The Biden Administration issued a new vaccine mandate on Thursday, Nov. 4
The mandate includes two different rules, one from OSHA and one from CMS. Both have Jan. 4 deadlines.
Businesses must reassess how they track vaccination, testing, and PTO for their employees.
Back in September of this year, the Biden Administration announced a controversial vaccine mandate. On Thursday it released an update, explicitly outlining two new rules for U.S. businesses to follow heading into the new year.
Here is what you need to know.
Rule #1
Issued by OSHA, businesses with more than 100 employees must require all their workers to be vaccinated or to provide weekly negative test results. The rule affects roughly 84 million workers across the United States. Here are some further details:
The deadline is Jan. 4. Businesses must ensure that all their employees are vaccinated or at least are willing to provide weekly negative test results before this date.
Employers are subject to fines up to $13,653 per willful violation of the mandate.
Unvaccinated employees must wear masks while at work.
Workers must receive paid time off to get vaccinated as well as sick leave if additional recovery time is needed.
Employers do not need to pay for weekly testing.
The federal rule will take precedence over any inconsistent state laws that deny employers the authority to require vaccination, masks, and testing.
While it is mostly up to employers to enforce these rules, OSHA does plan to conduct workplace inspections to check that employers are staying in compliance.
Rule #2
Beyond the OSHA mandate, the Centers for Medicare and Medicaid Services has also issued a rule requiring 17 million people working in Medicare and Medicaid facilities to be fully vaccinated, with no weekly negative testing alternative. It will impact 76,000 federally funded healthcare facilities in the United States. Below are a few extra details:
All Medicare and Medicaid facilities must ensure their employees are completely vaccinated by a Jan. 4 deadline – the same deadline as the OSHA rule.
Facilities that do not comply could face fines, denial of funding, and possible termination from the Medicaid and Medicare programs.
Workers can apply for medical or religious exemptions
Going forward
With Biden’s new vaccine mandate comes the inevitable pushback. It’s a tale as old as…well 2020 I guess.
While Republican lawmakers in various states have already begun drafting efforts to combat the requirements, the private sector is also raising concerns regarding supply chain issues in the cargo industry and labor shortages within healthcare. Regardless of where employers stand on the matter, the fact remains that thousands of dollars are on the line for non-compliance. As such, proper measures need to be taken to maintain a safe and organized workforce.
Employers should reassess how they are currently tracking employee vaccinations and negative tests. Is there a system in place maintaining up-to-date records for each employee? Are managers automatically notified when a non-compliant employee is scheduled for a shift? Is there a compliance paper trail easily accessible to OSHA auditors when they come knocking? These are all important questions to consider when reviewing how well one’s workforce management system handles the new vaccine mandates.
Employers must also have a plan in place for how to tackle vaccination PTO and sick leave. Implementing specialty time off like this into scheduling processes and effectively tracking it for payroll can sometimes prove tricky without the right solutions in place.
Interested in finding out more about how your business can prepare for the Jan. 4 deadline? We are here to help. Book a call with us today, or leave your email below and we’ll get back to you.
Under Biden’s mandate, companies with 100+ employees now must require vaccinations or weekly testing for all workers
Vaccine mandates face pushback, both currently and in the past, with 45% of the U.S. population choosing not to be vaccinated
Businesses can use qualification tags, notifications, and shift questions to manage employee vaccination and testing status
The COVID-19 delta variant is becoming a serious threat across the nation. Mask mandates are back in vogue and remote work is once again looming on the horizon – all this and flu season hasn’t even begun.
In light of all this, many businesses have turned to their own internal vaccine mandates. One of the largest breweries in the world, Molson Coors, announced earlier this year a vaccine mandate for all non-union corporate, sales, and contract employees. Some states like Washington and Connecticut have also issued strict mandates for government and healthcare employees.
Biden’s Mandate
This trend has made its way into federal policy recently with the introduction of President Biden’s new vaccine mandate that will affect around 80 million people. Businesses with over 100 workers now must require vaccinations or weekly testing for all their employees – the alternative is a $14k fine. Ouch.
Anyone involved with the federal government in any capacity must show proof of vaccination with no weekly testing as an alternative. This means federal employees, contractors, and federally funded healthcare workers all are required to be vaccinated.
Government officials in states like Texas, South Carolina, and Florida are pushing back, with many citing the new mandates from the administration as overreaching and unconstitutional. Florida governor Ron DeSantis recently signed an executive order in direct retaliation to Biden’s mandate. The rule bans Florida employers and businesses from requiring people to provide proof of vaccination. Failure to comply with the vaccine passport ban results in a $5,000 fine per case. How this state rule will clash with the federal mandate remains to be seen.
This kind of contention is nothing new.
A Divisive History
Vaccine requirements in the past have almost always been met with resistance, and occasionally even full-blown lawsuits. Medical workers in Houston are suing their hospital a second time now after their first case was dismissed earlier this year. The 61 employees are suing in the wake of being suspended and fired for failure to comply with their hospital’s stringent vaccine requirements.
Unions have also traditionally held anti-vaccine mandate policies.
In Chicago, the police union refused to comply with local vaccine requirements announced last month. In fact, the union is reportedly prepared to go to court over the matter. However, many other unions have changed their policies in light of both Biden’s mandates as well as the FDA’s approval of Pfizer last month. Even so, vaccine mandates are still a topic of division among unions – this is something important for companies to keep in mind when navigating Biden’s new requirements.
Staying Compliant
Needless to say, there is a lot of tension surrounding vaccine passport culture. Whether the new mandates are constitutional or not, the fact of the matter is they are here, and business owners everywhere need to do their best to stay compliant.
For companies with 100+ employees not involved with the federal government, the first step to staying compliant is understanding who is exempt from vaccination.
According to the EEOC, an employer cannot issue a blanket vaccine requirement without providing appropriate exceptions for employees with certain medical conditions or religious beliefs. If workers cite one of these exceptions, employers can only mandate that they provide weekly negative test results.
Understanding the laws and technicalities surrounding all these changes is one thing; effectively adapting a workforce management system to these changes is a whole other matter.
Qualifications and Accommodations
There are two primary areas to keep in mind when dealing with the onset of nationwide vaccine mandates: qualifications and accommodations. Managers need to learn how to properly balance vaccine qualification requirements for specific jobs with accommodations for employees that meet exemptions. Accomplishing this balance will translate to an organized and collaborative workforce.
To potentially assist with balancing qualifications and accommodations, Workforce.com offers a few useful features.
The Limiting Scheduling According to Qualifications feature allows managers to keep track of and update employee certifications required for specific jobs. Since vaccines are essentially a kind of certification now, this feature is nearly essential in 2021. By adding a vaccinated status to the customizable qualifications list, managers are able to automatically restrict shifts to various employees.
Joseph Cuellar, a software consultant at Workforce.com, notes, “recently we’ve seen a lot of companies use the qualifications feature to make sure they’re on top of vaccination requirements.” In the coming months, this trend is likely to continue.
Another way for businesses to manage their COVID-19 vaccine and testing requirements is to have employees answer pertinent questions when clocking in. With Workforce.com, managers can prompt employees with questions like these to confirm that they understand the vaccine and testing requirements associated with employment, or confirm that they’ve not exhibited symptoms of COVID-19.
As previously mentioned, these vaccine related qualifications for shifts must be balanced with accommodations.
Some employees may meet one of the two exceptions for getting vaccinated, and organizations should consider properly accommodating them. If they choose not to, they run the risk of losing significant human capital at a time when national staffing shortages are plaguing various industries.
To successfully accommodate exempt employees, both the qualifications tool as well as clock-in questions may be used. Managers can also send weekly reminder notifications to exempt employees to get tested. They can also create a custom qualification tag for testing status that expires after a week. As a daily safeguard, clock-in questions regarding proof of negative tests can also be used.
Vaccine-heavy Future
At the end of the day, if your company has over 100 workers, it is safest to assume that you’ll need a way to keep track of vaccination status across your workforce. Tracking the status of vaccinations and negative test results can be complicated, but there are ways to make it a clear and concise process with workforce management solutions.
Times are hard. Let us make them a little easier for you. Chat with us today over the phone about handling vaccines and testing requirements, or leave your email below and one of our team members will be in touch.
The challenge of attracting quality staff while trying to reduce labor costs is one that has taken on fresh urgency in the post-Covid labor market. This is particularly true where hourly shift work is concerned, as staff question their priorities after a year in lockdown.
Thankfully, there are several ways to find – and retain – good workers while still controlling your labor costs. It just requires a little recalibration of how you think about incentives and staff management.
Use flexible working rather than salary incentives
One myth that we can dispel quickly is that the only way to attract quality staff is by offering larger salaries. That’s been the assumed wisdom for decades but is now an outdated view of what people want from a job.
Increasingly workers are saying that flexible working hours are now their priority, with multiple studies showing that the ability to fit work around other areas of their life is a key consideration when job hunting. One pre-pandemic study found that if given the option of a job with flexible hours and one without, 80% of workers would choose the job with flexible hours. The same study found that 30% considered flexible working more attractive than extra vacation days or a prestigious job title.
Offering flexible hours not makes your company more attractive to workers, but it makes staff more likely to stay with you for the long term. A survey for FlexJobs found that 80% of workers would be more loyal to their current job if it gave them more flexibility.
The reason for this is that the way we perceive value in work has changed. “If you’re a parent and you have three kids to pick up from school every day at 3:30, then flexible working actually adds a lot of value to you”, explains Josh Cameron, Workforce’s Chief Strategy Officer. “If you can pick or swap out of the shifts, that’s more important to you than getting an extra $2 an hour, because you have to pay someone to pick up and look after your kids. The extra dollars are not adding value.”
Systems such as shift bidding are an excellent way to incorporate flexibility into a business, help reduce labor costs by not adding additional expense on your payroll, and are easily managed using staff management software such as Workforce.com.
You don’t need to cut wages to reduce labor costs
It’s a mistake to think that the only way to reduce labor costs is to cut staff or lower wages. One of the best ways to save money is by getting more value for what you already spend, and one of the most common ways that businesses fail to do this is by losing track of productivity against wages.
You can save money in real terms by ensuring that hours worked and hours scheduled match up, cross-referencing with hourly income using workforce analytics to check you are getting the productivity you’re paying for. It may sound basic, but you’d be surprised how many companies still have their data spread across multiple files or systems and simply assume the numbers match at the end of each day.
“Most people never check the schedule matches what people actually work,” says Josh Cameron. “They might have a really good shift plan, and that’s in one system, but then the attendance data is in another system, and people are clocking in and clocking out of that. And the manager is basically just blindly ticking things because that’s what was clocked. If they even wanted to cross-check that, it would be a big exercise. People don’t do it. What’s much better is to have the schedule and the attendance in one system, so you can tick these things off throughout the day or at the end of the shift and if there are differences, you can go see why that happens.”
Listen to feedback to stop staff churn
Once you’ve attracted good workers with flexible hours and made sure you’re getting full value for those hours worked, it’s important to remember that you can help to reduce labor costs by keeping those staff in your business. Replacing employees costs money in advertising the vacant roles, onboarding and training, and lost productivity as working routines are disrupted. Gallup found in 2019 that US businesses lose a trillion dollars every year simply from the cost of replacing staff.
How do you stop staff from leaving? Listen to what’s bugging them about their job, and fix problems wherever possible. The idea of employers giving performance feedback to employees is widely accepted, but it’s also important for employees to be able to give feedback on the company.
“If you’re asking why people quit, by allowing people a way of giving feedback on their shifts, they feel ‘Hey, I have a way of being heard in this job, I actually am important,’” says Josh Cameron. “Managers can look at that feedback and analyze it and be like, ‘This is what’s causing problems. We’ve got these structural things that make it hard to work in this shift and that’s making it hard for people.’”
This is why Workforce.com allows staff to give feedback not just in general, but on the specific shifts they work. This allows managers to identify the pain points that cause staff to leave, and make changes. It may be something as common as a particular manager being hard to work with. It may be that a certain location gets uncomfortably hot on summer afternoons. Whether the answer means shuffling the staff roster, or something as easy as investing in an aircon unit, you’re empowered to spot the leaks in your staffing and plug them before they cost you any more revenue.
Think beyond the hiring process
There will always be sledgehammer approaches to reducing labor costs, but the current labor market conditions where potential employees are empowered to say “no” to jobs that don’t work for them, require a more nuanced approach. Companies save money when they hire the right people and get the best out of those people, and that means making sure they want to stay with you for the long term. From offering more flexible working arrangements to identifying the problems that drive staff away, Workforce.com can help at every stage.
Suppose an employee leaves work claiming COVID-like symptoms. He then calls off work for the next two weeks, claiming he is quarantining at home at his doctor’s recommendation.
Can you fire the employee during that quarantine period? Does your opinion change if you learn during the quarantine that the employee’s doctor never recommended the quarantine and the employee lied about receiving that recommendation?
Those are the basic facts of O’Bryan v. Joe Taylor Restoration, and upon which a federal court jury in southern Florida recently entered a verdict in favor of the employer.
O’Bryan’s lawsuit claimed that his employer had denied him paid sick leave under the FFCRA during his quarantine and retaliated against him for seeking paid sick leave. The employer uncovered his dishonesty when it saw a discrepancy between the alleged note ordering the quarantine and a later note authorizing his return to work.
COVID has altered a lot about the workplace. Thankfully, however, the ability of an employer to fire a dishonest employee has not been one of them.
Casinos across the United States were among the hardest hit businesses as the hospitality and travel industries suffered through the pandemic.
Conventioneers and gamblers disappeared and unemployment soared as the iconic Las Vegas Strip looked more like a ghost town than a glitzy, bustling entertainment mecca. And the numbers tell a bleak tale.
Gambling revenues slid by 31 percent in 2020, according to anannual report by the American Gaming Association. By comparison, the report noted that the industry’s economic tumble in 2020 far outdistanced the 8.4 percent decrease during the Great Recession. And, theLas Vegas unemployment rate reached 30 percent at the height of the pandemic, according to reports.
But the casino business is bouncing back. Employees are now being snapped up to fill thousands of vacant positions as the Las Vegas unemployment rate has slipped back to single digits. Many of them will be working the conventions — the Society for Human Resource Management and HR Technology Conference among them — that are finally returning to in-person events in Las Vegas this fall.
Along with the mega-corporations that line The Strip,Eureka Casinos appears to have weathered the storm and is shaking off the pandemic’s effects to fully reopen for business. With Nevada properties in Las Vegas and Mesquite and a casino in New Hampshire, Eureka Casinos is the only employee-owned gaming company in the United States. That distinction puts Eureka Casinos in a unique position to entice job candidates in a desperate battle to staff up as visitors return.
The battle for talent
The scarcity of good talent is particularly acute as casinos rush to re-staff, said Eureka Casinos Chief Operating Officer Andre Carrier. Any casino’s growth is tempered by its ability to field a qualified workforce, he added.
To be competitive in talent acquisition, Carrier said Eureka Casinos instituted hiring bonuses and is offering employees flexible hours and dual rates to fit staffing needs and schedules. But their key competitive advantage is employee ownership, he said.
“It means that our employees are provided with a long-term retirement benefit with no direct contribution,” he said. “This is an exceptional benefit and one we hope allows us to not only to retain our talented people, but attract future employees.”
With an employee stock ownership plan, orESOP, employees take on an owner’s mindset, which means a stronger sense of buy-in to the business and each other, Carrier said. It became especially valuable as COVID-19 swept across the industry.
“The pandemic was an unimaginable crisis with much of the company’s business closing for nearly three months,” Carrier said. “The challenge was to establish new systems to care for the physical, financial and emotional needs of the employee owners rapidly and effectively.”
Research has shown that companies with an ESOP are less likely to lay people off and keep employees working than conventionally owned businesses. Employee ownership has helped Eureka Casinos build a family style atmosphere for employees among the massive gaming conglomerates.
Building employee engagement
Engagement was a huge priority for Eureka Casinos throughout the pandemic, Carrier said. Being a mega-corporation would have impeded their ability to focus on the needs of their 600 employees, 70 percent of whom are hourly.
“One of the main ways we kept our employees engaged throughout our three-month closure was a weekly drive-through food pantry,” he said. “Many of our employees volunteered to pack food baskets and pass them out, and we had volunteer drivers deliver baskets. This was just one more way that we came together as a family business.”
Producing videos on the expected timeline for the state’s shutdown, answering common questions and preparing employees for a return to work kept everyone updated, Carrier said.
Carrier said employees were paid “for as long as possible before any need for unemployment” during their closure.
“We also allowed employees to use paid time off if needed and paid for health care benefits while we were closed,” he said. Some departments remained on duty during the entire closure, he said, noting how the engineering team worked to fabricate all the Plexiglas dividers that were a requirement for reopening.
Vaccinating employees
Once vaccines were approved, Eureka Casinos worked with government agencies and local hospitals to develop a vaccination center and a process for employees and the community to get vaccinated. They created a reservations platform and staffed the center as well, he said.
A rewards program also was established for employees wanting to be vaccinated.
“Any employee who gets vaccinated receives a cash bonus,” he said. “Once the company reaches two specific overall vaccination thresholds, additional bonuses are paid out to vaccinated employees.”
Tight talent pool
Carriertold Las Vegas television station KTNV that the pool of available worker talent in Las Vegas will remain tight as venues prepare for the second half of 2021. “This is arguably one of the most difficult times ever to find new people to join your company.”
But Carrier is optimistic that his casinos will fully rebound in large part because of their employees.
“Having hope for the future is a core value for Eureka Casinos, and the pandemic taught us how important that value is.”
Some 117 employees have sued their employer, Houston Methodist Hospital, over its requirement that all employees receive the COVID-19 vaccine.
According to ABC News, the hospital gave its employees a June 7 deadline to get vaccinated or face suspension and termination. The employees allege that their employer is “illegally requiring its employees to be injected with an experimental vaccine as a condition of employment.” The lawsuit adds that the hospital’s vaccine requirement violates the “Nuremberg Code and the public policy of the state of Texas.”
In a statement, hospital CEO Dr. Marc Boom said, “It is unfortunate that the few remaining employees who refuse to get vaccinated and put our patients first are responding in this way. It is legal for health care institutions to mandate vaccines, as we have done with the flu vaccine since 2009. The COVID-19 vaccines have proven through rigorous trials to be very safe and very effective and are not experimental.”
Dr. Boom is 100 percent correct; the hospital’s policy is legal. Here’s why, and why this lawsuit will fail spectacularly.
1. The EEOC expressly says that mandatory vaccine policies are 100 percent legal (as long as an employer makes allowances to accommodate employees whose underlying disabilities, sincerely held religious beliefs, practices, or observances, or pregnancy prevents them from getting vaccinated). Because I’ve seen zero references that any of the 117 plaintiffs are claiming an ADA or Title VII violation, I conclude that the hospital has met its legal obligations in this regard. (Note, however, that Texas is considering pending legislation that would make “COVID-19 vaccination status” a protected class under its employment discrimination law.)
2. Public policy actually favors as many individuals getting vaccinated as possible. Just ask the Biden White House, the CDC, the EEOC, OSHA, just about any other government agency, and even the State of Texas (although its governor did sign an Executive Order prohibiting government entities from compelling that anyone receives a COVID-19 vaccine administered under an emergency use authorization). Note also that there are efforts underway in states across the country (e.g., Ohio) to prohibit a business from mandating vaccines or permitting individuals to decline a required vaccine based on medical contraindications, natural immunity, or reasons of conscience.
3. The Nuremberg Code is not a thing, at least not in this context. In fact, there’s been a lot of chatting lately about the Nuremberg Code as a justification to refuse vaccine mandates. It’s wrong and it’s offensive. It’s a set of research ethics principles for human experimentation created as a result of the Nuremberg trials at the end of World War II. It was a reaction to the medical atrocities committed by Dr. Josef Mengele and other Nazis during the war, with the intent of protecting people from suffering similar atrocities. To compare Nazi war crimes to a life-saving vaccine that has been tested and vetted is the height of disgusting selfishness.
Bottom line: If you want to mandate that your employees get vaccinated as a condition of employment, you are legally in the clear to do so, subject to reasonable accommodation exceptions under the ADA for disabled employees, and under Title VII for employees’ sincerely held religious beliefs, practices, or observances, and for pregnant employees. Any other gripes, complaints, or objections by employees are just smokescreens that you can legally ignore, at least for now.
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.
“I can’t believe you got vaccinated. It’s an experimental drug that I’m not injecting into my body. Besides, I heard that Bill Gates and the global elites implanted 5G trackers in the vaccine. All the government wants to do is control us, and you’re letting them by submitting to these shots. Sheeple!”
OR
“I can’t believe you’re not getting vaccinated. Don’t you care about protecting yourself and others? This vaccine has been tested, vetted, and is safe and effective. We need to reach herd immunity if we want this pandemic to end, and you’re not doing your part. Selfish!”
Some version of this drama is likely playing out in your workplace. And it has to stop, ASAP.
For starters, one’s choice not to get vaccinated might be because of an underlying physical or mental impairment, a pregnancy (or hope to become pregnant), or a sincerely held religious belief, practice or observance. In any of those cases, harassing a co-worker because of his or her unvaccinated status might cross the line into unlawful protected-class harassment.
Additionally, whether another is or is not vaccinated is really none of anyone’s business. As noted in this post, it’s confidential medical information under the ADA (not HIPAA). It’s an employer’s business whether unvaccinated employees are following the CDC’s guidelines and keeping their masks on while at work.
But whether they’ve gotten the Pfizer, Moderna, or J&J jab? Not a co-worker’s business. And certainly not something anyone should be harassing or bullying anyone else over. Civil discourse is one thing. Harassment, bullying and disrespect is another altogether.
It’s simply not realistic to eliminate all vaccine-related discourse from the workplace. We’ve lived with COVID for over a year. With a few exceptions it’s all we’ve talked about. How can we expect employees simply to ignore conversing about issues such as vaccines for the eight-plus hours a day they are at work?
Instead of banning these discussions, remind employees of your expectations regarding all workplace conversations — that they are civil, professional, respectful and do not intrude on protected classes. And, if an employee violates these precepts, an employer should (or, in the category of protected-class harassment, must), address the issue.
Discussions over divisive issues need not be nasty, uncivil or contemptuous as long as we respect the rights of others to think differently and hold them accountable when they fall short of this standard.
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.
Employers are navigating a variety of issues as employees gradually return to a more permanent physical workplace.
According to anew survey by Aon, 52 percent of employers said employees will return onsite in the third quarter, and 81 percent of those organizations already have a tentative date in mind.AMay 2021 survey by law firm Littler, however, reveals a disparity in employers’ plans and employees’ preferences when it comes to hybrid work models and returning to physical workplaces.
There are several reasons employees may hesitate returning to the workplace. Chief among them for parents of young children, returning to work means finding quality, affordable child care.
Reestablishing pre-pandemic connections to daycare facilities is a challenge for many workers who are remote or unemployed and looking to return to work. The pandemic has crushed many small businesses, and child care centers are no exception, said Lauren Gill, head of people at New York-based child care provider Vivvi, which has 200 employees working on three campuses. Thousands of child care facilities have closed since March 2020, Gill said, and experts say that will have a profound impact on working families, especially women.
“Our challenge as an industry is how to rebuild and provide increased access,” Gill said.
Women bear the brunt of caregiving
The Center for American Progress found that the pandemic led to a 144 percent increase in child care-related work absences from September through November 2020, compared with the same period in 2019. The pandemic also ledthree in 10 womenwith children under 18 to temporarily or permanently leave the workforce to become a primary caregiver to children.
“The pandemic exacerbated the issues, resulting in over 2.2 million women leaving the workforce and the average parent spending 27 more hours per week on child care,” Gill said. “This has forced organizations to confront the fact that child care is a universal concern that affects all employees and that employee benefits have inadequately addressed this issue. Inadequate access to quality child care has been a challenge for individual families, for employers and for the U.S. economy for a long time.”
Fatima Goss Graves, president and CEO of the National Women’s Law Center, said that child care providers bring invaluable benefits to children and their families every day.
“Our entire economy is dependent upon their labor, yet razor-thin margins and a dearth of public investment mean the workers themselves receive poverty-level wages and few benefits,” Goss Graves said in a statement commemorating National Child Care Provider Appreciation Day in May.
Early childhood education is already a physically and emotionally demanding field, said Kae Bieber, education programs manager at nonprofit ACCA Child Development Center in Annandale, Virginia. The additional workload from health precautions coupled with the stress of working in a field that exposes employees directly to COVID-19 has made it difficult to fill positions.
At the pandemic’s onset ACCA kept its doors open for the children of essential workers, Bieber said. The number of children dropped from over 210 to 40 in the early days of the pandemic.
Struggling now to fill positions
As more parents returned to work and enrollment increased, Bieber said they have struggled to find qualified staff to fill positions vacated by employees who left during the pandemic. Some employees felt pressure to find a less stressful, safer choice for them and their family, so they left, she recalled.
“With the limitations on capacity due to COVID regulations and the need for staff, wait lists for quality child care are increasing,” she said. “Most often, a parent may get the call to return to the office but then still must wait until child care is available. This causes stress on the parents during an already extremely challenging time.”
Kae Bieber, education programs manager at the ACCA Child Development Center.
As ACCA — which has an infant-toddler center as well as a preschool building with 12 classrooms — began restaffing its workforce of 65 hourly employees, Bieber found job candidates were hesitant to join the field. Early childhood education previously was seen as a good starting point for someone interested in working with children and education, she said.
“Now a potential candidate must consider the low wage in comparison to the sacrifice they will be making with their lives for themselves and their family,” she said. “We may have 30 responses to one job posting but when a potential candidate sees the reality of the amount of work and exposure in-person, they do not see the value in their work due to the low wage.”
While money may not be everything, Bieber believes that if they were able to offer hazard pay as additional support during the pandemic, ACCA would not have lost as many child care professionals. In a worker’s mind, she said, they could at least feel as if they were being compensated in some way for the exposure they were faced with and bringing to their homes.
“No matter how vested someone’s heart may be, if their ability to provide for their family is struggling and they are now facing exposure to a deadly virus each day, it can be very difficult to rationalize staying in that position.”
Employees move on for safety and pay
Good employees were forced to choose between staying with a profession they loved versus switching to a job with less exposure and often higher wages, she said. The added sanitation measures quadrupled workloads in an already labor-intensive environment. Interaction with children also changed dramatically due to social distancing guidelines.
“Children thrive off of closeness, hugs, smiles, high fives, pats on the back and interacting with each other,” Bieber said. “We lost that, literally overnight. We went from creating high quality learning experiences to supervising social distancing and implementing nonstop sanitation. Our staff began to question if they were doing more harm than good by having children play six feet apart and keep their distance from the children. They had a very difficult time adjusting to the new normal.”
Stagnant wages for caregivers
Though there is a greater appreciation for child care, Gill said many programs are restricted in their ability to boost wages since they are under-enrolled and recovering from months on end collecting little or no tuition.
“We haven’t seen a major shift in wages in the child care industry since the pandemic,” she said.
Gill added that as a sector, they need to think about how to make early childhood education a true career with all of the financial stability, respect and growth opportunities that other careers offer both in the wake of the pandemic and beyond.
“We should never make educators choose between their passion and a comfortable life,” she said. “It’s vital that they become synonymous.”
Entice candidates by prioritizing benefits
There are opportunities to bring stability to the child care industry and its professionals. Only 4 percent of employers offered subsidized child-care centers or programs, according to the Society for Human Resource Management’s 2019 employee benefits survey. There is a huge opportunity to move the needle, Gill said.
Lauren Gill, head of people at child care provider Vivvi.
“Employer partnerships are a path to bringing high-quality care and early learning to more families” while helping employers recruit and retain top talent and increase productivity across the board, Gill said.
As a private employer that has partnered with organizations including the New York Presbyterian Hospital network, Gill said Vivvi built its business model with competitive wages for teachers at its core. “While we haven’t shifted our compensation strategy as a result of the pandemic, we continue to offer full-time, salaried roles and offer a full suite of benefits,” she said.
Some employers are looking at offering employee benefits that give employees options for access to affordable and quality child and elder care options, said Michelle Barrett Falconer, co-chair of the Leaves of Absence and Disability Accommodation Practice Group at Littler Mendelson.
“If an employee has access to affordable, quality child and elder care, the employee may not need to take time off from work using a paid family leave statute to address those caregiving obligations,” Barrett Falconer said.
Higher wages are not yet a reality for early childhood, Bieber said, although with the Biden administration’s new American Rescue Plan, she sees hope that wages for early childhood workers could begin to increase and meet a living wage for early childhood educators.
“The child care industry desperately needs legislation in place to recognize early childhood education as a valued profession and the message from top to bottom in our society needs to place emphasis on the recognition and need for quality child care,” Bieber said.
Having spent most of her career in education, Gill said that supporting the educational development of future generations is a monumental and vitally important task. Affordable, quality child care can be transformative for working families and make for happier, more productive employees, she said.
“When parents have peace of mind, they can pursue their goals outside of the home and be better, happier parents as a result.”
