COVID-19 – Page 2

May 17, 2021

Fixing some common misconceptions about HIPAA

Ever since the CDC amended its COVID-19 guidance to say that the fully vaccinated no longer need to wear masks indoors, I’ve read myriad variations of this tweet:

Friendly reminder that under HIPPA, your vaccination status is private.

Or this tweet:

The rule is simple, HIPAA protects EVERY American from disclosing ANY of their health records to ANYONE.

Their point? That medical privacy laws protect their vaccination status, and it’s illegal for any business to ask as a condition of anything.

They are very, very wrong. So, I thought today I’d clear up some common misconceptions about HIPAA specifically and medical privacy more generally.

HIPAA stands for the Health Insurance Portability and Accountability Act. It’s HIPAA. Not HIPPA, HIPPO, or anything else.
Broadly speaking, HIPAA does protect the privacy of individuals’ medical information. But not all medical information and only in certain circumstances.

HIPAA applies only to “covered entities,” defined as: (1) health plans; (2) healthcare clearinghouses; (3) healthcare providers that electronically transmit certain health information; and certain “business associates” of covered entities. If an employer does not fall into one of those categories, HIPAA does not apply to it at all. Thus, HIPAA does not apply to employee health information collected or maintained by an employer in its role as an employee’s employer.

For employees, HIPAA does not:

Prohibit an employer from asking for a doctor’s note related to an absence (or, in the case of COVID-19, an employee’s vaccination status).
Impact the ability to request information necessary to administer programs, such as health care benefits, workers’ comp, or sick leave.
Protect all health data maintained in employment records, only those employees’ medical and health plan records that relate to their participation as a member of the employer’s healthcare plan.

For businesses dealing with the public (such as a retail store or restaurant, for example), HIPAA simply does not apply at all. HIPAA does not prohibit a business from asking a customer about his or her vaccination status as a condition to entry or donning a mask upon entry. Period. Hard stop.

An employer that merely asks its employees for proof of vaccination status does not violate other laws, such as the Americans with Disabilities Act. The ADA does place limits on an employer’s disability-related inquiries of its employees. But, as the EEOC has clearly and succinctly stated, “requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.”

The bottom line is that private businesses absolutely can require employees to provide vaccination status as a condition of employment (subject to certain reasonable accommodation obligations), and further a business can require the same as a condition to entry.

A business can’t force anyone to provide that information, it can legally deny access to anyone who won’t or can’t provide it. We all have a choice to make — to vax or not to vax. It’s really this simple. If you don’t want to wear a mask, get vaccinated. If you don’t want to get vaccinated, wear a mask.

If you don’t want to do either, then accept that there are places you won’t be able to go for now and for the foreseeable future.

May 10, 2021October 13, 2021

EEOC commissioner wants industry-specific COVID-19 guidelines

Last week, the EEOC held a public meeting on the impact of the COVID-19 pandemic on civil rights in the workplace. Following up on the remarks at that meeting, EEOC Commissioner Keith Sonderling, speaking at a virtual summit held by the Institute for Workplace Equality, said that employers need guidance on whether their COVID-related decisions are legal, and that the EEOC should issue industry-specific guidance to clear up these ambiguities.

Law 360 quotes Commissioner Sonderling:

I stress that the commission must issue new, common-sense guidance on return-to-work and other timely issues. Moving forward, the EEOC must begin to issue industry-specific guidance to address the array of issues that are becoming prevalent as the pandemic enters its final stage. … It’s my belief that businesses must know they will not be penalized by the federal government or through litigation for taking bold steps to help their workers thrive amid COVID-19 and ultimately return to the workplace.

High on my list of topics that the EEOC must quickly address is the legality of vaccine incentives. Another issue that I’d love to see the agency address is whether certain industries (e.g., health care, education) can be more strict with vaccine requirements than others, even for employees who might otherwise require a legal exception.

With vaccine hesitancy a legitimate barrier to reaching herd immunity, we need rules that will permit employers to get as many individuals vaccinated as possible. We need to be breaking down barriers, not erecting them.

April 26, 2021

Another reason not to mandate the COVID-19 vaccine for employees

I’ve not hidden my belief that employers should not be mandating that their employees receive the COVID-19 vaccine as a condition of employment. Now, OSHA offers yet another reason why employers should recommend, but not mandate, the vaccine.

Per OSHA, if the vaccine is mandatory, then an employer must record an employee’s adverse reaction or side effects on its OSHA log.

If I require my employees to take the COVID-19 vaccine as a condition of their employment, are adverse reactions to the vaccine recordable?

If you require your employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related. The adverse reaction is recordable if it is a new case under 29 CFR 1904.6 and meets one or more of the general recording criteria in 29 CFR 1904.7.

I do not require my employees to get the COVID-19 vaccine. However, I do recommend that they receive the vaccine and may provide it to them or make arrangements for them to receive it offsite. If an employee has an adverse reaction to the vaccine, am I required to record it?

No. Although adverse reactions to recommended COVID-19 vaccines may be recordable…, OSHA is exercising its enforcement discretion to only require the recording of adverse effects to required vaccines at this time. Therefore, you do not need to record adverse effects from COVID-19 vaccines that you recommend, but do not require.

A few more points that OSHA made about this issue.

1. To avoid reporting, the vaccine must be truly voluntary and an employee cannot suffer any repercussions from that choice. For example, an employee’s choice to accept or reject the vaccine cannot affect a performance rating, bonus payment, or professional advancement. An employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice.

2. The method by which employees might receive a recommended vaccine does not matter. This rule also applies even if an employer makes the COVID vaccine available onsite or otherwise makes arrangements for employees to receive it offsite. As long it the employee’s choice is voluntary, side effects and reactions are not recordable.

So there you have it. Yet another reason not to mandate that employees receive the COVID vaccine — the administrative burden of recording reactions and side effects, and the risk of potential OSHA citations and fines for failing to do so.

April 15, 2021

OSHA finally gets real about COVID-19 safety

Consider the following COVID-19 safety and health violations OSHA recently uncovered at a Massachusetts tax preparation business.

Employees and customers were prohibited from wearing face coverings in the workplace despite a statewide mask order that mandated the business to require employees and customers to wear masks.
Employees were required to work within 6 feet of each other and of customers for multiple hours while not wearing face coverings.
Adequate means of ventilation in the workplace were not provided.
Controls such as physical barriers, pre-shift screening of employees, enhanced cleaning, and other methods to reduce the potential for person-to-person transmission of the virus were not implemented.

What did these violations cost this employer in OSHA penalties? $5,000? $10,000? $25,000?

How about $136,532!

According to OSHA Regional Administrator Galen Blanton in Boston, “This employer’s willful refusal to implement basic safeguards places her employees at an increased risk of contracting and spreading the coronavirus. Stopping the spread of this virus requires business’ support in implementing COVID-19 Prevention Programs, and ensuring that staff and customers wear face coverings and maintain physical distance from each other.”

This appears to be the first company cited under OSHA’s recently launched national emphasis program focusing on COVID-19 enforcement efforts. If you’ve waited for the past 13 months without taking COVID safety seriously in your business, you better do so now. OSHA is watching, and based on this one example, violations are going to be quite expensive.

April 6, 2021

Is work from home not all it’s cracked up to be?

coronavirus, remote work, COVID-19, remote workforce

Three weeks ago I returned to the office. That return matched my start date at Wickens Herzer Panza. I decided that it’d be difficult, if not impossible, to learn a new firm and its systems, and build camaraderie and teamwork with my new co-workers, if I’m working remotely. Thus, I made the decision to break free of my self-imposed COVID-19 cocoon and start working most days in person in the office.

I thought about this decision as I read this article in the Wall Street Journal: After Covid, Should You Keep Working From Home? Here’s How to Decide.

Consider these conflicting stats.

54 percent of employees say that they would want to work remotely if permitted post-COVID-19.
Yet, over 60 percent of employees report that remote work has increased their time spent in meetings and their work hours, and nearly 50 percent report that it has decreased their work-life balance.

In other words, employees are in favor of remote work as a concept, but in practice, they may not understand that it is doing more harm than good.

Without a real physical separation between work and nonwork, people won’t ever stop working. They will be on the clock 24/7, ultimately burning themselves out at great cost to themselves and their employers. The most recent episode of Depresh Mode with John Moe expertly addressed this issue.

What does this mean for your remote employees? It means that they are likely working too much, some to the point of burnout. If you value your employees’ mental health and wellbeing, factor it into your decision when and whether to bring your employees back to your physical workplace, at least part time. They might think they want to keep working remotely, but they may not necessarily know what’s best for them.

In the meantime, if your employees are going to continue working remotely, consider these tips to help them maintain the balance they need to avoid overworking and burning out.

1. Set a schedule for your employees and strongly encourage them to stick to it. Alternatively, make available technology that allows employees to designate when they are available and not available. In either case, it must be clear to managers, supervisors, and coworkers that these boundaries must be respected except in the case of a 911-level emergency.

2. Require that employees take breaks during the workday, including a lunch break.

3. Prioritize days off so that employees can recharge their batteries.

4. Remind employees who might be struggling with their mental health of the services you have available for them, including an EAP and counseling and other mental health services via your health insurance plan.

April 5, 2021October 1, 2021

Workforce.com appoints Rod Schneider as general manager in the UK

The workforce management solutions industry is one that is constantly innovating and evolving, bringing with it both challenges and opportunities. Workforce.com is adding to its experienced, talented leadership team to capitalize on the changing needs of the global market.

The latest addition to Workforce.com’s leadership is actually a company veteran who is leaving Australia behind to take on a new challenge in Europe.

Rod Schneider was recently named general manager of Workforce.com’s office in the United Kingdom. Now based in London, Schneider, who previously was head of partnerships for Workforce.com in Australia, will oversee the company’s operations throughout Europe. With offices in France and Croatia, Schneider said he is looking forward to building relationships across the continent.

“Taking on a whole different market is very, very exciting. Some may think that it’s an odd time to make this move, but if you think about the lockdown nearing an end, it’s really forward looking. Building our external engagement is going to be a big part of what we’re trying to achieve to become more broadly known and have that broader impact here,” Schneider said.

“His success across the board in Australia, aligning with our global mission, means that Rod is fully committed and his passion and talent is just what we need in the UK as companies emerge from the pandemic,” said Tasmin Trezise, president of Workforce.com.

Schneider, who joined Workforce.com in 2016 following a career as a financial adviser, said he is eager to help companies across Europe rebuild their post-pandemic business. He will be meeting with current customers and develop new business as well. “You have good businesses that are looking to bring back their former staff, but in some cases those staff have found other jobs,” he said. “That presents a real challenge to organisations as they rebuild their businesses.”

With a keen focus on customer relationship management and an increasingly broad workforce management product portfolio that continues to expand, Schneider will work closely with the rest of the Workforce.com leadership team to prepare the organisation for the opportunities that lie ahead throughout Europe.

Workforce.com is perfectly positioned to help companies effectively restart their business, he said. “A paper roster is not going to cut it anymore. Workforce will help organisations make sure they are rostering their teams as efficiently as possible,” Schneider said. “It’s exciting to help people get their businesses back up and running.”

A native of Toowoomba, Australia, Schneider has a master’s degree in business from the University of South Queensland. He currently lives in London with his wife.

April 5, 2021

Employers, the COVID-19 lawsuits are coming

essential workers; workers' compensation, mask

Thirteen months into the pandemic, the COVID-19-related employment lawsuits are starting to roll into courthouses. Consider the following, all of which made headlines over the past couple of weeks.

A former crew member who worked for Universal TV is suing his former employer claiming discrimination stemming from his termination after his COVID-19 diagnosis.

A COVID-19 long hauler is suing her former employer after she was fired for missing too many days of work while recovering from her illness.

A doctor is suing after he was fired over his vocal opposition to his employer’s COVID-19 response.

And these lawsuits don’t even scratch the surface of employees fired for other COVID-related reasons, such as those fired for refusing the vaccine or complaining on social media about unsafe working conditions.

Employers, you need to understand that if you fire someone related to the pandemic, their first stop likely might be the office of their friendly neighborhood plaintiff attorney. Do yourself a favor a don’t go this alone.

Take the time to vet these terminations pre-termination. The time you spend on the phone with your employment lawyer will be time and money well spent if it helps you not to walk in front of a runaway lawsuit.

March 31, 2021

COVID-19 vaccination cards will be required to do lots of things — possibly even working

According to the Wall Street Journal, COVID-19 vaccination cards are our only proof of vaccination status and will soon be as essential as a drivers’ license or passport. With no national or statewide centralized databases of vaccination records, the piece of paper you receive with your vaccine dose is your only proof of vaccination.

The article suggests that we’ll need this record to do lots of things moving forward, such as travel. What about returning to in-person work? Can employers ask for or require that employees provide proof of vaccination?

According to the EEOC, the answer is yes as to the ask.

Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?

No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

The question then becomes what does an employer do if an employee cannot provide proof of vaccination? If the vaccine is mandatory and a condition of employment, it can deny access to the workplace or even terminate, provided that it is considering exceptions for employees’ disabilities and sincerely held religious beliefs, practices and observances. If the vaccine is not mandatory, why ask for the vaccine record in the first place?

We are entering a very interesting era of privacy, including employee privacy. If you are not mandating the vaccine, while you are within your legal right to ask about vaccination status, why would you? Do you really want to catalogue your employees’ vaccination status and for what purpose?

March 24, 2021

How to choose which remote work employees to bring back

For the past year, an astounding 44 percent of employees have been working remotely full time, and two-thirds of employees have done remote work at least one day per week. With vaccination rates on the rise and offering a light at the end of the pandemic tunnel, employers are starting to plan for bringing employees back to the physical workplace.

These decisions involve a lot of key questions an employer needs to answer in planning for where employees will work in a post-vaccine, post-pandemic world.

Here are four questions to think about.

1. How have employees performed during the pandemic while working remotely?

Has an employee been less productive, as productive, or more productive? Have they stayed connected and in communication? Can you trust them to continue to work remotely, or do they need closer monitoring? Have you gotten more productivity out of employees during the pandemic because of the resulting blurring of work time and personal time (i.e., if one’s home is now the workplace, do they ever really disconnect from working)?

2. What is an employee’s preference?

Do they want to continue working remotely, would they prefer to return to a physical office or workspace or do they want some type of flexible or hybrid arrangement? Do they have long commutes that eat into their available working time, and will remote work create greater productivity as a result?

3. Does remote work makes sense for your business moving forward?

How interactive do your employees need to be in performing their jobs? Is their work highly collaborative, and being with people, in person, will assist in getting the job done quicker and at a higher quality? Or does your business involve production processes that cannot be done or effectively managed remotely? Or can employee “get it done” just as well without being face-to-actual-face with others?

4. What about high-risk employees and working parents?

COVID-19 more disproportionately severely impacts older people and people with certain underlying health conditions. And, working parents who lost child care during the pandemic had other reasons to remain at home. Thus, separate from stay-at-home order and social distancing rules that have kept everyone home, these employees have a greater reason to have worked remotely and remain remote. As individuals are vaccinated and schools and childcare reopen, these concerns should melt away, but employers still need to be mindful of not discriminating on account of age, disability, and parental/caregiver status as they bring employees back to work and reintegrate them into the workplace.

COVID-19 has changed how most businesses think about work from home. That genie is likely never going back in the bottle. Each business will have to answer all of the above questions in deciding what work from home looks like for them and their employees as we move into a post-pandemic world and workplace.

March 18, 2021

Employers facing lawsuits for failing to pay for pre-shift COVID-19 screenings

In the early days of the COVID-19 pandemic, I asked this question: “Are employers legally responsible for paying workers for the time it takes to record their body temperatures before entering the workplace?”

My answer was a legal, “Probably,” and a moral, “Definitely.”

This isn’t a “what does the law allow” issue; this is a “what’s right is right” issue. If you’re requiring your employees to queue in a line to take their temperature before you’ll let them enter the workplace, pay them. Don’t be cheap and don’t count pennies.

Your employees are scared. They are risking their own personal health and safety, and that of everyone who lives in their homes, to keep your essential business up and running. They could just as easily stay home, limit their exposure, and collect unemployment. What they need is your compassion, not your penny-pinching. Times are tough for everyone. I get it. But your business shouldn’t go belly up if you pay each employee for a few extra minutes of time each day.

But since this is a legal blog, we might as well take a fresh look at the legal issue, courtesy of a recently filed lawsuit against The Merchant of Tennis Inc., a San Bernardino, California, racquet sports retailer. According to Law360, among other wage and hour violations, José Hernandez Solis claimed that his former employer illegally failed to pay employees for their time spent undergoing

COVID-19 temperature checks at the beginning of the shifts.

Law360 points out that Walmart faces similar allegations in another recently filed California lawsuit. According to that lawsuit, Walmart failed to pay its employees for the 30-45 minutes spent each workday for COVID-19 temperature screening and questioning.

Legally, the standard, per SCOTUS’s decision in Integrity Staffing Solutions v. Busk, asks whether the pre-shift activities are “integral and indispensable” to an employee’s principal activities (“necessary to the principal work performed” and “done for the benefit of the employer”). It’s hard to fathom a situation during a pandemic in which pre-shift health screenings don’t meet this standard.

I think employers getting sued over this issue have real (and expensive) exposure. Don’t join them. Do the legal thing. Do the right thing. Pay your employees for this time.