Tag: CDC

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EEOC says that employers legally can offer incentives to employees to get vaccinated in almost all instances

COVID-19, FMLA, mask, OSHA

Employers have been anxiously waiting for the EEOC to publish its guidance for employers on incentives offered to employees in exchange for getting vaccinated against COVID-19. Late last week, the EEOC finally released that guidance. The issue is whether the incentive renders the vaccine coerced and therefore non-voluntary, which would be unlawful under the ADA and GINA.

What did the EEOC say:

  • An employer may offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own.
  • An employer may offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent as long as the incentive is not so substantial as to be coercive, and as long as the employer does not acquire genetic information while administering the vaccines. The EEOC does not offer any guidance as to what “so substantial as to be coercive” means, but it’s safe to assume that the incentives employers are offering (a day or two of added PTO, payments or gift cards up to a couple hundred dollars) will not meet this standards and are safe. And when states are offering the vaccinated the chance to win a million dollars…
  • An employer may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from the employer or its agent, as such incentive would necessarily require the disclosure of the family medical history of the employee, which would violate GINA.
  • An employer may offer vaccinations to an employee’s family members if those vaccines are voluntary, employees are not penalized if their family members are not vaccinated, and all medical information obtained from family members during the pre-vaccine screening process is only used for the purpose of providing the vaccination, is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions for the employees.
  • Employers may (and I’ll add, should) provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination.
This guidance is not earth-shattering or surprising. With more than 50 percent of the country having received at least one dose of the COVID-19 vaccine, it provides confirmation and legal comfort to those employers that have already offered such incentives. It also follows an important governmental trend we’ve recently seen across agencies—the adoption of policies intended to incentivize people to get vaccinated. Whether its PTO for vaccines, the CDC’s new mask rules, or OSHA reversing course and eliminating its prior guidance that required the reporting of adverse reactions to employer-mandated vaccines, the federal government is actively breaking down barriers that discourage or disincentivize employees from getting vaccinated.
With only 40.7 percent of the country fully vaccinated, we are a long way from the number needed to reach the all-important herd immunity, if we ever get there. While it feels like life is starting to return to normal, the COVID-19 pandemic is not over yet. Do your part and get your shot. And, if you’re an employer looking to get as many of your employees vaccinated as possible, you can rest easier knowing that the EEOC will not penalize you for offering vaccine incentives to your employees.
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How to enforce mask rules at work without breaching ADA confidentiality rules

coronavirus, mask, reopen

If an employer is supposed to keep an employee’s vaccination status as a confidential medical record, how is an employer supposed to enforce the CDC’s most recent guidance that permits fully vaccinated individuals to unmask?

The EEOC makes it clear that an employer encounters zero legal impediments from “asking or requiring an employee to show proof of receipt of a COVID-19.” But once you obtain that information from an employee, you still must maintain it as a confidential medical record under the ADA.

The ADA requires employers to keep confidential any medical information they learn about any employee and store it confidentially and separately from an employee’s personnel information. An employer may only disclose this information to other personnel on a “need to know” basis.

So, if you intend to follow the CDC guidelines, you need a process to know which employees are vaccinated and which are not, which would involve the disclosure of vaccination status. Then, you need to communicate that information on a limited basis to those managers or supervisors who need to know that information to enforce your mask rule for the unvaccinated.

As long as you limit the disclosure to the narrowest group who reasonably and in good faith legitimately need to know which employees are, and are not, vaccinated, in this employment lawyer’s opinion such disclosure should pass muster under the ADA’s confidentiality rules. (As with all things, check with your own employment counsel before rolling out such a policy.)

Jon, you ask, won’t everyone know who is and is not vaccinated just by looking at who’s marked versus maskless? No really, as some fully vaccinated employees may choose to keep wearing a mask. Moreover, even if only unvaccinated employees wore masks, that would be a function of you following CDC guidelines, not the result of a breach of confidentiality.

Tomorrow, vaccine-status harassment.

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OSHA sends employers a strong signal that it intends to follow the CDC on masks

VF Corp., COVID-19, mask, education

One open issue stemming from the CDC’s about-face on masking for the fully vaccinated is how OSHA would address these new guidelines. When OSHA published its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace in late January, it made it clear that one’s vaccination status had zero impact on an employer’s obligation to require masks in all cases.

Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.

In the world of COVID-19, 3 ½ months is an eternity, so here we are just 3 ½ months later living in a country without facial coverings for the fully vaccinated. So what says OSHA?

The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.

Until further notice, the story on masks at work remains as follows:

  • Fully vaccinated employees = maskless, if they choose.
  • Unvaccinated employees = masks.
As for me, I’ll be OK going maskless in places in which I know everyone else maskless is also fully vaccinated. Otherwise (hello Costco, and any other store that is putting people on the honor system) I’ll be keeping my mask on until further notice.
If the last year has taught me anything it’s that if left to their own devices too many people will fail to do the right thing. I just don’t trust that everyone maskless will be fully vaccinated. There just seems to be too high of a correlation between those who are anti-vax, anti-mask, and pro “liberty.” So thank you, maskless and unvaccinated. Your selfishness will require me to keep wearing a mask in many public places.
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Working in an office instead of working from home doubles the risk of contracting COVID-19

coronavirus, remote work, COVID-19, remote workforce

You are literally making COVID-19 worse if you are refusing to permit employees to work from home.

According to a recently published CDC study, employees who work in an office setting are nearly twice as likely to contract COVID-19 than employees who work from home.

ABC News summarizes the study’s methodology and findings:

Researchers interviewed roughly 310 people who took a COVID-19 test in July, about half of whom tested positive, and compared them to a control group of people who tested negative. The majority of both groups, all adults, held full-time, non-essential jobs outside of critical infrastructure and had similar community exposure to COVID-19 independent of work.

The groups had some differences in behavior: Only a third of the COVID-19 group reported working from home or teleworking at least part of the time before their diagnosis, while half of the control group participants reported at least sometimes working remotely. In the two weeks prior to getting sick, members of the COVID-19 group were more likely to report that they exclusively went to the office or to school than control group members were. Researchers also found an association between going to the office regularly and attending church or religious gatherings.

What does this data tell us? In the words of the CDC, “Businesses and employers should promote alternative work site options, such as teleworking, where possible, to reduce exposures.”
Unless you absolutely need employees to perform their work from your workplace, let them work from home. COVID numbers are not getting any better.
In fact, they are getting exponentially worse and are predicted to continue to do so until plateauing as late as January or even February. We all have a role to play in stopping the spread of this deadly virus.
Allowing employees who are able to work remotely to do so is just about the least you can do.
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New CDC guidance will result in A LOT more employee absences

software, compliance

Yesterday, the CDC made a key update to its COVID-19 guidance. It made a significant change to the definition of “close contact.”

No longer does one qualify as a “close contact” by being within 6 feet of someone for 15 continuous minutes or more.
The CDC now defines “close contact” as:
Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period (individual exposures added together over a 24-hour period) starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.”

Factors to consider in determining whether one is a “close contact” include:

  • Proximity (closer distance likely increases exposure risk);
  • The duration of exposure (longer exposure time likely increases exposure risk);
  • Whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding);
  • If the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting); and
  • Other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors).
Most notably, under separate CDC guidance, this determination is made regardless of whether anyone was wearing a mask or other facial covering.
This change matters a lot. COVID-19 quarantine rules depend on whether one has been in close contact with someone who tested positive. The liberalization of this definition (which appears to have been based on anecdotal evidence of at least one infection) will result in more people meeting the definition of “close contact” and therefore having to quarantine for 14 days after an exposure to someone who tested positive.
This doesn’t just matter to exposures in your workplace. It also matters to employees’ activities out side of work, and to their children who are exposed at school. If the child has to quarantine for 14 days, guess who might need to be home with their quarantining child?
Make no mistake, this will create an attendance mess for employers, especially as COVID-19 numbers continue to briskly rise. Now is the time to double-down on the enforcement of physical distancing rules and measures at work. Six feet must mean six feet at all times.
  • Floors should be marked so that employees understand what six feet looks like.
  • Shifts should be staggered to allow for greater separation of employees, if needed.
  • Start- and end-times should be shifted to avoid bunching at time clocks.
  • Lunch and break rooms should be set up to avoid crowding and allow for distancing.
  • Bathrooms and elevators should have strict (and low) occupancy limits.

You can’t control with whom an employee or a family member comes in close contact outside of work, but you certainly can enforce measures at work to limit the possibility of close contact occurring there. Otherwise, you risk one positive COVID-19 case wiping out your business for two straight weeks.

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The CDC continues to create a mess for employers on testing, and a word on RBG

concerted activity

On Sept. 18, the CDC yet again updated its guidance for COVID-19 testing. If you’re keeping count, this is the CDC’s fifth set of testing rules.

What’s changed?

Due to the significance of asymptomatic and pre-symptomatic transmission, this guidance further reinforces the need to test asymptomatic persons, including close contacts of a person with documented SARS-CoV-2 infection.

This change is huge. Just four weeks ago, the CDC had updated the same guidance to state: “If you have been in close contact (within 6 feet) of a person with a COVID-19 infection for at least 15 minutes but do not have symptoms, you do not necessarily need a test unless you are a vulnerable individual or your health care provider or State or local public health officials recommend you take one.” Now, the agency says the exact opposite.

  • If you have been in close contact, such as within 6 feet of a person with documented SARS-CoV-2 infection for at least 15 minutes and do not have symptoms.
    • You need a test. Please consult with your healthcare provider or public health official. Testing is recommended for all close contacts of persons with SARS-CoV-2 infection. Because of the potential for asymptomatic and pre-symptomatic transmission, it is important that contacts of individuals with SARS-CoV-2 infection be quickly identified and tested. Pending test results, you should self-quarantine/isolate at home and stay separated from household members to the extent possible and use a separate bedroom and bathroom, if available.

Make no mistake, this change was absolutely necessary and should have been the default all along. Because of the prevalence of asymptomatic and pre-symptomatic carrying of the virus, many do not know that they even have COVID-19, and therefore we can’t isolate to prevent further community spread without testing. It just would have been nice, however, if the CDC came to this realization sooner than six months into the pandemic.

As a result, you may have more employees missing work, and more employees seeking paid leave under the FFCRA. But that’s okay because the only way we can defeat this virus until we have a safe and reliable vaccine is to stop it from spreading in the first place.

I’d be remiss if I did not say a word or two about the passing of Ruth Bader Ginsburg.

Friday felt like an absolute gut punch. A good friend said it best on Twitter, in the hours after RBG’s passing:

God bless her for her steadfast service to the ideals of America and especially for the idea that little girls can do and aspire to whatever a little boy can. You lived your truths, exceptionally. Love you RBG.

RBG was the most significant jurist for women’s rights in the history of our nation. She is and will continue to be a hero to many, and she will surely and sorely be missed both for who she was and for what she stood and will continue to stand.
Rest in peace Justice Ginsburg. You held on as long as you could. You are now heaven’s great dissenter.