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.
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.
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.
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.
I haven’t taken a proper vacation in 25 months. We were supposed to go to Portugal last March, but then COVID-19 happened. In the 13 months since, there’s been little point in taking off from work for any length of time because I haven’t been able to go anywhere. “I can’t go anywhere, so I might as well work,” has been a popular pandemic refrain (me included).
Americans were bad at vacations before COVID. The pandemic certainly hasn’t helped our PTO hesitancy.
Americans are good at lots of different things, but going on vacation is not one of them.… Guess which industrialized country is the only one that doesn’t guarantee time off to its workers? Guess which country left 768 million vacation days on the table in 2018?
The pandemic has not been great for America’s vacation malaise. When there are few new places to go and few new things to do, what’s the point of asking for time off? Yes, many Americans who have made it through without losing their jobs have taken a break to discover nature or their apartment balconies, but largely, we do not seem to be PTO-ing our way through this god-awful year. In February, time-off requests on the HR platform Zenefits were down 26 percent from the year before, a spokesperson told me, in line with what the company has seen since July.
I’m ending my vacation moratorium this summer with a week in a cabin in the Blue Ridge Mountains. I suggest that you strongly encourage your employees to do the same, lest you risk the burnout I warned about last week.
1. Teach your employees the benefits of taking a vacation. Make it a part of your wellness education. Communicate the health and wellness benefits of taking a vacation. If employees understand that vacations lead to improvements in performance productivity, they will be more likely to leave work behind for a few days.
2. Take your own time off. If the boss never takes a vacation, employees won’t either. If you want your employees to take time away from work, do so yourself. Leadership and messaging start at the top. If you make vacations a priority, your employees will, too.
3. Ease employee back to work. When asked why they don’t take time off, most employees historically cite the fear of returning to a backlog of work and thousands of emails to which to respond. COVID hasn’t helped, as fewer are away from work. Plan for coverage when employees are out, and provide a day upon their return for them to catch-up, so that they won’t fear the return-to-work ambush or avalanche.
4. Prohibit vacation shaming. No one should be permitted to discourage or tease employees who take a vacation. If you send or permit negative messages about vacations, your employees won’t take them. They will fear letting the team down, or the time-off impacting their employment. This form of bullying cannot and should not be tolerated.
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.
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.
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.
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?
Organizations were forced to rethink operations in 2020 and shift their strategies overnight, prompting new investments in workforce management technology. So, what’s to come in 2021?
We’ve compiled a list of the top 5 and specific workforce.com technology features we predict will be key trends this year. These include COVID recovery, labor compliance, automated scheduling, advanced workforce analytics and increased cloud and mobility functionality.
Labor compliance and minimum wage changes
The Biden administration is pushing to raise the federal hourly minimum wage to $15 by 2025. While legislation has yet to be passed, organizations will be preparing for minimum wage changes and complying correctly. Companies that fail to comply are at risk of facing stiff financial penalties and negative public attention.
Staying abreast of these changes will be crucial, and organizations will be looking to have an automated system in place that will make the transition easier. Organizations will require solutions that can simplify and automate labor law compliance. They will need a proactive platform that accounts for all applicable federal, state and local labor regulations from employee scheduling to payroll processing.
Workforce.com continues to invest in our fully automated and user customizable compliance engine, pioneered in Australia to manage the world’s most complicated and expensive wage laws and costs. Instead of manually updating or having to calculate different wages for schedules, overtime and payroll, organizations will be able to have changes automatically forecasted and updated. We predict labor compliance to continue to become increasingly complicated due to political, regional and union influence.
Higher wages will also mean increased labor cost and a need for companies to be smarter around how they schedule, track and spend on wages. Workforce management features that can boost employee productivity while providing wage oversight for owners and front-line teams to proactively manage will be key.
A way to address this will be the Workforce.com Live Wage Tracker, which provides a real-time view of staff count, exact costs and where there may be overspending per shift factored for compliance. It equips frontline managers to make decisions quickly and adjust staffing levels accordingly throughout the day. With this, businesses can be more efficient in controlling their labor costs and optimizing real-time operations.
As the world recovers from COVID-19 and shift work industries return to normal, it will remain paramount for organizations to have a workforce management platform in place for ensuring employee health, safety and feedback.
As workers return to their shifts in numbers, clear communication will be vital to responding to queries and staying agile as a team. Workforce.com innovations this year include the live 360-degree shift feedback and ratings feature so comments can be gathered from employees after each shift and proactively managed. Their responses enable managers to quickly address issues and apply necessary changes to future shifts. This tool promotes transparency and will provide an avenue for employees to speak up and be heard.
Tracking accurate time and attendance but minimizing contact with communal punch clocks will also continue to remain a priority for organizations. Instead of these older physical devices we predict an accelerated rise of next-gen mobile, app, GPS and tablet clocking in solutions that addresses these concerns.
For instance, with workforce.com GPS Clock ins instead of just one device for clocking in, staff will be able to use this feature to clock in on their own mobile device. Employees who are on the go can also use it to accurately log their start and end times, as well as their break and location while on shift. This results in a lower hardware and maintenance cost of ensuring accurate timesheets while reducing multiple touches to a communal device.
Workforce.com has also developed a completely free tool called Reopen to help businesses manage their capacity and social distancing requirements as they open. By allowing customers to make an appointment online, this will assist businesses in managing the number of people within their premises at a particular time. Organizations will be able to set opening hours, and customers can book in a time slot using their phone.
Auto employee scheduling
We predict further advancements in automated employee scheduling in 2021 with an introduction of advanced algorithms and automatic demand prediction, shift building and shift filling. The future of auto-scheduling looks to be creating ‘win-win’ shifts for employees and employers that drive maximum efficiency whilst optimizing for employee choice and flexibility
Demand prediction is considered the first key step in auto-scheduling. The more applicable information that can be collected about how busy it’s forecasted to be, the more accurate and confident the staff coverage. Workforce.com can currently integrate with any existing business system (I.e POS, MES, HMS, ERP’s etc) to capture this demand data and predict staffing requirements. This can then be adjusted for location unique factors such as events, weather, seasonal changes, trends and manager discretion.
I.e., This Super Bowl will be 20 percent busier than last year. Next Tuesday will be as busy as the average of the last three Tuesdays. Next Friday will be 40 percent less busy because it will be raining.
Once managers have confidence in their demand prediction, shift building is the next step. Software like Workforce.com can help managers create shift patterns for the amount of work that needs to be done, while keeping in mind regulations that set limits on how few or many people can be working at a given time. Still, managers need to ascertain certain information from employees to help make this possible, such as by approaching employees and getting hard numbers on how long it takes to complete basic tasks within their shifts.
Shift filling is where the most innovation comes in where managers will be able to effortlessly fill shifts factoring multiple constraints, such as labor costs, qualifications, roles and labor laws. If an employee is unavailable, managers can offer that shift to other available staff. Workforce.com can then show managers how much a potential shift swap costs, enabling them to stay on budget.
Being smart at shift building and shift filling against projected business demand will ultimately both make employees more satisfied and help control budget efficiency. Managers will be able to accomplish this with the right tools that give them the best potential technology and algorithms while also giving them the opportunity to put the employee in the process. Technology built on this win-win philosophy will be the future of automated employee scheduling with both employee and employer achieving desired outcomes.
These advancements in “one-click scheduling” are predicted to drastically save on manager administrative time, optimize labor cost and reduce over/under staffing.
Advanced workforce analytics and open APIs
Increased adoption of the workforce.com open API is expected to bring huge advancements in workforce analytics and promote internal innovation, integration and personalization. By leveraging the power of connectivity, enterprises can quickly eliminate the chaos of using multiple applications leading to rapid innovation and deeper insights into their workforces.
Companies that can efficiently discover patterns, spot potential problems and optimize their workforce quickly will stay ahead in 2021. This is only possible when organizations have access to their data and have the mechanisms to generate reports that are clear, easy to understand and make the most sense for stakeholders such as HR, payroll, managers and employees.
With Workforce.com’s advanced reporting suite and API, organizations will be able create custom reports and workflows for efficient analysis. Companies can choose to use customizable built-in reports or create their own by pulling information from any data point.
2021 will continue the rise of native SaaS cloud applications over clunky enterprise workforce management software with organizations preferring improved frontline manager/employee mobility options and ease of use. Employees should love to use the tools provided or they generally won’t use them at all.
Simple and modern UI has long been missing from workforce management solutions with organizations needing to solve their problems and complete tasks in the easiest and quickest way possible. Workforce.com remains the leader in workforce management design as we continue to invest in simplicity and ease of use to increase employee engagement, usability and lower support and implementation issues.
It’s also becoming paramount for organizations to lead with a mobile first strategy for their workforce management. Workforce.com will continue to expand our employee mobile app that staff and managers can use to clock in, see timesheets, create schedules and communicate with the rest of the team.
Implementation expectations adhere to these ease of use and quick-to-learn principles with organizations expecting higher standards and tighter deadlines when rolling out or switching from a legacy solution. Workforce.com implementation is now easier and faster ensuring that users can start using the platform in no time reaping benefits of upgrading faster.
In 2021 we predict an increased migration to cloud computing services like workforce.com due to increased functionality, reliability, scalability, security, continual R&D and decrease in cost.
There are currently 300,000 users on the Workforce.com platform, with a 4.75 app star-rating average and 99 percent client retention. Find out why and try Workforce.com today.
The headline reads, “Ex-Manager Sues Ample Hills in Lawsuit Alleging Harassment and Unsafe COVID-19 Protocols” (boldface/emphasis mine).
Here’s the lede:
Bryce Mottram, a former general manager at one of quirky ice cream purveyor Ample Hills’ scoop shops, has filed a lawsuit in New York Eastern District Court alleging that he was fired from the company in retaliation for speaking up about instances of sexual harassment and unsafe COVID-19 workplace protocols at the company.
I firmly believe that for the next year-plus, just about every employment-related lawsuit will contain a COVID-19 whistleblower tag-along claim.
In other words, employees will sue for discrimination and safety-related retaliation, or harassment and safety-related retaliation, or breach of contract and safety-related retaliation, or fill-in-the blank and safety-related retaliation. I’ve already seen it happen in cases, and it makes an already complicated employment dispute that much more complicated and dangerous.
This likely reality means that employers must double down on implementing and enforcing COVID-19 safety rules in the workplace. Have a written COVID-19 safety policyand strictly enforce it. If you don’t know what should be in this policy, OSHA recently published a terrific guide.
Separate and send home infected or potentially infected people from the workplace.
Implement physical distancing in all communal work areas, including remote work and telework.
Install barriers where physical distancing cannot be maintained.
Suppress the spread of the hazard using appropriate and properly worn face coverings.
Improve ventilation.
Provide the supplies necessary for good hygiene practices.
Perform routine cleaning and disinfection.
These points are just a start, and I recommend you consult with OSHA counsel or a COVID-19-knowledgable safety consultant to draft and implement your plan (including training your employees).
“Wear a mask and stay 6 feel apart.” It might sound like Groundhog Day to keep repeating this mantra. It’s also the most basic and most important steps we can take to remain safe, healthy and COVID-free.
Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.
COVID-19 is strengthening. New variants of the virus are making it more transmissible and potentially more virulent. Now is not the time to loosen COVID safety rules, especially around the most basic of steps we must take to remain safe and healthy—masks and physical distancing. This holds true even if your employees are vaccinated, as science does not yet know if the vaccine prevents the transmission from person-to-person.
The vaccine does offer us a light at the end of the very long and dark COVID tunnel, but we cannot allow it to give us a false sense of security. COVID-19 is fighting back; we must continue to fight back, too.
