more.  

Company disclosure of vaccine status may also inadvertently expose employees with legitimate disability issues or religious objections related to the vaccine. Employee morale could be compromised if employees believe they are being pitted against each other due to their vaccine status, especially if the company is somehow involved in the disclosures. Additionally, a policy of company-wide disclosure might even boomerang, potentially discouraging employees who do not want to be ridiculed or harassed by co-workers who are opposed to the vaccination.    

What Should Employers Do? 7 Options to Address a Partially Vaccinated Workforce

How to relax restrictions for those who are fully vaccinated while maintaining confidentiality and a safe workplace for all? How to balance the possible exposure and potential federal and state safety agency fines if you don’t get it right? While there are rarely clear answers, and legal liabilities remain unclear, below are some options employers have been adopting to deal with the dilemma of the partially vaccinated workforce.

  1. Continue to Mask Up. As noted, most jurisdictions can ease up on the COVID-19 safety protocols for those who are fully vaccinated (with certain exceptions such as healthcare workers). Nonetheless, some employers are choosing to require the entire workforce to continue to follow COVID-19 protocols. The protocols for all workers will remain in place until further guidance is issued. For non-healthcare employers, this may likely be an unpopular choice. But this option avoids landmines and morale issues created by a workforce that is partially masked and partially unmasked.
  2. Vaccine Mandate. In certain locations, you may have the option of adopting a vaccine mandate where permitted by state laws. Under this option, you would eliminate unvaccinated employees from the workplace and the remaining vaccinated workforce could unmask without concern. This option comes with increased legal risks and other practical issues in implementing the mandate, including exploring reasonable accommodations for those with protected reasons to remain unvaccinated. The mandates also create morale and employee defection issues. And your organization could be considered an outlier depending on your location and industry, as a recent FP Flash Survey revealed that fewer than one in 20 employers (4%) were mandating or considering mandating the vaccine.
  3. A Pure Honor System – Permit Fully Vaccinated to Unmask Without “Proof.” Employers who are choosing this option would not mandate the vaccination or require documentation to prove COVID-19 vaccination status. You would notify your workforce that fully vaccinated employees can ease up on COVID-19 safety protocols while all those who are not fully vaccinated are instructed to maintain the protocols and continue to mask up. This option comes with risk that employees who are not fully vaccinated will not appropriately follow the honor system. Without verification, this honor system may run afoul federal or state safety requirements. This option may also lead to employee morale issues and third-party liability concerns of those fully vaccinated workers, clients, or customers who do not trust the honor system. In addition, this is not a workable option in jurisdictions that require tracking of COVID-19 vaccination status.
  4. Employee Audits. Under this option, you would advise your workforce that fully vaccinated employees can dispense with relaxed COVID-19 protocols – subject to random audits of those employees who have dispensed with the relaxed COVID-19 protocols. If an employee is subject to a random audit, the unmasked employee would be required to provide proof of COVID-19 vaccination status. Effective management auditing and policing would be a key variable. This will not be a workable option in jurisdictions that require tracking of COVID-19 vaccination status.
  5. Employee Self-Certification. Another option is to allow employees to provide a self-certification of their COVID-19 vaccination status. Employees that self-certify they are fully vaccinated would be permitted to dispense with relaxed COVID-19 safety protocols. Those who certify that they are not fully vaccinated or decline to complete the self-certification would be required to maintain COVID-19 safety protocols. A template self-certification form may be found here. It is important to be mindful that self-certification may not be an acceptable form of “proof” in certain jurisdictions that have specific heightened criteria specifying what meets the verification or proof of COVID-19 vaccination standard.
  6. Requiring Certain “Proof” of Vaccination Status. For some employers that want to choose to permit employees to unmask, the above options may not go far enough. You could instead choose to require that all employees provide certain documented “proof” that they are fully vaccinated to designated personnel. Based upon the response, the employer will permit those who have provided the required proof that they are fully vaccinated to dispense with relaxed COVID-19 safety protocols. All others would be required to continue to follow COVID-19 protocols. Under this option, you would monitor and police employee violations. Obtaining proof and policing may limit liability concerns but also places a greater administrative burden on the employer.
  7. Requiring Proof and Disclosing Vaccine Status. Under this final option, you would request “proof” of vaccine status (similar to that required under option number 6) but would provide a sticker, badge, or lanyard to fully vaccinated employee once they submit “proof” of full vaccination. Those who have the company-issued sticker, badge, lanyard, etc. indicating they are fully vaccinated would be allowed to dispense with relaxed COVID-19 protocols, while all others are required to follow safety protocols. Unlike option number 6, you would take an affirmative step to identify those who unmask as fully vaccinated. Though this option provides greater clarity in the verification process and compliance with the policy, it also comes with greater risk of breach of privacy and confidentiality concerns – as well as potential employee morale issues. You should proceed with caution and consider obtaining written authorization from employees to disclose their vaccination status. It is also important to remain cognizant that some states such as California impose specific legal requirements that must be followed when asking for an employee’s consent to disclose confidential medical information such as vaccine status.

Conclusion

Each of these options come with some level of risk. You should explore the various paths available to you with your legal counsel before adopting any of them, especially in light of rapidly changing state and local laws in this area. Also, note that every option in which some employees are masked and some are unmasked includes the risk of employee conflict or harassment issues. This risk should be evaluated and addressed up front through training, ongoing communications emphasizing the importance of mutual respect in the workplace, adoption of written policies and procedures, and effective management oversight. 

IRS Answers to Your American Rescue Plan Act COBRA Subsidy Questions

May 21 - Posted at 8:24 AM Tagged: , , , , , , , , , , , ,

In much-anticipated guidance, the Internal Revenue Service has offered its insight on the implementation of the COBRA temporary premium subsidy provisions of the American Rescue Plan Act of 2021 (ARPA) in Notice 2021-31.

Spanning more than 40 pages, the IRS-answered frequently asked questions (FAQs) finally resolve many issues relating to temporary premium assistance for COBRA continuation coverage left unanswered in the Department of Labor’s publication of model notices, election forms, and FAQs.

The practical implications of the guidance for employers are many. Significantly, employers must take action prior to May 31, 2021, to ensure compliance with some of the requirements under ARPA and related agency guidance.

Notice 2021-31 Topics

Notice 2021-31 provides comprehensive guidance on the ARPA subsidy and tax credit implementation issues (although it acknowledges there are many issues that still need to be addressed). Some of the key topics addressed include:

  • Clarifying that COBRA premium assistance is available for COBRA continuation coverage under vision-only plans, dental-only plans, and health reimbursement arrangements;
  • Describing the circumstances in which retiree coverage can be considered COBRA coverage and qualify for the subsidy and when non-COBRA retiree coverage will constitute other coverage for purposes of disqualifying an individual from the subsidy;
  • Defining what constitutes an “involuntary termination”;
  • Confirming that employers may rely on employee attestations regarding eligibility for premium assistance and record retention requirements;
  • Addressing the impact of employer-provided COBRA premium subsidies on the availability of the tax credit;
  • Providing instructions on how the ARPA COBRA premium subsidy notice and election rights are coordinated with the previously issued COVID-19 relief extending deadlines for certain actions; and
  • Addressing eligibility for the tax credit for church plans, small employer plans, and professional employer organization or other third-party payer arrangements.

Immediate Next Steps

For employers, there are some immediate takeaways:

  1. Review Your Lists of Potential Applicable Eligible Individuals (AEIs) Before May 31, 2021.

As expected, the IRS expansively defines an “involuntary termination.” For purposes of the ARPA COBRA subsidy, involuntary terminations include employee-initiated terminations due to good reason as a result of employer action (or inaction) resulting in a material adverse change in the employment relationship.

The guidance provides helpful COVID-19-specific examples. Employees participating in severance window programs meeting specified regulatory requirements could qualify. Voluntary employee terminations due to an involuntary material reduction in hours also could qualify. Further, voluntary terminations due to daycare challenges or concerns over workplace safety may constitute an involuntary termination, but only in the narrow circumstances in which the employer’s actions or inactions materially affected the employment relationship in an adverse way, analogous to a constructive discharge.

Employer action to terminate the employment relationship due to a disability also will constitute an involuntary termination, but only if there is a reasonable expectation before the termination the employee will return to work after the end of the illness or disability. This requires a specific analysis of the surrounding facts and circumstances. The guidance notes that a disabled employee alternatively may be eligible for the subsidy based on a reduction in hours if the reduction in hours causes a loss of coverage.

A number of the circumstances that meet the involuntary termination definition in the guidance may not be coded in payroll or HRIS systems as involuntary terminations. As employers have an affirmative obligation to reach out to employees who could be AEIs, employers will need to look behind the codes to understand the circumstances of the terminations.

Further, to identify all potential AEIs, employers may need to sweep involuntary terminations or reductions in hours occurring prior to the October 1, 2019, date referenced in the Department of Labor’s FAQs. The IRS makes clear that COBRA-qualified beneficiaries who qualified for extensions of COBRA coverage due to disability (up to 29 months), a second qualifying event (up to 36 months), or an extension under state mini-COBRA potentially can qualify for the subsidy if their coverage could have covered some part of the ARPA COBRA subsidy period (April 1, 2021–September 30, 2021).

An involuntary termination is not the only event that can make an employee potentially eligible for the subsidy. Employees who lose coverage due to a reduction in hours (regardless of the reason for the reduction) can be eligible for premium assistance as well. This can include employees who have been furloughed, experienced a voluntary or involuntary reduction of hours, or took a temporary leave of absence to facilitate home schooling during the pandemic or care for a child.

  1. Re-Evaluate Employee Exit Strategies, Severance Plans to Assess Eligibility for the Tax Credit

The IRS explains that, if an employer subsidizes COBRA premiums for similarly situated covered employees and qualified beneficiaries who are not AEIs, the employer may not be able to claim the full ARPA tax credit. In this case, the amount of the credit the employer can receive is the premium that would have been charged to the AEI in the absence of the premium assistance and does not include any amount of subsidy the employer would otherwise have provided. For example, if a severance plan covering all regular full-time employees provides that the employer will pay 100 percent of the COBRA premium for three months following separation, this employer could not take a tax credit for the subsidy provided during this three-month period.

Notice 2021-31 does not elaborate on this issue beyond providing specific examples involving a company severance plan. Thus, ambiguity remains as to whether this guidance would prohibit an employer from claiming a tax credit where an employer has agreed to provide a COBRA subsidy in a negotiated separation or settlement agreement and not pursuant to an existing severance plan or policy. Further IRS guidance on this point may be forthcoming. In light of this guidance, employers should re-evaluate their COBRA premium subsidy strategies.

CDC Removes Mask Requirement For Fully Vaccinated In Some Settings – What Should Your Business Do?

May 14 - Posted at 10:11 AM Tagged: , , , , , , , , , , ,

In a surprise move today, CDC followed the lead of the various states that have lifted their masking and physical distancing recommendations. However, CDC’s new recommendations come with a twist. The CDC’s recommendations only apply to fully vaccinated people in non-healthcare settings.  Here’s what your business should consider as it decides whether to “unmask.”

The May 13, 2021 CDC Interim Public Health Recommendations for Fully Vaccinated People states that fully vaccinated people no longer need to wear a mask or physically distance in any non-health care setting (except prisons and homeless shelters and public transportation), except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. According to the CDC, prevention measures (including masks and physical distancing) are still recommended for unvaccinated people.

Employers who are interested in relaxing mask requirements in the workplace should first consider the following.

  • Check state and local laws and orders.  If a state executive order or local order requires employers to have employees wear masks or impose physical distancing requirements, employers should follow those rules.  In addition, keep in mind that some states have their own OSHA rules (e.g., VA, MI, CA, OR) or recently enacted laws such as New York’s Hero Act.  Employers must follow all applicable state and local laws and standards regardless of CDC’s relaxed recommendations.
  • OSHA has yet to come out with new guidance and currently recommends that all employees must continue to follow protective measures such as wearing a face mask and remaining physically distant regardless of vaccination status.  However, this guidance was issued on January 29, 2021, so it is now several months old.  It is unclear whether OSHA will change this guidance given the CDC’s position.
  • Determine whether removing mask and physical distancing requirements makes sense given your employee populations and preferences.  Many employees may be reluctant to return to work without masking and physical distancing rules in place.  Assess whether removing such requirements is likely to help or hurt the effort to return employees to work.  Generally, employers can choose to continue to require masks and physical distancing regardless of vaccination status.
  • Consider how removing mask and physical distancing requirements will impact your customers.  You may also want to maintain a consistent practice across all your locations so that you are not dealing with a patchwork of state and local COVID-19 requirements.  To the extent you decide not to relax your requirements, you may need to accommodate customers who have medical conditions that make wearing a mask unsafe.
  • Consider whether it makes sense to continue to require or encourage physical distancing (regardless of masking) until more is learned, for everyone’s comfort and to avoid isolating unvaccinated individuals who may have protected reasons for being unvaccinated or who may fall into a protected classification, or where any isolation or exclusion may set back diversity efforts.  And, of course, if an individual needs an accommodation in connection with masking for religious or medical reasons, engage in the interactive process.
  • Clarify that fully vaccinated employees and customers are permitted to wear masks or face-coverings.
  • Reinforce that employees must respect employee and customer decisions to wear masks and engage in physical distancing regardless of their vaccination status.
  • Avoid actions that would suggest a correlation between vaccination status and mask wearing and/or employee observance of other COVID-19 safety practices.
  • Consider whether and how the company will monitor whether unvaccinated employees are properly wearing masks and engaging in physical distancing practices.  It is lawful to ask employees if they are vaccinated, however, asking employees why they are not vaccinated may implicate the Americans With Disabilities Act.  To enforce such a rule, employers will need to know who is vaccinated. If such information is gathered, the best practice is to treat this information as confidential. Make sure it is securely maintained with limited access.  Employers may also consider having all employees certify that if they are not fully vaccinated they will continue to wear masks and physical distance.
  • If you choose to relax your mask and physical distancing requirements, make clear that fully vaccinated employees should make their own personal decision regarding whether to wear a mask and physically distance at work.  In this manner, if an employee chooses not to wear a mask, it will be the employee who is disclosing his or her vaccinated status.
  • Consider adopting a formal policy or issuing a communication clarifying the company’s policy and position on these issues so that everyone knows your expectations.
  • If you have a union, consider whether you need to bargain with the union over changes to your COVID-19 policy and practices.

 

 

4 Tips for Beating Work-From-Home Burnout

May 10 - Posted at 9:00 AM Tagged: , , , , ,
Zero commute time, savings on transportation costs and takeout lunches, more time for mid-day workouts—there’s no doubt that working from home (WFH) has its benefits. But with many organizations choosing to stay remote for longer to protect their workforce from COVID-19, employees are finding this situation to be less than ideal.

The “freedom” of working from home comes with its challenges. Working parents are struggling to balance childcare and distance learning during working hours, pets are demanding attention at all hours and the constant interruptions of family or roommates can break focus and
productivity. Additionally, many employees have fallen into unhealthy habits and lifestyles—late nights, poor ergonomic set up, reduced physical activity and the inability to disconnect. Exacerbated by the lack of communication experienced in the physical workplace environment, an increasing number of people are suffering high stress, anxiety and burnout. Your workforce needs help and fast, before the effects of employee burnout begin to impact your business.

Included is a free brochure with information on how to recognize symptoms of employee burnout as well as tips to help employees prevent WFH burnout.

What Employers Need to Know About Vaccine Passport Ban and Updated Mask Requirements

May 06 - Posted at 12:37 PM Tagged: , , , , , , , ,

Declaring that the state is “no longer in a state of emergency,” Florida Governor Ron DeSantis signed a bill on Monday, May 3rd,  banning vaccine passports while issuing two executive orders immediately suspending and invalidating local government COVID-19 restrictions, including mask mandates. But the news doesn’t necessarily mean you should rush to ease up on your facemask requirements for workers or visitors, nor impact your decision to mandate vaccines for your workers. Below is a summary of the implications for Florida businesses.

Vaccine Passports Banned

As the vaccine rollout progresses, businesses and employers nationwide have been wondering if a “vaccine passport” – an official document certifying that an individual has been vaccinated against COVID-19 – can lead to a path back to normalcy. A Florida law now prohibits businesses operating in Florida from implementing those measures with respect to customers. The new law does not come as a surprise to most Floridians. On April 2, Governor DeSantis signed Executive Order 21-81 prohibiting vaccine passports. This new law, however, solidifies the ban and provides more guidance for businesses.

Specifically, the new law says that “business entities,” including for-profit and not-for-profit entities, cannot require that patrons or customers provide documentation certifying that they received the COVID-19 vaccine or certifying that they have recovered from the virus to enter or receive a service from the business. Licensed health care providers are exempt from this provision.

The law also provides that educational institutions, including both public and private schools, cannot require students or residents to provide documentation certifying that they received the COVID-19 vaccine or have recovered from the virus.

Importantly, the law does not prohibit private businesses from requiring that their own employees show proof of vaccination or certification that they recovered from the virus. Of note, recent guidance from the Equal Employment Opportunity Commission clarifies that it is generally permissible for employers to ask employees about whether they have been vaccinated, but employers should avoid further inquiries.

Further, the new law permits covered entities to continue to use screening protocols (such as temperature checks) in accordance with state or federal law to protect public health.

Governor Eliminates Current Local Restrictions After Florida Surgeon General Discourages Masks

On April 29, Florida State Surgeon General Dr. Scott Rivkees issued a Public Health Advisory rescinding prior public health advisories. Notably, the advisory states that fully vaccinated people should no longer be advised to wear face coverings or avoid social and recreational gatherings except in “limited circumstances.” Those limited circumstances are not defined, but the advisory appears to cover masking both indoors and outdoors.

Noticeably, the Surgeon General’s advisory is less restrictive than CDC guidance. Although the CDC recently announced that fully vaccinated people can forego masks in certain situations (for example, if they are indoors with other vaccinated people, indoors with unvaccinated people from the same household, or outdoors in spaces that are not crowded), the CDC generally recommends that fully vaccinated people continue to wear masks or face coverings in other scenarios.

To follow the Surgeon General’s advisory, Governor DeSantis issued a pair of executive orders on May 3 suspending and invalidating local government COVID-19 restrictions, including mask mandates. These orders effectively eliminate all existing coronavirus-related restrictions imposed by local governments. This means that local orders requiring, among other things, masks, sanitizing, and capacity limits are no longer effective. The orders do not affect restrictions issued by school districts.

Noticeably, the governor’s orders only prohibit local governments from issuing and enforcing COVID-19 restrictions using their emergency procedures. They specifically allow local governments to enact ordinances under regular enactment procedures. Thus, it is possible that local governments will counter the governor’s orders by enacting ordinances continuing to require such measures as masking and distancing.

However, the state’s guidance does not mean that private businesses cannot – or should not – enforce their own policies. The orders only prohibit local governments from issuing and enforcing restrictions on individuals or businesses using emergency powers. Local governments may still enact such procedures using regular procedures. Businesses can still generally enforce their own measures, including mask mandates, if they choose to.

What Should Employers Do Now?

Pushing forward to a new normal, Florida employers should be aware of how to proceed. Despite the state’s guidance, you should continue to enforce safety measures.

Florida recently passed a new COVID-19 liability protection law for businesses. Although very favorable to businesses, the law requires that businesses make a “good faith effort to substantially comply with authoritative or controlling government-issued health standards” to gain its protection. If there are different sources of guidance in effect, a business may follow any of them. This means that although they are different, a business can likely be protected from liability by following either Florida or CDC guidance. However, an employer may have stronger defenses and be able to undercut possible claims earlier by following CDC guidance, which takes a more conservative approach than current Florida guidance.

Further, OSHA requires that employers maintain a workplace free of recognized hazards. COVID-19 is such a recognized hazard. By not following CDC guidance, a Florida employer may open themselves to exposure under OSHA’s General Duty Clause, even in the absence of a state mandate.

Employers should also consider the business realities of having unmasked employees. Among other things, customers and vendors may not feel comfortable entering your business if they see employees unmasked, even if they are vaccinated.

Finally, because the Surgeon General’s recommendations only apply to fully vaccinated people, your business may have an inconsistent patchwork of some employees wearing masks while others are not. This may result in a situation where different standards apply to different employees depending on their vaccination status. Employers should avoid this, as OSHA has issued guidance stating that businesses should not treat unvaccinated employees differently than vaccinated employees. Additionally, inconsistency among employees wearing masks may inadvertently reveal who is and is not vaccinated, which may be disruptive and may unintentionally single out employees who do not get the vaccine, including for medical or religious reasons.

 

3 Strategies to Help Your Remote Employees Battle Isolation

- Posted at 9:43 AM Tagged: , , , , , , , , ,

The sudden and prolonged isolation brought on by COVID-19 has greatly impacted the normal routines and activities of the entire workforce. While the ongoing vaccine rollout inspires hope for a COVID-free future, the emerging virus variants and the harsh winter weather experienced across the United States after over a year of social distancing have raised further concerns about employee mental health issues and engagement in 2021.  

As many employers continue to manage a partially or entirely remote workforce – some of which may shift to a permanent off-site or hybrid workplace model – they’re faced with the challenge of keeping employees connected. Since social health plays an important role in determining an overall sense of wellbeing and a large number of individuals aren’t socializing with coworkers, peers and friends like they used to, it’s important for workplace leaders to provide their people with opportunities to make meaningful connections. The wellbeing of your workforce depends on it.  

Offer Opportunities for Social Connections 

The mental wellbeing of your workforce is best supported by positive social interactions. Remote workers who have struggled with feelings of loneliness and social isolation are more likely to feel lonely, anxious and depressed, which is why it’s important for organizations to provide plenty of opportunities to engage with their co-workers. Encouraging employees to work together on collaborative tasks, scheduling weekly team meetings (they don’t have to focus on work!) and empowering employees to create and interact with interest-based groups within their digital wellbeing platforms are just a few easy ways to help your people feel connected. 

Prioritize Mental Health in the Workplace  

Providing employees with mental health resources is a must. Beyond offering up mental health benefits like mindfulness tools and live health coachingremote workers can also engage through activities like guided team meditation or virtual yoga sessions. According to MetLife, 79% of employees who report good mental health are less likely to feel detached from their organization. Additionally, 86% of workers who feel that they are mentally healthy are more likely to be productive at work. Rather than simply considering workplace mental health resources as an addition to an employee benefits package, putting an emphasis on mental health as a main component of company’s culture is an essential business move in 2021. 

Strengthen Remote Company Culture 

Countless employees are missing the bustling workplace environmentThe constant Zoom meetings and digital interactions lack the sense of social connectedness once accustomed toFinding unique ways to make regular meetings and virtual communication more engaging is critical for maximizing employee performanceCasual video chats and remote social happy hours are a great way to use technology as an advantage and initiate a stronger connection among employees while working remotelyAdditional ways to promote more social interactions among employees include scheduling group exercise breaks or starting a workplace wellbeing challenge. To ensure everyone is able to participate, consider designating employees who really know their way around the virtual world as leaders for a multigenerational workforce. By opening more channels of communicationthe remote work environment will improve for everyone and increase employee engagement as well as productivity.  

Around 66% of workers are struggling to stay socially connected, which is negatively affecting their wellbeing. Fortunately, by encouraging your remote workforce to prioritize their mental health and social wellbeing, organizations are likely to see a significant increase employee engagement and productivity as employee wellbeing improves.   

IRS Fact Sheet: Employer Tax Credits for Employee Paid Leave Due to COVID-19

April 26 - Posted at 10:33 AM Tagged: , , , , , , ,

The American Rescue Plan Act of 2021 (ARP) allows small and midsize employers, and certain governmental employers, to claim refundable tax credits that reimburse them for the cost of providing paid sick and family leave to their employees due to COVID-19, including leave taken by employees to receive or recover from COVID-19 vaccinations. The ARP tax credits are available to eligible employers that pay sick and family leave for leave from April 1, 2021, through September 30, 2021.

Here are some basic facts from the IRS website about the employers eligible for the tax credits and how these employers may claim the credit for leave paid to employees who take leave to receive or recover from COVID-19 vaccinations.

Eligible Employers

An eligible employer is any business, including a tax-exempt organization, with fewer than 500 employees. An eligible employer also includes a governmental employer, other than the federal government and any agency or instrumentality of the federal government that is not an organization described in section 501(c)(1) of the Internal Revenue Code. Self-employed individuals are eligible for similar tax credits.

Paid sick and family leave for which tax credits can be claimed

Eligible employers are entitled to tax credits for wages paid for leave taken by employees who are not able to work or telework due to reasons related to COVID-19, including leave taken to receive COVID–19 vaccinations or to recover from any injury, disability, illness or condition related to the vaccinations. These tax credits are available for wages paid for leave from April 1, 2021, through September 30, 2021.

The amount of the tax credits and how they are calculated

The paid leave credits under the ARP are tax credits against the employer’s share of the Medicare tax. The tax credits are refundable, which means that the employer is entitled to payment of the full amount of the credits if it exceeds the employer’s share of the Medicare tax.

The tax credit for paid sick leave wages is equal to the sick leave wages paid for COVID-19 related reasons for up to two weeks (80 hours), limited to $511 per day and $5,110 in the aggregate, at 100 percent of the employee’s regular rate of pay. The tax credit for paid family leave wages is equal to the family leave wages paid for up to twelve weeks, limited to $200 per day and $12,000 in the aggregate, at 2/3rds of the employee’s regular rate of pay. The amount of these tax credits is increased by allocable health plan expenses and contributions for certain collectively bargained benefits, as well as the employer’s share of social security and Medicare taxes paid on the wages (up to the respective daily and total caps).

Claiming the credit

Eligible employers may claim tax credits for sick and family leave paid to employees, including leave taken to receive or recover from COVID-19 vaccinations, for leave from April 1, 2021, through September 30, 2021.

Eligible employers report their total paid sick and family leave wages (plus the eligible health plan expenses and collectively bargained contributions and the eligible employer’s share of social security and Medicare taxes on the paid leave wages) for each quarter on their federal employment tax return, usually Form 941, Employer’s Quarterly Federal Tax Return PDF. Form 941 is used by most employers to report income tax and social security and Medicare taxes withheld from employee wages, as well as the employer’s own share of social security and Medicare taxes.

In anticipation of claiming the credits on the Form 941 PDF, eligible employers can keep the federal employment taxes that they otherwise would have deposited, including federal income tax withheld from employees, the employees’ share of social security and Medicare taxes and the eligible employer’s share of social security and Medicare taxes with respect to all employees up to the amount of credit for which they are eligible. The Form 941 instructions PDF explain how to reflect the reduced liabilities for the quarter related to the deposit schedule.

If an eligible employer does not have enough federal employment taxes set aside for deposit to cover amounts provided as paid sick and family leave wages (plus the eligible health plan expenses and collectively bargained contributions and the eligible employer’s share of social security and Medicare taxes on the paid leave wages), the eligible employer may request an advance of the credits by filing Form 7200, Advance Payment of Employer Credits Due to COVID-19. The eligible employer will account for the amounts received as an advance when it files its Form 941, Employer’s Quarterly Federal Tax Return, for the relevant quarter.

Self-employed individuals may claim comparable tax credits on their individual Form 1040, U.S. Individual Income Tax Return 

How To Ask Employees If They’ve Been Vaccinated Without Having To Call Your Lawyer First

April 12 - Posted at 8:45 AM Tagged: , , , , , , , , ,

Now that the country is on course to see all adult Americans eligible for COVID-19 vaccination in a matter of days, and an increasing number of employees are returning to the workplace, vaccination status is likely to be an increasingly common topic over the coming weeks and months. Which leads to these inevitable questions: when and how can employers ask their workers whether they’ve been vaccinated without getting into hot water? Whether it’s an innocent question asked while trying to make conversation or an inquiry posed to determine whether someone can return to normal duties, you need to understand your legal rights and obligations regarding this serious topic. Missteps can easily lead to legal complications.

A Simple Vaccine Question is Okay, But Be Wary of Going Further

The Equal Employment Opportunity Commission has indicated in recent guidance that it is generally permissible for employers to ask employees about COVID-19 vaccination status. That’s because this simple question alone is not likely to elicit information from the employee about possible medical conditions, an inquiry that otherwise would invoke federal or state disability laws.

And in many cases, the answer to that question alone may be all you really need. If you don’t really need to know anything beyond a simple “yes” or “no” to the question of whether they have been vaccinated – and in most cases, you won’t – the EEOC suggests warning employees not to provide any other medical information in response to your question to make sure you don’t inadvertently receive more information than you want.

If you require proof of vaccination, you should ask the employee to provide documentation from the immunization source showing the date(s) the vaccine was administered. To avoid potential legal issues related to this process, you should affirmatively inform employees that they do not need to provide any additional medical or family history information. The documentation you receive should be treated as a confidential medical record.

But issues could arise if you venture further than asking this simple question. Asking follow-up questions could trigger obligations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) depending on a variety of factors, so you need to tread cautiously if you take the questions any further.

Going Further with Your Inquiries

That’s not to say you can’t or shouldn’t ask anything further than eliciting a simply yes-or-no answer. There may be circumstances where it is advisable or even necessary to ask more. In those cases, the key considerations relate to the kinds of questions posed and the kinds of responses provided. These are the situations that raise potential legal issues that will likely require you to confer with your lawyer.

Questions about why the employee isn’t vaccinated

If you need information about why the employee has not yet been vaccinated, you might end up eliciting information about the employee’s medical status. Therefore, you can only pose such questions if they are “job-related and consistent with business necessity.” As the EEOC has said, you meet this standard if you have a reasonable belief, based on objective evidence, that an employee who is not vaccinated would pose a direct threat to the health or safety of themselves or others. This can be a challenging and complicated hurdle to clear. You should coordinate with legal counsel to determine whether you can meet this standard in your situation.

If you are treating workers differently based on vaccination status – for example, not allowing them to participate in certain work activities, work in certain locations, interact with the public or other employees, etc. – and you have confirmed with counsel that you have a valid justification for doing so, you may need to ask additional questions to assist with an interactive process. It may be that you need to provide reasonable accommodations to those workers unable to be vaccinated due to underlying medical conditions or sincerely held religious justifications. Each situation will require a case-by-case, fact-specific analysis, and you should be prepared to engage in substantive interactive process discussions related to any accommodation requests.

Questions about how the vaccination process went

If your managers are asking follow-up questions to find out how the employees fared after vaccination – especially after the second dose of Moderna and Pfizer vaccines – you need to recognize that this can be a slippery slope. Such questions could reveal information related to disability status (see above) that you would otherwise not want to know about. Caution your managers to tread carefully when asking such questions, even if their intent is innocent, and train them to know what to do if they receive information that should lead to human resources involvement.

Questions to help with an employee leave program

It is always permissible for your managers to ask about the medical status of an employee in order to help administer an employee leave program that includes absences for vaccine side effects, whether due to federal or state law or due to company policy. As with any such inquiries about medical status, however, make sure your managers know that they need to keep the information confidential to protect the privacy of any medical records received, and to only ask questions that lead them to gather the type of information necessary.

What Steps Should You Take Right Now?

  • Decide as a company if you need to know workers’ vaccination status, and if so, who will responsible for this inquiry.
  • Train your managers not to casually ask your workers about their vaccination status unless there is a specific work-related reason for the question. There may be a natural curiosity or concern on the part of your managers in posing such questions, but you need to let them know about the possible risks involved.
  • Keep information you receive as confidential as you would any medical-related information in order to comply with privacy obligations.
  • Ask employees to be respectful of other employees’ privacy. Not all employees are comfortable sharing their personal information, and silence should not be interpreted as approval or disapproval of vaccines.
  • Even if you learn that an employee has been fully vaccinated, don’t let up on your social distancing, mask-wearing, and other safety precautions that you already have in place. While federal guidance allows you to ease up on quarantine procedures for vaccinated workers, that is currently the extent to which you should relax your protocols.
  • If your business is subject to California’s broad data privacy law – the CCPA – you need to recognize that collecting information from employees about their vaccination status triggers the “notice at collection” requirement. While you may not have to provide a different or new CCPA notice every time you ask for or receive such information, you may need to ensure that the broader notice you have already provided to all employees (i.e., the notice to inform the employee of all categories of personal information your company collects about or from the employee, along with all the business purposes for which the information is used) covers this type of data collection. Check with your legal counsel to ensure you are in compliance with California law.  

 

Florida’s New Law Shields Various Businesses, Institutions, and Healthcare Providers Against COVID-19 Liability

April 05 - Posted at 8:30 AM Tagged: , , ,

Florida Governor Ron DeSantis signed a new law — the most aggressive of its kind compared to others passed across the country — that protects businesses, educational and religious institutions, governmental entities, and healthcare providers from COVID-19 lawsuits. The new law, which became effective on March 29, shields those covered under it if they can essentially demonstrate a good effort to follow guidelines to prevent the spread of COVID-19. The law is designed to reduce potential liability for COVID-19 claims by imposing high evidentiary burdens and will provide a powerful deterrent to suits filed arising from or related to COVID-19. What do employers need to know about this new law?

Florida’s COVID-19 Shield Law, Explained In A Nutshell

To ensure plaintiffs think twice before filing a lawsuit alleging injuries due to COVID-19, the new law requires that plaintiffs meet the standard for gross negligence and plead any allegations claiming a COVID-19 legal violation “with particularity.” This heightened requirement imposes a higher standard on an individual than if they were merely filing a general negligence or intentional tort claim. 

This means that a plaintiff cannot generally point the finger and claim they experienced some COVID-19 injury while working, visiting, or performing some task at or with a covered establishment. From now on, a plaintiff will have to allege facts that identify the who, what, when, where, and how the injury happened in specific detail or their case will be bounced from court. 

Before a plaintiff can even access the doors of the courthouse, the law requires that a plaintiff show on the face of the complaint that the defendant deliberately ignored COVID-19 prevention guidelines. Further, they will need to submit into evidence a signed affidavit from a doctor stating with reasonable medical certainty that an injury or death caused by COVID-19 was a result of the defendant’s actions. If a court determines that the plaintiff has not met their duty, the case will be dismissed and can only to refiled if the plaintiff complies with this provision. 

As a result of the new law, if a plaintiff is able to survive the statutory immunity, they must still show by clear and convincing evidence that the defendant was at least grossly negligent and that the defendant’s gross negligence was the proximate cause of their alleged COVID-19 related injury, which is not an easy showing. Prior to the new law, proof of liability for COVID-19 claims could have already been challenging largely due to the difficulty of proving causation. 

Key Takeaways for Employers

Entities covered by the law should be aware that it is retroactive – but does not apply to cases that have already been filed. The new law provides a one-year statute of limitations from the date that the alleged injury accrues.

You should first make sure that you fall under the definition of the entities that are protected by the new law if you wish to be protected by this litigation shield. Additionally, you will need to be able to objectively demonstrate that you complied with federal, state, and local COVID-19 prevention guidelines. Critically, you will not just be expected to comply with the guidelines but should also focus on the ability to demonstrate compliance in the event compliance is disputed.

You can demonstrate your compliance by publishing written policies and procedures designed to implement the latest CDC guidance to reduce the potential for the spread of COVID-19, providing training to all employees regarding effective COVID-19 mitigation efforts, and designing your workplaces to allow for appropriate social distancing.

 

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