There are currently more than two dozen COVID-19 vaccines in development worldwide as pharmaceutical companies race to perfect a viable vaccination to halt the ongoing pandemic.
When (and it’s a big when) one or more vaccines becomes available, can an employer require it of their employees as a condition of employment?
When the EEOC initially published its guidelines on pandemic preparedness 11 years ago (in response to the H1N1, aka Swine Flu pandemic) it answered this question with a “yes.”
May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII.
ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.
Here’s the thing. While the EEOC says that employer can’t require “all” of its employee to take a vaccine, an employer actually can require a vaccination subject to reasonable accommodation exceptions for ADA disabilities and sincerely held religious beliefs.
But just because an employer can mandate vaccines for most employees doesn’t necessarily mean that it should. Instead, I fall back to the EEOC’s closing statement about “encouraging employees” to get vaccines.
Mandating what employee does with his or her body feels too invasive and Big-Brothery to me. I’d prefer that employers arm employees with the knowledge they need to make an informed choice about the benefits of inoculations, and then strongly encourage employees to make the scientifically and medically responsible choice.
Has COVID-19 caused you to have elevator anxiety, as in a fear of being inside of a 7′ x 5′ box with other people? According to a not-quite scientific Twitter poll with over 4,000 responses, more than six in 10 workers will not use an elevator to get to their office.
These results beg the question, are elevators safe despite our apparent (and in my mind perceived justified) reluctance to use them
Believe it or not, the answer is that despite their small size and cramped quarters, given what we currently know about COVID-19 and its transmission, elevators should be safe in most instances.
According to Axios, most elevators are well ventilated, and we’re not inside of them long enough to worry about viral exposure.
Still, if you want employees to feel safe and comfortable riding in an elevator to travel to and from work, you should (or your landlord should) implement some basic coronavirus protocols:
Limit capacity based on the size of the elevator car.
Mark designated and distanced standing spaces on the floor.
Require masks or facial coverings inside the elevator car.
Encourage standing with one’s face to the walls and not the door (or the other passengers).
Discourage speaking.
Install hand sanitizer dispensers outside and inside elevator cars, make sure they stay filled, and encourage their use before pressing buttons.
Stagger shift, break, and lunch times to avoid long elevator queues or crowded cars.
My current office (i.e., home) lacks an elevator. But, if I had to go back to my office office, I’m “Team Stairs” all the way until the pandemic ends.
Sesame Place is the latest employer to have an employee assaulted for trying to enforce a mask rule. It joins more likely suspects such as Target, WalMart (which has said that for the protection of its employees it will not require them to enforce mask rules), and McDonald’s (of which 44% of its employees report being physically of verbally assaulted by a non-mask-wearing customer).
Illinois is now the first state to enact a law targeted at this abhorrent behavior.
The law amends the definition of “aggravated battery” to specifically include an offense targeted at an employee who is “performing his or her duties, including, but not limited to, relaying directions for healthcare or safety from his or her supervisor or employer or relaying health or safety guidelines, recommendations, regulations, or rules from a federal, State, or local public health agency.” In layman’s terms, a customer who attacks an employee because that employee is trying to enforce a COVID-19 mask or other safety rule faces two to five years in prison.
According to a statement put out by the office of Illinois Governor J.B. Pritzker, “This provision sends the message that it’s vitally important for workers to be both respected and protected while serving on the front lines.”
Other states should follow Illinois’ lead and enact similar legislation. Employees need protection from these dangerous reactions to basic health and safety rules. I don’t believe your employees should be your front-line enforcers or mask and other safety rules. As I wrote three months ago, employers shouldn’t “leave it up to untrained employees to try to enforce these rules and potentially deal with escalating hostilities and violence.” Instead, employers should “deploy trained personnel (ideally security, but at least someone at management level) to enforce a mandatory mask rule in your business, and also train all other employees not to engage and instead to summon a designated responder.”
Still, even in the best of circumstances an employee may be put in harm’s way by an irrationally dangerous customer. No employee should face the risk of bodily injury just for telling someone to wear a mask. Laws like that enacted by Illinois send the message that this special brand of misbehavior should not and will not be tolerated.
The Cleveland Indians have sent pitcher Zach Plesac back to Cleveland from their current run of road games for breaking the team’s COVID-19 protocols.
According to Cleveland.com, MLB security personnel caught the pitcher returning to the team’s hotel early Sunday morning after he had gone out with friends. The team has its own coronavirus code of conduct, which in part required Plesac to obtain permission before leaving the hotel. According to ESPN, the Indians hired a car service to return Plesac to Cleveland so that he would not share an airplane with his teammates and potentially place them at risk. The team’s management has said that he will remain quarantined until he receives two negative tests.
Bravo to the Indians for doing what they feel they have to do to keep their employees safe and the team playing games.
Your business may not be able to dictate how your employees spend their free time, but you can hold them to consequences if they choose to act irresponsibly when “off the clock.”
We are living through a pandemic. Every employee has a responsibility to their employer, their co-workers, and the business to make sure that they do what they can to avoid brining COVID-19 into the workplace, and every employer has the same responsibility to take reasonable steps to prevent an at-risk employee from entering the workplace when it’s discovered.
These are strange times for sure, and I will not fault any employer that errs on the side of caution in how it manages its employee respective to mitigating workplace coronavirus exposures. I’m not advocating for, or in favor of, employer monitoring of employee off-duty conduct. If, however, irresponsible, reckless or dangerous behavior comes to an employer’s attention, it shouldn’t ignore it in the name of privacy either.
You communicate with your other employees to let them know that you’ve had someone test positive. You reinforce all of your coronavirus safety rules, protocols and procedures. And you require the COVID-positive employee to isolate and not return to work per CDC guidelines.
Those guidelines recommend that a positive employee not return to work for either of: 1) being three days fever-free, respiratory symptoms have improved, and it’s been at least 10 days since symptoms first appeared; or 2) the receipt of two negative tests at least 24 hours apart. You opt for the latter, believing that negative tests will provide you and your employees better confidence that COVID-19 will not reenter your workplace when that employee returns.
Who pays for these coronavirus tests?
We have several of federal statutes, old and new, that guide the answer.
As to the cost of the testing itself, we look to the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security (CARES) Act, and the Americans with Disabilities Act (ADA).
Both the FFCRA and the CARES Act contain requirements that group and individual health insurance plans cover COVID-19 diagnostic testing without cost-sharing, co-pays, or deductibles. This requirement not only includes the cost of the test itself, but also the cost of any related office, urgent care, emergency room, or telehealth visits.
Second, if for some reason an employee is not covered by applicable health insurance, EEOC guidance strongly suggests that the ADA requires employers to cover the costs of COVID-19 testing. The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA provides that an employer must pay for all medical-exam related costs when an employer requires the examination because the employer reasonably believes the employee poses a “direct threat.” According to the EEOC, “COVID-19 poses a direct threat.” Therefore, the ADA would require an employer to cover the costs of diagnostic testing related to keeping that direct threat out of the workplace.
What about compensation for taking a COVID test? Is the time an employee spends taking a COVID-19 test (including the time spent traveling to and from the testing site) “working time” such that it must be compensated? The answer to this question is likely “yes.” While there is little guidance on this issue, we can look to a 1997 opinion letter by the Department of Labor’s Wage and Hour Division, which states, “[A]ttendance by an employee at a meeting during or outside of working hours for the purpose of submitting to a mandatory drug test imposed by the employer would constitute hours worked for FLSA purposes, as would attendance at a licensing physical examination during or outside of normal working hours.” If time spent submitting to a mandatory drug test or a physical or examination counts as “hours worked” for which an employer must compensate an employee, then it’s safe to assume that a required COVID-19 test falls into the same category.
Simple questions, complex answer. Bottom line, pay for the testing if the employee lacks health insurance to cover it, and pay the employee for the time spent related to the testing. It’s not only the law, but it’s also just the right thing to do.
A recent survey of businesses reveals a variety of trends about COVID-19 in the workplace.
Nearly 6 out of every 10 employers has had an employee test positive for COVID-19 (double the number from April).
92 percent require on-site employees to wear masks in common areas and mandate physical distancing.
93 percent have enhanced cleaning protocols.
More than 1 in 2 are taking employees’ temperatures and performing other daily health screenings, while only 2 percent are requiring (legal but impractical) COVID-19 diagnostic testing and 1 percent (illegal) COVID-19 antibody testing.
73 percent are allowing employees to work from home based on a fear of contracting COVID-19 without any risk factors.
20 percent are discouraging domestic travel, and nearly 45 percent are requiring employees to work remotely or take a leave of absence for a 14-day quarantine upon their return.
Despite all of these measures, 21 percent of employers have received a COVID-19 related complaint from employees.
What has your experience been? On track with this survey? Or different? Please share in the comments below.
Like many companies Shawmut Design and Construction faced the dilemma of protecting the health and well-being of its employees as the COVID-19 pandemic tore through the U.S. workforce.
While the safety of its 900 employees was Shawmut’s top priority, no one-size-fits-all solution was evident. Shawmut’s staff includes in-office employees as well as workers in the field at sites across the country.
With a diverseportfolio of jobs including cultural and historic buildings, academic institutions, commercial properties, luxury homes and Major League Baseball stadiums, Shawmut’s executive team had to act quickly and decisively to assure that their workers could function safely while still productively maintaining their commitments to hundreds of clients.
Les Hiscoe, CEO, Shawmut Design and Construction
“We experienced added complexities on many projects that continued to work right through and were not impacted by shutdowns,” said Les Hiscoe, Shawmut’s CEO since 2015. “We had to make real-time adjustments on the fly to keep our people safe first and foremost and to make sure we continued to deliver for our clients.”
One of Shawmut’s core values even before the pandemic struck was “find a better way.” Company leaders realized early on during the pandemic that making decisions on the fly was not sustainable and determined the “better way” was developing solutions internally.
Initially partnering with trade unions, industry peer groups and other construction companies, Shawmut developed its COVID-19 safety plan to minimize coronavirus exposure and risk across all job sites. The company soon rolled out safety protocols as well as a COVID-19 risk assessment and response plan to project sites across the country, Hiscoe said.
Shawmut’s leadership looked inward to develop a technology-driven solution that addresses worker safety as well as on-site productivity. Built in-house, Shawmut’s IT, safety and marketing teams developed Shawmut Vitals, a custom technology platform designed to track COVID-19 symptoms and manage contact tracing to minimize and control infectious disease spread.
Implementing a vital technology solution
Shawmut staff quickly took the platform to market, transforming the idea from concept to rollout in under two weeks, Hiscoe said.
“The platform allows employees and subcontractors to self-certify daily health screenings by scanning a job-specific QR code that pulls up a health survey to fill out,” Hiscoe said. “If an individual is experiencing COVID-19 symptoms or has been exposed to someone who is either infected or at risk, the individual is flagged for further care and action.”
The platform reduces friction points as people enter a site. Shawmut Vitals alsofrees a site superintendent’s time since the data is integrated into Shawmut’s systems, resulting in thorough recordkeeping and generating reports that previously had been done by hand.
Virtual communication in the office and on site
Frequent communication played a huge role in Shawmut’s safety response andemployee engagement when offices began reopening, Hiscoe said.
“We held daily executive team huddles that begin with conversations around the best ways to keep our people safe, sharing successes and lessons learned across our job sites and regions,” Hiscoe said. “This also includes connecting with our Virtual Crisis Command Center, a COVID-19 crisis team that is constantly monitoring developments and helping to guide actions. We can provide constant guidance to our on-site client and office teams and ensure we are following all federal, state and CDC recommendations.”
Shawmut’s Future of Work Task Force also evolved out of their meetings.
Created to implement the best processes, systems and technology as employees began returning to the organization’s 10 offices, the task force is made up of cross-region, cross-department staff members.
The team meets virtually every week to develop thorough office-specific plans that adhere to Centers for Disease Control and Prevention, state and local government guidelines to keep everyone as safe as possible. Each office has a core team that examines the specific needs of that space and workforce to ensure every detail is taken into consideration, enabling staff to work safely and efficiently.
Hiscoe added that before entering the office, employees complete a health screening using Shawmut Vitals. This not only prevents those exhibiting COVID-19 symptoms or may have been exposed from coming into the office but also helps with contact tracing. Offices are also clearly marked with signs including traffic flow, conference room capacity limits and common-area closures.
Those who are not ready to come back to the office utilize Shawmut Flex, Hiscoe said, a flexible work program allowing teams to work remotely.
“Having flex options is rare in the construction industry so Shawmut was uniquely positioned to be able to transition to work from home arrangements,” he said.
Following the rules
The pandemic has had a significant effect on how Shawmut employees work together on their job sites, Hiscoe said. They identified several new requirements:
Self-awareness
“We encourage any individual who is feeling sick or who is presenting any symptoms of a cold, flu, or COVID-19 to stay home and/or seek medical attention. We enforce a 100 percent zero-tolerance policy that does not allow for anyone showing symptoms to be on the job site.”
Hygiene
All projects provide access to hand washing stations, which are spread at least 6 feet apart to maintain social distancing. Hand washing stations have corresponding signs with proper hand washing and hygiene techniques.
Personal protective equipment
All standard requirements apply. When two workers are operating near each other, face shields, safety glasses, hard hats and face masks are mandatory. PPE is disinfected before brought in personal vehicles or to homes.
Site safety requirements
A COVID-19 officer is on site 100 percent of the time to enforce all site safety rules, including the twice-daily cleaning of high-contact and common areas, pre-task planning meeting, health screenings, limiting of only essential personnel on the site and frequently cleaning high-traffic areas, equipment, and tools and devices.
Communication
The team hosts toolbox talks related to COVID-19, distributes regularly written communications on best practices to job-site teams and reinforces all messages with signs in English and Spanish.
Emergency procedures
In the event of possible COVID-19 exposure, Shawmut teams will strictly follow CDC regulations.
Hiscoe added there is no wiggle room with Shawmut’s procedures either in office or on a job site. “Alongside my executive leadership team and virtual crisis team, we’ve made our enhanced safety protocols mandatory for both our staff on site and in our offices,” he said. “We’ve shared our enhanced protocols virtually with our partners and any guests who may need to access our offices making them fully aware of our mandatory procedures.”
Keeping in contact with all employees
Hiscoe said the pandemic has severely disrupted his own schedule and halted all travel for him.
“As a quintessential extrovert, this has been a challenge in an age of social distancing, both professionally and personally. As a leader, I pride myself in making connections with our people, projects and partners.”
Hiscoe’s limited travel schedule established unforeseen ways to manage his stress.
“I made sure to regularly work out, which helped immensely. And during quarantine, I have really enjoyed being home with my family and having dinners together.”
Knowing who is where and when is crucial to their safety and well-being. With staff working in an office, remotely or in the field, automate how your employees clock in and out withWorkforce.com’s GPS-enabled time clock app that works everywhere in the world.
One of my employees has been vocal about the coronavirus being a hoax. I had to have a talk with him during our last few days in the office at the end of March because he was openly criticizing and mocking coworkers for “being afraid of the flu” and practicing social distancing. While the rest of us isolated and worked at home, he went on two different vacations out of the state and did not isolate upon returning as required.
We’re now phasing people back into the office, and he believes that all of the safety guidelines are violating his freedom. He still won’t practice social distancing without being told, he will not wear a mask without being told, and he even planned another vacation when the company has asked us not to travel except in the case of emergencies. …
I am at an absolute loss regarding how to get this employee to take these safety precautions seriously when he still sees the coronavirus as a political issue instead of a public health issue. I am very worried that he will bring the virus into the office and get others sick. Do you have any advice for handling this employee and protecting the rest of my staff?
Alison suggests that this employer “should be prepared to fire him.” I couldn’t agree more, and would go one step further and just say that this employer should fire him, period.
COVID-19 is not a hoax, it’s a public health emergency. There are rules businesses must follow as a condition to reopen and stay open during this pandemic, including the maintenance and enforcement of certain basic safety guidelines such as social distancing and face masks.
If an employee is refusing to follow these rules for any reason, that employee is putting the health and safety of the business’s employees, customers, other visitors, and their family members at risk. That employee has no place remaining employed. If you’ve counseled and warned and the behavior hasn’t changed, you’ve done all you can do.
If, as Alison suggests in her answer, you want to offer the employee one final warning, I’m okay with that. This employer, however, has done everything it can to secure compliance with its safety rules, and the employee has still failed to comply. If the employee genuinely believes that COVID-19 is a hoax and that safety rules are “violating his freedom,” nothing an employer says or does will change his mind or secure compliance. It will be a constant battle against an employee who refuses to believe science and do what is necessary to protect himself and others.
I see little choice other than pulling the plug, terminating the employee, and letting him take his backward and dangerous thinking elsewhere.
By and large the FAQs don’t break new ground. But one of the FMLA questions caught my attention.
12. Due to safety and health concerns related to COVID-19, many health care providers are treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices. Under these circumstances, will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA?
Typically, for a non-inpatient medical issue to qualify as a “serious health condition” under the FMLA, one must receive either in-person treatment by a health care provider two or more times within 30 days of the first day of incapacity, or in-person treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under their supervision.
Does a telemedicine visit count as one of these “in-person” visits? According to the DOL, the answer is “yes” (at least for the rest of 2020).
Yes. Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities. This approach serves the public’s interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.
Telemedicine has served a crucial role during this pandemic to ensure that individuals receive the medical care that they need without needlessly exposing themselves to COVID-19 by visiting a health care provider in person. I’m thrilled to see that the DOL is adapting by counting certain telehealth visits as “in-person” visits for purposes of the FMLA.
Of the 19 percent who has actually taken, or intend to take, paid FFCRA leave:
9 percent say they are using new leave protections for their own illness or isolation.
8 percent say they are using new leave protections due to a family member’s isolation/illness.
7 percent say they are using new leave protections to care for a child due to child care or school closure.
6 percent said they took leave, but not because of the new policy.
Yet, a higher number, more than one in four employees, have no idea that this paid leave even exists or are unsure if they will use it. Of this 28 percent of employees:
17 percent said they were unaware of the new protections.
11 percent are not sure if they will use the new protections.
These numbers seem low to me. So I’ve created my own poll, which you can take below.
