The most stringent COVID-19 restrictions have been lifted, and many companies are returning to their pre-pandemic levels of business. But for employers, operations and regulations are quite different from what they were in early 2020. Local, state, and federal regulations regarding safety regulations, employer requirements, and workplace mandates continue to change at a dizzying pace. Likewise, COVID-19 shows no signs of going away anytime soon.
To help employers navigate what Keith Chapman, general counsel at Instawork, called “the long-term, post-COVID world,” Instawork produced a webinar titled “How Employers Can Be COVID-Safe in 2022.” Chapman was joined by Devjani Mishra, shareholder at labor and employment law firm Littler Mendelson who is part of its COVID-19 Task Force and Return-to-Work Team. Below are a few takeaways from the session.
[2:58] What the OSHA emergency temporary standard is
[9:43] Understanding OSHA’s “100-employee” threshold
[20:57] Defining medical and religious exemptions
[39:33] HIPPA and the right to ask employees’ vaccination status
[48:45] Who is responsible for paying for COVID testing?
[54:06] What Instawork is doing to make businesses COVID-safe
1. OSHA ETS: what now?
Several weeks ago, OSHA filed an emergency temporary standard (ETS) requiring businesses with 100 or more employees as of November 5 to implement either a mandatory vaccination policy (with a few exemptions — more on that later), or require unvaccinated employees to take COVID tests at least once a week. As of now, the deadline is on hold. But no matter how the court rules, Mishra warned, subsequent appeals are likely; more than 30 have already been filed.
This does not mean employers should simply sit tight and do nothing, though. For one, there are still local and state requirements to comply with. In states with already-stringent policies, the OSHA ETS would not preempt anything that was less protective, Mishra noted. Even though the ETS allows businesses with fewer than 100 employees to skip implementing a vaccination or testing policy, if a municipality requires businesses with as few as 10 employees to have such a policy, a company in that municipality would have to continue adhering to the stricter regulation. In fact, she said, state regulations will be especially important if the ETS is struck down.
What’s more, “workplaces and employers that are subject to OSHA have to meet a general duty to keep their workplaces safe from known, recognized hazards,” Mishra said.
Just as businesses require workers to wear hard hats on construction sites and to wash their hands prior to preparing food in order to protect themselves, their colleagues, and their customers, companies should put in place rules to help prevent the transmission of COVID among staff and customers.
The takeaway: Rather than reacting to the latest COVID news, organizations need to be proactive in creating a comprehensive policy requiring vaccinations, testing, masking requirements, and the like.
“The big thing right now is making choices,” Mishra said. “I talk to employers about choices week to week — really setting our objectives, [and determining] what we need to do to support that and what the consequences will be.”
2. Abiding by the 100-employee cutoff
One aspect of the OSHA ETS that generated considerable confusion was the 100-employee cutoff. That figure encompasses employees at the company level, not at each location, Mishra said.
“You don’t want to get super creative and vary from the way you counted employees for other things,” she added.
For instance, don’t suddenly declare some employees as independent contractors to reduce your head count to less than 100.
As for those workers who truly are temporary employees, independent contractors, or freelancers, if you are not their employer of record, you likely would not be responsible for monitoring their vaccination status. From a practical point of view, however, you are still responsible for ensuring they are abiding by any other on-site requirements — such as wearing masks or having their temperature taken prior to entering the premises — that your employees must follow.
“Somebody’s got to take responsibility for the day-to-day interaction there,” Mishra said.
And since independent contractors’ employer of record typically isn’t on-site, the onus falls on the employer benefiting from the workers’ services.
The takeaway: Don’t play fast and loose with how your business classifies workers in hopes of falling below the 100-employee threshold, or any other thresholds that might be implemented.
3. Mandates & exceptions
Numerous businesses have already implemented vaccination and/or testing mandates for employees. At the same time, several states have passed (or are trying to pass) legislation that forbids discrimination based on vaccination status. But outside of these states, private businesses can implement COVID-related mandates, so long as there are accommodations in place in keeping with the Americans with Disabilities Act (ADA) and the Civil Rights Act of 1964, which prohibits religious discrimination. For instance, if your business requires workers to be vaccinated but an employee has a valid medical or religious exemption from being vaccinated, the employer is obligated to implement a suitable workaround.
Medical exemptions are relatively straightforward and also relatively rare. Workers seeking such exemptions need to provide a letter from a healthcare provider attesting that there is a valid reason they cannot be vaccinated — they’re allergic to an ingredient in the vaccine, for instance, or the vaccine is incompatible with ongoing medication that the employees take.
However, Mishra said, employers do not have to accept a letter from a healthcare provider stating “my patient has chosen not to get vaccinated” as reason enough for a medical exemption.
Religious exemptions are not as well defined, and many individuals are taking advantage of that.
“We’re seeing clients get hit with religious exemption requests in numbers unlike anything we’ve seen before,” Mishra said.
It will be important for employers to have a process in place for reviewing such requests, Mishra said. This might include asking those seeking a religious exemption whether they have received other vaccinations or the specifics of why the COVID vaccine is against their religion. It’s important to ensure that the same process is followed for everyone seeking religious exemptions, and that everyone is held to the same criteria.
Workers might claim that the Health Insurance Portability and Accountability Act (HIPAA) forbids you to ask them their vaccination status — but this is incorrect.
“HIPAA does not have to do at all with asking employees or staff for their vaccination status... Even in the most restrictive states you can still ask employees whether they have been vaccinated or not, & if they decline to answer, you can treat them as though they’re not.”
- Devjani Mishra, Shareholder at Littler Mendelson
In fact, if the OSHA emergency temporary standard is upheld, employers will be required to collect from employees proof of vaccination. Companies will also need to keep this documentation separate from personnel files and treat it as medical records, with access available only to a restricted number of people. At the same time, the ETS requires employers to be able to provide aggregate data regarding the percentage of their workforce that is vaccinated.
The takeaway: Businesses have the right to ask about workers’ vaccination status, and in the future they might even be required to maintain records of such statuses. What’s more, Mishra said, if a worker doesn’t follow a company’s COVID mandate, the employer “absolutely can take action” just as it would with any employee who doesn’t follow other safety protocols.
4. Figuring out testing practicalities
Businesses that require workers to regularly get tested for COVID have to determine who will pay for tests, as well as whether they will compensate workers for their time and travel expenses involved in taking the tests — this is perhaps one of the trickiest areas to navigate.
“You definitely are going to want to talk to whoever advises you about wage-hour issues,” Mishra said.
She estimated that roughly 30 states have laws that arguably make the employer responsible for covering the costs of the tests, but there are myriad variables involved.
The takeaway: Consult with your wage-hour specialist when determining your company’s fiscal burden regarding testing, and if you are responsible for those expenses, be certain to factor them into your cost of doing business.
5. Preparing for the future
Given how frequently state and local regulations change regarding COVID, it’s important for businesses to monitor their state websites, as well as the sites of their state’s department of health and department of labor resources. In addition, Littler has a regularly updated online library covering COVID-related business and governmental developments that you can search by state.
Instawork is incentivizing its professionals to upload their vaccination status into their profiles so that clients can see the information when selecting workers. So far, more than half of Instawork Professionals have updated their status. By the same token, clients should post any requirements they have regarding vaccination status or test results in their job posts. In addition, Instawork has facilitated contact tracing.
The constantly-evolving regulations and advisories about COVID-19 can be confusing for employers. But as the world continues to better understand COVID and find new ways to address it, Instawork will continue to help you navigate the requirements and standards. Together, we’ll work toward a future where “business as usual” is the reality once again.