health care – Workforce

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, 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 4, 2021

Please pay your employees for time off related to the COVID-19 vaccine

Earlier this week, the House passed an extension of the FFCRA as part of its $1.9 trillion COVID-19 stimulus bill. (I’ll cover its details in a future post, but if you’re curious now, head over to Jeff Nowak’s FMLA Insights.)

One of the new measures in this proposed extension is the inclusion of leave taken by an employee to obtain a COVID-19 vaccine or recover from any injury, disability, illness or condition related to the vaccine.

Bravo! But here’s the thing. Until this passes and becomes law, and even if it doesn’t become law, employers should be paying employees for time off related to the COVID vaccine. At least for now, vaccine appointments are scarce and employees who are eligible to get vaccinated must take appointments when they can get them. Many will need to get their vaccines during the workday. Moreover, post-vaccination, some employees will have a reaction serious enough to keep them house-bound for a day or so.

The way through the end of this pandemic and returning our lives to normal is by getting enough shots in arms as quickly as possible. As employers, want to encourage our employees to get vaccinated.

We don’t want employees to feel like they have to choose between obtaining a vaccine and obtaining a paycheck. Some will choose poorly. By paying employees for time off from work related to COVID-19 vaccinations, we are making the decision that these vaccines are a priority, and that we are not standing in our employees’ way from obtaining them as soon as possible.

February 6, 2021September 5, 2023

4 ways that health care organizations can build resilience

Health care organizations faced numerous challenges when the pandemic hit. Residents in care facilities faced a high risk of contracting the coronavirus as many are between the vulnerable ages of 80 and 90 years old with underlying conditions.

Beyond the physical stress, residents and staff alike experience mental health challenges. Employees are burdened with adapting to new ways of working, such as dealing with absences, implementing new health protocols, and the emotional toll of seeing patients affected by the virus. At the same time, residents can also pick up such cues and feel the burden themselves — restrictions such as limited visits from loved ones added to the toll too.

“Care organizations in particular have been under immense strain. We’ve never asked them to do more to protect the most vulnerable members of our society,” said Bryce Davies, general manager of Workforce.com UK. But there’s another story here, and that’s human ingenuity and creativity can be used to help us all adapt. It’s called resilience.”

The ability of organizations to bounce back from challenges and show resilience is what can help them thrive during a pandemic. Davies identified four core areas of resilience that can help businesses navigate through this time.

Keeping communication lines open

Communication is key for both staff and patients or customers. But with the pandemic, keeping communication lines open tends to become challenging given restrictions and volatile work patterns. This resulted in information getting diluted and not being communicated to the right person at the right time, which prevents teams from adapting quickly to circumstances.

“Identify your mission-critical communication channels and build redundancy into these,” Davies said. The speed of communication channels should also be considered and identify possible causes of delays.

Open and transparent communication lines are vital to empowering staff to step in and take over in case of a teammate’s absence or operational changes. Furthermore, it’s also critical to documenting processes, which lessens onboarding time and equips teams to stay agile.

Ensuring safety on shift

Fatigue is detrimental to the safety of patients and health workers alike. When care facility staff is exhausted, they are more prone to making errors, forgetting things, having difficulty processing information and reacting slowly.

Workforce managers can prevent their staff from experiencing fatigue through efficient scheduling and leave management. However, staff schedules can be difficult to plan and subjects staff to work in shift patterns, which fail to account for other factors such as demand, leave and time for training.

“Try planning your schedule out as far in advance as possible to lock in both the time for leave and training,” Davies explained. Monitoring annual leave balances throughout the year also helps allocate resources accordingly and make sure the staff gets enough time off to curb the effects of stress.

Also read: How leaders can boost employee retention by respecting work-life balance of hourly workers

Technology such as Workforce.com provides managers oversight into all the essential factors with staff scheduling. Minus the paperwork, managers can use the platform to make better decisions when creating schedules and ensure that time off, training, and demand are accounted for.

Promoting financial security

Labor costs and demand are difficult to control and forecast. If not managed properly, it can drive up expenses, resulting in the organization becoming less financially agile. This can make team members feel insecure about the company and may cause them to leave.

“Build a mock schedule well in advance and cost it using employees’ base pay and overtime to help predict cost. Test different scenarios,” Davies advised. Identifying key demand trends and indicators can also help in forecasting costs.

It’s also crucial to pay close attention to the variance between schedules and actual timesheets. Investigate probable causes of overspending and optimize your operations to address them.

More importantly, health care organizations should have a way to proactively manage demand and cost rather than acting on issues after the fact. Having access to labor analytics is vital to do that. Workforce.com captures real-time costs and revenue throughout the day, allowing managers to react quickly and make cost-effective decisions on the fly.

Also read: Labor analytics and reporting starts with access to the right data

Demonstrating HR compliance

Complying with labor laws is a must, but keeping up with changes can be tough.

“Promote compliance as a culture, not as one person’s job,” Davies said. Integrate compliance to every part of workforce management. Ensure that processes and systems are designed to stay at pace and adhere to labor laws.

Companies can start with digitizing their documents so that files can be remotely audited and monitored. Compliance can also be accounted for in creating employee schedules. Workforce.com’s employee scheduling platform factors in labor laws and alerts managers if a schedule is at risk of violating regulations. Legislation that affects payroll is also crucial for companies to pay close attention to as it impacts labor costs and treatment of overtime and holidays.

Also read: The rundown on wage law compliance: What organizations should know

When systems are integrated for labor compliance, all activities are tracked and fixing potential noncompliance risk would be quicker.

“Resilience is something that we can build into all of our businesses, and it’s never too late to start,” Davies said. Recognizing the gaps is half of the battle. The other half is finding the right solution to address them.

Workforce.com has been partnering with businesses in different industries to help them engage their teams, safeguard their finances and stay compliant. See our solutions in action and book a demo with us today.

January 27, 2021

Tread carefully if offering employees financial incentives to get the COVID-19 vaccine

To a nation waiting for action, let me be clearest on this point: Help is on the way.

Those were the words of President Biden in announcing the ordering of 200 million additional COVID-19 vaccine doses, a hike in the distribution of doses to states, and a promise that there will be enough doses to fully vaccinate 300 million Americans by the end of summer.

It’s an ambitious plan, but it’s what we need to end a pandemic that has already claimed the lives of more than 425,000 Americans and will claim hundreds of thousands more before we close the book on COVID-19.

Vaccines, however, only work if people actually accept syringes in their arms. Too many of us say that they won’t.

According to one recent survey, 39 percent of Americans say that they either probably or definitely will not get the COVID-19 vaccine when it becomes available to them. Another survey pegs the number at 37 percent. While these percentages are trending down, and more of us say that we trust the vaccine and will get it, the needle on this issue isn’t moving quickly enough. According to Dr. Fauci, to reach herd immunity (the only thing that will end this pandemic), we need between 75 and 85 percent of the population to be vaccinated.

To overcome this vaccine hesitancy, some employers are offering their employees a financial incentive to obtain the COVID-19 vaccine when it becomes available. Retailers such as Trader Joe’s, Dollar General, and Instacart are offering small incentives such as a couple of hours of additional paid time off, or nominal (e.g., $25) stipends. Nursing homes, whose employees come in contact with our most vulnerable population, are offering similar incentives to their workers. Others are offering free marijuana (full disclosure: they are marijuana dispensaries).

If you are considering offering a financial incentive to entice your employees to obtain the vaccine when it’s available to them, I caution you to tread carefully to make sure that you do it within the bounds of our equal employment opportunity laws.

1. Vaccination rules must have exceptions for employees’ disabilities under the ADA and employees’ sincerely held religious beliefs under Title VII. For this reason, if you are offering employees a financial incentive to get vaccinated, you better be prepared to offer the same exact incentive to those who cannot get vaccinated because of one of these legally protected reasons.

2. Incentive programs must comply with the EEOC’s wellness program regulations. Admittedly, these regulations will not be final until March 8.

Given that COVID-19 vaccinations will stretch for months beyond that date, however, employers should be aware of these rules and the risks they pose. Under these proposed and soon to be final rules, employers may not offer any more than a “de minimis incentive” to encourage employees to participate in a wellness program such as one that incentivizes the receipt of the COVID-19 vaccine.

The EEOC does not define “de minimus,” but uses the example of a water bottle or a gift card of modest value as “de minimus” and a $50 per month reduction in annual health care costs, paying for an annual gym membership, or an airline ticket as “not de minimus.”

Employers are considering bribes because they work. We just need to make sure that we are doing so within the confines of the law. We don’t want to solve one problem only to create another.