On Thursday, June 10, 2021, OSHA released its long awaited COVID-19 Emergency Temporary Standard (ETS). Despite beliefs that the ETS would address all workplace settings, it only addresses workplace safety in the health care industry. Answers to the key questions regarding the ETS are outlined below:

Who does the ETS apply to?
The ETS generally applies in all settings where any employee provides healthcare services or healthcare support services. This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated.

What does my workplace need to do to comply with the ETS?
The ETS requires covered employers to implement varying, overlapping controls to protect workers from the virus. Pursuant to the ETS, covered employers need to implement and practice the following:

  • COVID-19 Plan – Develop and implement a specific COVID-19 plan (in writing if more than 10 employees) that includes a designated safety coordinator, a workplace-specific hazard assessment, input and involvement of non-managerial employees and their representatives, and policies and procedures to minimize the risk of transmission of COVID-10 to employees, including policies and procedures to determine employees’ vaccination status.
  • Patient screening and management – Limit and monitor points of entry to areas where direct patient care is provided, and screen every person who enters the facility.
  • Standard and Transmission-Based Precautions – Develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
  • Personal protective equipment (PPE) – Provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes; provide and ensure employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19, and for aerosol-generating procedures on a person with suspected or confirmed COVID-19.
  • Aerosol-generating procedures on a person with suspected or confirmed COVID-19 – Limit employees present to only those essential; perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
  • Physical distancing – Keep people at least 6 feet apart when indoors.
  • Physical barriers – Install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where employees are not separated from other people by at least 6 feet.
  • Cleaning and disinfection – Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment; in all other areas, clean high-touch surfaces and equipment at least once a day and provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities.
  • Ventilation – Ensure that employer-owned or controlled existing HVAC systems are used in accordance with manufacturer’s instructions and design specifications for the systems and that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it.
  • Health screening and medical management 
    • (1) Screen employees before each workday and shift;
    • (2) Require each employee to promptly notify the employer when they are COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms;
    • (3) Notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive;
    • (4) Follow requirements for removing employees from the workplace;
    • (5) Employers with more than 10 employees, provide medical removal protection benefits in accordance with the standard to workers who must isolate or quarantine.
  • Vaccination – Provide reasonable time and paid leave for vaccinations and vaccine side effects.
  • Training – Ensure all employees receive training so they comprehend COVID-19 transmission, tasks and situations in the workplace that could result in infection, and relevant policies and procedures.
  • Anti-Retaliation – Inform employees of their rights to the protections required by the standard and do not discharge or in any manner discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the standard.
  • Compliance Costs – Requirements for complying with the ETS must be implemented at no cost to employees.
  • Recordkeeping – Establish a COVID-19 log (if more than 10 employees) of all employee instances of COVID-19 without regard to occupational exposure and follow requirements for making records available to employees/representatives.
  • Reporting – Report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

When does my workplace need to comply with the ETS?
Covered employers must comply with most provisions of the ETS within 14 days, and with provisions involving physical barriers, ventilation, and training within 30 days.

My Healthcare Employees are vaccinated, do they need to comply with the ETS?
The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. However, some protective measures of the ETS are still required for those whose jobs require them to work in settings where patients with suspected or confirmed COVID-19 may be present.

What if my Company is not covered by the ETS?
The ETS is aimed at protecting workers facing the highest COVID-19 hazards—those working in healthcare settings where suspected or confirmed COVID-19 patients are treated. If your Company is not in the healthcare industry, and the ETS does not apply to your workplace, you should adhere to OSHA’s Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. From a general perspective, OSHA non-health care guidance specifies that fully vaccinated people need not take all the precautions that unvaccinated people should take. As such, unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.

Covered employers should review their current COVID-19 policies and procedures to ensure compliance with the ETS.

If you have any questions regarding the ETS, OSHA or other COVID-19 workplace issues please contact Frantz Ward attorney Jonathan Scandling of Frantz Ward’s Labor & Employment Group.

The EEOC issued significant new guidance today covering workplace COVID-19 vaccination policies and practices. Click Here to View.  The EEOC’s new guidance answers several of the frequently asked questions about COVID-19 vaccination policies.

Some of the most notable answers in the new EEOC guidance include the following:

  • Employers can require all employees who physically enter the workplace to be vaccinated for COVID-19, subject to the obligation to make reasonable religious and medical accommodations.
  • Employers can offer incentives to employees who confirm that they are vaccinated for COVID-19, subject to the obligation to keep that information confidential under ADA.
  • Employers can set up programs to administer vaccines to their employees, and employers can offer incentives to employees who participate in the programs. Employers cannot, however, pressure or coerce employees to participate in these programs, which could involve disclosing protected medical information in response to pre-vaccination disability-related screening questions.
  • Employers can provide employees and their family members with educational materials regarding COVID-19 vaccines, including the materials available through the EEOC and other federal agencies.

Notably, the EEOC’s guidance only covers federal EEO laws. Employers still must consider other federal laws and state and local laws when implementing COVID-19 vaccination policies and practices.

Although the new EEOC guidance answers a number of important questions for now, the EEOC noted that further updates will follow as new developments occur.

On May 13, 2021, the CDC issued new guidance that, in non-health care settings, “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” The CDC considers people to be “fully vaccinated” two weeks after their second dose of a two-dose series such as the Pfizer or Moderna vaccines or two weeks after a single-dose vaccine such as the Johnson & Johnson vaccine. The new guidelines also recommend that fully vaccinated people can resume domestic travel without testing before or after the trip, resume international travel without testing before the trip (unless required by the destination) and without quarantining upon return to the US, and refrain from testing or quarantining following a known exposure if asymptomatic, with some exceptions for specific settings.

The CDC’s new guidelines came just a day after Ohio Governor Mike DeWine announced that the state’s health orders—except some for nursing homes and assisted living facilities—would be lifted on June 2, 2021. In an effort to conform to the CDC’s new guidance, however, the Ohio Department of Health just issued a new health order on May 17, 2021 stating that “except in certain limited circumstances, fully vaccinated persons may safely do most activities without a facial covering and without socially distancing,” while “unvaccinated individuals should continue to protect themselves using mitigation measures, such as masking and social distancing.” This order will remain in effect until June 2 and is meant to bridge the gap between the issuance of the CDC’s new guidelines and the state’s lifting of its COVID-19-related health orders. Governor DeWine also announced that the state will stop deploying investigators to retail establishments and bars and restaurants to verify compliance with the mask mandate due to the impossibility of determining who is vaccinated or not in such places.

In his initial announcement regarding the lifting of health orders, Governor DeWine stressed the importance of Ohio citizens being able to make their own decisions regarding masks and social distancing, but also noted that lifting the health orders will not prevent businesses from continuing to impose their own COVID-19-related rules and requirements. Moreover, the May 17 health order from the Department of Health specifically states, “Businesses must apply exceptions to wearing a mask equally to all persons.”`

Effective today, May 7, 2021, the U.S. Department of Labor (“DOL”) is officially withdrawing independent-contractor rule approved in early January and at the end of the Trump Presidency, which would have made it easier for businesses to classify workers as independent contractors rather than employees under the Fair Labor Standards Act (“FLSA”).

Under President Trump’s framework, two core factors were prioritized and deemed most probative as to the question of whether a worker was economically depending on someone else’s business or was in business for him/herself: 1)  the nature and degree of control over the work and 2) the worker’s opportunity for profit or loss.

The DOL cited several reasons for withdrawing this rule and returning to the “economic realities” test, namely:

  • Tension with the text and purpose of the FLSA
  • The undermining of the balanced “economic realities test” and established judicial precedent requiring review of the “totality of the circumstances” in the relationship
  • The narrowing of overall facts to be considered in the analysis of whether a worker is an employee or an independent contractor that would ultimately result in workers losing FLSA protection

The withdrawal is one in addition to several other pro-worker moves advanced by President Biden in 100+ days of his administration, which was highlighted by U.S. Labor Secretary Marty Walsh’s statement: “By withdrawing the independent contractor rule, we will help preserve essential worker rights and stop the erosion of worker protections that would have occurred had the rule gone into effect.”

Although employers should not expect a new rule in the near future, President Biden has shown public support for California’s “ABC” independent-contractor rule, which requires three factors to be met for a worker to be properly classified as an independent contractor:

  • The worker is free from the control and direction of the hiring entity in connection with the performance of the work
  • The worker performs tasks that are outside the usual course of the hiring entity’s business
  • The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity

For now, employers should rely on the longstanding judicial precedent applying the economic realities test and look for additional information from Frantz Ward’s Labor & Employment Practice Group, which is closely monitoring developments in this and other areas.

On April 15, Governor DeWine announced that more than 36 percent of Ohioans have now received at least one dose of a coronavirus vaccine – which is good news for returning to normalcy and work. However, we shouldn’t expect a return to normalcy over the next several weeks as Ohio’s statewide case incidence number has reached 200 cases per 100,000 people as compared to 144 cases per 100,000 people four weeks ago. This is an important figure to track as Governor DeWine has indicated that when the case rate drops to 50 cases per 100,000, and is maintained there for a two-week period, he will lift all health orders including mask mandates and limits on the number of people who can congregate.

The Governor attributes this increase in cases per 100,000 to “a strong variant that is multiplying very quickly and is more contagious than the virus we’ve seen in the past” but states that “vaccination is how we get out of this.” While vaccination may be the key to returning to normal, on April 13, the Ohio Department of Health advised all Ohio vaccine providers to temporarily pause using the Johnson and Johnson vaccine following extremely rare blood-clotting events of six people in the U.S. after receiving the vaccine. It is expected that the FDA and the Ohio Department of Health will eventually lift this temporary pause on the Johnson and Johnson vaccine; however, a timetable for doing so is unclear.

Finally, on April 9, 2021, the Ohio Department of Health released the “Director’s Amended Order for Social Distancing, Facial Coverings and Non-Congregating.” This Order contains many recommendations that we are all familiar with by now but does help clarify which Orders employers should be complying with and following. To summarize, the Order requires that all individuals wear facial coverings when indoors and when unable to maintain a distance of six feet. This requirement does not apply in several situations including when the individual is alone in an office, can separate by six feet in all directions, facial coverings are in violation of documented industry standards, or facial coverings are in violation of a business’s documented safety policies. The Order further describes the limitations imposed on congregations and large gatherings, appropriate sanitation, appropriate signage, and what to do when there is a confirmed case among other things.

You can view the full order here.

 

Under the American Rescue Plan Act (ARPA), certain individuals are eligible to receive fully subsidized COBRA coverage for a six-month period which began on April 1, 2021. The APRA also requires that employers notify affected individuals of this benefit by May 31, 2021. Thankfully, last week, the Department of Labor issued template notices and a FAQ on these topics.

To provide a recap, the ARPA defines those (and their covered family members) who can receive the COBRA premium subsidy as “assistance eligible individuals.” An assistance eligible individual is someone who: is otherwise eligible for COBRA coverage as a qualified beneficiary because their employer plan coverage ended as a result an involuntary termination of employment or reduction in hours; and their COBRA period includes months between April 1 and September 30, 2021. An employee who voluntarily terminates their employment is not eligible. Assistance eligible individuals receiving the subsidy are required to provide notice if they become eligible for other employer coverage or Medicare, at which point they are no longer eligible for the subsidy.

Employers have two options to provide the subsidy – by either providing the COBRA coverage at no cost to the assistance eligible individuals or by covering the cost charged by the insurer. After the employer provides the subsidy, it may take a payroll tax credit equal to the cost of coverage.

The ARPA also puts the burden of providing notice to affected individuals upon employers. First, as noted above, employers must notify assistance eligible individuals of their right to receive the COBRA subsidy by May 31, 2021. Employers must provide this notice to individuals currently receiving COBRA coverage and those who previously waived or dropped coverage but are still within their eligible coverage period. If an assistance eligible individual previously waived or dropped COBRA coverage, they have 60 days from their receipt of the notice to make an election to start or reinstate coverage.  In addition, employers must update their standard COBRA notice for qualifying events that occur after April 1, 2021. Finally, employers will have to notify assistance eligible individuals prior to the expiration of their subsidies. This additional notice must be provided between 15 and 45 days prior to the end of the subsidies for the individual(s).

Due the extent and nature of the ARPA’s COBRA premium subsidy obligations, employers should review the Department of Labor’s template notices and FAQ.

Last week, the Equal Employment Opportunity Commission (EEOC) announced that the 2019 and 2020 EEO-1 Component 1 data collection will open on Monday, April 26, 2021. As a reminder, private employers with 100 or more employees, as well as federal contractors with 50 or more employees, are required to submit EEO-1 Component 1 data, which includes sex and race/ethnic information for the workforce.

The deadline to submit 2019 and 2020 EEO-1 Component 1 data will be Monday, July 19, 2021, giving employers 12 weeks to file instead of the usual 10 weeks, due to the increased burden of submitting two years of data (2019 and 2020) and the continuing impact of the pandemic on workplaces.

EEOC has previously said it will no longer be collecting Component 2 (pay and work hours) data, so the EEO-1 Component 1 data is all that is required for the upcoming submission (for 2019 and 2020 years). It is unknown whether the EEOC under President Biden will try to revive Component 2 data for future years, but it will not be included in this data cycle.

Employers can visit https://EEOCdata.org for more information regarding updates on the data collection. According to the Commission, when the collection period opens, more resources to assist filers with their submissions will be available on this website.

Employment practices liability insurance policies, commonly referred to as EPLI, provide protection against large jury verdicts rendered in cases involving employment discrimination, harassment and other employment law violations. These policies also typically call for insurers to pay the costs of defense counsel in excess of the employer’s retention.

While these policies may indeed provide significant protection, they have also proved problematic in one respect to many employers, because many EPLI policies specify that defense counsel will be selected by the insurer and not the employer. Most often, such counsel are selected by the insurer from a short list of law firms previously chosen by the insurer to serve as “panel counsel” in the geographical area where the lawsuit has been brought. In most instances, insurers have negotiated lower hourly rates with their panel counsel in exchange for promises of “volume” work.  Typically, the employer has never had any prior dealing with the counsel designated by the insurer.

In other words, the employer will not be permitted to utilize its usual employment counsel who may have a long and trusted relationship with the employer. The employer’s regular counsel may well be familiar not only with the employer’s business, but also with the employer’s people, its practices and policies. Indeed, the employer’s regular counsel may have been extensively involved in assisting the employer in the development of the employment action, such as a termination or a reduction in force, that has given rise to the lawsuit. The employer’s regular counsel may also have handled other employment litigation for the employer prior to the purchase of EPLI.

Nevertheless, the insurer invariably will insist that the employer use its panel counsel despite such objections from the employer. Indeed, some insurers will refuse to permit employers to use their regular counsel as defense counsel in a covered case even if the employer offers to pay any difference in the cost of its regular counsel and the insurer’s panel counsel. Thus, in what may be a very significant lawsuit, the employer will be left with an attorney who, in all likelihood, lacks all the preexisting knowledge and trust enjoyed by the employer’s usual counsel.

These issues can be avoided if the employer chooses to exercise its leverage at the time it is negotiating to purchase an EPLI policy for the first time or is negotiating the potential renewal of its existing policy. During such negotiations, an employer can usually successfully insist that its insurance carrier agree that the employer will have the right to retain its regular employment counsel in the event a covered claim is filed against it.  If an employer’s existing insurer will not agree to this, another insurer often will do so in order to secure the employer’s business. Alternatively, an employer may choose to purchase a “duty to reimburse” policy which usually permits the employer to choose its counsel, rather than a “duty to defend” policy which generally does not.

At the beginning of the pandemic, many employers began to require employees to be screened for COVID-19 symptoms prior to starting work. Common screenings include daily temperature checks and symptom questionnaires, as well as questions about recent travel or recent exposure to COVID-19. Predictably, lawsuits have started to surface by employees alleging state and federal wage violations due to non-payment of wages for time spent undergoing mandatory employer screenings. For example, in federal court in California, a class action lawsuit was filed in March, 2021 against a sporting goods retailer. In the lawsuit, employees claim the employer failed to pay them for mandatory screenings, which the employees say they were required to complete off the clock. A similar class action lawsuit was also filed recently in another California federal court against a national retail chain. In that case, non-exempt employees claim they are not paid for pre-shift time associated with temperature checks and COVID-19 related questions.

Generally speaking, the legal standard is whether the employees’ pre-shift activities are necessary to the work performed and done for the benefit of the employer. It is likely that similar lawsuits will be filed in the future. Employers should have policies and procedures in place to allow employees to clock in for any required pre-shift activities which take enough time to be considered more than “de minimis” under legal standards. Employers should also have a process in place to allow an employee (or a manager) to manually add time to their shift when necessary.

In what would amount to the most significant overhaul to American Labor law since the passage of the National Labor Relations Act (NLRA) in 1935, the U.S. House of Representatives passed the Protecting the Right to Organize Act (PRO) on March 9.

While the PRO has several more legislative stops on the road to becoming law, if enacted, the PRO would result in sweeping changes to the NLRA, including, amongst others:

  • Expanding the definition of “employee” and limiting the concept of independent contractor
  • Easing the joint employer standard
  • Prohibiting class-action waivers in arbitration
  • Expanding damages under the NLRA to include civil penalties
  • Allowing company directors or officers to be personally liable for civil damages
  • Prohibiting captive audience meetings
  • Creating a private right to action if the NLRB does not seek a 10(j) injunction
  • Eroding right to work laws

It is well known that labor reform has been a long-term goal of the Democratic Party. While President Biden has voiced support for the PRO, and House Democrats clearly are in favor of the PRO as it currently stands, there is a significant question as to how the PRO will proceed through the Senate, and whether it will survive at all.

As the PRO continues through the legislative process, we will be sure to keep you apprised of its current state, and any impactful changes.