The Employment Law Lookout blog is taking a holiday break for the rest of this week, but will resume delivering insightful discourse and updates on the day’s most pressing workplace issues next week.

As a reminder for employers we have previously posted these blogs on holiday safety topics and behaviors: Have Yourself a Safe, Undistracted, and Accident Free HolidayDon’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties , and Ring in the New Year, But Don’t Invite the Constable.

In the meantime, we want to wish all of our readers, contributors, and editors a safe and happy (and warm) Thanksgiving holiday.  We hope you are able to spend time with family, friends, and loved ones and rest assured knowing that we’ll be on the lookout for more management insights to bring you as we move into the year end and into 2022.

Thank you and Happy Holiday.

By Matthew J. Gagnon and Sarah K. Bauman

Seyfarth Synopsis: On November 17, 2021, the EEOC updated its COVID-19 technical assistance resources to add guidance on pandemic-based employer retaliation and interference.  The updated guidelines clarify the rights of employees who engage in EEO protected activity.  Key for employers are the numerous examples of what the EEOC deems retaliation in this specific context.  Notably, this update is also consistent with the Commission’s recent stated objective (previously discussed here) of broadening its outreach and improving its technology for purposes of promoting effective communication and understanding of the U.S. workforce. Employers would be well served to review the new guidance.

COVID-19 Technical Assistance Generally

The EEOC’s COVID-19 technical assistance has explained and synthesized on a rolling basis the applicability of the federal anti-discrimination laws to the COVID-19 pandemic.  The technical assistance seeks to inform employees of their rights with respect to such laws while addressing employer concerns stemming from the pandemic.  Presently consisting of 13 sections (available here), this assistance program addresses issues such as confidentiality of medical information (Section B), hiring and onboarding (Section C), return to work (Section G), and vaccinations (Section L).  For example, the Commission clarifies that employers may not direct at-risk applicants, such as those who are 65 or older or pregnant, to postpone their start date or revoke an offer of acceptance.  Employers may, however, choose to allow telework or discuss the option of a postponed start date.  In sum, the technical assistance provides valuable guidance to employers on how to balance necessary COVID-19 precautions with employees’ rights to be free from workplace discrimination.

Recent Update On Retaliation

The EEO laws, such as Title VII, the Equal Pay Act, the Age Discrimination in Employment Act, and the Americans With Disabilities Act (“ADA”), prohibit employers from retaliating against employees for engaging in “protective activity” — i.e., asserting their rights under such laws.  Protected activity generally takes many forms, the most typical being an employee’s complaint to a supervisor about workplace harassment, being a witness to such harassment and reporting it on the victim’s behalf, or filing a charge or lawsuit against the employer.  Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity, such as termination, denial of a promotion or benefits, or involuntary transfers.  To be actionable, the employer’s response must be a result of the protected activity.

Additionally, the ADA specifically prohibits not only retaliation, but also “interference” with an individual’s exercise of ADA rights.  For example, employers may not coerce, intimidate, or threaten an employee who seeks to exercise his or her rights under the ADA.

In addition, (available here), the EEOC sets forth several scenarios, specific to the COVID-19 context, which constitute retaliation in violation of federal anti-discrimination laws.  For example, a supervisor may not give a false negative job reference to punish a former employee for making an EEOC complaint or refuse to hire an applicant because of the applicant’s EEOC complaint against a prior employer.  The EEO laws also prohibit retaliation against employees for reporting harassing workplace comments about their religious reasons for not being vaccinated.  Further, employers may not, for example, transfer an employee to a less-desirable role for requesting continued telework as a disability accommodation after a workplace reopens.

The Commission also explains that requests for accommodation are protected activity even if the individual is not legally entitled to an accommodation.  In other words, employers may not retaliate against an employee if that employee requests an accommodation but the employee’s medical condition, for instance, is not ultimately deemed a disability.  Such protected activities could come in the form of requesting to modify one’s protective gear (like a mask) so that it can be worn with religious garb, or requesting to be exempt from an employer’s vaccination requirement for religious reasons.

Implications For Employers

The Commission has stated that retaliation is the most frequently alleged form of discrimination in EEOC charges and has been for many years.  That said, employers should be aware of the specific circumstances that could give rise to such claims during these unprecedented times.  Increased efforts should be geared not only towards minimizing the health-risks of COVID-19, but also towards protecting their employees from discrimination derived from pandemic-related issues.  Doing so could significantly reduce an employer’s potential for liability under the EEO laws.

 

By James L. CurtisAdam R. YoungPatrick D. Joyce, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Department of Labor Tweeted and blogged about the safety of workers during the busy holiday season, indicating an area of potential enforcement for OSHA in the coming weeks.

Unsurprisingly, OSHA has targeted workplace transmission of COVID-19 as a top holiday safety and health concern. All employers who are bringing on additional or temporary workers for the holidays must exercise additional care in their implementation of COVID-19 controls and prevention measures. In light of an anticipated surge in cases due to increased hiring of seasonal workers, as well as non-work-related family and social gatherings, OSHA updated its guidance on mitigating and preventing the spread of COVID-19 in the workplace. The updated guidance follows OSHA’s new Emergency Temporary Standard on Vaccines, Testing, and Face Coverings pending before the 6th Circuit.

Even before COVID-19, crowd management has always been a holiday concern. If large crowds are expected for holiday shopping events, employers should plan ahead and take steps to protect employees. The DOL has crowd management guidance to help employers prevent worker injuries during crowded shopping events.

In addition, for those employers hiring new or temporary workers for the holidays, it’s important to “train them for the risks they may encounter on the job“ – including how to reduce exposure to the coronavirus. Importantly, be sure to know the rules that apply to teen workers if employing anyone under 18. DOL also stresses that it is imperative that every worker is trained in a language they can understand and be encouraged to raise any health or safety concerns to their supervisor without fear of retaliation.

Concerning warehousing, distribution, and delivery hazards, the DOL has updated its guidance for keeping employees safe, including:

We have blogged before on this and similar topics before: OSHA Guidelines for Retailers on Holiday Shopping and Crowd Management Safety, Have Yourself a Safe, Undistracted, and Accident Free Holiday, and Don’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties.

For more information on vaccines or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or the Workplace Counseling & Solutions Teams.

By A. Scott HeckerBrent I. ClarkBenjamin D. Briggs, James L. CurtisAdam R. YoungIlana Morady, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Judicial Panel on Multidistrict Litigation (MDL) lottery selected the U.S. Court of Appeals for the 6th Circuit to hear the consolidated legal challenges to OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), a result that anti-ETS parties may welcome.

The Sixth Circuit has been randomly assigned by a November 16, 2021 MDL lottery to hear the consolidated legal challenges to OSHA’s ETS.  A Court with a majority of judges appointed by Republican practice in its active and senior ranks, including many from the Trump years, the Sixth Circuit will now determine whether to maintain the U.S. Court of Appeals for the Fifth Circuit’s November 12, 2021 stay and will be tasked with guiding the ETS contests toward resolution.

This is not the result the government, unions, and like-minded entities were hoping for, and they will now pitch their positions to the Sixth Circuit, attempting to convince the Court that the ETS is necessary to protect workers from a grave danger.  Those seeking to overturn the ETS will argue that the Court’s sister circuit got the decision right and will rely on the Fifth Circuit’s stay opinion to continue their push to ensure the ETS never sees the light of a covered workplace.  This result could well continue OSHA’s less-than-stellar streak with ETS challenges.

As employers consider how this latest twist impacts their compliance efforts, your Seyfarth attorneys are prepared to help you navigate your chosen course.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Adam R. YoungRobert T. Szyba, Robert S. Whitman, and  Craig B. Simonsen

Seyfarth Synopsis: The New York Department of Labor published “Frequently Asked Questions” which address occupational cannabis issues under the adult-use cannabis and the Marijuana Regulation and Taxation Act (MRTA).

New York State has legalized medical and recreational marijuana, and the NYDOL’s FAQs provide additional insights into how the agency will interpret the statutory protections and employer obligations.

One key take away from the FAQs is that the NYDOL takes the position that drug testing for marijuana (i.e., THC) is generally prohibited, unless such testing is specifically required by federal or other state law, such as with commercial motor vehicle drivers.  In effect, employers cannot test and cannot rely on testing as proof of impairment. According to the NYDOL, “such tests do not currently demonstrate impairment,” meaning that current testing technology is insufficient to establish impairment without more information. This prohibition does not appear in the statute, and we anticipate confusion among employers because drug testing programs adopt a legal presumption of impairment based on test positivity. Further, new technologies may increase the accuracy of testing and its correlation with identifiable impairment at the time of the test, which may undermine NYDOL’s rationale.

The FAQs indicate that an “employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working,” only if the employee manifests specific articulable symptoms of impairment that (1) decrease or lessen the performance of their duties or tasks, or (2) interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws. In effect, the FAQs suggest that an employee can be physiologically impaired at work and not face discipline or discharge, so long as the employee does not “manifest specific articulable symptoms” and the employer does not have a written policy in place prohibiting impairment.

An employer can have a written policy prohibiting impairment at work, and can take disciplinary action for violation of that policy. If there is no such policy, however, the employer cannot take action unless the employee’s job performance suffers or there is some safety risk. So, employers seeking to create an impairment-free workplace should ensure that they maintain a written policy.

As we have previously blogged, the National Safety Council advises that employers adopt a zero tolerance policy for marijuana use in safety-sensitive positions. The NYDOL’s FAQs draw into question employers’ ability to enforce reasonable safety rules relating to marijuana use and impairment, particularly for positions that implicate the safety of employees. On the other hand, the FAQs highlight the need for employers to have written policies prohibiting workplace impairment to protect safety and comply with the law.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or Cannabis Law Practice Teams.

By Scott HeckerElisabeth Watson, and Karla Grossenbacher

Seyfarth SynopsisYour dedicated Seyfarth Team has created a checklist to help covered employers achieve compliance with the OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) in timely fashion.

Pending legal challenges have called into question the viability of ETS, published in the Federal Register on November 5, 2021.  Despite the Fifth Circuit promptly staying the ETS on November 6 – a Saturday! – we continue to encourage clients to move toward complying with the ETS’s requirements. The ETS includes two compliance dates, December 6, 2021, which includes most of the obligations mandated under the standard, and January 4, 2022, which primarily addresses testing.

Our checklist, with linked regulatory sections and additional resources, follows.

December 6, 2021 Deadlines[1],[2], 29 CFR 1910.501(m)(2)(i)

  1. Written Policy
  • Establish, implement, and enforce a written mandatory vaccination policy; or
  • Establish, implement, and enforce a written policy allowing employees to choose to be fully vaccinated against or provide proof of regular testing for COVID-19.
  • The requirements do not apply to employees who work from home, do not report to a worksite with other individuals, or work exclusively outdoors.
  1. Determination of Vaccination Status/Recordkeeping[3]
  • Employer must determine the vaccination status of each employee and whether the employee is fully vaccinated.
  • Employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated.
  • The employer must maintain a roster of each employee’s vaccination status.
  • This information must be treated as confidential medical records.
  1. Paid Time/PTO Related to Vaccination and Recovery
  • Provide reasonable time for each vaccination shot (up to four hours paid working time, not paid leave)
  • Provide reasonable time off for recovery. Must permit employees to use reasonable available paid sick leave reasonable (generally up to two days is reasonable).
  • Not retroactive.
  1. Removal of COVID-positive Employees
  • Regardless of COVID-19 vaccination status or any COVID-19 testing the employer must:
    • Require each employee to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider; and
    • Immediately remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider and keep the employee removed until the employee:
      • Receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
      • Meets the return to work criteria in CDC’s “Isolation Guidance” (incorporated by reference, § 1910.509); or
      • Receives a recommendation to return to work from a licensed healthcare provider.
  1. Face Coverings
  • The employer must ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes, except under certain, designated circumstances.
  1. Information for Employees
  • The employer must inform each employee, in a language and at a literacy level the employee understands, about:
    • The requirements of this section as well as any employer policies and procedures established to implement this section;
    • COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing the document, “Key Things to Know About COVID-19 Vaccines.”
    • The anti-retaliation and non-discrimination provisions of 29 CFR 1904.35(b)(1)(iv) and section 11(c) of the OSH Act.
    • The prohibitions of 18 U.S.C. 1001 and of section 17(g) of the OSH Act, providing for criminal penalties associated with knowingly supplying false statements or documentation.

January 4, 2021 Deadlines, 29 CFR 1910.501(m)(2)(ii)

  1. Testing for Not-Fully-Vaccinated Employees
  • Employees who have received the final vaccine dose of their chosen course do not need to be tested:
    • Employers must ensure that employees have received both shots of a two-dose vaccination regimen, or one dose for single-dose vaccines by January 4, 2022; or
  • Employees must undergo at least weekly testing, or test within 7 days before returning to work (if away from the workplace for a week or longer).
    • Employees who fail to provide timely test documentation must be sent home. Employers must retain and treat test records as confidential medical records.
  • Over-the-counter antigen testing is acceptable. However, testing cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
  • Testing can be unpaid; however, accommodations requirements, state law, or bargaining issues may require payment.

We recommend that as employers navigate compliance, they consult OSHA’s ETS resource page, including its extensive FAQs.  Your friendly, neighborhood Seyfarth attorneys stand ready to assist as well.

[1] Twenty-one state-plan U.S. jurisdictions must choose whether to formally adopt the ETS or to issue their own standard that is at least as effective as the OSHA ETS.  They include Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.

[2] OSHA’s ETS is effective immediately in 29 jurisdictions, including Alabama, America Samoa, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Northern Mariana Islands, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Virgin Islands, West Virginia, and Wisconsin.

[3] Employers must have an employee vaccination status roster in place by December 6, 2021, and should implement a system to keep that roster current as employees work toward receiving the final doses of their chosen vaccine regimen by January 4, 2022.

By Scott HeckerAdam YoungNoah FinkelDavid BaffaJoshua SeidmanLaura MaechtlenCamille OlsonKristin McGurnLawrence Lorber,  Brent Clark, Jim CurtisBen Briggs and Patrick D. Joyce

Seyfarth Synopsis: The much-anticipated OSHA Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) posted on November 4, 2021, for public inspection.

The ETS was scheduled for publication in the Federal Register on November 5, at which point it will be effective, with new obligations for employers beginning December 5, 2021, and an ultimate “vaccination or testing” deadline of January 4, 2022. This morning, the White House announced that it would also change the December vaccination deadline for covered federal contractors to align with the January 4th ETS deadline.

Now that we can review the text of the ETS, we finally have some answers to questions that have been percolating since at least September 9, 2021, when President Biden Announced his Administration’s COVID-19 Action Plan.  OSHA also released Frequently Asked Questions to guide employers with regard to the new ETS.

  1. 100-Employee Coverage Threshold

The ETS requires covered employers, those with 100 or more employees, to implement a policy on vaccination ensuring their employees are fully vaccinated by January 4, 2022, subject to required accommodations.  OSHA explains in the ETS’s preamble and FAQs that “employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work.  Part-time employees do count towards the company total, but independent contractors do not.”  Fully remote workers count towards the 100-employee threshold.  Corporate entities with more than one location must count “all employees at all locations . . . for purposes of the 100-employee threshold.”  Franchisors and franchisees are “separate entities for coverage purposes, such that the franchisor would only count ‘corporate’ employees.”  Despite OSHA’s suggestion that staffing agencies and host clients share some level of joint responsibility over staffing agency workers “only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS” because “the staffing agency would typically handle administrative matters for these workers.”  At multi-employer worksites, “such as a construction site, each company represented – the host employer, the general contractor, and each subcontractor – would only need to count its own employees.”

  1. Compliance Dates and Vaccination Requirement.

Covered employers must ensure that employees have received both shots of a two-dose vaccination regimen, or one dose for single-dose vaccines by January 4, 2022, or they must undergo at least weekly testing as of that date.  (Although employees are not considered “fully vaccinated” under the ETS until they are two weeks beyond the final shot, the ETS does not mandate weekly testing for those who are in their final two-week waiting period as of January 4th.)   Employers must be in compliance with the rest of the ETS’ requirements — such as masking, recordkeeping, removal of COVID-positive employees — by December 5, 2021.

To avoid the testing obligation for unvaccinated employees, the last day on which an employee may receive a one-dose vaccine (such as Johnson & Johnson) is January 4, 2022.  The ETS prescribes that employees pursuing a two-dose vaccination may not receive a second dose within fewer than 17 days of the first dose, which means the latest date for the first dose in a two-dose regimen would have to be December 18, 2021.   For employees who follow the recommended time between doses (28 days between shots for Moderna, and 21 days between shots for Pfizer-BioNTech), employees should receive the first dose of Moderna by December 7, 2021, or the first dose of Pfizer-BioNTech by December 14, 2021.

The ETS requires employers to obtain written documentation of employee vaccination, which would include an attestation stating that more formal forms of proof are unavailable.  Employers then must maintain the records and written roster of employee vaccination status.

  1. Vaccination Status and Weekly Surveillance Testing

Employees who have not received their full vaccine course by the January 4, 2022 deadline must start producing verified negative tests to their employer on at least a weekly basis.  Employers must exclude from their workplaces any employee who receives a positive test result or a positive COVID-19 diagnosis.  Any unvaccinated employee must mask in the workplace, with certain designated exceptions.  Again, while employee testing need not begin until on and after January 4th, masking, leave, recordkeeping and other obligations under the ETS go into effect on December 5, 2021.

Employers must determine employees’ vaccination status, including requiring delineated types of documentation.  If an employee cannot provide one of the designated documents, an attestation meeting defined criteria is allowable.  Employers must maintain records of vaccination, including a “roster of each employee’s vaccination status,” which are subject to subject to OSHA’s medical records requirements at 29 CFR 1910.1020; however, the ETS excepts them from 1910.1020’s typical retention requirements, advising the vaccination records “must be maintained and preserved while this section remains in effect.”  29 CFR 1910.501(d)(4).  There are similar maintenance and retention requirements for employee test results.  See id. at 1910.501(g)(4).

Employers can, but are not required to allow for vaccination or testing options.  Acceptable tests under the ETS include those that are:

Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the FDA to detect current infection with the SARSCoV-2 virus (e.g., a viral test);

Administered in accordance with the authorized instructions; and

Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.

29 CFR 1910.501(c).

  1. Employers Must Pay for the Costs of Vaccination

The ETS requires employers to give employees (a) reasonable paid time for each primary vaccination dose (i.e., up to four hours for each dose) and (b) paid sick leave for employees’ reasonable recovery time due to side effects from each primary vaccination dose.  29 CFR 1910.501(f).  Neither paid time off mandate is retroactive prior to the promulgation of the ETS.

Paid time for receiving the vaccination must be paid at an employee’s regular rate of pay.[1]  Importantly, the paid time of up to four hours for each primary vaccination dose must be provided as a standalone benefit to employees.  It cannot be offset by any other leave that an employee has accrued (e.g., paid sick leave, vacation time, PTO, etc.).  If an employee needs more than four hours to receive a primary vaccination dose, the additional time would be deemed unpaid, protected leave as long as it is reasonable.  The employee can use other leave time that they have available (e.g., sick leave or vacation time) to receive pay in these situations.

Paid sick leave for vaccination side effects also contains several unique components.  Notably, there is an offset option for employers, depending on the circumstances. If an employer offers separate buckets of paid leave to employees (e.g., paid sick leave, vacation, etc.), the employer can require the employee to use any available, accrued paid sick leave when recovering from side effects.  The employer cannot force use of vacation or personal time in these situations.   However, if the employer offers a single bucket of PTO, the employer may require employees to use that leave when recovering from vaccination side effects.

If an employee does not have available paid sick leave or PTO at the time they are experiencing vaccine side effects, the employer must provide the employee with additional paid sick leave.  In other words, the employer cannot require that the employee use advanced paid sick leave, borrow against future accruals or “go into the negative.”  The ETS indicates that the amount of paid sick leave must be “reasonable,” and OSHA presumes that if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer’s setup would be considered “reasonable.”

Other federal, state or local laws, as well as collective bargaining agreements, may mandate that employers provide additional paid time off to employees for vaccination or recovery from vaccination side effects.  Employers should examine COVID-19 paid leave mandates, non-COVID-19 general paid sick leave mandates, and other state and local time off laws when assessing their paid time off obligations related to vaccinations.

  1. Employers Need Not Pay for the Costs of Testing

Generally, the ETS does not require employers to pay for the cost of COVID testing (including time spent testing), though employers are not prohibited from doing so.  While this may first read as a “win” for employers, unfortunately it does little to clarify the confusing state law matrix or collective bargaining obligations regarding employer responsibility for paying for testing costs or associated testing time.

The ETS and associated FAQs acknowledge that there may be circumstances under which employers must pay, e.g., based on “other laws, regulations, or collective bargaining agreements or other collective negotiated agreements.”  See 29 CFR 1910.501(g).  Regarding CBAs, the very first section of the ETS, 29 CFR 1910.501(a), reads that “[n]othing in this section prevents employers from agreeing with workers and their representatives to additional measures not required by this section and this section does not supplant collective bargaining agreements or other collectively negotiated agreements in effect that may have negotiated terms that exceed the requirements herein.”

Regarding potentially competing state laws, about a half-dozen jurisdictions generally require employers to reimburse employees for reasonable and necessary expenses (such as California, Illinois, Seattle), but since testing is an alternative to vaccination and arguably not “necessary,” it is just unclear how these laws may be applied.  About 22 states require employers to pay for the cost of “medical examinations,” but these are generally older laws not passed specifically in connection with COVID or COVID testing, and it is not entirely settled whether each and every type of potential COVID test would be considered a “medical examination” pursuant to these laws.  Ultimately, as the FAQs point out, the subject of payment for costs associated with testing “pursuant to other laws or regulations not associated with the OSH Act is beyond OSHA’s authority and jurisdiction.”

With regard to the time spent to get tested, while the ETS supports the notion that employers should not have to pay for time spent testing, other laws may well bear upon the compensability of such time, particularly depending on when during a work shift testing is conducted.  Whether an employer must pay non-exempt employees for time spent on testing remains unclear and often subject to the state in which it takes place and the details of the employer’s testing program.

  1. OSHA Record-keeping of COVID-19 Illnesses

The ETS reminds employers of existing record-keeping obligations as they apply to COVID-19 illnesses.  Employers must report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.  See id. at 1910.501(h). The ETS does not require employers to provide paid leave to employees missing work time due to a COVID-19 diagnosis, though other laws may mandate such leave.  See id. at 1910.501(h).

  1. Employers Must Train Employees on the ETS

Employers must communicate the requirements of the ETS to their employees, in language they can understand, along with providing the document “Key Things to Know About COVID-19 Vaccines,” information on anti-retaliation, and OSH Act prohibitions against supplying false information or documentation.  See 29 CFR 1910.501(i).

  1. Competing Federal Vaccine Mandates

The ETS and FAQs explains that the ETS does not apply to workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.  Nor does it apply to worksites covered by the existing healthcare ETS (29 C.F.R. 1910.502). Accordingly, the same employer could have some worksites that involve federal contracts that are covered by the federal contractor EO, and others covered by the ETS.  A health care employer similarly could operate an ambulatory care facility covered by the new ETS, and a hospital covered by the health care ETS.

The White House Fact Sheet, “Biden Administration Announces Details of Two Major Vaccination Policies,” acknowledges the competing federal COVID-19 vaccine mandates and – helpfully – tries to harmonize them:

Streamlining Implementation and Setting One Deadline Across Different Vaccination Requirements: The rules released today ensure employers know which requirements apply to which workplaces. Federal contractors may have some workplaces subject to requirements for federal contractors and other workplaces subject to the newly-released COVID-19 Vaccination and Testing ETS. To make it easy for all employers to comply with the requirements, the deadline for the federal contractor vaccination requirement will be aligned with those for the CMS rule and the ETS. Employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022. This will make it easier for employers to ensure their workforce is vaccinated, safe, and healthy, and ensure that federal contractors implement their requirements on the same timeline as other employers in their industries. And, the newly-released ETS will not be applied to workplaces subject to the federal contractor requirement or CMS rule, so employers will not have to track multiple vaccination requirements for the same employees.

This officially pushes the federal contractor deadline back from December 8, 2021, and indicates that federal contractors who have already started implementing protocols under the Safer Federal Workforce Task Force Guidance do not have to implement the OSHA (or CMS) mandate at their covered contractor workplaces.  That is, covered contractors who already developed protocols under the “show or provide” vaccination documentation directive in the Guidance should not be subject to new OSHA recordkeeping requirements at their covered contractor workplaces.

In addition to not covering those under the umbrellas of the Task Force Guidance or CMS regulations, see 29 CFR 1910.501(b)(2), OSHA’s ETS excludes employees “[w]ho do not report to a workplace where other individuals such as coworkers or customers are present; . . . While working from home; or . . . Who work exclusively outdoors,” 29 CFR 1910.501(b)(3).

  1. Challenges to Come

The Task Force Guidance clearly stated its position on preemption:

Q19: Does this clause apply in States or localities that seek to prohibit compliance with any of the workplace safety protocols set forth in this Guidance?

A: Yes. These requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance. Additionally, nothing in this Guidance shall excuse noncompliance with any applicable State law or municipal ordinance establishing more protective workplace safety protocols than those established under this Guidance.

Aligned with the Task Force’s position, OSHA’s FAQs accompanying today’s ETS indicate that the:

ETS preempts States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a Federally-approved State Plan. In particular, OSHA intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing . . . .

OSHA’s authority to preempt such State and local requirements comes from section 18 of OSH Act, and from general principles of conflict preemption . . . .  [O]nce OSHA promulgates federal standards addressing an occupational safety and health issue, States may no longer regulate that issue except with OSHA’s approval and the authority of a Federally-approved State Plan.

However, we have already seen States and others challenge President Biden’s federal contractor COVID-19 vaccine mandate, and we anticipate prompt litigation over the ETS once it is officially published in the Federal Register and, therefore, in effect.  Indeed, 24 State attorneys general foreshadowed their legal arguments in a September 16, 2021 letter to President Biden.

To navigate your various obligations under the multiple federal vaccine mandates and to assist in understanding the impacts of these anticipated legal challenges, we recommend that you reach out to your Seyfarth attorney.  As you know, analyzing the nuances of and interactions among your myriad requirements is complicated, and we are here to help.  Reach out to your Seyfarth attorney with any questions.

 

[1] By comparison, the ETS does not include a specific rate of pay that employers must use for vaccine side effect paid sick leave.

By Adam R. YoungMelissa A. Ortega, and Craig B. Simonsen

Seyfarth Synopsis: On October 28, 2021, an amendment to the Illinois Health Care Right of Conscience Act passed the Illinois General Assembly and made its way to Governor Pritzker’s desk. The amendment creates a COVID-19 carve-out, but it will not go into effect until June 1, 2022. The amendment shields employers from liability for enforcing COVID-19 health requirements, including vaccines and tests. Employers may terminate employees who refuse to provide COVID-19 health care treatment. 

Under the 1977 Illinois Health Care Right of Conscience Act (the “Act”), health care providers are shielded from civil and criminal liability for refusing to participate in health care which is “contrary” to their conscience.  Health care employers are further prohibited from discriminating against their employees and applicants who refuse to accept “any forms of health care services contrary to [their] conscience.”

During the COVID-19 pandemic, a minority of health care workers have refused to accept or provide COVID-19 vaccination and treatments, citing a range of religious, moral, political, and conscience objections.  Under Title VII, employees can seek accommodations from compliance with employment terms that violate their sincerely held religious beliefs, but an employer need not accommodate a religious belief where it imposes more than a de minimis cost.

On October 28, 2021, the amendment passed the General Assembly and went to Governor Pritzker to sign into law. The amendment, which will become effective on June 1, 2022, creates a COVID-19 carve-out, making clear that employers can impose COVID-19 vaccination requirements and COVID-19 treatment as a condition of employment and terminate those who refuse to comply, regardless of “conscience” objections.  Under federal law, employees still must evaluate reasonable accommodations for a disability and bona fide religious beliefs. The amendment should undermine discrimination claims based on the Act, though plaintiffs could still go forward with claims under Title VII and the Illinois Human Rights Act.

The amendment did not receive 60% of the vote in either house as required by the Illinois Constitution and thus, will go into effect on June 1, 2022 once signed by the Governor. The amendment will apply to “all actions commenced or pending on or after the effective date.”

In late August 2021, Governor Pritzker issued an Executive Order (COVID-19 Executive Order No. 87), later amended on September 5, 2021, mandating COVID-19 vaccinations for health care workers, school personnel,  higher education, and state-owned or operated congregate facilities. The Executive Order was issued in response to the significant concerns raised by the Delta variant and its impact on those seeking healthcare and treating patients in Illinois. It embodies the public policy of this state to maximize vaccination in healthcare. The Order specifically states that nothing contained therein prohibits any entity from implementing vaccination or testing requirements that exceed the requirements of the Order.

At the federal level, President Biden announced in September that private employers with 100 or more employees would be required to vaccinate or test their workers pursuant to an Emergency Temporary Standard ETS) to be issued by the Occupational Safety and Health Administration. The ETS is expected any day. At the same time, the President announced that employees of federal government contractors would be required to be vaccinated, without a testing option.

For more information on vaccines or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA) Team.

By Andrew L. Scroggins and Alex W. Karasik

Seyfarth Synopsis:  While businesses have shifted their operations to digital platforms over the last few decades, the COVID-19 pandemic has greatly accelerated the transformation of the workplace. One area where employers have looked to increase the efficiency of their hiring processes is through the use of artificial intelligence. The EEOC has been paying attention to this trend as well, and on October 28, 2021, the Commission announced an initiative to ensure that artificial intelligence (AI) and other emerging tools used in hiring and employment decisions comply with the federal civil rights laws that the agency enforces. It behooves employers to understand and heed the Commission’s new initiative.

Artificial Intelligence In The Employment Setting

Businesses are routinely looking for new and improved ways to source, screen, and on-board talented employees. The era of written applications dropped off in person by candidates has given way to electronic tools that can include online job postings, web-based applications and questionnaires, computer-aided screening tools, and video conference interviews and presentations. Innovative employers may use keyword searches and predictive algorithms – sometimes created in-house and other times licensed through vendors – to help target and rank candidates best suited to their needs. Employers facing the challenges of the tight labor market may see artificial intelligence as a way to bring unique efficiencies to the hiring process.

Of course, while the tools for hiring may be evolving, the guardrails set by employment laws remain in place. And that means oversight by the EEOC can be expected.

The EEOC’s Announcement

At an external event on October 28, 2021, EEOC Chair Charlotte A. Burrows announced the EEOC’s intent to more closely scrutinize this potential area for discrimination. Burrows acknowledged both the potential benefits and challenges at hand: “Artificial intelligence and algorithmic decision-making tools have great potential to improve our lives, including in the area of employment. At the same time, the EEOC is keenly aware that these tools may mask and perpetuate bias or create new discriminatory barriers to jobs. We must work to ensure that these new technologies do not become a high-tech pathway to discrimination.” Burrows’ comments follow recent comments by fellow EEOC Commissioner Keith Sonderling. On October 20, 2021, Sonderling gave a speech in New York (and tweeted more broadly later) that “highlighted the potential #cybersecurity and #privacy concerns employers must be aware of when using #AI to make employment decisions.” As a thought-leader in this space, Sonderling also has written articles and given statements to other publications on the topic. Those public remarks from EEOC Commissioners appointed by different administrations confirm the Commission’s intent to focus on this area.

The EEOC’s announcement explains that the, “initiative will examine more closely how technology is fundamentally changing the way employment decisions are made. It aims to guide applicants, employees, employers, and technology vendors.” Burrows added that, “While the technology may be evolving, anti-discrimination laws still apply,” and perhaps most importantly for employers, “Bias in employment arising from the use of algorithms and AI falls squarely within the Commission’s priority to address systemic discrimination.” Id.

The EEOC laid out five prongs to its initiative: (1) establish an internal working group to coordinate the agency’s work on the initiative; (2) launch a series of listening sessions with key stakeholders about algorithmic tools and their employment ramifications; (3) gather information about the adoption, design, and impact of hiring and other employment-related technologies; (4) identify promising practices; and (5) issue technical assistance to provide guidance on algorithmic fairness and the use of AI in employment decisions. Id. The EEOC indicates these plans build off work it has been doing in this area since 2016.  Id.

Implications For Employers

When the Commission declares an area to be a systemic discrimination priority, employers should take heed. Employers who utilize artificial intelligence, algorithmic decision-making tools, and other automated processes should evaluate their use to ensure no resulting bias. Likewise, when considering third party vendors, employers should ask what steps have been taken to ensure that the tools are compliant with employment. And during EEOC investigations, employers should be on the alert for requests that suggest the EEOC is interested in taking a closer look at the use of these tools. In sum, as business practices evolve with the technology, so too does the EEOC in its enforcement priorities.

By Kristina M. Launey

Seyfarth Synopsis: On October 18, the DFEH issued Guidance which expressly approves denial of entry to individuals who cannot show a negative COVID test or proof of vaccination, refuse to have their temperature taken or respond to COVID-19 symptom screening questions, subject to providing reasonable accommodations to customers with disabilities.

In the latest COVID-related quandary, businesses have been bombarded with requests for exemptions to vaccination and testing requirements on the basis of disability or religion by employees and customers alike. While the EEOC had provided guidance on the employment front, there was scant guidance regarding what places of public accommodations (under Title III of the Americans with Disabilities Act [“ADA”]) and business establishments (under California’s Unruh Act) can and cannot require in the way of vaccinations and COVID-19 testing as prerequisites to entry to the business.  Until now.

On October 18, the DFEH issued a Press Release announcing the also-issued Guidance for California Businesses Regarding Covid-19 Safety Measures and Reasonable Accommodations. The Guidance authorizes businesses to require proof of vaccination, proof a recent negative COVID-19 test, and/or to wear a mask, and to deny entry or service to those to refuse.  The Guidance also specifically states that businesses may ask customers if they have COVID-19 symptoms, and/or take customers’ temperatures, and refuse service to people with COVID-19 symptoms such as loss of taste or smell, fever, or coughing.  The business may deny entry or service to someone who refuses to have their temperature taken or state whether they have COVID-19 symptoms.

The Guidance includes two caveats:

(1) These actions must be applied equally to all customers.  If they are imposed only on customers with particular characteristics, such as customers who appear to be from a foreign country, then the business violates the Unruh Act.

(2) A business must reasonably accommodate individuals with a disability that prevents them from complying with any of the above safety measures unless the accommodation or modification would create a direct threat to the health or safety of others, an undue burden to the business, or a fundamental alteration to the business’s practices.  The Guidance explicitly states that the business must take the customer’s representation that they have a disability preventing them from complying with the COVID-19 safety measure without question or digging for more detail.  The business can only engage in a type of “interactive process” with the customer to determine what reasonable alternative to allow the customer access may exist while still protecting employees and other customers.

The Guidance states that the type of reasonable alternative may need to be provided is determined on a case-by-case basis – taking the same approach we recommended earlier this year.  The Guidance identifies the following factors to consider:  The business’s layout, number of employees on duty, types of goods or services offered, customer’s needs, and whether other customers are present.  The Guidance provides examples such as a grocery store providing curb-side service to a customer, a small computer store providing service by phone, video, or text, or a bar providing outdoor service to a customer.  The Guidance recognizes there are times when there a reasonable accommodation might not be available because possible alternatives create a direct threat to the health or safety of others, an undue burden to the business, or a fundamental alteration of the business.  The Guidance provides some examples:  A salon or barbershop where customers and employees are in close contact would be justified in denying services to an unvaccinated customer; but if that customer only wanted to buy shampoo, the salon could bring the product to the customer at the curb.  As another example, a theater that denies entry to an unvaccinated patron might set up a screening outside unless it would be an undue burden or fundamental alteration of the theater’s business.

We have seen requests for exemptions to masking requirements, then vaccination mandates, based on disability since the inception of the pandemic.  What about religious exemptions of which we’ve seen more and more lately?  The Guidance states that the DFEH is not aware of any published court decision or other source of law clearly establishing that the Unruh Civil Rights Act requires businesses to reasonably accommodate the sincerely-held religious beliefs of customers. However, to facilitate the business transaction, the DFEH suggests in the final FAQ that in religious exemption situations, businesses follow the guidance provided for reasonable accommodations for disability.

Edited by Minh N. Vu