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The Covid-19 pandemic made us all vulnerable, and many of us are struggling to keep our mental health. In the U.S., the percentage of adults with recent symptoms of an anxiety or depressive disorder increased from 36.4% to 41.5% from 2020 to 2021 — so much so that the U.S. Preventive Services Task Force, an expert panel managed by the Department of Health and Human Services, recommended that doctors screen all adult patients under age 65 for anxiety. The Lancet also estimated that the pandemic caused an additional 53.2 million cases of major depressive disorder globally and an additional 76.2 million cases of anxiety disorders globally.
So, if one of your employees is struggling with their mental health, how do you talk about it? While you will have to have conversations that feel intimate and discomfiting, it’s also not your job to be the office therapist, and you don’t need to have all the solutions when a team member is struggling. Said Daisy Auger-Dominguez, chief people officer at Vice Media Group: “We are not therapists [but] we have to show evidence of care in our engagement with our teams. We also must ensure employees have access to the things that they need to be able to do their work well.”
The good news is that it’s possible to handle mental health conversations without overstepping your expertise. And while it’s natural to worry you’ll start asking the wrong questions or that your employee might ask questions you can’t answer, you can take steps now to create a culture where vulnerable conversations are OK, where boundaries stay in place and where people can get the help they need.
If having conversations about employee mental health makes you nervous, here are three things to remember:
Be Prepared for Vulnerable Conversations
All managers need to be familiar with the basics of privacy practices in the workplace and to have a set of questions ready for when mental health conversations happen.
Jen Porter, COO of the non-profit workplace mental health consultancy, advises to be curious about the impact of an employee’s mental health challenges, not the cause. She said, “You can ask anything you want about the impact of what’s happening on their work and at work. That’s fair game.” What you shouldn’t ask about, she said, is why the employee is having difficulties. Stay away from “what’s going on at home, the deep causes, the health history…anything that falls into that camp. That’s all therapist camp.”
In the U.S., the Americans with Disabilities Act (ADA) offers a basic rule: You can’t discriminate against someone based on health. This means “you can’t force them to talk about their health,” noted Porter. But you can address impacts on work — and the ADA also states employers should provide “reasonable accommodations” to employees with disabilities, including mental illness.
Porter suggested asking open-ended questions and pairing them with non-judgmental observations. “You can ask something like, ‘Hey, I’ve noticed you’ve been absent in our usual meetings, just wanted to check in and see how you were,’ or ‘You’re such an awesome project manager, but a lot of things seem to have been falling by the wayside. I just wanted to check in on you and see if there’s extra support you need or, or if you need to have a conversation with someone.'” These are very human but still about work.
If your employee opens up, however, what do you do? Porter advised, “Clearly they’ve found you to be a person that they trust — well done.” Your job as a manager is to listen, and then enable your employee to get help — but you “don’t want your employee to feel like you’re dropping them or handing them off. … We always recommend a more collaborative approach.”
Auger-Dominguez agreed. “You can say, ‘I’m feeling a little bit over my head right now. If it’s ok with you, I’ll reach out confidentially to HR to make sure that I’m giving you all the support that you need. And let’s meet again in a week.'” You might even suggest that you and the employee walk down to the HR office or connect to a mental health employee resource group. “Just because they’re getting support from someone somewhere else doesn’t mean that they’re [still] not getting support from you,” Auger-Dominguez noted. “It just means that they’re getting support from multiple places and you can focus on where you can give the right support, which is in a work-related context.”
If there’s low trust in HR within an organization, Porter suggested connecting an employee to a peer-based group which tends to have higher trust among employees. “Often people in those groups will have worked with HR or will have tried out the mental health benefits. And sometimes that storytelling and normalizing can be super helpful.”
Set and Protect Boundaries
Whenever you talk about mental health, personal boundaries come into play — the limits and rules we set for ourselves in our relationships. When we cross our own or others’ boundaries, things can feel uncomfortable, emotionally draining and just not right. Many managers fear becoming their employees’ go-to resource for mental health challenges because instinctively we know that our boundaries will be crossed, which will zap our own energy and mood. This might lead us to avoid having vulnerable conversations with members of our team.
However, there is a way to have these conversations and protect boundaries, said clinical psychologist Dr. Emily Anhalt. When it comes to addressing how people should share in a work setting, Anhalt suggested using “boundaried vulnerability”: sharing enough with others to invite connection, without sharing so much that you or your team has an emotional hangover.
The idea, Anhalt said, is that “There’s a spectrum from too tight to too leaky. Too tight is when we don’t let ourselves show up as humans at work. When we’re going through a really tough time and someone asks how we’re doing and we say ‘I’m good, everything’s fine. I don’t know what you’re talking about.'” This doesn’t work well because people are perceptive and may feel like we’re shutting off possibilities for authentic connection. Too leaky is when people “evacuate so much of their emotional stuff at work that it puts other people in a position of being their therapist or fixing something they don’t have the responsibility to fix.”
Let’s say a person is going through a messy divorce. They’re really overwhelmed and it’s affecting their work. If they pretend everything is fine, that’s too tight of a boundary and not reality. You and your colleagues actually want to know how the person is doing! But on the other end of the spectrum, saying something like “My spouse is just being absolutely horrible to me, and I don’t know what I’m going do about it. Every day I wake up and I don’t know how I’m going get through the day and I get here and it’s just more of the same. What do you think I should do? How should I handle it?” — that’s too leaky.
What’s the middle ground? Anhalt said the boundaried vulnerability version would be for the person to say something like, “To be honest, I’m actually going through some really tough stuff at home. It’s definitely affecting how I’m showing up at work. I’m getting support with it. But what I’d really love from you, if you’re open to it, is a little bit of extra time on that deadline? Is that doable?”
As managers, we can model boundaried vulnerability. If someone comes to us in a puddle, we can say, “I can tell that you’re going through a lot, and I want to make sure that you get the support you deserve for this.” In this situation, we’re modeling own boundaries while also helping the person move to the most appropriate next steps. Auger-Dominguez said you can also keep boundaries and support an employee by holding structured time open for them. If you learn about a mental health crisis during a one-on-one check-in, you can end that meeting by saying something like: “Our next scheduled meeting is five days from now. Is it okay to wait until then? Or would you like to check in earlier?” Then, honor their preference and show up for them at their desired time.
Further, as you set your own boundaries, it’s important to understand that our own anxieties and challenges may be triggered by leaning in to help our employees, said Arti Kashyap Aynsley, global head of health and wellbeing at Ocado Group. Managers want to “lean into being empathetic and compassionate, but we have tasks and deliverables and things that need to get done,” and there are only so many hours in the day. Managers can provide support and guidance, but other professionals in your organization likely have time and training dedicated to help employee mental health.
However, she noted, because rates of mental ill health are so high, and so many people need additional support, companies also need to give managers the time to accommodate increased needs of their teams. It’s not fair to expect managers to support their teams’ needs while not building in space for these conversations to happen.
Showing Up Is the Most Important Thing
Perhaps the most important thing a manager can do to support employees is to show up and listen, and then figure out what your employee needs.
Auger-Dominguez said if a team member seems “a little wobbly,” she asks a simple question: “Do you need me to witness, help or distract you right now?”
This is important, “because if we get clear on that, I’m also normalizing asking what people need, rather than making an assumption. It also creates clarity on what the expectation is from me as their manager. Sometimes they just want me to witness, so it’s not about me solving for anything. It’s just about them. If they want help, I’m going to help them get the resources they need.” And if the employee needs a distraction, Auger-Dominguez might say, “Hey, let’s go for a walk or coffee.” This strategy also helps develop your employees’ agency; that way, they feel empowered to ask for help, versus you trying to assume what they need.
The conversations you have with your employees are the culture you create. Dr. Thomas Insel, former director of the National Institutes of Mental Health, said that only 10% of mental health outcomes are a result of clinical mental health care. The determinants of mental health are broader and societal, and our workplaces are a huge factor in our mental health. Mentally healthy workplaces want employees to feel valued, heard, impactful — and to have agency over their time, work and decisions.
So, remember: You don’t need to be the office therapist. You just need to be ready to listen.
If you accepted expired forms of identification from new employees who completed their I-9 forms during the pandemic, your deadline for updating them with current proofs of identification is fast approaching. The Department of Homeland Security recently announced that it was winding down its temporary policy that had allowed for expired List B (proof of identification) documents to be used when completing I-9s because of COVID-related difficulties in renewing such I.D. documents. You have until July 31 to update your I-9 forms to get into compliance with the law. What do you need to know about this fast-approaching deadline?
How We Ended Up Where We Are
In response to the COVID-19 pandemic, the Department of Homeland Security issued a number of temporary policies easing Form I-9 compliance. One of them was the COVID-19 Temporary Policy for List B Identity Documents.
Under this policy, employers were allowed to accept expired List B (proof of identification) documents. Many state and local agencies were under lockdown, so it was difficult – if not impossible – for individuals to renew expired documents such as drivers’ licenses, school I.D. cards, Native American tribal documents, and others.
The Department rescinded this temporary policy on May 1 and began again to require employers to accept only unexpired List B documents. USICS recently announced that employers who accepted expired List B documents prior to May 1, 2022, will have until July 31,2022 to update their Forms I-9.
What Should You Do?
Specifically, for employees hired between May 1, 2020 and April 30, 2022 who presented an expired List B document, you need to have them to present to you:
You do not need to update documents for affected employees who are no longer employed.
When updating List B documentation, you should enter the document’s:
Your representative should initial and date the change.
If the List B document was auto-extended by the issuing authority, making it unexpired when it was presented, no update is needed. For example, many states automatically extended the expiration date of certain drivers’ licenses due to COVID. Those documents would not need updating.
Remote I-9 Verification Remains in Place – For Now
This move by DHS does not affect its decision to extend its remote I-9 verification flexibility policy, which has been extended once again to October 31, 2022.
Under that temporary policy, if employees hired on or after April 1, 2021, work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the I-9’s physical inspection requirements until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated by DHS, whichever is earlier.
With these constantly evolving rules, employers who have adjusted their document inspection protocols during the pandemic may be at a higher risk for expensive monetary fines, potentially running in the thousands of dollars. Now is a good time to review your I-9 files and process to ensure continued compliance.
As expected, state and local mask requirements continue to be lifted following the CDC’s loosening of its masking recommendations last month. As of today, only 10 states require masks – and many of those requirements apply only in certain limited settings, such as in the healthcare context, shelters, residential care facilities, and schools. The lifting of these governmental mask mandates raises the question of whether employers should continue to require masks in the workplace as a matter of internal policy. There’s no “one size fits all” answer to this question. Rather, each business should weigh the pros and cons of requiring masks in their workplace and decide what’s best for their particular locations and circumstances.
What Does the Law Say?
Importantly, the CDC still recommends that masks be worn in places of high transmission. As of today, that covers only about 15% of the country and that number has been decreasing. Employers who don’t follow the recommendations of the CDC (and applicable state and local health departments) do so at their own peril. That’s because OSHA or a state OSHA agency can – and often does – cite employers under the “General Duty Clause,” using the failure to follow recommended safety measures (i.e. CDC recommendations) as the basis for the alleged violation.
The General Duty Clause of the OSH Act broadly requires that employers provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This clause has served as OSHA’s COVID-19 workhorse, as the agency has not successfully issued new specific pandemic-related standards applicable to most employers but repeatedly cited employers under the General Duty Clause for failures related to masking.
While OSHA looks to CDC recommendations in issuing its own guidance documents for employers related to COVID-19 and workplace safety, it has not yet updated them to reflect the CDC’s recent relaxation of masking recommendations.
It is therefore prudent for employers to continue to require masks, regardless of vaccination status, in places of high transmission and to continue to track the CDC Date on Community Transmission Levels to make sure your workplaces are not in a place of high transmission. In places of “medium” or “low” transmission, the CDC does not currently recommend masks (except in areas designated as “medium,” where it recommends that those who are immunocompromised or at high risk for severe illness should confer with their doctor about whether to wear a mask). That means in these areas it is up for the employers to decide what to do.
Finally, before brainstorming about possible next steps, make sure you understand the lay of the land in your own state.
Pros and Cons of Lifting Mask Requirements
Once you understand the lay of the land, you’re ready to consider the various pros and cons associated with removing mask requirements at your business.
A sharp rise in the availability of telehealth benefits has opened up new opportunities for mental and behavioral health counseling, as well as challenges for health care providers, employers and employees.
“The COVID-19 pandemic has created an unprecedented mental health crisis” with increased cases of depression, substance abuse and suicide, said Dennis Urbaniak, executive vice president of digital therapeutics at global pharmaceutical company Orexo. “The ability to receive care regardless of a person’s geographical location or proximity is obviously appealing, particularly when it comes to mental health care, which unfortunately continues to be surrounded by stigma, especially in the workplace,” he pointed out.
Employees in small cities that might not have enough local demand for a certain type of group can still get the support and resources they need by connecting with others, who could be located literally around the globe, Urbaniak noted. So it’s no surprise that virtual mental health care options have been on the rise.
At Voya Financial, chief HR officer Kevin Silva said that while telehealth options for acute physical care were already available to employees pre-pandemic, these options have been expanded to include primary care and mental health care. “Telehealth visits spiked for Voya in 2020 and have yet to return to pre-pandemic levels,” Silva shared. “Many employees prefer the convenience of telehealth [for physical and behavioral health visits] and it’s beneficial to employers because appointments are quicker with less impact to productivity.”
Virtual care is also being further automated through artificial intelligence, so that sometimes the “doctor” an employee may be interacting with isn’t a doctor at all. Wysa, an AI- and human-driven digital mental health app, provides counseling and support delivered by both credentialed mental health counselors and an AI chatbot available to employees and other users 24/7. The AI chatbot uses AI-CBT (cognitive behavioral therapy) to help people through their challenges and adapts to their unique situations based on their responses.
Many employees continue to feel isolated and anxious as remote and hybrid work continue. The opportunity to get together virtually to share concerns or participate in group treatment options can help.
Zoom, the popular app for holding online business meetings, is now being used by some mental health services providers as a virtual venue for behavioral group therapy or disease management support. For example, BrightView, an addiction services treatment provider in Cincinnati, facilitates virtual group therapy via Zoom to “help provide a safe environment [for patients] to heal emotionally, connect to others who understand your background, express your ideas, reflect on your experiences, and engage in support,” according to the organization’s website.
Psychotherapist Sean Grover described how during the pandemic he began using Zoom for therapy groups he had formerly held in his New York City office. “I didn’t have high hopes,” he wrote. “I decided not to charge for the first Zoom sessions because I was confident that online therapy groups would be a snoozefest. … I was wrong. From the first session, I could see that group members [were] starved for contact. They were thrilled to see each other.”
Zoom groups provide more flexibility for busy patients, Grover noted. Due to schedule conflicts, illness, child care and other priorities, group members often “would have to miss the session or even drop out of group. Now they call in from home, the office or other locations.”
As the pandemic wanes, Grover continues to offer Zoom sessions for individual and group therapy, as do other therapists, although some have raised concerns over hacking risks (see the discussion of privacy issues, below).
The early evidence suggests that virtual care for mental and behavioral health issues is effective. Virtual care provider Teladoc’s 2021 Mental Health Survey of 2,253 U.S. adults found that:
Despite the promise of this technology to serve a wide range of needs while improving access and even reducing costs, there are some caveats to be aware of. For instance, the Teladoc survey showed that:
Using Zoom for group therapy does pose the potential for privacy risks.
It’s better to hold such group meetings in a specific telemedicine tool, since health tech vendors typically take extra steps to ensure end-to-end security of their customers’ health data in such apps versus Zoom.
Concerns over data privacy were also raised by Dr. Mark Kestner, chief innovation officer with MediGuru, a telehealth services provider.
“The data generated by the virtual visit must be compliant with privacy standards and integrated into the clinical plan to measure the quality and outcome of care,” he said. “While the thought of ‘care anywhere’ is intriguing, there are limitations on the clinical force, such as state licensure and credentialing for the service.”
In response to the surge of delta variant cases across the country, federal workplace safety officials just issued updated guidance to help employers and workers identify current COVID-19 risks for unvaccinated or otherwise at-risk workers – making many employers feel like they are in the same ol’ situation they were in just a few months ago. The Occupational Safety and Health Administration’s (OSHA’s) updated guidance, released on August 13, revises its June 2021 guidance applicable to those not covered by OSHA’s COVID-19 Emergency Temporary Standard (ETS) for healthcare workplaces and adheres to updated Centers for Disease Control and Prevention (CDC) coronavirus guidance issued last month. What are the top 10 takeaways employers need to know about with respect to OSHA’s most recent guidance?
OSHA’s Updated Recommendations
As most are aware by now, the CDC updated its recommendations for fully vaccinated individuals to reduce their risk of becoming infected with the delta variant and potentially spreading it to others. The CDC’s guidance addresses mask wearing in public indoor settings; choosing to wear masks regardless of the potential level of transmission (particularly if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated); and revised testing recommendations for known exposures.
In its revised guidance, OSHA has essentially adopted analogous recommendations for employers. To follow this guidance, you should implement multi-layered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19. In light of OSHA’s recent guidance, it is clear the agency is focused at facilitating higher vaccination rates via imposing new standards on employers.
Top 10 Employer Takeaways
Here are the top 10 takeaways from OSHA’s new guidance.
At sites where unvaccinated or otherwise at-risk workers cannot physically distance, transparent shields (or other like barriers) may be considered. These types of barriers should block face-to-face pathways between individuals to prevent direct transmission of respiratory droplets. Any openings should be placed at the bottom, made as small as possible, and the height should consider the employee’s posture while working (i.e., sitting or standing). Ventilation, fire safety, and other safety considerations should be incorporated when designing and installing barriers.
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. Workers who are outdoors may opt not to wear face coverings unless they are at risk. Regardless, employers should support employees who continue to wear a face covering, especially when working closely with others. If an employer determines PPE is necessary to protect unvaccinated and otherwise at-risk workers from exposure to COVID-19, the employer must provide PPE per the relevant OSHA PPE standards.
Employers should educate and train workers on their COVID-19 policies and procedures using accessible formats and in languages they understand. Employers should train managers on how to implement their COVID-19 policies. These policies should be communicated clearly, frequently, and using multiple methods to promote a safe and healthy workplace. OSHA suggests that 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 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, hand hygiene, and workplace policies and procedures to protect workers from COVID-19 hazards. In addition, employers should implement a means of tracking which (and when) workers receive this information.
Employers should suggest or require unvaccinated customers, visitors, or guests to wear face coverings in public-facing workplaces, such as retail establishments. All customers, visitors, or guests should 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 individuals wear face coverings, even if no longer required by your jurisdiction.
Employers should maintain workplace ventilation systems. As COVID-19 spreads more easily indoors, improving and maintaining ventilation systems is a key engineering control. Such a maintenance program can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air (and consequently reduce the risk of transmission to unvaccinated and otherwise at-risk workers in particular). A well-maintained ventilation system is essential in any indoor workplace setting, and when working properly, ventilation is a primary control measure to limit the spread of COVID-19.
Specific recommendations can be located within the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Guidance for Building Operations and Industrial Settings during the COVID-19 Pandemic. Key measures include ensuring HVAC systems are operating in accordance with the manufacturer’s specifications, conducting regularly scheduled inspections and maintenance, maximizing the amount of outside air supplied, installing air filters with a Minimum Efficiency Reporting Value (MERV) 13 or higher where feasible. Buildings without HVAC systems should maximize natural ventilation by opening windows or doors, when conditions allow (if that does not pose a safety risk) and consider using portable air cleaners with High Efficiency Particulate Air (HEPA) filters in spaces with high occupancy or limited ventilation.
Employers should perform routine cleaning and disinfection. This is especially important if someone who has been in the facility within 24 hours is suspected of having COVID-19 or is a confirmed COVID-19 case. In those situations, OSHA recommends following the CDC’s cleaning and disinfection recommendations.
Employers must record and report workplace COVID-19 infections and deaths: Under OSHA’s recordkeeping standard, 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; and (3) the case involves one or more relevant recording criteria (e.g., medical treatment, days away from work). Likewise, employers must follow the requirements when reporting work-related COVID-19 fatalities and hospitalizations.
Employers should implement protections from retaliation and set up anonymous methods for workers to raise concerns about COVID-19-related hazards. Employers should ensure workers know whom to contact with questions and/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. This could be accomplished by using an employee hotline or other method for workers to voice concerns anonymously.
The guidance also reminds employers to follow all other applicable mandatory OSHA standards. These mandatory OSHA standards include requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and OSHA’s requirements for employee access to medical and exposure records.
The U.S. Centers for Disease Control and Prevention (CDC) announced yesterday that the agency now recommends that people in areas with “substantial” and “high” COVID-19 transmission should wear masks indoors, regardless of vaccination status. This announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. The updated guidance comes on the heels of what some call the third (or fourth) surge of COVID-19 infections due to the highly transmissible Delta variant, which CDC Director Dr. Rochelle Walensky indicated behaves “uniquely differently” from prior virus strains. While Director Walensky stressed that the vast majority of severe illness and death is among unvaccinated people, she also indicated data shows breakthrough infections can happen in 1 out of 10 vaccinated individuals in a “substantial” or “high” transmission area. So what does this mean for employers and your masking policies?
What Has Changed and Why?
The announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. Since then, new data shows the Delta variant is more transmissible than earlier strains of COVID-19, with those infected with the Delta variant carrying the same viral load as unvaccinated individuals with COVID-19.
Indeed, the CDC indicates while most COVID-19 transmission occurs in unvaccinated people, the amount of the virus in breakthrough infections caused by the Delta variant (e.g., viral load) is comparable to unvaccinated infections. This led the CDC to conclude that – although rare – breakthrough infections of vaccinated individuals have the same potential level of transmissibility as unvaccinated persons. Accordingly, the agency urged communities with substantial and high transmission rates to enforce masking guidelines to prevent the spread of COVID-19.
What About OSHA’s Emergency Temporary Standard?
Last month, OSHA issued its Emergency Temporary Standard (ETS), which gave wide latitude to most employers on their masking policies for vaccinated workers. OSHA provided that, except for workplace settings covered by the agency’s healthcare ETS and the remaining mask requirements for public transportation settings, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated.
Yesterday’s CDC guidance could change that, particularly in areas with substantial and high transmission. That’s because the OSHA ETS specifically cited to the CDC’s May 13 guidance on masks as a factor to justify many of its recommendations.
According to the CDC, “high” transmission equals more than 100 cases per 100,000 people over a seven-day period, while “substantial” transmission equals 50-100 cases per 100,000 people over a seven-day period. The CDC recommended using its COVID-19 data tracker, which is updated daily by state and county. Much of the nation is currently in a substantial or high transmission category.
Of course, employers should still take measures to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces, but many may need to implement masks for fully vaccinated workers in specific communities.
What Should Employers Do?
The CDC’s new guidance provides important considerations for employers who may be thinking about implementing or rescinding masking policies. Even though CDC guidance is not directly binding on employers, it is critically important. This is because OSHA’s guidance repeatedly refers to CDC guidance and clearly emphasizes the protection of people who are unvaccinated or otherwise at risk, which is the focal point of the CDC’s updated guidance.
If you have locations in areas which do not meet the criteria for “high” or “substantial” transmission, no immediate action is necessary. But it may still be prudent to have a plan in place to address how your company will adjust its masking policies if necessary. You should also consider state and local laws before making any changes to masking policies, given that states, such as Arkansas, have passed legislation barring entities (local governments) from imposing mask mandates.
If you are encouraging or mandating vaccines, you should also be prepared to address employee concerns over vaccination policies. This is especially true given the CDC’s position that infections are possible in vaccinated individuals and that those individuals may transmit the virus to others at a greater rate than previously understood.
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:
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.
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.
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.
The Department of Labor (DOL) has launched a new concentrated outreach initiative. For business owners, that means the DOL has promised to actively reach out via radio announcements, social media platforms and neighborhood posters informing employees of their rights under the Fair Labor Standards Act (FLSA).
You may now be thinking “What does that have to do with me? I pay my employees to work”. While this may be mostly true, often we (or our managers) inadvertently allow or encourage our employees to work off the clock. Before your internal defenses kick into high gear, let me provide a few examples of how this could occur:
Over the past year, business owners and managers have dedicated their time, energy and focus to keeping the essential business doors open or attempting to reopen and get employees back in the office. To allow employees to safely return to work, you have had to operate/reopen your business within CDC guidelines, transition your business to accommodate a remote workforce, follow OSHA’s recommendations, keep up with Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic, as well as the interaction between the Americans with Disability Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). It is no wonder some of our focus on day-to-day compliance may have slipped.
My company’s mission is to be The Employer Advocate. Under the new administration, changes are happening at lightning speed and, as your advocate, we are here to help you navigate through changes as they occur. Administrators Advisory Group (AAG) is a benefits brokerage that works with small to mid-size businesses, specializing in human resources compliance. We work alongside your human resource team to keep you up to date with the latest workplace rules and regulations.
The Department of Labor (DOL) campaign is the first in our four-part series designed to let you know what changes have taken place that may affect your business. In the following weeks, we will cover changes regarding the Family First Coronavirus Response Act (FFCRA) as amended under the CARES Act, changes occurring within OSHA, and a new federal taskforce created whose goal is to unionize your employees.
While Wage & Hour rules have not changed, the informational outreach by the DOL has just begun. The biggest change comes in the form of visibility and accessibility of the information, beginning with the revamp of their website. The DOL has promised to proactively reach out to employees using radio public service announcements, national webinars, social media messages, and posters.
Reminding employers and employees alike that employees must be paid for ALL hours worked is the center of this outreach! Even if you don’t ask an employee to work overtime, even if it’s done remotely, and even if you aren’t aware (but should have been), the employee is entitled to be paid.
Wage & Hour rules can be one of the many landmines that employers have to navigate on a daily basis. With AAG on your side, we will help you ensure you are prepared in case the DOL shows up on your doorstep. Let us know if you have questions or would like to review some of your existing practices or policies.
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?
Federal and state anti-discrimination agencies have issued guidance for employers that want to require workers to get a COVID-19 vaccine—but at least one lawsuit has claimed that employers can’t mandate a vaccine that is approved only for emergency use. While this argument might not hold up in court, employers should be aware of the risks associated with a vaccine mandate.
When employees refuse a vaccine, the employer should address their concerns and explain the reasons why the company has adopted a mandatory vaccination policy. An open dialogue and education will be key, as will following FDA updates in this regard and consulting with legal counsel.
There are many reasons why an employee may be unwilling to receive a COVID-19 vaccine, and employers may need to explore reasonable accommodations, particularly with employees who have disability-related and religious objections to being vaccinated.
Distribution of COVID-19 vaccines has been issued under the Food and Drug Administration’s (FDA’s) Emergency Use Authorization (EUA) rather than the FDA’s usual processes. But the FDA has said that the vaccine has met its “rigorous, scientific standards for safety, effectiveness and manufacturing quality” and that “its known and potential benefits clearly outweigh its known and potential risks.”
An employee who recently filed a lawsuit challenging an employer’s vaccine mandate argued that the EUA states that people must have “the option to accept or refuse administration of the [vaccine]” and be informed “of the consequence, if any, of refusing administration of the [vaccine] and of the alternatives to the [vaccine] that are available and of their benefits and risks.”
Although the employee in the case works in the public sector, many employment relationships in the private sector are at-will, which means either the employer or the worker can terminate the employment for any lawful reason. An employer that mandates a vaccine may argue the consequence of refusing a vaccine is being fired.
“Consensus in the legal community has been that, at least in the private sector, employers may require at-will employees to be vaccinated, subject to accommodations that may be required for medical or religious reasons,” said Kevin Troutman, an attorney with Fisher Phillips in Houston, and Richard Meneghello, an attorney with Fisher Phillips in Portland, Ore.
The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance indicating that employers generally can mandate COVID-19 vaccinations. “The EEOC specifically addressed vaccinations that are authorized or approved by the FDA,” noted Anne-Marie Vercruysse Welch, an attorney with Clark Hill in Birmingham, Mich.
The California Department of Fair Employment and Housing (DFEH) also recently said that the Fair Employment and Housing Act (FEHA) generally allows employers to mandate vaccines that have been approved by the FDA. The DFEH specially noted that the FDA has authorized and recommended three COVID-19 vaccines—all of which have been authorized under an EUA.
But vaccine mandates may still be risky for employers. It is possible that employees who are terminated for refusing to receive a vaccine authorized by the FDA under an EUA could try to pursue claims for wrongful termination in violation of public policy. The viability of such claims will depend on applicable state law regarding a potential public policy exception to at-will employment and how courts—state and federal—construe the EUA wording.
The regulatory framework is still unclear and a number of states are considering legislation that would prohibit employers from requiring employees to receive a COVID-19 vaccine. If these bills become law, the uncertainty regarding the EUA issue will become moot in those states, at least as of the time the laws go into effect.
The EEOC issued guidance stating that employees may be exempt from employer vaccination mandates under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws.
California’s guidance noted that the FEHA prohibits employers from discriminating against employees or job applicants based on a protected characteristic—such as age, race or sex—and requires employers to explore reasonable accommodations related to a worker’s disability or sincerely held religious beliefs.
“If an employee has a medical condition or sincerely held religious belief that would prevent them from being able to be vaccinated, their employer must go through the interactive process to determine if a reasonable accommodation is available,” Welch said. She recommended that employers have accommodation forms available to employees to begin the interactive process and document the steps the employer took to attempt to arrive at a reasonable accommodation.
Accommodations could take various forms, depending upon the employee’s job and setting. Employers may offer remote work, change the physical workspace, revise practices or provide a leave of absence. In each situation, the employer must determine whether an accommodation would enable the employee to safely perform the essential functions of their job.
Some employees might refuse to receive a vaccine for reasons that aren’t legally protected, such as a general distrust of vaccines. Employers need to be very thoughtful as they consider whether to mandate vaccines because employers may have to fire a material portion of their workforce who refuse to be vaccinated or allow some employees to ignore a company policy–which can lead to discrimination risks and employee morale issues.
“Most employers are encouraging vaccination rather than requiring it,” Welch observed.
Coburn recommended that employers focus on the following measures to encourage employees to receive a vaccination:
Employers that want to offer incentives should be mindful of wellness program limitations and offer alternative ways for employees who cannot get vaccinated to receive the incentives, Coburn noted.