The adopted standard requires covered employers with more than ten employees to establish and maintain a COVID-19 log to record each instance in which an employee is COVID-19 positive, regardless of whether the instance is connected to exposure at work. In addition, employers must report to MNOSHA each work-related COVID-19 fatality within eight hours of the employer learning about the fatality and each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the hospitalization, regardless of when the fatality or hospitalization occurred. This is more stringent than CFR 1904.39 (b)(6), which states that an employer must report a fatality to OSHA only if the fatality occurs within 30 days of the work-related incident. Likewise, non-COVID-19 in-patient hospitalizations need to be report if it occurs within 24 hours of the work-related incident.

Bottom Line

Despite most of the Federal ETS being withdrawn, Federal OSHA, and with its adoption, MNOSHA, kept stringent recordkeeping and reporting guidelines. Covered employers with more than 10 employees must keep COVID-19 logs that record COVID-19 infections regardless of whether the infection is related to work. Covered employers must report a work-related COVID-19 fatality within eight hours of learning of a fatality and within 24 hours of a work-related COVID-19 in-patient hospitalization regardless of when it occurred. MNOSHA’s adoption of these COVID-19 related recordkeeping and reporting standards ensures that, while COVID-19 may be at or near an endemic stage, covered employers in Minnesota cannot forget or ignore COVID-19 into the foreseeable future.

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UPDATE NUMBER 1: WHAT TO DO IF YOU WERE EXPOSED TO COVID-19?

• Regardless of vaccination status, start precautions immediately.
• Wear a mask for 10 full days after exposure.
  • How to count the days: Day 0 is the day of your last exposure and Day 1 is the first full day after your last exposure.
• Get tested at least 5 full days after your last exposure (that means day 6).
• Watch for symptoms.  If you develop symptoms before you test, isolate immediately and stay home until you get the result.
• If you test positive, isolate immediately and follow Guidance number 2 below.
• If you test negative, continue taking precautions through Day 10. You can develop COVID up to 10 days after exposure.

UPDATE NUMBER 2: WHAT TO DO IF YOU TEST POSITIVE FOR COVID-19?

• If you test positive and have symptoms, stay home for at least 5 days and isolate. You are likely the most infectious during the first 5 days.
  • Day 0 of isolation is the day of symptom onset. Day 1 is the first full day after your symptoms started.
  • During your isolation:
    • Wear a high-quality mask if you must be around others at home and in public.
    • Do not go places where you are unable to wear a mask.
    • Do not travel.
    • Stay home and separate from others as much as possible.
    • Use a separate bathroom, if possible.
    • Take steps to improve ventilation at home, if possible.
    • Don’t share personal household items, like cups, towels, and utensils.
    • Monitor your symptoms. If you have an emergency warning sign (like trouble breathing), seek emergency medical care immediately.
• If you test positive, but have no symptoms, isolate for five days
  • Day 1 is the first full day following the day you were tested.
  • If you develop symptoms within 10 days of when you were tested, the clock restarts at day 0 on the day of symptom onset.
    • Do not go places where you are unable to wear a mask.
    • Do not travel.
    • Stay home and separate from others as much as possible.
    • Use a separate bathroom, if possible.
    • Take steps to improve ventilation at home, if possible.
    • Don’t share personal household items, like cups, towels, and utensils.
    • Monitor your symptoms. If you have an emergency warning sign (like trouble breathing), seek emergency medical care immediately.

UPDATE NUMBER 3: WHEN TO END ISOLATION AFTER A POSITIVE TEST?

• If you had no symptoms, end isolation after day 5.
• If you had symptoms:
  • End isolation after day 5 only if:
    • You are fever-free for 24 hours (without the use of fever-reducing medication)
    • Your symptoms are improving
• Exception: if you had moderate illness (if you experienced shortness of breath or had difficulty breathing), or severe illness (you were hospitalized) due to COVID-19, or you have a weakened immune system, you need to isolate through day 10.
• Even after you have ended isolation, wear your mask through day 10, or OR If you have access to antigen tests, you should consider using them. With two sequential negative tests 48 hours apart, you may remove your mask sooner than day 10.
• After you have ended isolation, if your COVID-19 symptoms recur or worsen restart your isolation at day 0.

The post CDC Updates COVID-19 Quarantine and Testing Recommendations (Again) appeared first on Felhaber Larson.

• To view the DLI sample notice, click here.
• To view the Fact Sheet: Frontline Sector Guidance, click here.

The post Notice and Application Period for Frontline Worker Pay appeared first on Felhaber Larson.

Unlike certain prior pandemic financial assistance, the bonus payments will not be automatically sent out to eligible workers.  Instead, the Minnesota Department of Labor and Industry will create an application process and provide eligible workers a 45-day window to apply for the bonus.

The frontline worker bonus is available to workers in healthcare, emergency response, childcare, schools, food service, public transit, and manufacturing, among other areas.  The frontline workers must have worked at least 120 hours in Minnesota between March 15, 2020 and June 30, 2021.  Eligibility is also based on income: workers with direct COVID-19 patient care responsibilities must have had an annual income less than $175,000 (or $350,000 for married joint filers), and those without direct COVID-19 patient care responsibilities must have had an annual income less than $85,000 (or $185,000 for married joint filers).  Frontline workers who received more than 20 weeks of unemployment insurance benefits during the above-time period are not eligible for the bonus.

Bottom Line

Most importantly for those reading this article, the law requires all employers who employ frontline workers to provide notice to all current employees of the availability of this bonus.  Notice may be provided to all workers in paper or an electronic format, or it may be posted in a place where it may be readily viewed by all employees.  The DLI is finalizing the application process and setting the 45-day application time period and will provide employers a form notice to provide to employees.  Stay tuned to our blog for further updates as the application timeline and notice procedures are finalized.

More information about the frontline worker bonuses is available here.

The post Governor Walz Signs Law Providing Frontline Worker Bonus Checks appeared first on Felhaber Larson.

What are the differences between the “new” rules and the “old” rules? Primarily the January 20, 2022, rules are clearer (relatively speaking) about isolation and the differences among asymptomatic and symptomatic COVID as well as how exposure should be treated depending on vaccination status. Significantly, the recommendations more clearly spell out that the CDC considers individuals to be unvaccinated if they received their vaccination more than six month before an exposure.[1]  The rules also provide explanation on how to count days based on date of exposure or a positive test.  Another clarification is that the CDC considers individuals who have had a positive viral test as fully vaccinated for 90 days following the diagnosis.

[1] Close contact is defined as someone who was less than 6 feet away from an infected person for a cumulative total of 15 minutes or more over a 24-hour period.

The post CDC Guidance on Quarantine and Testing Changes (Again) appeared first on Felhaber Larson.

Following the Court’s decision, there was a question as to whether state OSHA plans (such as Minnesota) would move forward with attempts to enforce all or part of the OSHA ETS Rule.  Hours ago, MN-OSHA answered that question by announcing that it was “suspend[ing] enforcement of the ETS pending future developments.”

Supreme Court Majority Holds OSHA ETS Rule Regulates “Public Health” (Not “Occupational Health”)

In a per curium opinion, the six-justice majority wrote that the OSHA ETS Rule painted with too broad a brush – attempting to regulate “public health” (instead of “occupational health”):

OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”

. . .

Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.

The majority did concede that OSHA could likely proceed with regulations that are more targeted to occupational risks associated with COVID-19.  According to the majority:

Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments.

In its current form, however, the majority noted that “most lifeguards and linemen face the same regulations as do medics and meat-packers.”  Thus, according to the Court, preventing OSHA from enforcing its rule was necessary because the lower court will likely invalidate the rule.

Are Portions of the Rule Still In Place?

In its order, the Supreme Court “stay” is directed at the entire OSHA ETS Rule: “OSHA’s COVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if such writs are timely sought.”  Thus, there is no reason to think that any portion of the rule could be enforced by OSHA.

In an announcement posted on OSHA’s website, DOL Secretary Marty Walsh stated that he was “disappointed in the court’s decision” and promised that OSHA would be “evaluating all options to ensure workers are protected from this deadly virus.”  Thus, while not admitting defeat, Secretary Walsh’s statement suggests that OSHA may be pivoting away from the OSHA ETS Rule and planning instead to issue more targeted OSHA standards that would seemingly be upheld under the majority’s analysis.  But, at this point, we’ll have to wait and see.

What About State OSHA Plans?

As we noted earlier this week, the following states (including Minnesota) have “state OSHA plans” that apply to private-sector workers: 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.  As we told you, Minnesota’s state OSHA agency (“MN-OSHA”) adopted the OSHA ETS Rule on January 3 and began enforcing the rules on January 10.

However, in response to the Supreme Court’s decision, MN-OSHA announced that it was immediately suspending enforcement of the OSHA ETS Rule: “In light of the stay, MNOSHA will suspend enforcement of the ETS pending future developments.”  The announcement is available here.

To date, it does not appear that any other state OSHA plans have adopted the federal OSHA ETS Rule (although California has adopted comprehensive standards regarding COVID-19).  Thus, even assuming that they could legally do so (which is doubtful), it is unlikely that state OSHA plans have any plan to attempt such an effort.

Bottom Line

Given the Supreme Court’s decision and MN-OSHA’s announcement to cease enforcement, the OSHA ETS Rule appears to be done for good.  But, it would be foolish to think that OSHA will not respond by issuing revised standards that are more targeted to the occupational risks identified by the Court’s majority.

Remember, too, the CMS vaccination mandate for healthcare workers was upheld by a slim majority of the Court and the same fate likely awaits the federal contractor vaccine mandate.  We will provide additional details on these mandates as we unpack the Supreme Court’s decisions from today.

We will continue to monitor this issue as it develops.

The post After Supreme Court’s Decision, MN-OSHA Ceases Enforcement of “Vaccine-or-Testing” Rule appeared first on Felhaber Larson.

St. Paul Mayor Melvin Carter issued an Executive Order, 2022-2, requiring anyone on City-Controlled Property and any business licensed by the City of St. Paul to require patrons to wear masks at all times when social distancing of at least six feet is not maintained, except when eating or drinking.  The St. Paul Order is an extension of the Executive Order 2021-43, requiring face coverings indoors at City-controlled facilities.  The Order also “strongly encourages” all businesses to continue to require that all individuals wear a face covering indoors at all times when social distancing of at least six feet is not maintained.

The Minneapolis emergency regulation provides that anyone who is older than two, who is medically able to do so, must wear a “medical grade mask or cloth face covering in accordance with CDC guidance,” over their nose and mouth, in any indoor spaces of public accommodation, regardless of vaccination status.  The only exception is for the purpose of eating and/or drinking.  Medical grade masks include N95, KN95, surgical or other masks that would be appropriate in a healthcare setting.

The St. Paul order provides “all persons except young children at risk of suffocation and persons who cannot medically tolerate wearing a face covering” must wear the masks.  City Controlled Property includes park facilities, libraries, City offices and workplaces.  It differs from the Minneapolis ordinance in that it defines face coverings as including “manufactured or homemade cloth face coverings. . . Face coverings are not required to be medical-grade masks.”

Importantly, the Minneapolis regulation applies to all employers of businesses that are spaces of public accommodation must require their employees to wear the masks.  Again, this is regardless of vaccination status.

Finally, athletes, performers and supporting staff competing or performing at indoor spaces of public accommodation are not subject to this regulation in Minneapolis.

A violation of the Emergency Regulation may result in the issuance of warning letters, administrative citations, and/or misdemeanor prosecution.

Bottom Line

Mask Up Minneapolis and St. Paul!

The post The Cities of Minneapolis and St. Paul New Mask Mandates for Places of Public Accommodation appeared first on Felhaber Larson.

Asymptomatic Individuals testing positive for COVID-19

Asymptomatic people who have tested positive for COVID-19 should isolate for 5 days, and if asymptomatic at that time, they may leave isolation so long as they continue to wear a well-fitting mask for 5 days while around others.  Individuals who developed a fever (or other symptoms) during the course of their illness should continue to isolate until the fever is resolved.

Individuals exposed to COVID-19

For those individuals who are either unvaccinated or are more than 6 months out from their second mRNA dose (or more than 2 months after the J&J vaccine) and who have not yet received a booster, the CDC recommends:

Quarantine for 5 days followed by strict mask usage for an additional 5 days. If a 5-day quarantine is not feasible, an exposed person should wear a well-fitting mask when around others for 10 days after exposure.  The new guidelines say a “best practice” would also include a COVID test at day 5 after exposure.  This is a slight variation from the CDC’s October 22, 2021, guidance which had recommended testing between 5-7 days after close contact with a person with suspected or confirmed COVID-19.

For those individuals who are less than 6 months out from their second mRNA dose (or less than 2 months out from the J&J vaccine) or have received a booster:

There is no need to quarantine in this scenario, but the individual should wear a mask for 10 days after the exposure when around others.  These individuals are also advised to get tested 5 days after exposure.

For anyone who has been exposed:

Anyone who has been exposed to COVID-19, whether vaccinated or unvaccinated, boosted or not boosted, should get tested 5 days after the exposure. Any individual experiencing COVID-19 symptoms should immediately quarantine until a negative test can confirm that symptoms are not attributable to COVID-19.

The new CDC recommendations are not without controversy and come with a caveat: some health experts caution that reducing the isolation period from 10 days to 5 days without a testing requirement to ensure an infected individual is no longer able to transmit the disease is risky, especially with the meteoric rise of Omicron cases.

Bottom Line

Employers should take note of these shortened quarantine recommendations, and testing and masking recommendations.  Although the CDC has shortened the isolation time and does not require testing to return to work, these guidelines are a baseline and employers may choose to adopt longer isolation time or require a negative test before an employee returns to work.

The post CDC Lowers Isolation Periods After Positive COVID-19 Tests and Exposures appeared first on Felhaber Larson.

Yesterday, as we predicted, CMS announced that it was restarting enforcement of the CMS rule in the 25 states where the injunction was lifted.  To give employers in these states additional time to comply, CMS announced that the deadline for “Phase 1” implementation is January 27, 2022, and the deadline for “Phase 2” implementation is February 28, 2022.

States Where CMS Is Enjoined from Enforcing Its Vaccine Mandate

At present, CMS is barred from enforcing its vaccine mandate in 25 states, including: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.

In its announcement, CMS acknowledges that it is barred from enforcing its mandate and notes that covered healthcare providers “in those states are not required to comply with the Interim Final Rule, and surveyors will not investigate compliance with the rule in facilities located in those states, pending future developments in the litigation.”

Of course, as we reported earlier, CMS has appealed the injunction and the U.S. Supreme Court will hear arguments regarding the CMS mandate (and the OSHA ETS Mandate) on January 7.  It is too early to tell, though, how the court will rule.

States Where Enforcement is Forthcoming

The 25 states where CMS is not enjoined from enforcing its vaccine mandate include: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington and Wisconsin.

In these states, CMS announced that it would begin enforcing its mandate in two “Phases”:

• • By January 27, 2022, covered healthcare employers must comply with “Phase 1,” which requires all staff to have either: (a) received the first dose of a COVID-19 vaccine or (b) requested a religious or medical accommodation prior to providing any care, treatment or other services for the facility or its patients.
  • By February 28, 2022, covered healthcare employers must comply with “Phase 2,” which requires all staff to have either: (a) completed the primary COVID-19 vaccine series (i.e., single dose J&J or both doses of Pfizer or Moderna) or (b) been granted a religious or medical exemption prior to providing any care, treatment or other services for the facility or its patients.

What About the Supreme Court?

As noted above, on January 7, the U.S. Supreme Court will hear arguments on whether the CMS vaccine mandate is valid.  If the Court upholds the CMS mandate, then healthcare employers in Minnesota and Wisconsin will likely be held to the January 27^th and February 28^th deadlines.  Providers in states like North Dakota, South Dakota, and Iowa may have additional time to comply, but they will not be able to avoid enforcement of the CMS mandate.

At the same time, though, if the Court strikes down the CMS mandate, then providers throughout the country will not be subject to the CMS mandate.  Nothing, of course, prevents a healthcare employer from choosing to implement a COVID-19 vaccine mandate on its own.

Bottom Line

Covered healthcare employers in the 25 states where CMS has re-started enforcement of its COVID-19 vaccine mandate need to begin taking steps to comply, so that their staff has either the first dose of the COVID-19 vaccine or requested an exemption by the Phase 1 deadline (i.e., January 27, 2022) and the Phase 2 deadline (i.e., February 28, 2022).

We will continue to monitor this issue as it develops.

The post CMS Announces “Re-Start” of Its COVID-19 Vaccine Mandate in 25 States (including MN and WI) appeared first on Felhaber Larson.

Shortly thereafter, OSHA announced that it planned to begin enforcing the OSHA ETS Rule on January 10, except that the vaccine-or-testing portion of the rule would not be enforced until February 9.  Remember, too, 22 states (including Minnesota) have state law plans that, under OSHA, have 30 days to either: (a) adopt the federal standard or (b) adopt a standard that “at least as effective” as the federal standard.

Recently, MN-OSHA announced that, on January 3, 2022, it intends to adopt the OSHA ETS Rule with the same enforcement dates (January 10 and February 9) as federal OSHA.  Here is the relevant portion of MN-OSHA’s announcement:

On Dec. 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the ETS. MNOSHA now plans to adopt the ETS by reference as soon as Jan. 3, 2022. The U.S. Department of Labor has indicated OSHA will not issue citations for noncompliance with any of the requirements until Jan. 10, 2022, and it will not issue citations for the testing requirements until Feb. 9, 2022, so long as businesses are making “good faith” efforts to implement the rules. To account for any uncertainty created by the stay, MNOSHA will exercise similar enforcement discretion with respect to the compliance dates and will follow federal OSHA’s timeline.

It does not appear that MN-OSHA will alter the federal standard or adopt any additional restrictions on covered employers (i.e., those with 100+ employees).

The next question, of course, is whether MN-OSHA will push ahead with enforcement if the U.S. Supreme Court issues a decision enjoining enforcement of the federal rule.  According to MN-OSHA’s announcement, it is aware of the appeal and it “will react accordingly to further judicial determination as the current litigation makes its way through the process.”  Thus, no clear answer yet, but it is possible.

Bottom Line

Like federal OSHA, MN-OSHA intends to move forward with the OSHA ETS Rule, including the requirement for vaccination or weekly COVID-19 testing.  Thus, employers need to begin preparing for the January 10 and February 9 deadlines.

As we previously reported, the U.S. Supreme Court will hold oral arguments regarding the OSHA ETS Rule on Friday, January 7, but it is unknown whether the Court will issue any decision before the OSHA and MN-OSHA enforcement deadlines.  Thus, a “wait-and-see” approach is likely not possible for covered employers.

We will continue to monitor this situation as it develops.

The post MN-OSHA Announces Plan to Adopt Federal OSHA’s “Vaccine-or-Testing” Rules on January 3 appeared first on Felhaber Larson.

Two unions, the St. Paul Police Federation and Firefighters Local 21, challenged the St. Paul vaccination mandate, arguing that the City was required to negotiate the terms of the vaccine mandate because it “imposes new terms and conditions on employment.”  Then, if negotiations failed, the union argued the parties were required to submit the dispute to binding interest arbitration in accordance with the Public Employment Labor Relations Act (“PELRA”).

The City took the position that it was not required to negotiate with the unions because it had implemented the policy under its “inherent managerial authority.”  Under PELRA, “[a] public employer is not required to meet and negotiate on matters of inherent managerial policy.”  PELRA defines “matters of inherent managerial policy” to include the following: “areas of discretion or policy as the functions and programs of the employer, its overall budget, utilization of technology, the organizational structure, selection of personnel, and direction and the number of personnel.”  Thus, the city reasoned, if mandatory vaccination is a “matter of inherent managerial policy,” the city was not required by PELRA to negotiate over the mandatory vaccination policy.

In weighing the TRO factors, the court held that the case turned on whether the COVID-19 vaccination policy is a “term and condition of employment” or an “inherent managerial policy” meaning negotiation and arbitration were not required.  To make that determination, the court had to determine:

(1) whether the vaccinate-or-be-terminated Policy is more like “the employer’s personnel policies affecting working conditions of the employees” (i.e. a term and condition under PELRA), or (2) whether it is more like a “utilization of technology . . . selection of personnel, and direction and number of personnel” issue (i.e. inherent managerial policy under PELRA).

In its analysis, the court did not reach a final conclusion as to whether the mandatory vaccination policy constituted an “inherent managerial right.”  Instead, the court concluded that there is a “reasonable likelihood that the Policy is a term and condition of employment subject to collective bargaining and not inherent managerial policy, as defined by PELRA.”

According to the court, because unvaccinated workers risk losing their jobs in the absence of a TRO, the court concluded that the balance of the factors weigh in favor of maintaining the “status quo” (and granting the TRO enjoining enforcement of the vaccine mandate) until a full hearing on the merits in January 2022.

Although the court did not reach a final decision on whether implementing the policy was an “inherent managerial right” under PELRA, the court ignored a recent decision from the New Jersey Court of Appeals finding the City of Newark did not need to bargain with its public unions over implementation of a mandatory COVID-19 vaccination policy because, according to the court, the issue constituted a “non-negotiable managerial prerogative” under New Jersey state law.  In re City of Newark, 2021 WL 4398457 (Sept. 27, 2021) (“We hold that the City has a non-negotiable managerial prerogative to immediately implement its COVID-19 vaccination mandate.”).

Bottom Line

The St. Paul vaccination-or-termination policy for city employees is paused for now.  The court has encouraged the parties to go back to the negotiating table pending final resolution of this matter.  St. Paul may also appeal the decision to the Minnesota Court of Appeals.

The post St. Paul’s City Employee Vaccination Mandate Temporarily Enjoined appeared first on Felhaber Larson.

Although oral arguments will take place on Friday, January 7, it is unclear when a decision will be issued and employers should be aware that enforcement measures by OSHA and CMS could occur before the court issues its decision.

OSHA ETS Rule: Vaccination or Testing for Employers with 100+ Employees

On November 5, OSHA issued the ETS Rule requiring large employers (i.e., those with 100+ employees) to develop a COVID-19 vaccination policy ensuring that all employees are vaccinated or submit to weekly COVID-19 testing by January 4, 2022.

Then, on November 12, the Fifth Circuit issued a “stay” preventing OSHA from enforcing the OSHA ETS Rule.  The Fifth Circuit questioned the constitutional and statutory authority of OSHA to issue the ETS Rule.  The litigation was then transferred to the Sixth Circuit. On December 17, the Sixth Circuit issued an order “lifting” the stay and allowing OSHA to enforce the ETS Rule.

OSHA responded by immediately announcing that it would begin enforcement of the OSHA ETS Rule on January 10, 2022.  OSHA also announced that it would not start enforcing the vaccination or testing portion of the OSHA ETS Rule until February 9, 2022.

CMS: Vaccination Mandate for Healthcare Workers

The CMS vaccine mandate was also issued on November 5.  As initially proposed, the CMS vaccine mandate required all healthcare workers in CMS-regulated settings to be fully vaccinated against COVID-19 by January 4, 2022.

Then, CMS was enjoined from enforcing its vaccination mandate by federal district courts in Missouri and Louisiana.  While CMS was initially barred from enforcing its vaccine mandate in all 50 states, appeals resulted in the injunction being lifted in 25 of 50 states.

Unlike OSHA, CMS has not taken steps to “restart” enforcement in any of the 25 states (including Minnesota and Wisconsin) where it is permitted to enforce its CMS Rules.  However, nothing prevents CMS from changing its position in any of the 25 states where the injunction does not apply.

Supreme Court Review – What Does It Mean?

As an initial matter, we do not know how the court will rule – either striking down or upholding one or both vaccine mandates.  What is more, we also don’t know the timing of any decision.  While the Supreme Court will hear oral arguments on Friday, January 7, it is unknown whether the Court will issue a decision regarding the OSHA or CMS mandates before the agencies (particularly OSHA) begin enforcement.

What about the Federal Contractor’s Mandate?

For those wondering about the COVID-19 vaccine mandate for federal contractors, it is not part of the Supreme Court’s hearing on January 7.  It is still winding its way through the courts.

Remember, on December 7, a federal court in Georgia issued the nationwide injunction against the federal contractor mandate.  Then, on December 17, the Eleventh Circuit left the nationwide injunction in place.  The court did, however, allow for expedited briefing, which means that briefing on the issue will be done by January 24, 2022.  A decision from the appeals court isn’t likely until February 2022 and, by then, the court may have guidance from the Supreme Court on the other vaccine mandates.

Bottom Line

With respect to the OSHA ETS Rule, the hearing is only one business day before OSHA begins enforcing the bulk of its ETS Rule on Monday, January 9.  Thus, prudent employers should continue preparing for the OSHA ETS Rule’s first effective date (January 10).

Employers in any of the 25 states where CMS is not prevented from enforcing its vaccine mandate should carefully monitor communications from CMS regarding enforcement.  And, unless CMS changes its wait-and-see policy, employers can take more of a “wait-and-see” approach.  That said, if the Supreme Court issues a decision upholding the CMS mandate, CMS will not wait long to begin enforcement.  Thus, a prudent healthcare employer may wish to continue taking pre-implementation steps to plan for any future enforcement by CMS.

For the federal contractor mandate, the nationwide injunction will likely remain in place through at least the end of January 2022.  By that time, though, we should have guidance from the Supreme Court on the enforceability of vaccine mandates, but a prudent federal contractor may want to stay “ahead of the curve” by working on pre-implementation steps now because February 2022 will be here sooner than you think.

Lastly, from everyone on the Labor & Employment Team at Felhaber Larson: Happy Holidays!

The post Supreme Court To Review OSHA and CMS Vaccine Mandates on January 7th appeared first on Felhaber Larson.

Employers should note; however, that the Fifth Circuit upheld the stay for the fourteen Plaintiff States involved in the underlying lawsuit.  These states include Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio.  Healthcare employers in these states do not need to comply with the CMS vaccination obligations, at least for now.

Keep in mind that on November 29, 2021, a Missouri federal court also blocked the CMS vaccination mandate for ten states including: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.  That decision still stands, though it has been appealed to the Eighth Circuit Court of Appeals.

Bottom Line

Healthcare employers in states that are not covered by one of the stays mentioned above, including Minnesota and Wisconsin, need to be aware that CMS is now in a position to move forward with enforcing its mandatory vaccination rules.  On December 2, CMS temporarily suspended enforcement of the rules, but we expect to hear from CMS soon about when the rules will go into effect. As always, we will continue to monitor the situation and provide updates accordingly.

The post Fifth Circuit Lifts Injunction Against Enforcement of CMS Vaccination Rule in Some States, Including Minnesota and Wisconsin appeared first on Felhaber Larson.

The guidance explains that COVID-19 may be a disability under the ADA if the virus results in an employee:  (1) having a physical or mental impairment that substantially limits one or more of the individual’s major life activities, (2) having a record of an impairment (as would be likely with long-haul COVID), or (3) having been regarded as having such an impairment.

Specific to COVID, the EEOC explains that the multiple-day headaches, dizziness, and brain fog associated with the virus are all examples of having an impairment under the ADA. Moreover, an employee who contracts COVID-19 does not have to show they experienced virus-related symptoms for a specified period before they may be considered “disabled” under the ADA.

The EEOC guidance notes, however, that not every employee who contracts COVID-19 qualifies as disabled. An individualized assessment is still required to determine whether the employee’s condition meets one of the three definitions of disability under the ADA.

Bottom Line

In light of this new guidance, employers should be on notice that an employee who has COVID-19 may, under certain circumstances, be entitled to the same protections as any other employee with a disability under the ADA.

The post New EEOC Guidance Extends Disability Discrimination Protection to Workers Who Contract COVID-19 appeared first on Felhaber Larson.

At the heart of the ruling is whether the Biden administration overstepped its authority in mandating the COVID-19 vaccine for covered federal contractors.  Judge Baker, in granting the nationwide injunction, wrote that, “even in times of crisis this Court must preserve the rule of law and ensure that all branches of government act within the bounds of their constitutionally granted authorities.”

Bottom Line

What does this mean for employers: for now, all of the vaccination mandates are on hold.  However, employers should keep their fingers on the pulse of these lawsuits as they wend their way through the appellate process.  Companies must also remain mindful of possible local vaccination mandates.  For example, by December 27, private sector employees in New York City will need to show proof of receiving at least one dose of a COVID-19 vaccine to work on the employer’s premises.  As federal mandates fall, cities and states may take up the mantle in mandating vaccines.  And of course, businesses remain free, in most states, to develop their own employee vaccination policies.  As always, stay tuned.

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On November 30, a federal court in Louisiana also concluded that the CMS vaccine mandate was legally suspect.  The Louisiana court, however, did not limit the geographic scope of its injunction.  Instead, it reasoned that “due to the nationwide scope of the CMS Mandate, a nationwide injunction is necessary due to the need for uniformity.”

In its order, the Louisiana court made clear that HHS and CMS are enjoined from enforcing the CMS vaccinate mandate, 86 Fed. Reg. 61,555 (Nov. 5, 2021), pending further order from the court or an appeal to the Fifth Circuit (or, ultimately, the Supreme Court):

For the reasons set forth in this Court’s ruling, Plaintiff States’ Motion for Preliminary Injunction [Doc. No. 2] is GRANTED. Therefore, the U.S. Department of Health and Human Services and the Center for Medicare and Medicaid Services, along with their directors, employees, Administrators and Secretaries are hereby ENJOINED and RESTRAINED from implementing the CMS Mandate set forth in 86 Fed. Reg. 61555-01 (November 5, 2021) as to all healthcare providers, suppliers, owners, employees, and all others covered by said CMS Mandate.

The Louisiana court acknowledged that federal appeals courts would have the final say on the matter.  However, the court noted that “it is important to preserve the status quo in this case.”

So What Next?

CMS will undoubtedly appeal the decision to the Fifth Circuit and, eventually, to the Supreme Court.  In the near term, however, the Louisiana court’s decision gives covered healthcare employers some flexibility in how they wish to proceed.

First, to be clear, healthcare employers wishing to proceed with a mandatory vaccination policy have the right to do so (even in the absence of the CMS mandate).  Indeed, before the CMS mandate, courts consistently upheld mandatory vaccination policies, provided that the employer accommodates those with sincerely-held religious beliefs or medical contraindications.

Second, for healthcare employers who were scrambling to meet the CMS deadline of December 6 for having nearly all workers receive at least the first dose of the COVID-19 vaccine (or have requested an exemption), they will likely not be required to remove workers who have not met these requirements by Monday.  Stated differently, the Louisiana court’s injunction would likely prevent CMS from faulting the employer for failing to comply with the CMS Mandate by December 6.

Finally, does this mean healthcare employers should abandon their COVID-19 vaccine mandates?  Certainly not.  Employers should be aware that CMS will invariably appeal and, at any time, an appellate court could lift the injunction.  Employers who have already enacted their own policies could simply proceed with them if the CMS mandate remains in place.  Again, the court’s injunction is directed at CMS, so the agency is prevented from enforcing its vaccine mandate against healthcare employers.

Bottom Line

While it will take time for the dust to settle, the decision does not impact healthcare employers who have already implemented a COVID-19 vaccine mandate and who were planning to do so regardless of the CMS mandate.  For those employers who implemented the mandate only because of the CMS rule, they will likely have additional time to comply while CMS appeals the court’s decision, but they should not assume that the mandate will not go into effect.  Indeed, after CMS appeals the decision, the injunction could be lifted at any time.

We will continue to monitor this situation as it develops.

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In response to the IFC, several states, including Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire filed suit in federal district court in Missouri alleging that the vaccine mandate exceeded CMS’s congressionally-prescribed authority and was arbitrary and capricious.

On November 29, the Missouri federal district court sided with the states and concluded that “Congress did not grant CMS authority to mandate the vaccine.”  What is more, the court concluded that the vaccine mandate appears to offend federalism because “CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans.”  Nevertheless, even if it did have the authority to issue the IFC, the court concluded that CMS violated the Administrative Procedure Act by implementing the final rule without the required notice and comment period.

Ultimately, the court granted the plaintiffs’ request for an injunction – preventing CMS from enforcing the IFC – but only in states that requested the injunction:

IT IS HEREBY ORDERED that Defendants are preliminarily enjoined from the implementation and enforcement of 86 Fed. Reg. 61,555 (Nov. 5, 2021), the Interim Final Rule with Comment Period entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination,” against any and all Medicare- and Medicaid-certified providers and suppliers within the States of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming pending a trial on the merits of this action or until further order of this Court. Defendants shall immediately cease all implementation or enforcement of the Interim Final Rule with Comment Period as to any Medicare- and Medicaid-certified providers and suppliers within the States of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.

Thus, unless additional states seek relief based on the court’s decision, CMS will not be prevented from enforcing the IFC in other states – including Minnesota and Wisconsin – during the pendency of the Missouri litigation.

Bottom Line

CMS will no doubt seek an immediate appeal of the court’s decision with the Eighth Circuit.  However, it will take some time for the agency to file its appeal and for the Eighth Circuit to issue a decision.  In the meantime, healthcare employers in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming should be aware that CMS is prohibited by court order from attempting to enforce the IFC in your states.  However, under the current court order, CMS is not prevented from enforcing the IFC in any other state.

Ultimately, even if the Eighth Circuit reverses the Missouri court’s decision, at the very least, employers in the states listed above will have additional time to implement the CMS requirements.  Healthcare employers in other states will not be eligible for a delay in the absence of further action by the court or CMS.

We will continue to monitor this issue as it develops.

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Remember, in September, the Safer Federal Workforce Task Force issued guidance in accordance with Executive Order 14042.  The Task Force’s guidance requires covered federal contractors (and subcontractors) to implement a “hard” vaccine mandate and, by December 8, 2021, ensure that their employees are either: (a) “fully vaccinated” or (b) have requested and received a medical or religious accommodation.  Our original blog post on the federal contractor requirements is available here.

In light of the new OSHA COVID-19 ETS and CMS Rules, which were announced last week, the White House decided to delay the vaccination requirement for federal contractors.  According to the White House, this delay will make it easier for employers who may have employees that are subject to each of the three vaccine requirements (i.e., OSHA, CMS, or federal contractors):

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.

See here for more information.

Bottom Line

While the extension to January 4, 2022 is welcome news for federal contractors (and subcontractors), the Safer Federal Workforce Task Force’s website has yet to update the vaccination deadline.  Further, the delay in the “fully vaccinated” requirement does not push back any of the other compliance deadlines in the federal contractor guidelines, including masking and social-distancing protocols.  Thus, federal contractors (and subcontractors) should continue to prepare for these rules with the understanding that they will have additional time to convince employees covered by the federal contractor rules to either: (a) receive the COVID-19 vaccine or (b) request and receive a medical or religious exemption.

We will continue to monitor this issue as it develops.

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The IFC comes nearly two months after President Biden announced the CMS rule as part of a five-pronged plan targeted at increasing the number of people vaccinated against COVID-19.  The IFC takes effect immediately.

Importantly, the IFC, unlike the new OSHA ETS, does not provide weekly COVID-19 testing as an alternative to mandatory vaccination.  The CMS rule will preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.

Who is Covered by IFC?

The following Medicare- and Medicaid-certified providers and suppliers must ensure that all applicable staff are vaccinated for COVID-19:

• Ambulatory Surgical Centers
• Hospices
• Psychiatric residential treatment facilities
• Programs for All-Inclusive Care for the Elderly (PACE)
• Hospitals
• Long Term Care Facilities and nursing homes
• Intermediate Care Facilities for Individuals with Intellectual Disabilities
• Home Health Agencies
• Comprehensive Outpatient Rehabilitation Facilities
• Critical Access Hospitals
• Clinics, rehabilitation agencies, and public health agencies
• Community Mental Health Centers
• Home Infusion Therapy suppliers
• Rural Health Clinics/Federally Qualified Health Centers
• End-Stage Renal Disease Facilities

The IFC explains that all staff at these CMS-regulated facilities are subject to mandatory vaccination, “regardless of clinical responsibility or patient contact,” as long as they interact with other staff, patients, residents, or clients.  For instance, the IFC covers licensed practitioners, students, trainees, volunteers, and individuals who provide care, treatment, or other services for the facility and/or its patients, under contract or other arrangement.  The vaccine mandate further applies to administrative staff, facility leadership, and housekeeping and food services.

Individuals who provide services 100% remotely, such as fully remote telehealth or payroll services, are not subject to the vaccination requirements of the IFC.

Who is Not Covered by the IFC?

As outlined above, the IFC applies only to Medicare and Medicaid-certified facilities.  The rule does not apply to Assisted Living Facilities, Group Homes, or similar settings because CMS does not have regulatory authority over them.

Similarly, the IFC does not apply to physician’s offices because they are not subject to CMS health and safety regulations.  The IFC also does not apply to Medicaid home services, such as Home and Community-Based Services, because they are not covered by CMS’s health and safety regulations.

The IFC does not apply to all health care settings because CMS’s authority to make and publish rules and regulations is limited by the Social Security Act.  The Secretary of Health and Human Services does not have authority to regulate certain types of health care facilities, such as those mentioned above, or independent physicians/clinicians.

When Must Employees Be Fully Vaccinated?

Within 30 days of the IFC’s publication, covered individuals must have received the first dose, or only dose as applicable, of a COVID-19 vaccine (or have requested or been granted an exemption to the vaccination requirement).  The IFC requires that individuals who have not been granted an exemption be “fully vaccinated” within 60 days of the IFC’s publication.

Under the IFC, an individual is considered “fully vaccinated” two weeks after completion of a primary vaccination series, i.e., two weeks after receiving a dose of a single-dose vaccine and two weeks after receiving the final dose of a multi-dose vaccine.

Additional Requirements for Infection Prevention and Control

All facilities covered by the IFC must have a process for ensuring the implementation of additional precautions, intended to mitigate the transmission and spread of COVID-19, for all staff who are not fully vaccinated.

CMS acknowledged that many facilities covered by the IFC are already subject to meeting specific infection prevention and control requirements on an ongoing basis.  The IFC mandates that these facilities “have a process for ensuring the implementation of additional precautions” to mitigate the spread of COVID-19 for unvaccinated staff.

Documentation of Vaccinations

In order to ensure compliance with the vaccination requirements of the IFC, covered facilities are required to “track and securely document the vaccination status of each staff member, including those for whom there is a temporary delay in vaccination, such as receipt of monoclonal antibodies or convalescent plasma.”  In addition, vaccine exemption requests and outcomes must also be documented.  This documentation requirement will be an ongoing process as new staff are onboarded.

Pursuant to the ADA and the Rehabilitation Act, all medical records, including vaccine documentation, must be kept confidential and stored separately from an employer’s personnel files.

Vaccine Exemptions

The IFC makes clear that covered individuals must be able to request an exemption from the vaccination requirement based on an applicable Federal law, such as the ADA or Title VII of the Civil Rights Act.  Facilities must have a process for collecting and evaluating such requests.  As mentioned above, facilities must also track and document exemption requests, as well as the facility’s decision on the request, and any accommodations that are provided.

For individuals requesting a medical exemption from vaccination, all documentation confirming recognized clinical contraindications of COVID-19 vaccines, and which supports the individual’s request, “must be signed and dated by a licensed practitioner, who is not the individual requesting the exemption, and who is acting within their respective scope of practice.”  Such documentation “must contain all information specifying which of the authorized COVID-19 vaccines are clinically contraindicated for the staff member to receive and the recognized clinical reasons for the contraindications.”  The documentation must also include a “statement by the authenticating practitioner recommending that the staff member be exempted from the facility’s COVID-19 vaccination requirements based on the recognized clinical contraindications.”

Vaccine exemption requests based on medical condition or sincerely held religious belief should be evaluated in accordance with the facility’s established policies and procedures.  Potentially relevant here, the IFC states that it “preempts the applicability of any State or local law providing for exemptions to the extent such law provides broader exemptions than provided for by Federal law and are inconsistent with this IFC.”

Additional Planning

Due to likely unforeseen circumstances, CMS requires that facilities make “contingency plans” in consideration of staff that are not fully vaccinated to ensure that they will soon be vaccinated and will not provide care, treatment, or other services for the facility or its patients until such time as the staff member becomes vaccinated.  This planning should also address the safe provision of services by individuals who have requested an exemption from vaccination while their request is being considered.

Bottom Line

Publication of the IFC is a major step in the Biden Administration’s efforts to curb the continued spread of COVID-19.  However, the rule may not be in its final form.  Those affected by the rule have 60 days to submit comments on it, after which the CMS could post an updated final rule.  We will continue to monitor the situation and update accordingly.

The post CMS Issues Interim Final Rule on Vaccine Mandates for Healthcare Facilities appeared first on Felhaber Larson.

Title VII’s Broad Definition of Religion

Title VII defines religion broadly to include “all aspects of religious observance and practice as well as belief.”  Religion is not limited to mainstream denominations such as Christianity, Judaism or Islam, and includes nontraditional, uncommon, or even seemingly illogical or unreasonable religious beliefs.  While adherents of the satirical Church of the Flying Spaghetti Monster may be out of luck, employers should keep an open mind when presented with an accommodation request relating to an unfamiliar religion.  However, the definition of religion is not limitless.  “Social, political, or economic philosophies, as well as mere personal preferences, are not religious beliefs protected by Title VII.”

The Burden is on the Employee/Applicant to Request an Exception

The EEOC clarified that the onus is on the employee or applicant to request a religious exception, though employers should be aware that employees are not required to use any “magic” words such as “religious exception” or “sincerely held religious belief”.  Instead, employees must “notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.”

Employers Should Trust, But Can Verify

Employers facing a major influx in religious exception requests may be wondering whether they can challenge these requests.  While employers should typically accept an employee’s claim that their religious beliefs are sincerely held, that is not the final word on the matter.  Employers can request verification from an employee or applicant when it has an objective reason to doubt an employee’s sincerity of the religious belief, the religious nature of the objection to the vaccine, or an employee’s explanation of how their religious beliefs conflict with the vaccine mandate.

Religious Exceptions That Create an Undue Hardship May be Denied

The EEOC clarified that if a request for religious exception to the vaccine causes an undue hardship on the employers’ operations, the request may be denied.  Some examples of situations where courts have found undue hardship include when the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.  However, before an employer denies an exception request due to undue hardship, the company should consider whether alternative accommodations, such as continuing to allow telework, would be feasible.

Bottom Line

Employers who implement vaccination mandates must be prepared to evaluate requests for religious exceptions.  Understanding when an employer can seek verification relating to an employee’s religious beliefs and whether a particular request can be denied based on undue hardship will be important.  Employers can avoid potential issues by creating processes for applicants and employees to request religious exceptions, training up a centralized team who can review and approve or deny the requests, and ensuring decisions are made as objectively and consistently as possible while documenting all actions taken in the accommodation request process.

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State Action to Prohibit Vaccine Mandates

Governor Abbott’s executive order provides:

No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.  I hereby suspend all relevant statutes to the extent necessary to enforce this prohibition.

Interestingly, Governor Abbott’s order states that an entity cannot “compel receipt” of a COVID-19 vaccine.  It is arguable that no employer vaccine mandate – not even a “hard” mandate – “compels receipt” of the vaccine.  Instead, employees are required to be vaccinated (or receive an accommodation) as a condition of employment.

Governor Abbott has called on the Texas Legislature to pass a law to the same effect as his executive order.  If the legislature does so, Texas would become the second state to pass a law prohibiting vaccine mandates.

Earlier this year, the Montana Legislature passed a law banning employers from requiring their employees to be vaccinated against COVID-19.  Under the Montana law, requiring vaccines as a condition of employment is deemed “discrimination” and a violation of the state’s human rights laws.

President Biden’s Vaccine Mandates

As we reported previously, President Biden announced a plan last month targeted at increasing the number of people vaccinated against COVID-19.

One prong of President Biden’s plan was a “hard” vaccine mandate for federal employees and federal contractors.  Recent guidance related to this mandate confirmed that employees of federal contractors do not have the option of testing in lieu of receiving the COVID-19 vaccine.  Instead, on or before December 8, 2021, employees of federal contractors (and subcontractors) must be either: (a) fully vaccinated for COVID-19 or (b) receive a religious or medical accommodation.

Texas is home to major federal contractors, including American Airlines and Southwest Airlines, who have already announced they will abide by President Biden’s mandate.  The apparent conflict between Governor Abbott’s and President Biden’s executive orders is resolved by the Supremacy Clause of the United States Constitution, which provides that federal laws trump conflicting state laws.

Indeed, the guidance related to the federal contractor vaccine mandate makes clear that it preempts any conflicting state laws:

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.

In addition to the hard vaccine mandate for federal contractors, President Biden’s plan included a new CMS rule requiring all healthcare workers in CMS-regulated settings (including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies) to be vaccinated against COVID-19.

The new CMS rule still needs to be drafted, but it will most assuredly similarly preempt any conflicting state executive order or law.

Bottom Line

While state and local governments may take certain actions related to mandatory vaccinations, it is important to remember that they may be preempted by any conflicting requirement that is promulgated pursuant to federal law.  We will continue to monitor these situations as they develop.

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The Guidance provides that, beginning on November 14, the vaccination requirement must be added to any “new” federal contract and any existing federal contract that is “renewed.”  However, federal agencies are “encouraged” to include the vaccine requirement in their federal contracts beginning on October 15.

Background

As we previously reported, on September 9, President Biden announced “hard” vaccine mandates for healthcare workers and federal contractors.   A “hard” mandate means that employees must receive the vaccine or a medical or religious accommodation.  Unlike a “soft” mandate, testing in lieu of vaccination is not an option.  Remember, President Biden also announced that OSHA would issue a “soft” mandate for employers with 100 or more employees.

The Guidance released on Friday does not address the OSHA standard or the CMS rule for healthcare workers.  These rules are still being drafted.  That said, the Guidance offers insights into how the OSHA and CMS rules may be drafted.

Testing Is Not an Option

As noted above, employees of federal contractors do not have the option of “testing” in lieu of receiving the COVID-19 vaccine.  Instead, on or before December 8, 2021, employees of federal contractors (and subcontractors) must be either: (a) fully vaccinated for COVID-19 (i.e., two weeks after the final dose) or (b) receive a religious or medical accommodation:

Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than December 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.

The Guidance recognizes that employees may need an accommodation under the ADA because of a medical contraindication or under Title VII because of a sincerely-held religious belief:

A covered contractor may be required to provide an accommodation to covered contractor employees who communicate to the covered contractor that they are not vaccinated against COVID-19 because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance. A covered contractor should review and consider what, if any, accommodation it must offer. Requests for “medical accommodation” or “medical exceptions” should be treated as requests for a disability accommodation.

How Broad is the Federal Contractor Mandate?

The vaccine mandate applies to all full- and part-time workers “working on or in connection with a covered contract or working at a covered contractor workplace.”  Thus, in addition to covering those working “on or in connection” with the federal contract, it also covers non-federal contractor employees performing other, non-covered work at the same facility (i.e., a “covered contractor workplace”).  In fact, the Guidance makes clear that “covered contractor employee” can include “employees of covered contractors who are not themselves working on or in connection with a covered contract.”

A “campus-like environment” constitutes one “covered contractor workplace” even if only one building houses all of the people who work “on or in connection with” the federal contract/subcontract unless a covered contractor can affirmatively determine that none of its employees in or at one building, site, or facility will come into contact with a covered contractor employee during the period of performance of a covered contract.

There is a limited exception for employees who perform work exclusively at the “employee’s residence” (i.e., telecommuters), but even that exception may not apply if the individual is deemed a “covered contractor employee.”  Thus, with some (very) limited exceptions, the mandate seemingly covers nearly all of the federal contractor and subcontractor’s employees.

In a separate FAQ, the Guidance suggests that even those who do not perform work on the federal contract but whose work is “necessary to” the covered contract are covered by the mandate:

Q17: What constitutes work performed “in connection with” a covered contract? 

A:  Employees who perform duties necessary to the performance of the covered contract, but  who are not directly engaged in performing the specific work called for by the covered contract,  such as human resources, billing, and legal review, perform work in connection with a Federal  Government contract.

Federal Contractors Cannot Freely Grant Accommodations

As noted above, the Guidance states that vaccination is required “unless the employee is legally entitled to an accommodation.”  This seems to suggest that a contractor cannot comply with the Guidance by liberally granting medical or religious exemptions to requesting employees if the employee is not “legally entitled” to the accommodation.

Instead, in accordance with the ADA and Title VII, the contractor seems to be required to carefully review the exemption request, gather any additional information, and make a decision based on existing ADA and Title VII standards.

Contractor Duties

A covered contractor must review its covered employees’ documentation to prove vaccination status.  Specifically, covered contractors must have a designated person or persons that will implement the Guidance and “ensure that covered contractor employees (including visitors) comply with the requirements . . . related to the showing or provision of proper vaccination documentation.”

The Guidance strongly encourages agencies and covered contractors to incorporate the Order into non-covered contracts and subcontracts, and all contracts prior to the date upon which the Order requires inclusion of the clause.  For covered contracts, the Guidance specifically refers to companies that provide food services, onsite security and groundskeeping services at covered contractor workplaces.

Conflicting State Laws Will Likely Be Preempted

In addition, while some states have passed laws prohibiting vaccine mandates, the Guidance makes clear that it preempts any conflicting standard:

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.

Bottom Line

Federal contractors need to act quickly to implement the sweeping standards set forth in the Guidance.  While the Guidance leaves many questions unanswered, federal contractors (and subcontractors) should begin planning for a contracting environment where all new and renewed contracts will require vaccination of employees beginning as soon as October 15.

For non-federal contractors, the Guidance provides insight into how the federal government will prescribe “hard mandates.”  Remember, though, employers not covered by the federal contractor rules or the CMS rules will not be required to implement a “hard” vaccine mandate.  Instead, the forthcoming OSHA ETS rule will allow employees to undergo COVID-19 testing in lieu of receiving the COVID-19 vaccine.

We will continue to monitor this issue as it develops.

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The vaccination mandates announced by President Biden include both “hard” mandates (for certain healthcare workers and federal workers) and “soft” mandates (for private-sector workers in businesses with more than 100 employees).  In addition, the plan will provide paid time off for vaccination for most workers in the country.  Each is described below.

New OSHA ETS Standard Requiring Private Employers with 100+ Employees to Implement “Soft” Mandates

The first prong in President Biden’s plan is to have OSHA issue a new Emergency Temporary Standard (or “ETS”) that will require all employers with 100+ employees to mandate that employees either: (a) receive the COVID-19 vaccine or (b) submit to weekly testing.  To be clear, this will be a new OSHA standard that will apply to all employers with 100 or more employees.

Here’s the statement from the White House:

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

https://www.whitehouse.gov/covidplan/.

New “Hard” Mandate for Federal Employees and Federal Contractors

The second prong of President Biden’s plan is to issue executive orders requiring all federal employees and contractors to receive the COVID-19 vaccine.  (Available here and here).  Unlike the OSHA ETS standard, weekly testing is not an option for federal employees.  Instead, exceptions to the vaccine mandate will be made “only as required by law.”

New CMS Rule Mandating Vaccination for Healthcare Workers

The third component of President Biden’s plan is a new CMS rule requiring all healthcare workers in CMS-regulated settings (including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies) to be vaccinated against COVID-19.

Here’s the explanation from the White House:

The Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This action builds on the vaccination requirement for nursing facilities recently announced by CMS, and will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. These requirements will apply to approximately 50,000 providers and cover a majority of health care workers across the country. Some facilities and states have begun to adopt hospital staff or health care sector vaccination mandates. This action will create a consistent standard across the country, while giving patients assurance of the vaccination status of those delivering care.

The new rule still needs to be drafted and submitted for public review, but, from the White House’s description, it appears that COVID-19 vaccination will be required for healthcare workers, including those without direct patient care.  That is, unlike the OSHA ETS rule, there is no option for weekly testing.  It is not known whether the forthcoming CMS rule will contain exemptions for medical contraindications or religious objections.

Indeed, time is of the essence for healthcare employers.  Just yesterday, the CMS published a notice on its website stating that it is anticipating issuing the new rules in October 2021 and that “facilities across the country should make efforts now to get health care staff vaccinated to make sure they are in compliance when the rule takes effect.”  (Available here).

Requiring Proof of Vaccination at Large Venues

The fourth component of President Biden’s plan calls on large entertainment venues, like sports arenas and concert halls, to “require that their patrons be vaccinated or show a negative test for entry.”  It is not clear whether or how the administration will enforce this mandate.

Paid Time Off for Getting Vaccinated

The final component of President Biden’s plan is that, as part of the OSHA ETS Rule that applies to employers with 100 or more employees, employers will be required to provide paid time off “for workers to get vaccinated or to recover” after they receive the COVID-19 vaccination.

Bottom Line

President Biden’s plan is ambitious.  But, the details of his plan will not be known until federal agencies, such as OSHA and CMS, publish the rules outlined by President Biden.  These rules will be published in the coming weeks and we will continue to monitor this situation as it develops.

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According to the CDC, some individuals who were infected with the COVID-19 virus, even if their cases were asymptomatic, report experiencing a wide range of symptoms weeks or months after the initial infection.  These symptoms include tiredness or fatigue, “brain fog,” cough, chest or stomach pain, headache, pins-and-needles feeling, changes in smell or taste, and sleep problems, among others.  The illness is referred to as “long COVID,” “long-haul COVID,” or “post-acute COVID-19.”

To analyze whether long COVID is considered a disability, the departments looked to the definition of disability found in 42 U.S.C. § 12102: “a physical or mental impairment that substantially limits one or more major life activities of such individual, a record of such an impairment, or being regarded as having such an impairment.”

Considering the expansive definitions, HHS and the DOJ determined that long COVID can be a physical or mental impairment under the ADA, and that in some instances, can substantially limit one or more major life activities.  However, the guidance clarified that a person suffering from long COVID may not always exhibit symptoms that substantially limit a major life activity.  For that reason, all assessments of disability must be conducted on a case-by-case basis.

Employees suffering from long COVID have begun filing lawsuits against employers alleging failure to accommodate and disability discrimination under various state and federal laws.  In one such lawsuit, an employee claims that after she contracted COVID-19, she suffered lingering breathing issues and was determined to be a COVID long hauler.  Probert v. Mubea, Inc., No. 2:21-cv-11660 (E.D. Mich. July 21, 2021).  To support her claim of disability discrimination in violation of the Michigan Persons with Disabilities Civil Rights Act, the employee alleges her breathing issues “affected the major life function of breathing” rendering her disabled, that the disability did not impede her ability to perform her job, and that her employer terminated her, in part, because of the disability.  Id.

Bottom Line

Employers should be prepared to field employee accommodations requests related to long COVID and should follow their established accommodation request procedure.  If an employee requests an accommodation, such as additional break time, part-time or modified work schedule, or reassignment, employers can ask questions or request medical documentation to determine whether the employee’s long COVID is, in fact, a disability and whether any accommodation is warranted.

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The EEOC’s May 28, 2021, Guidance on COVID-19 and an accompanying Press Release summarizes the EEOC’s position that “no federal EEO law prohibited employers from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”

This is a good time to brush up on what employers need to remember when implementing a mandatory COVID-19 vaccination program.

Provide Accommodations When Requested, If Feasible

The EEOC guidance provides that employers should grant employees reasonable accommodations due to disability, religious objections, or pregnancy.  Employees who object to receiving the vaccine must request an accommodation from the employer, provide the reason the employee is making the request and any supporting documentation, as appropriate.  Employers should then consider whether a reasonable accommodation can be made to allow the employee to continue working without receiving the vaccine.  Examples of possible accommodations include requiring that the employee continue masking, social distancing, undergo periodic COVID-19 testing, or continue working remotely.

However, employers are not required to provide accommodations when it would pose an undue hardship on the company or when the employee’s objection to the vaccine poses a direct threat to the health in the workplace.

Consider Offering Incentives, But Keep Them Reasonable

The guidance also clarified that employers could offer incentive programs to entice employees to get vaccinated, as long as the incentives were not so valuable as to amount to coercion.  So a couple of extra days of PTO, gift card, or cash?  Yes.  A boat, Rolex, or trip to the Maldives?  Sadly, no.

Do Request Verification, But Keep it Confidential

Employers are legally allowed to request proof of vaccination from their employees without running afoul of the ADA’s restriction on disability-related inquiries.  However, employers should limit their request to verification of receiving the vaccine without asking additional questions such as why an employee declined to be vaccinated.  All documentation or other confirmation of receiving the vaccine is medical information and must be kept confidential and stored separate from the employee’s personnel file.

Bottom Line

Employer vaccine mandates have been blessed by the EEOC, upheld by federal courts, and seem poised to become the norm.  However, employers still need to ensure their policies comply with the litany of laws governing vaccination programs.

The post Nursing Homes Required to Vaccinate Staff Against COVID-19 appeared first on Felhaber Larson.

This approach for many employers is attractive for a few reasons.  First, it empowers employees to make the decision for themselves and feel they have some say over their vaccine destiny.  Second, by providing a choice, those employees who cannot be vaccinated due to a disability or sincerely held religious belief may be more apt to discuss potential accommodations with their employer.  Last, employers adopting this approach may be seen as more flexible.

Bottom Line

In this time of profound labor shortages, many companies may be hesitant put off either current employees or potential applicants.  On the other hand, employer vaccine mandates are powerful tools to increase vaccination rates and keep the community safe.  So employers need to make the correct choice for their businesses.

The post Employers Offering “Soft” Vaccination Policies as an Alternative to Vaccine Mandates appeared first on Felhaber Larson.

The Seventh Circuit upheld Indiana University’s (“IU”) vaccine mandate, holding it did not violate the constitutional rights of the eight students who sued the University.  Under the policy, students who do not want to be vaccinated may seek health and religious exceptions/exemptions.  Students also have the choice to attend another institution if they disagree with the policy.  In a statement released after the decision, IU spokesperson Chuck Carney stated: “Once again, the court has affirmed our legitimate public health interest in assuring the safety of our students, faculty and staff . . .”  The students involved in the lawsuit plan to appeal to the U.S. Supreme Court.

Bottom Line

Employers are increasingly resorting to mandatory vaccination policies as COVID-19 cases surge and variants continue to spread.  If you are thinking about implementing a mandatory vaccination policy, please do not hesitate to reach out to a Felhaber Larson attorney for guidance.

The post Federal Appeals Court Upholds Indiana University’s Covid-19 Vaccine Mandate appeared first on Felhaber Larson.

CDC Now Encourages Masking in Certain Areas

As we previously reported, in May 2021, the CDC announced that “fully vaccinated people no longer need to wear a mask or physically distance in any setting.”  The latest guidance walks back this message, and emphasizes that individuals may “choose” to wear a mask if they are in an area of “substantial” or “high” COVID-19 transmission:

CDC recommends that fully vaccinated people . . .

• • • Wear a mask in public indoor settings if they are in an area of substantial or high transmission.
      • • Fully vaccinated people might choose to mask regardless of the level of transmission, particularly if they or someone in their household is immunocompromised or at increased risk for severe disease, or if someone in their household is unvaccinated. People who are at increased risk for severe disease include older adults and those who have certain medical conditions, such as diabetes, overweight or obesity, and heart conditions.

How do you know if you live in an area with “substantial” or “high” COVID-19 transmission?  The CDC has a county-by-county map that is available here.  Currently, only a few counties in northern and southwestern Minnesota have a “substantial” or “high” rate of transmission.  In the seven-county metro, only Scott County has a “substantial” level of spread.  But, as we have seen throughout this pandemic, this may change rapidly.

Other Recommendations for Fully-Vaccinated Individuals

The CDC also updated its recommendations for testing and isolation for fully-vaccinated individuals:

CDC recommends that fully vaccinated people . . .

• • • Get tested if experiencing COVID-19 symptoms.
    • Get tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and wear a mask in public indoor settings for 14 days after exposure or until a negative test result.
    • Isolate if they have tested positive for COVID-19 in the prior 10 days or are experiencing COVID-19 symptoms.
    • Follow any applicable federal, state, local, tribal, or territorial laws, rules, and regulations.

Of particular note, the CDC is now recommending that fully-vaccinated individuals get tested and wear a mask following a suspected or confirmed COVID-19 exposure.

Bottom Line

Keep these revised recommendations in mind as you start to bring employees back to the office.  Flexibility is important as the CDC’s guidance, as well as state and local guidance, will likely change depending on the continued spread of the delta variant.

The post CDC Updates Mask Guidance for Fully-Vaccinated Individuals appeared first on Felhaber Larson.

Recommendations for Protection of Unvaccinated and At-Risk Workers

The Guidance recommends that employers have unvaccinated and at-risk workers (i.e., people with conditions that may affect their ability to have a full immune response to vaccination) take the following precautions:

• • Get vaccinated because vaccination is the key in a multi-layered approach to protect workers;
  • Wear face coverings;
  • Socially distance from others;
  • Participate in workplace training about safety protocols; and
  • Practice good personal hygiene.

The Guidance acknowledges that workers with disabilities may be legally entitled to a reasonable accommodation that protects them from the risk of COVID-19 if they cannot be protected through vaccination, cannot get vaccinated, or cannot use face coverings.  Employers should consider taking steps to protect these workers in the same manner as they would unvaccinated workers, regardless of their vaccination status.

In addition, the Guidance recommends that employers engage with workers to implement a comprehensive plan to protect unvaccinated and at-risk workers, which utilizes the following:

• • Granting paid time off for employees to get vaccinated;
  • Ensuring that infected workers, people with COVID-19 symptoms, and unvaccinated people who have been in close contact with someone with COVID-19 are excluded from the workplace;
  • Implementing physical distancing for unvaccinated and at-risk workers in all communal work areas, including keeping people six feet apart or constructing barriers;
  • Providing unvaccinated and at-risk workers masks, facial coverings, or use of respirator or other PPE, keeping in mind anti-discrimination laws and potential reasonable accommodations;
  • Educating and training workers on COVID-19 policies and procedures using accessible formats and in an understandable vernacular;
  • Suggesting unvaccinated customers and visitors wear face coverings;
  • Maintaining ventilation systems to maximize indoor air circulation;
  • Performing routine cleaning and disinfection;
  • Recording and reporting COVID-19 infections, in-patient hospitalizations, and deaths in accordance with 29 CFR 1904; and
  • Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.

In addition, the Guidance reminds employers of their continuing obligation to follow mandatory OSHA standards related to PPE, respiratory protection, sanitation, protection from bloodborne pathogens, along with their eternal obligation under the General Duty Clause to provide a safe and healthful workplace free from recognized hazards.

Recommendations for Higher Risk Workplaces

Not to be ignored in the Guidance are the so-called higher risk workplaces, which include manufacturing, meat, poultry, seafood processing, high-volume retail, and other places where unvaccinated and at-risk workers are in close or prolonged contact with others, or where workers may be exposed to respiratory droplets in the air or on contaminated surfaces, or are in contact with or live with unvaccinated or at-risk individuals.  In these circumstances, the Guidance recommends that employers stagger break times and arrival/departure times to avoid congregations of unvaccinated and at-risk workers and to provide temporary break areas and restrooms to minimize interaction.

For workplaces with assembly or processing lines, the Guidance recommends proper spacing or use of barriers.  Retail workplaces are encouraged to provide masks for unvaccinated customers, ensure social distancing among clients, and to shift stocking activities to off-peak or after hours.  All work groups, not just high-risk, should maintain cleaning and sanitation protocols at all times.

Bottom Line

As with previous guidance, OSHA is not creating new standards or imposing new legal obligations on employers.  Instead, the Guidance aims to provide concrete recommendations for employers to ensure that all workers, particularly those that are unvaccinated or at-risk, are protected from COVID-19.  If employers, especially those in high risk workplaces, take good faith steps to heed these recommendations, an expansion of the Emergency Temporary Standard to other employment groups may not be necessary.  We will continue to monitor and report further developments.

The post On the Heels of the Emergency Standard for Healthcare, OSHA Provides Updated Guidance for the Rest of Us appeared first on Felhaber Larson.

Nuts and Bolts

The Standard requires healthcare employers to implement safeguards to reduce transmission of COVID-19 and to protect workers from contracting the virus, including:

1. 1. Employers must develop and implement a COVID-19 plan, which must be in writing if the employer has more than ten employees.  The plan must include a designated safety coordinator with authority to ensure compliance, a workplace-specific hazard assessment, and involvement of non-managerial employees in its creation.  The plan must be designed to promulgate policies and procedures to minimize the risk of transmission;
   2. Employers must limit and monitor points of entry to settings where direct patient care is provided, including screening and triaging of patients, clients, and other visitors entering the setting.  Employers are encouraged to use telehealth services where feasible;
   3. Employers must provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes.  Exceptions to the facemask requirement include:
      1. When the employee is alone in a room;
      2. When the employee is eating or drinking at the workplace, provided there is six feet of distance or a physical barrier separating the employee from others;
      3. When the employee is wearing respiratory protection;
      4. When it is important to see the employee’s mouth (such as when communicating with a deaf person);
      5. When the employee cannot wear a facemask due to medical necessity, a medical condition or disability, or due to a religious belief;
      6. When the employer can demonstrate that the use of a facemask presents a hazard to the employee or serious injury or death.
   4. Employers must provide and ensure employees use respirators and other PPE when exposed to people suspected or confirmed to have COVID-19;
   5. In cases where an aerosol-generating procedure is performed on a person suspected or confirmed to have COVID-19, the employer must limit the number of employees present to those essential for patient care and support and ensure the procedure is performed in an airborne infection isolation room, if available, and that all areas are cleaned and disinfected after the procedure is complete;
   6. Employers must ensure that each employee is separated from all other individuals by at least six feet when indoors, unless it is demonstrated that distancing is not feasible (e.g., during hands-on medical care).  In such a case, the employer must ensure that the employee is as far from other individuals as feasible;
   7. Employers must install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where each employee is not separated from others by at least six feet;
   8. Employers must ensure that cleaning and disinfection of surfaces and equipment is performed in accordance with CDC guidelines in all patient care areas, resident rooms, equipment, and high-touch surface areas;
   9. Employers must ensure that existing HVAC systems are used in accordance with manufacturer’s instructions and design specifications;
   10. Employer’s must have a system for health screening and medical management, including:
       1. Screening employees before each shift;
       2. Requiring employees to promptly notify the employer if they are COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms;
       3. Following requirements for removing employees from the workplace; and
       4. For employers with ten or more employees, providing medical removal benefits
   11. Employers must support COVID-19 vaccination for employees by providing reasonable time and paid leave for obtaining the vaccination and any side effects experienced after vaccination;
   12. Employers must ensure that all employees are trained regarding all relevant policies and procedures so they understand COVID-19 transmission, tasks and situations in the workplace that could result in infection;
   13. Employers must inform employees of their rights under the Standard and that they cannot be discharged or discriminated against for exercising their rights;
   14. Standard requirements must be implemented at no cost to employees.

In addition to the requirements listed above, the Standard requires that employers with ten or more employees retain all versions of its COVID-19 plan while the Standard remains in effect.  With regard to recordkeeping, employers must establish and maintain a COVID-19 log to record each instance in which an employee is COVID-19 positive, regardless of whether the instance is connected to exposure at work.  The Standard reiterates that the employer must report each work-related COVID-19 fatality within eight hours of the employer learning about the fatality and work-related in-patient hospitalizations within 24 hours.

Applicability of the Standard

The Standard applies to all settings where employees provide healthcare services or healthcare support services.  In situations where a healthcare setting is embedded within a non-healthcare setting, the Standard applies only to the embedded healthcare setting and not to the remainder of the physical location.  The Standard also applies to situations where emergency responders or other licensed healthcare workers enter a non-healthcare setting during the provision of healthcare services.

The Standard exempts fully vaccinated workers from masking, distancing, and barrier requirements in “well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.”  In order for fully vaccinated workers to be exempt from these requirements, however, an employer’s COVID-19 plan must “include policies and procedures to determine employees’ vaccination status.”

The Standard does not apply to the provision of first aid by an employee not licensed as a healthcare provider, the dispensing of prescriptions by a pharmacist in retail settings, non-hospital ambulatory care settings where all non-employees are screened prior to entry and people suspected or confirmed to have COVID-19 are not permitted to enter, healthcare support services not performed in a healthcare setting, and telehealth services performed outside of a setting where direct patient care occurs.

Bottom Line

It appears that in lieu of an all encompassing COVID-19 safety standard, OSHA elected to limit its safety measure to healthcare facilities such as hospitals, nursing homes, and assisted living facilities, along with emergency responders and home healthcare workers, in an attempt to target an industry that has been hard hit by the pandemic in terms of exposure and transmission of the virus.

While the Standard is estimated to cover and protect nearly 10 million healthcare workers, many employees in other industries – such as grocery and meatpacking– have criticized the narrow scope of the Standard and advocated for a broader range of coverage.

It will be interesting to see if OSHA decides to make this Standard permanent and/or to expand the scope of the Standard to other industries.  We will monitor this issue for further developments.

The post OSHA Enacts COVID-19 Safety Standard Covering Healthcare Employees appeared first on Felhaber Larson.

This statement effectively reverses and abandons previous guidance issued on April 20, 2021 in which OSHA stated that if an employer adopts a mandatory COVID-19 vaccination policy, an adverse reaction to the vaccine was recordable on its OSHA 300 log if the reaction was work related, a new case, and met one or more of the general recording criteria in 29 C.F.R. 1904.7.  The April 20 guidance told employers that mandate vaccinations that any adverse reaction to the vaccination was considered work-related and needed to be recorded.

OSHA is now saying that it will not enforce the recording requirement as applied to COVID-19 vaccinations through May 2022 as OSHA is concerned that requiring employers to list adverse reactions was hurting vaccination efforts.  Specifically, OSHA does not want to have any appearance of discouraging workers from receiving the COVID-19 vaccination and does not want to disincentivize employers’ vaccination efforts.

Bottom Line

In issuing the latest policy statement eliminating recording adverse vaccine reactions, OSHA is ensuring that it is in line with the Department of Labor and other federal agencies in encouraging vaccination for the COVID-19 virus.  OSHA does not want to give the appearance that it is encouraging workers to refuse vaccinations or to discourage employer vaccination efforts.  By abandoning its recording requirement for adverse vaccination reactions until May 2022, OSHA is seeking to ensure that it is not a hinderance to employer efforts to vaccinate workers either through mandatory vaccination programs or through strong recommendation.

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The newly issued FAQs address several topics related to COVID-19 vaccination programs, including whether employers can require the vaccine as a condition of employment, what incentives can be offered to get employees vaccinated, and how employee vaccination records must be treated by employers. The EEOC’s answers to these questions are highlighted below.

Can Employers Require COVID-19 Vaccination As a Condition of Employment? Answer – Yes.

In response to the question, “Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated for COVID-19?” the EEOC stated that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” with the caveat, as we have previously reported, that employers must still accommodate employees’ disabilities and sincerely held religious beliefs which prevent them from complying with a vaccination mandate, unless doing so imposes an undue hardship or causes a direct threat.

Can Employers Provide Incentives for Employees Who Get Vaccinated? Answer – Yes.

In response to the question “ may an employer offer an incentive to employees for voluntarily receiving a vaccination . . .” the EEOC’s guidance is twofold. If the employer itself is the one administering the vaccination, then the EEOC notes that the practice is permissible, so long as “any incentive (which includes both rewards and penalties) is not so substantial as to be coercive,” going further to note that “because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.”

However, if the employer or its agent is not administering the vaccine but is only offering an incentive for employees to provide documentation or other confirmation that they have received a vaccination (which, as we have previously noted, is not a disability-related inquiry) then offering an incentive is permissible, per the new EEOC guidance.

Is a Record of an Employee Receiving COVID-19 Vaccination Considered Confidential Medical Information under the ADA? Answer – Yes.

Finally, the EEOC notes the following with respect to how employee vaccination information must be kept by employers:

The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination.  This ADA confidentiality requirement applies regardless of where the employee gets the vaccination.  Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.

Bottom Line

This newly issued guidance provides answers to many important questions regarding COVID-19 vaccination programs in the workplace. The answers to these questions appear to indicate a favorable stance by the EEOC towards companies encouraging (or ensuring) that their employees are vaccinated, both under mandatory policies as well as through incentive programs.

The post Breaking News – EEOC Publishes Additional Guidance Answering Major Burning Questions Regarding COVID-19 Vaccination Programs appeared first on Felhaber Larson.

Governor Walz’s recent Executive Order that rescinded the state-wide requirement to wear facemasks was silent on Minnesota employers’ obligations to implement and enforce a COVID-19 Preparedness Plan.  Therefore, Minnesota employers remain subject to the prior Executive Orders that require all critical and non-critical businesses to have a Preparedness Plan in place.

If an employer decides to lift its own restrictions and allow employees to work without masks, then appropriate changes to their Preparedness Plans should be made.  And even if an employer continues to require masks, now is a good time to review your Preparedness Plan to ensure that it reflects current best practices established by the State of Minnesota, the CDC, OSHA, and the specific needs of your organization.  A lot has changed since employers drafted and implemented Preparedness Plans a year ago.  An out of date Plan that does not reflect current standards may cause confusion among employees as to what rules to follow, or may cause employees to ignore your Preparedness Plan altogether because they believe it is a relic of the past.  Also, given all of these recent changes, clear communication to employees about workplace rules and expectations is a must.

Bottom Line

Further changes on this front is a certainty, but for now, all Minnesota employers are required to have a Preparedness Plan in place and they should consult with their Felhaber employment attorney to review their past plan to determine whether and what changes should be made to reflect recent guidance from the State of Minnesota and the CDC.

The post Do Minnesotan Employers Still Need a Preparedness Plan If Masks Are Out? appeared first on Felhaber Larson.

Then, late yesterday, Gov. Walz followed suit, announcing that he would issue an executive order lifting the state’s state-wide masking mandate and asking only that “Minnesotans who are not fully vaccinated are strongly recommended to wear face coverings indoors.”  In his announcement, however, Gov. Walz made clear that “private businesses and local municipalities may still put in place face covering requirements.”  Indeed, Minneapolis and St. Paul have committed to keep their masking ordinances in place and some employers, like Target, have announced that they will keep masking requirements in place.

These new rules regarding fully-vaccinated individuals unfortunately create more questions than answers as they are interpreted by employers throughout the country.  And, while answers will become clearer in the coming days, here are some of the biggest questions facing employers in light of this new guidance.

FAQ#1—Does This New Guidance Affect Healthcare Employers?

No.  The CDC guidance makes clear that its revised “recommendations apply to non-healthcare settings.”  Healthcare employers should continue following the CDC’s “Healthcare Infection Prevention and Control Recommendations,” which were last updated on April 27 and are available here.

Likewise, Gov. Walz made clear that “Minnesotans should follow CDC guidance and wear masks in medical settings and on public transportation, whether or not they are fully vaccinated.”

FAQ#2—If I require workers to wear masks, can my employees tell me that they’re no longer going to wear masks?

No.  Employers are free to continue to require workers to wear masks and practice social distancing.  The revised CDC guidance and Gov. Walz’s announcement do nothing to preclude employers from promulgating and enforcing safety rules.  Failure by employees to obey employer rules should be managed like any other performance issue.

In fact, as noted below, the Occupational Safety and Health Administration (OSHA) has not issued revised guidance incorporating the new CDC guidance on masking, so employers would be best served to wait until OSHA adopts the latest CDC guidance before making changes to their safety and social distancing protocols.

FAQ#3—What if I want to follow the new CDC guidance and allow my fully-vaccinated workers to remove their masks?

This is a difficult question and there are a number of issues to consider.  First, the new CDC guidance makes clear that the loosened restrictions on masking does not supplant “local business and workplace guidance.”  Thus, local mandates, like those in Minneapolis and St. Paul would continue to apply to businesses.

Second, as noted above, OSHA has not issued revised guidance incorporating the new CDC guidance.  Instead, the most-recent OSHA guidance, which was released in January 2021, suggests that workers should continue to wear face coverings, even after becoming fully vaccinated:

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.

(Available at: https://www.osha.gov/coronavirus/safework).  Importantly, though, because OSHA’s guidance expressly incorporates the CDC’s guidelines on masking, it is likely that OSHA will revise its guidelines to align with the CDC’s belief that fully-vaccinated individuals should be subject to fewer masking and social distancing restrictions.  But, until the guidance is revised, employers may wish to continue following the current guidance until it is updated.

Finally, there is a practical issue of whether you can (or should) confirm that employees are, in fact, fully-vaccinated.  The safest approach would be to verify the employee’s vaccinated status because, if an unvaccinated employee infected a coworker, customer, or client, the employer could be alleged to be negligent in allowing its workers to discard their masks without confirming.  If you do confirm vaccinated status, you should follow the EEOC guidance on not asking for additional medical information or asking an employee “why” the individual is not vaccinated.

Bottom Line

The latest CDC guidance suggests that fully-vaccinated workers may be given more freedom for removing their masks.  But, employers may still be subject to local masking mandates that are not affected by the CDC’s revised guidance or Gov. Walz’s announcement.  In addition, because OSHA’s guidance has yet to be revised, employers may need to wait for revised OSHA guidance before making changes to their safety and social distancing protocols.

If you do want to follow the new CDC guidance regarding allowing fully-vaccinated employees to work without a mask, it is advisable to consider confirming that the employee is, in fact, fully-vaccinated.  This process, though, is also ripe with pitfalls, so be sure to limit your inquires to whether the employee received the final dose more than 14 days ago and, if they haven’t, not asking “why” or otherwise seeking additional medical information.

We will continue to monitor this issue as it develops.

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Current status of emergency COVID-19 paid sick and family leave.

As noted above, employers are no longer required to provide emergency paid sick leave or emergency paid family leave for reasons related to COVID-19 (as of December 31, 2020). However, covered employers have the ability, through September 30, 2021, to receive payroll tax credits covering wages paid to employees who take COVID-19 related leave.

Below is a summary of some common questions regarding the scope and availability of the tax credit under the ARPA.

Do employers have to grant leave?

No. Unlike under the FFCRA, employers are not required to provide employee with paid sick or family leave due to COVID-19. However, employers still must comply with any other applicable state or federal law with respect to an employee’s need for leave, for example, the Americans with Disabilities Act.

What employers qualify for the tax credit?

Employers with fewer than 500 employees qualify for the tax credit if they offer their employees paid leave for the reasons discussed below.

What reasons for leave are covered?

Employees who take leave for the following reasons qualify for the tax credit:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. The employee has been advised by a health care provider to self-quarantine related to COVID-19;
3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. The employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
5. The employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

The above reasons are the same as those under the FFCRA, with the ARPA additionally providing that the following reasons for leave are now covered as well:

7. The employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID–19 and such employee has been exposed to COVID–19 or the employee’s employer has requested such test or diagnosis, or
8. The employee is obtaining immunization related to COVID–19; or
9. Recovering from any injury, disability, illness, or condition related to such immunization.

How much covered leave is available?

Employers may seek the credit for employees who take leave for up to twelve weeks (as discussed below).

The ARPA additionally “resets” an employee’s leave “bank” effective April 1, 2021, meaning that if an employee previously took the maximum amount of leave prior to April 1, 2021, they may again be eligible for leave covered by the tax credit.

What rate of pay is reimbursable as a credit?

The rate of pay an employee is entitled to receive varies depending on the reason that an employee takes the leave:

• If an employee takes leave due to the first, second, or third reasons in the list above, the employee is entitled to their regular rate of pay (up to $511 per day) for up to ten days and is further eligible to receive two-thirds of their regular rate of pay (up to $200 per day) for an additional ten weeks afterwards (up to a total cap of $12,000.)
• For the other reasons listed above, the credit covers two-thirds of the employee’s regular rate of pay (up to $200 per day) for twelve weeks total (up to a total cap of $12,000.)

Can leave only be provided to a portion of an employer’s workforce?

The ARPA provides that the tax credit is not available to employers who provides the leave to only a portion of their workforce if eligibility is limited to:

1. Highly compensated employees (e.g. an employee who earns more than $130,000.00 annually);
2. Full-time employees; or
3. Discrimination based on employment tenure.

Further, as a practical matter if an employer is only providing the paid leave to a portion of its workforce it should make sure that doing so does not have a disparate impact on members of specific protected classes (race, age, sex, etc.).

 Can employers only provide leave for some, but not all, of the covered reasons?

 The ARPA itself is silent with respect to whether an employer can still receive the tax credit if they elect to only provide paid leave for some, but not all, of the covered reasons for leave. The ARPA is similarly silent with respect to whether an employer can elect to make the leave available for a shorter period (i.e., by discontinuing the availability of paid leave before September 30).

Given the fact that an employer’s decision to provide paid leave is now voluntary, it appears likely that an employer can grant leave for a shortened period or for only some of the covered reasons while still qualifying for the tax credit, however, this conclusion is not certain. Both the Department of Labor and the IRS have stated that guidance regarding ARPA-covered leave is forthcoming but said guidance has not yet been issued.

Bottom Line

The ARPA provides employers with some tax relief should they elect to allow employees to continue to take paid leave for reasons related to COVID-19, including for the expanded reasons related to an employee receiving COVID-19 vaccination. Again, while an employer is not required to provide this type of leave, employers may want to consider whether it makes sense to offer these benefits to employees given the tax relief in doing so.

The post Emergency Paid Sick Leave and Family Leave Tax Credits Under the American Rescue Plan Act appeared first on Felhaber Larson.

Working from Home No Longer Required Effective April 15

For months, Minnesota employers have been required to have all employees who could work from home do so. Under the new Order, this requirement has been made non-mandatory, now reading as follows:

“Beginning April 14, 2021 at 11:59 p.m., employers are strongly encouraged to allow employees who can work from home to continue to work from home. Employers are also strongly encouraged to implement reasonable accommodations for at-risk employees or employees with one or more members of their households who have underlying medical conditions and are not yet eligible for vaccination.”

The Order additionally notes that employers must still comply with their “obligations to provide reasonable accommodations for qualified employees with disabilities” under State and Federal law.

Social Distancing Still Required

Even with workers returning to the office, the Order additionally provides that “[a]ll work must be conducted in a manner that adheres to Minnesota OSHA Standards and MDH and CDC Guidelines, including social distancing and hygiene practices.” Although these requirements may change as more individuals become vaccinated, the current CDC guidance (most recently updated March 8) still recommends social distancing of at least six feet.

Bottom Line

The Governor’s most recent Executive Order represents the most dramatic reduction in COVID-related restrictions for employers to date, and signals the light at the end of the tunnel for employers who wish to begin resuming “normal” operations post-pandemic.

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Extension of Tax Credits for Employers Who Voluntarily Provide E-PSL and E-FMLA

As we previously wrote, the Families First Coronavirus Response Act (FFCRA), which required certain employers to provide COVID-19 repeated emergency paid sick and family leave to employees, expired on December 31, 2020. However, given the ongoing nature of the pandemic, former President Trump signed the 2021 Consolidated Appropriations Act (CAA), which permitted employers to choose whether to provide paid leave on a voluntary basis. If an employer elected to continue providing emergency paid sick leave, they would be eligible for payroll tax credits. Prior to enactment of the American Rescue Plan Act, this option was available until March 31, 2021.

The American Rescue Plan Act extends the availability of tax credits, which were originally enacted by the FFCRA, for employers who voluntarily provide sick and family leave through September 30, 2021. It is important to note that the new law “resets” the amount of leave available to employees (whose employer elect to provide paid leave.) Beginning April 1, 2021, employees will have a full 80 hours of paid sick leave available, even if an employee had previously taken paid sick leave pursuant to the FFCRA or CAA. Similarly, an employee’s 10-week allotment of emergency paid family leave will also reset beginning April 1.

The American Rescue Plan Act also adds (1) vaccine appointments and (2) complications due to receiving the vaccine as additional reasons that employees can qualify for paid sick and family leave. Previously, tax credits were available to employers providing emergency family leave only if the employee was unable to work (or telework) due to a need to care for a child whose school or place of care had been closed or was unavailable due to the pandemic.  Under the Act, employers may now claim tax credits for emergency family leave for any of the reasons originally set forth under the FFCRA, in addition to the two expanded reasons mentioned above.

Employers must now decide whether to start or continue to provide paid sick and family leave under the Act’s provisions and be prepared to update their forms and policies accordingly.

Additional Tax Credit for Certain Amounts Paid Under Certain Collective Bargaining Agreements.

The American Rescue Plan Act also includes an additional tax credit for certain “amounts paid under certain collectively bargained agreements,” including pension plan contributions and apprenticeship fund contributions that are allocable to employee paid sick and family leave.

Under the Act, “collectively bargained defined benefit pension plans contributions” means, with respect to any calendar quarter, contributions which (i) are paid or incurred by an employer during the calendar quarter on behalf of its employees to a defined benefit plan, (ii) are made based on a pension contribution rate, and (iii) are required to made pursuant to the terms of a collective bargaining agreement in effect with respect to such calendar quarter.

The Act specifies that the amount of collectively bargained defined benefit pension plan contributions allocated to qualified sick leave wages for a calendar quarter “shall be the product of (i) the pension contribution rate (expressed as an hourly rate), and (ii) the number of hours for which qualified sick leave wages were provided to employees covered under the collective bargaining agreement . . . during the calendar quarter.”

Multi-Employer Pension Plans Given $86 Billion in Relief

Finally, the American Rescue Plan Act includes provisions regarding multi-employer pension plans and allows plans to obtain financial assistance from the Treasury Department. Under the Act, those multi-employer plans that are in “critical and declining” status will be given enough money in a lump sum from the Treasury Department to pay benefits through 2051 with no cuts to the benefits of participants and beneficiaries. This assistance is not subject to repayment. Plans that receive assistance under the Act are required to file regular status reports with the federal government and Congress.

The Pension Benefit Guaranty Corporation has 120 days to issue regulations or guidance setting forth application requirements for financial assistance.

Bottom Line

This is only a brief summary of only three provisions in a vast bill with wide implications for many Americans. Ultimately, the Act continues the trend of tax breaks and other benefits offered to companies who continues to support employees throughout the pandemic, even as the end may (hopefully) be in sight.

The post President Biden Signs $1.9 Trillion COVID-19 Relief Bill into Law appeared first on Felhaber Larson.

Dec. 2020 Stimulus Bill Did Not Extend Paid Leave, But Did Extend Tax Credits through March 31, 2021

Remember, as of December 31, 2020, employers are not required to provide eligible employees with E-PSL or E-FMLA.  As part of the December 2020 stimulus bill, however, employers may choose to voluntarily provide employees with E-PSL and E-FMLA from January 1, 2021 to March 31, 2021 and may claim the FFCRA’s payroll tax credits for that period only.

As the DOL explained in a recent FAQ:

FAQ#101.  I was eligible for leave under the FFCRA in 2020 but I did not use any leave. Am I still entitled to take paid sick or expanded family and medical leave after December 31, 2020?

Your employer is not required to provide you with FFCRA leave after December 31, 2020, but your employer may voluntarily decide to provide you such leave. The obligation to provide FFCRA leave applies from the law’s effective date of April 1, 2020, through December 31, 2020. Any change to extend the requirement to provide leave under the FFCRA would require an amendment to the statute by Congress. The Consolidated Appropriations Act, 2021, extended employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021. However, this Act did not extend an eligible employee’s entitlement to FFCRA leave beyond December 31, 2020.

But, remember, benevolent employers beware: the December 2020 stimulus bill did not appear to increase the cap on the total amount of tax credits an employer can claim per employee. Specifically, the tax credits for providing E-PSL is capped at $511 per employee per day and $5,110 in the aggregate (or $200 and $2,000 depending on use) and E-FMLA is capped at $200 per employee per day and $10,000 in the aggregate. This means that tax credits claimed for leave taken before December 31, 2020 will likely count towards available credits that employers may claim for leave taken through March 31, 2021. Thus, unless we receive contrary guidance from the DOL or IRS, employers should take care to ensure that any voluntarily-provided E-PSL or E-FMLA between January 1 and March 31 does not exceed the aforementioned caps.

Regardless of whether an employer chooses to voluntarily provide paid leave under the terms of the former FFCRA after it expired on December 31, 2020, the employer should still be mindful of any applicable local paid leave regulations in addition to general FMLA and ADA considerations.

Next Stimulus Bill May Extend COVID-19 Paid Leave Requirement through Sept. 30, 2021

Last week, Democrats in the House of Representatives revealed the framework of a proposed $1.9 trillion stimulus plan endorsed by President Biden.  Democrats are using a process called “budget reconciliation,” which allows legislation to pass by simple majorities in each chamber (and avoid a filibuster in the Senate).  While the bill will likely pass the House without much resistance, many of the provisions will face fierce opposition in the equally-divided Senate.  Remember, in order to become law, both the House and Senate must agree, so even if a provision makes its way through the House, this does not mean that it will become part of the final law.  Indeed, several Democrats have voiced opposition to some of the more controversial provisions, such as the $15 minimum wage.

In its current form, the next stimulus bill proposes to extend and expand the E-PSL and E-FMLA requirements contained in the FFCRA.  That is, the stimulus bill proposes to reinstate the paid leave requirements through September 30, 2021.  But, for employers with 500 or fewer employees, the bill would extend the payroll tax credits for the same time period.  While the proposal is still far from becoming law, we will continue to monitor the FFCRA proposal as it winds its way through Congress.

Bottom Line

Remember, as of today, employers are not required to provide E-FMLA or E-PSL to eligible employees.  Employers may voluntarily provide the leave to eligible employees and can claim the tax credits through March 31, 2021, but they should be mindful of the caps outlined above.  Finally, take note that the leave requirements may be reinstated by the next stimulus bill, but we still don’t know what provisions will make it into the final legislation.

We will continue to monitor these developments.

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The details of workers’ compensation liability vary from state to state; however, the basic definition of a workplace injury is a personal injury that arises out of and in the course of employment.  The employee bears the burden of proving a work-related personal injury. If an employer mandates that its employees receive the COVID-19 vaccine as a condition of continued employment, it is likely to be considered a compensable injury if the employee suffers a severe reaction.  In other words, an employer who demands COVID-19 vaccinations of employees has in turn made that activity a requirement of employment and any adverse reactions resulting would likely be a compensable work injury.

The Minnesota Workers’ Compensation Act, in its definition of personal injury seems to leave no question as to the compensability of a mandatory vaccination under Minn. Stat. § 176.011, subd. 16:

“An injury or disease resulting from a vaccine in response to a declaration by the Secretary of the United States Department of Health and Human Services under the Public Health Service Act to address an actual or potential health risk related to the employee’s employment is an injury or disease arising out of and in the course of employment.”

Under this statutory framework, it would appear in the case of COVID-19, which has been declared a public health emergency, the mandatory administration of the COVID-19 vaccine as a requirement of employment would be a compensable work injury under the Minnesota Workers’ Compensation Act.  Even without such a specific definition, employers would have difficulty arguing that adverse reactions to the COVID-19 vaccination did not arise out of and in the course of employment if the employee had no choice but to be vaccinated as a requirement of employment.  An employer who requires its employees to receive a COVID-19 vaccination could be on the hook for medical treatment, lost time, and if the reaction results in long-term illness or death, the employer could be on the hook for ongoing wage loss, permanent partial disability, and potentially dependency benefits.  The employer could also have exposure for additional conditions that may develop as a result of adverse reactions to the vaccine.

What if the vaccine is not mandatory, but is only encouraged?

The outcome is less clear when the vaccination is encouraged and offered on a voluntary basis.  In some instances, this could be considered a work-related situation that arises out of and in the course and scope of employment.  Several factors that may be considered in determining whether an injury from encouraging employees to take the COVID-19 vaccine is work-related includes:

1. Whether the vaccination directly or indirectly benefited the employer;
2. Whether the offering of the vaccine was within the terms, conditions, or customs of the employment;
3. Whether the vaccination event was employer-sponsored;
4. Whether the offering of the vaccine was unreasonably reckless or created excessive risk; and,
5. Whether the offering of the vaccine occurred on the premises of the employer.

Minnesota has a provision in the Workers’ Compensation Act that may provide guidance to employers who encourage employees to vaccinate or to participate in voluntary, employer- sponsored health promotion programs where a vaccination is offered.  Minn. Stat. § 176.021, subd. 9 provides that “injuries incurred while participating in voluntary recreational programs sponsored by the employer, including health promotion programs, athletic events, parties, and picnics, do not arise out of and in the course of the employment even though the employer pays for all of the costs of the program.”  This exclusion does not apply if employees are ordered to participate in the program.  The Minnesota Workers’ Compensation Court of Appeals has held that the determinative factor is not whether an employee is encouraged to participate, but whether the employer required participation.  If an employer seeks refuge from workers’ compensation liability by simply encouraging employees to obtain the vaccination and/or provide it through its health wellness program, it must ensure that that the employee’s decision to vaccinate or to participate in an employer-sponsored vaccination event is entirely voluntary.  There cannot be any hint that employees are ordered to participate in such a program.

Bottom Line

Employers must balance their desire for a safe workplace by requiring vaccinations with the risk of requiring vaccinations and the potential workers’ compensation implications if an employee experiences a serious reaction from the vaccine.  At this time, it is difficult to quantify the exposure and cost of a workers’ compensation claim relative to exposure and communication of the disease as opposed to exposure and cost for adverse reactions to the vaccination.  A key ingredient in this balancing approach is the realization that any directive by employers to employees that they must vaccinate against COVID-19 will likely give rise to workers’ compensation liability in the event of an adverse reaction.  As with all issues relating to COVID-19, this is a fluid situation which could change if there is direct action by the legislature or the governor in determining whether adverse reactions become compensable workers’ compensation injuries.

The post Could an Adverse Reaction to a COVID-19 Vaccine be a Work Injury? appeared first on Felhaber Larson.

This second round of PPP loans comes as the result of the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act, which was signed into law by former-President Trump on December 27, 2020 (“Economic Aid Act”).  The Economic Aid Act added additional funding to the PPP, and revised certain rules for the program, the most significant of which is that it now allows for “second draw” PPP loans, i.e., certain qualifying borrowers who already received a PPP loan can apply for a second loan.

Eligibility Criteria

In order to be eligible for a second draw PPP loan, borrowers must satisfy a few criteria: they must:

(i) have fewer than 300 employees,

(ii) have used the full amount of their first PPP loan, and

(iii) be able to demonstrate a 25% decline in gross receipts in any 2020 quarter compared to the corresponding quarter in 2019.

Most borrowers satisfying the foregoing would be eligible to receive a second draw PPP loan of 2.5x their average monthly payroll costs (measured either from calendar year 2019 or 2020), capped at $2 million.

Note that borrowers must ensure that they have used, or will use, all of their first draw PPP funds prior to the disbursement of the second draw loans, but borrowers are able to apply for the second draw loan before they have spent all of the proceeds. So qualifying borrowers should not necessarily wait to apply for a second draw loan simply because some of their first draw proceeds have not yet been spent (as long as it will all be spent prior to disbursement of the second draw loan).

Gross Receipts

When demonstrating the reduction in gross receipts, the reference periods can be any calendar quarter of 2020 against the same quarter in 2019 or the annual gross receipts of 2020 compared to 2019 if the borrower was in business for all of 2019.  If a borrower was not in business during 2019, but was in operation as of February 15, 2020, then the borrower must demonstrate that gross receipts in the second, third, or fourth quarter of 2020 were at least 25% lower than the first quarter of 2020.

Gross receipts for a for-profit business are generally all revenue in whatever form received or accrued per the borrower’s accounting method, but they specifically do not include taxes collected and remitted to a taxing authority (e.g., sales tax), amounts from a forgiven first draw PPP loan, EIDL advances, and proceeds from transactions between a concern and its domestic affiliates.

Note, however, that in most cases the gross receipts of an affiliate must be included in the borrower’s gross receipts total.  In the case of an acquisition or merger during 2020, the borrower must include the gross receipts of the new affiliate for the entire reference period, and not just the period after the acquisition.

Non-Profit Gross Receipts

The gross receipts calculation is a little different for non-profit borrowers: it conforms to section 6033 of the Internal Revenue Code, and thus includes the gross amount received by the organization during its annual accounting period from all sources, without reduction for costs or expenses.  This would include contributions, gifts, grants, dues, assessments, sales, and investment income.  Non-profits can also exclude forgiven first draw PPP loans and EIDL advances.

Loan Terms

The basic terms of a second draw PPP loan are similar to those of the first round PPP loans: (i) the covered period for these loans is any date between 8 and 24 weeks at the choice of the borrower, (ii) 60% of the loan proceeds must be spent on payroll costs to be forgivable, and (iii) borrowers must maintain their payroll and employee levels (or eliminate any reductions to either by the end of the covered period) in order to receive 100% forgiveness.

One beneficial change for borrowers is the inclusion of additional forgivable categories of spending.  Borrowers can now include as permitted expenses amounts spent on personal protective equipment for employees, costs associated with outdoor dining, certain supplier costs, certain costs associated with software, cloud computing and other human resources and accounting needs, and property damage costs due to public disturbances that occurred during 2020 that are not covered by insurance.

Bottom Line

The availability of second draw PPP loans will hopefully provide some respite for businesses as they continue to weather the effects of the pandemic.

The post Second Round of PPP Loans Opened For All Lenders appeared first on Felhaber Larson.

The DOL’s New Guidance

When the expiration of the FFCRA leave provisions was announced, employers and employees alike wondered about the parameters of formerly mandated FFCRA leave. Employees who were eligible for leave before the FFCRA expired but did not take any such leave wondered if their entitlement carried forward into the new year. In its new guidance, the DOL states that the answer to this question is no: an employee’s entitlement to FFCRA leave expired along with the law, even if the employee had been eligible to take such leave while the law was in effect but did not do so. However, the DOL pointed out that employers may voluntarily decide to provide qualifying employees with paid leave for FFCRA-qualifying reasons, and many employers may choose to do so since they will still be able to claim the employer tax credit for providing this leave until March 31, 2020. Unfortunately, the DOL guidance did not address the outstanding question of whether the payroll tax credit caps will apply through March 31, 2021. We can only hope that this will be the subject of further guidance from the DOL.

Enforcement actions remain another source of ambiguity for employers despite the FFCRA leave provisions’ expiration. Did employees’ ability to sue for enforcement or non-compliance with the FFCRA leave mandates expire along with those provisions? No, says the DOL. The Wage and Hour Division will enforce the FFCRA related to any leave taken or requested between April 1, 2020 and December 31, 2020 – the dates the leave provisions were effective. For example, if an employee requested FFCRA leave on May 1, 2020 because her childcare provider was unavailable due to COVID-19 and her employer only granted her unpaid time off, this employee may file a complaint with the Wage and Hour Division or potentially bring a private cause of action against her employer. Employees must file complaints or bring their claims within two years from the date of the alleged violation, and employees get an extra year if they are claiming a willful violation.

Bottom Line

Although the FFCRA’s mandatory leave provisions expired last year, employers may not be able to turn the page on the law and its ramifications just yet. While entitlement to FFCRA leave expired on December 31, 2020, employees may still bring complaints and suits related to FFCRA leave for up to three years.

We will continue to update you as the DOL issues additional guidance on these topics.

The post Department of Labor Provides Updated Guidance on FFCRA appeared first on Felhaber Larson.

No FFCRA Extension, But Tax Credits Extended Through March 31st

Perhaps one of the most important things about this package for employers is what it does not include, namely, an extension of paid leave requirements of the Families First Coronavirus Response Act. Say goodbye to the FFCRA – its mandated leave provisions will expire on December 31, 2020.

But what if employers want to continue to provide paid COVID-19-related leave for employees? Under the newly-passed stimulus package (Section 286), if an employer chooses to allow employees to take paid leave for reasons that would have been covered under the FFCRA, the employer can claim the FFCRA’s payroll tax credit for providing this leave through March 31, 2021. Benevolent employers beware, however, that the stimulus package does not appear increase the cap on the total amount of tax credits an employer can claim per employee. Specifically, the tax credits for providing E-PSL is capped at $511 per employee per day and $5,110 in the aggregate (or $200 and $2,000 depending on use) and E-FMLA is capped at $200 per employee per day and $10,000 in the aggregate. This means that tax credits claimed for leave taken before December 31, 2020 will count towards available credits that employers may claim for leave taken through March 31, 2021. Thus, unless we receive contrary guidance from the DOL or IRS, employers should take care to ensure that any voluntarily-provided E-PSL or E-FMLA between January 1 and March 31 does not exceed the aforementioned caps.

The new stimulus package prompts many questions for employers who may currently have employees on paid FFCRA leave. For example, what about an employer who has an employee who started paid leave on December 1 and was not expected to return until after January 1? Could the employer demand that this employee continue their leave unpaid or return to work after December 31, 2020? Sure, but considering that the employer can still claim the tax credit through March 31, 2021, there might not be a compelling reason to do so. Keep in mind, however, that the employee is not entitled to a new, full bank of leave starting on January 1, since, as discussed above, the tax credit the employer claimed for the leave the employee took.

Regardless of whether or not employers choose to voluntarily provide paid leave under the terms of the former FFCRA after it expires on December 31, 2020, employers should still be mindful of any applicable local paid leave regulations and PTO policies, in addition to general FMLA and ADA considerations.

There’s More

Other highlights of the stimulus package for employers include:

· Increased Unemployment Insurance: The package provides an additional $300 a week in federal unemployment benefits through March 14, 2021. The first stimulus deal provided $600 dollars a week in additional unemployment benefits, but this expired in July. The package also extends unemployment insurance benefits to gig workers, contract workers, and self-employed workers under the Pandemic Unemployment Assistance Program.

· Paycheck Protection Program (“PPP”) Updates: Businesses with 300 or fewer employees who can demonstrate at least a 25% reduction in gross revenues in comparable 2019 and 2020 quarters are entitled to a second round of PPP loans. The maximum loan amount is 2.5 times the business’s average monthly payroll costs, up to $2 million. The loan is fully-forgivable if the business spends at least 60% of the loan amount on payroll costs. Additionally, $15 billion is set aside specifically for live entertainment venues and $20 billion is set aside for businesses in low-income communities.

· Direct Payments to Individuals: The package provides direct payments of $600 to individuals who make up to $75,000 a year and families who make up to $150,000 per year.

Bottom Line

After months of arguing and hand-wringing, Congress has finally passed a new stimulus package that provides some direct assistance to individuals and businesses, but eliminates the mandatory paid leave provisions of the FFCRA while still providing a tax credit for those employers who continue to provide it through March 31. To become law, the stimulus package still needs President Trump’s signature, which does not appear to be immediately forthcoming.

President-elect Joe Biden has already announced that he will introduce another stimulus package after he takes office on January 20 so we will continue to watch for more updates.

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The EEOC’s reasoning was precisely in line with the analysis we provided in our recent articles Health Care Employers Should Be Able to Mandate Inoculation Once FDA Approves Vaccine and Yes, Non-Health Care Employers Can Require Vaccination But May Not Need To Do So For A While.  In essence, employers can mandate that employees receive the COVID-19 vaccine, provided that two conditions are met: (1) the vaccine receives full authorizations from the FDA and (2) the vaccine is available to employees.  Of course, exceptions may need to be made for those with disabilities under the Americans with Disabilities Act (ADA) and sincerely-held religious beliefs under Title VII.

We are still digesting the EEOC’s guidance, but we wanted to provide you with some highlights from the revised guidance:

The guidance comes in the form of additional FAQ’s tacked onto EEOC’s ongoing list entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

The key takeaways are:

COVID-19 Vaccines Await Full FDA Approval

At this time, no COVID-19 vaccine has been approved (or licensed) by the Food and Drug Administration (FDA).  Even though no COVID-19 vaccine has been approved by the FDA, on December 11, the FDA issued an “Emergency Use Authorization” (EUA) for Pfizer’s COVID-19 vaccine.  Importantly, an EUA is not the same as full FDA approval or licensure.

Thus, although not stated expressly, it seems that the EEOC would frown on a mandatory COVID-19 vaccination policy before full FDA authorization.

Administration of an approved COVID-19 vaccine to an employee is not a “medical examination” for purposes of the Americans with Disabilities Act (ADA).

The EEOC makes it clear that once vaccines are fully approved, administering a vaccine (or requiring that employees be vaccinated) is not a medical exam because it is not “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  The employer is merely requiring protection against the virus.

Even so, employers requiring vaccination must still observe the ADA’s limits on disability-related inquiries.  If a vaccine is required or administered, any pre-screening inquiries relating to the vaccine must be “job-related and consistent with business necessity.”

Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry.

Just asking whether an employee has been vaccinated, and/or asking for proof, is not likely to elicit any protected health-related information.  However, asking why an employee did not receive a vaccination could result in such information being divulged and therefore, the “job-related and consistent with business necessity” standard applies to the inquiry.  This means that employers must stay focused on the need for the vaccine and then ask legitimate questions relating to how getting the vaccine might impact the employee.

If a vaccine is required and an employee refuses because of a disability, the employer first must determine whether the employee poses a direct threat to health or safety and if so, whether that threat can be eliminated or reduced through reasonable accommodation.

If a vaccination requirement is imposed and an employee claims a disability-based reason for refusing,  the employer must conduct an individualized analysis of whether this employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  The EEOC acknowledges that a “conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.”  As such, the employer must then engage in an interactive process to determine if the threat can be reduced through accommodation, such as telework, reassigned duties or additional protective gear.  Of course, the interactive process should also include obtaining medical verification of the employee’s claimed disability.

If accommodation is not possible, the employee may be removed from the workplace but the EEOC warns that termination does not necessarily ensue.  Employers must heed all other rights and protections afforded to employees, such as leave policies, FMLA obligations and collective bargaining agreement provisions.

If a vaccine is required and an employee objects based on a sincerely held religious belief, or observance, the employee must seek to provide reasonable accommodation.

The EEOC reminds us, however, accommodation need not be provided if it causes an “undue hardship”, and that the courts have ruled that this standard is met anytime that there is more than a de minimis (minimal) cost or burden to the employer. As such, the obligation to accommodate a religious objection to a vaccination requirement is less substantial than the duty to do so in the case of a disability.

A vaccine requirement does not implicate the Genetic Information Nondiscrimination Act (GINA).

The EEOC is very clear in stating that administering a vaccine or requiring proof a vaccine does not implicate GINA because a vaccine does not involve the acquisition or use of genetic information to make employment decisions.  As with the ADA, however, it is necessary to ask prescreening health questions in order to administer the vaccine, any such questions asking for genetic information might be a breach of GINA.

The EEOC notes that certain of the vaccines use mRNA technology which could raise questions as to how such a vaccine alters the recipient’s genetic makeup.  Requiring such vaccines could then be seen as an unlawful use of genetic information.  The EEOC responds, however, that the CDC has clearly explained that the mRNA COVID-19 vaccines do not actually interact with a recipient’s DNA and therefore, there would be no GINA issue.

Bottom Line

This guidance arrives just in time as vaccines have just begun to roll out in Minnesota (and elsewhere). As we predicted in our previous articles, employers may require vaccinations of their employees but must await availability of an FDA-approved vaccine and, of course, be sensitive to the possible accommodations needed by certain employees.

The post EEOC Issues Guidance Affirming Employer’s Right to Require COVID-19 Vaccination appeared first on Felhaber Larson.

Importantly, though, the leave may be taken only from April 1, 2020 to December 31, 2020.  As we approach the end of 2020, employers may have several questions about what the expiration means.

Do I Need to “Pay Out” E-FMLA or E-PSL on December 31?

No.  The FFCRA does not require employers to “payout” unused E-PSL or E-FMLA.  Instead, if an employee has a balance of unused E-PSL or E-FMLA remaining on January 1, 2021, the balance simply goes away.

Of course, Congress may decide to extend the FFCRA or provide additional benefits.  Unless or until that happens, however, the balances will expire on January 1, 2021.

What If I Have an Employee Out on E-PSL or E-FMLA on December 31?

If you have an employee who requests to use E-PSL or E-FMLA in late December, it is best to advise them that the leave will expire on January 1, 2021.  Employees should be permitted to use E-PSL or E-FMLA through (and including) December 31.

On January 1, 2021, the employee will no longer have E-PSL or E-FMAL available.  The employee should, however, be permitted to use other accrued and unused time off under the employer’s policies (such as sick leave or PTO).  The employee may also be eligible for an unpaid leave of absence under the employer’s policies (e.g., non-FMLA medical leave) and that option should be explored as well.  In addition, as outlined below, the employer may be required to provide additional unpaid leave as required by state or federal law.

Can an Employee Request Other Types of Leave Starting January 1, 2021?

Yes, as noted above, additional forms of leave may be available under federal and state law.

First, an employee who cannot work because of a “disability” may be eligible for an unpaid leave of absence under the Americans with Disability Act (or ADA), unless the requested leave is an “undue hardship.”

Second, if an employee has a “serious health condition” or is caring for someone with a “serious health condition,” the employee may be eligible for regular FMLA leave under the federal Family Medical Leave Act.  This assumes, of course, that the employer has 50 or more employees and the employee is “qualified” because he or she has been employed for at least one year and has worked at least 1,250 hours in the past year.  This also assumes that the employee has not already exhausted all 12 weeks of FMLA leave in the current “leave year” (by using E-FMLA or FMLA).

Finally, state laws may provide additional leave beyond what is required by the ADA or FMLA.  In addition, some states have developed paid or unpaid leave laws similar to the FFCRA that may continue to require the employer to provide leave (paid or unpaid) after December 31. Employers should be mindful of these laws as well.

Bottom Line

In the absence of Congressional action, E-PSL and E-FMLA will not be available to employees after December 31.  There is no payout or obligation to allow employees to use any unused E-PSL or E-FMLA after that date.  Employers should, however, continue to allow employees to use any unused E-PSL and E-FMLA through (and including) December 31.

On January 1, 2021, employers may still have obligations under their own policies or to provide additional leave under state or federal law.  Employers facing additional COVID-19-related leave requests would be best-served to reach out to counsel to ensure that they are handling these requests properly.

The post Remember: Families First Coronavirus Response Act Benefits Expire on January 1, 2021 appeared first on Felhaber Larson.

Some aspects of this Executive Order may interact with the Families First Coronavirus Response Act (“FFCRA”) related to COVID-19 paid sick leave, and employers should examine the impact that this Order may have on such obligations.

FFCRA Requirements – Quarantine and Isolation Orders

As we have written previously, the FFCRA requires certain employers to provide employees with up to two weeks of paid sick leave if they are unable to work or telework due to a federal, state or local quarantine or stay-at-home order.

Executive Order 20-99 provides a number of restrictions on travel, specifically providing as follows:

1. Unnecessary travel strongly discouraged. Consistent with federal guidance and to protect our neighbors, Minnesotans are encouraged to stay close to home and are strongly discouraged from engaging in unnecessary travel, particularly to other states or countries.
2. Travel advisory. Persons arriving in Minnesota from other states or countries, including returning Minnesota residents, are strongly encouraged to practice self-quarantine for 14 days after arrival by limiting their interactions to their immediate household. This recommendation does not apply to individuals who must cross state or country borders for work, study, medical care, or personal safety and security.

The Executive Order is silent regarding the question of whether this “strong encouragement” to quarantine after out of state travel constitutes a “quarantine or stay-at-home order”, that would trigger coverage under the FFCRA as set forth above. Therefore, this raises the question of whether a period of quarantine, based solely on the State’s strong encouragement in Executive Order 20-99, constitutes FFCRA-covered leave.

Whether Executive Order 20-99 is a Quarantine or Isolation Order is Unclear

The FFCRA does not expressly define what constitutes being “subject to a quarantine or isolation order.” However, the United States Department of Labor has issued regulations in regard to this issue which state as follows:

Subject to a Quarantine or Isolation Order.

For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them. (emphasis added.)

Here, Executive Order 20-99 provides that citizens who return to Minnesota following non-work related out of state travel are “strongly encouraged” to self-quarantine for 14 days after their return to the state. While, this could be an advisory statement that a category of citizens is to isolate and quarantine, this conclusion is not certain since the Order generally appears to be a recommendation, not a mandate.

That the Executive Order is not a “quarantine or isolation order” is also supported by the language used in relevant IRS FAQ’s related to employee leave.  Though informal guidance issued by the IRS is anything but conclusive or authoritative on this specific issue, one such FAQ notes that when seeking documentation to substantiate an employee’s request for leave, the employee must provide their employer with “the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine,” implying that the governmental quarantine order must be a mandate.

Further, Executive Order 20-99 expressly prohibits wide classifications of social gatherings, demonstrating that the Governor clearly knows how to issue a mandatory prohibition in an Executive Order if that is what he desires.  Thus, the softer “encouragement” language in the provision at issue could be read as nonmandatory, and therefore not an “order” per se.

Given that this critical but uncertain interplay does exist between the Executive Order and the FFCRA, it might be hoped that further clarification would be forthcoming.  In fact, the Order does suggest that further interpretative guidance may be issued in the future.  Unfortunately, there is no indication that such guidance will shed any additional light on whether this Order constitutes a “quarantine or isolation order.”

Bottom Line

Given the lack of precision in this matter, an employer acts at its peril by requiring employees to report for work once they have informed their employer that they have traveled out of state and intend to quarantine for 14 days per the Order’s recommendation.

The safest course of action in this situation is to determine whether the employee can perform their job duties remotely during their quarantine. Indeed, employers should be doing this already since Executive Order 20-99 as well as other, previous Executive Orders have advised that if an employee can successfully work from home they must be allowed to do so.

The post Latest Governor’s Order Leaves Unanswered Questions Regarding FFCRA Paid Sick Leave appeared first on Felhaber Larson.

Hospitalizations

With regard to inpatient hospitalizations, OSHA reiterated that employers are required to report in-patient hospitalizations to OSHA if it occurs within twenty-four hours of a work-related incident.  In COVID-19 cases, an “incident” is an exposure to COVID-19 in the workplace.  In order for an inpatient hospitalization to be reportable to OSHA, the employer must know that the inpatient hospitalization was due to a work-related case of COVID-19.  If a determination of work-relatedness is made after the fact, the employer must report the inpatient hospitalization within 24 hours of the determination of work-related  COVID-19 exposure.

Fatalities

In cases of death due to work-related COVID-19 exposure, the employer must report the fatality to OSHA within eight hours if the death occurs within thirty days of exposure in the workplace.  If the fatality occurs within thirty days of the incident and a determination of work relatedness is made later, the employer must report the fatality within eight hours of that determination.

Employers should be aware that this guidance does not replace the reporting requirements already in place under 29 C.F.R. 1904.39.  Minnesota OSHA adopted these reporting requirements, which became effective October 1, 2015.  Also to keep in mind, OSHA enforcement guidance from 2016 states that “citation shall be issued if an employer fails report” under 29 C.F.R. 1904.39.  Under Minnesota OSHA, specifically Minn. Stat. 182.666, the amount of the fine for a cited violation depends on the classification of the violation.  However, repeat or willful violation could yield a minimum fine of $5,000.00.

Bottom Line

OSHA’s reporting guidance appears to give some leeway to employers in reporting inpatient hospitalizations and fatalities subject to an ultimate determination of work-related COVID-19 exposure.  Employers still have a duty to conduct a reasonable investigation to determine if COVID-19 cases are work-related and thus reportable in these instances.  Failure to do so may result in citations and penalties.

The post OSHA Issues Guidance on When to Report Inpatient Hospitalizations and Fatalities Due to COVID-19. appeared first on Felhaber Larson.

Previously, the CDC defined a “close contact” as spending at least 15 consecutive minutes within six feet of an infected person. However, on October 21, 2020, the CDC issued updated guidelines defining “close contact” is being within six feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period.  This definition applies without regard to whether facemasks were used either by the newly infected person or the person(s) with whom close contact was had.

Basis for Change

The CDC was prompted to change the definition of what constitutes a close contact after a corrections officer at a Vermont prison became infected after several brief interactions with six coronavirus-positive inmates.   The officer had 22 different, brief encounters with infected inmates that lasted only a total of 17 minutes overall – none coming close to the 15 minutes cited in the prior guidelines.

One expert noted the huge impact that this new definition will have on “workplaces, schools and other places where people spend all day together off and on.” Another added, “this will mean a big change for public health when it comes to contract tracing and for the public generally in trying to avoid exposure.”

Employers and contract tracers must adjust correspondingly as more resources will be required to accurately identify multiple brief interactions over a 24-hour period by a newly infected individual. Moreover, the number of people required to quarantine under this updated guidance is almost certain to increase. Accordingly, employers must anticipate and prepare for possible staffing shortages that might result. To ensure compliance with CDC’s new guidelines, employers should also continue to update their policies, procedures, and record-keeping practices.

Bottom Line

Although it sometimes feels that this pandemic has been around forever, it is still relatively new and we are learning more about it all the time.  Employers need to remain vigilant about maintaining their protective measures while also keeping a watchful eye out for any changes in recommended protocols.

Many thanks to Kau J. Guannu for researching and drafting the majority of this article.

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The proposed bill aligns with the federal Families First Coronavirus Act (FFRCA) to effectively prevent covered employers from exempting “health care providers” and “emergency responders” from receiving emergency paid sick leave (“EPSL).

The FFCRA’s Voluntary Exemption for “Health Care Providers” and “Emergency Responders”

As you may remember, the FFCRA applies to private employers that employ fewer than 500 employees.  Public employers are covered if they employ one or more employees.

Under the FFCRA, though, employers could voluntarily decide to exempt “health care providers” and “emergency responders.”  As we previously reported in Labor Department Revises Two Invalidated FFCRA Rules But Retains Two Others, the definition of “health care provider” was initially very broad.  However, new regulations issued in September 2020 limited the definition to those who are “capable of providing health care services, meaning that the person is employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary for the provision of patient care, and, if not provided, would adversely impact patient care.”

Minnesota’s Proposed Bill Closes the Voluntary Exemption

Under the proposed bill, employers could still choose to exempt “health care providers” and “emergency responders” from receiving paid leave under the federal FFCRA.  However, if they decided to claim the exemption, they would then be covered by the proposed bill.  This is because the definition of “employer” is tied to those employers that have “elected to exclude such employees from [EPSL] under the [FFCRA].”

This would then require the employer to provide “up to 100 hours” of state-mandated “emergency paid sick leave” under the proposed bill.  The amount would be paid at the employee’s “regular rate of pay” and could be used intermittently.

What About Employers Not Covered by the FFCRA?

Importantly, employers that are not covered by the FFCRA do not appear to be impacted by the proposed bill (at least in its current form).  This is because, again, the definition of “employer” is tied to those employers that have “elected to exclude such employees from [E-PSL] under the [FFCRA].”

As a result, employers with 500 or more employees would not be impacted by the current bill.  Likewise, even if the employer is covered by the FFCRA, employers that have not chosen to exempt “health care workers” or “emergency responders” from receiving EPSL would also not be impacted by the proposed bill.

Bottom Line

While the bill is still far from becoming law, employers who have elected to exempt “health care workers” or “emergency responders” from receiving EPSL under the FFCRA should keep a special eye on this bill as it moves through the legislature.

We will continue to monitor these developments.

The post Minnesota Legislature Proposes Mandatory FFCRA Leave for “Health Care Providers” and “Emergency Responders” appeared first on Felhaber Larson.

The law kicks in whenever an employer learns that an individual who has tested positive for COVID-19 or is subject to an isolation order (a “qualifying individual”) enters the workplace during the period in which that person is considered potentially infectious.  That person could be an employee, a contractor, a vendor or any other visitor to the site.

What Information Must be Provided

If a qualifying individual enters the workplace the employer must produce a notice to anyone (employees and non-employees alike) who may have been exposed.  This notice must be issued within one business day of the time that the potential exposure has occurred.

The required notice must inform anyone at the workplace during the qualifying individual’s infectious period that they “may have been exposed to COVID-19.” They must also be told about plans the employer has to disinfect the workplace and otherwise make it safe in accordance with CDC guidelines.

In addition, employees who may have been exposed must be told about their rights and benefits under law (e.g. workers compensation, FCCRA leave) and be advised regarding their protections from discrimination and retaliation.

Other Requirements

The notice must be sent in the same fashion as the employer normally sends information about employment-related matters, and must be in both English and any language commonly understood by a majority of the employees.  The employer may send their required notices to non-employees in the same manner.

Employers must also alert the local public health department within 48 hours of becoming aware of a COVID-19 workplace outbreak.  An “outbreak” is defined as “three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.” The employer must inform the local authorities of the number of COVID-19 cases at the worksite, and must identify the names, occupations and worksites of qualifying individuals.

Enforcement

California’s OSHA can issue citations and even has the authority to close down a business if is considered an “imminent hazard” due to potential COVID-19 transmission.

Bottom Line

As more businesses try to return to in-person work, we can expect to see more protective legislation like this.  We will of course stay on top of any Minnesota developments in this regard.

The post New California Law Requires Notice of Possible Workplace COVID-19 Exposure – Will Minnesota Be Next? appeared first on Felhaber Larson.

This data represents the total number of claims of COVID-19 exposure or illnesses, but does not indicate how many of these claims were actually accepted, or whether any lost time resulted from these reports.

Cases Decline After April Spike

The data shows that injury reports are typically received a few weeks after exposure or onset of illness. The first COVID-19 related injury date was reported to have taken place on February 26, 2020. After the passage of the workers’ compensation amendment creating a statutory presumption for specific employment groups, there was a spike in claims culminating in a high of 788 for the week of April 22, 2020 followed by a steady decline in claims before an uptick of 633 claims the week of May 20, 2020.

Since that time, the number of claims dramatically declined and has held steady at 70-141 claims per week.

Health Care Industry Leads the Pack

As expected, the most common industry sector with COVID-19 claims is healthcare and social assistance with 3078 claims, or roughly 62 percent of all reported claims. Within that sector, nursing assistants and registered nurses are filing the most claims at 663 and 530 respectively.

Manufacturing sectors follow with 979 claims and public administration has 400 reported injury claims. Food processing workers have 381 reported COVID-19 related injuries, while police and correctional officers/jailers together reported 190 COVID-19 related injuries.

Metro Area is the Hot Spot

Geographically, most COVID-19 related workers’ compensation claims derive from the seven-county metro area with 2,006. Nobles County, where meat packing is a major industry, had 584 reported claims and Stearns County reported 553 work related COVID-19 injury claims.

The Department of Labor and Industry has not released statistics regarding the number of claims that have been accepted as compensable or the benefit types or amounts paid. The number of admitted claims will depend on the number of claims that arise from employment groups that fall within the statutory presumption and claims from employment groups where employees are likely to work in common spaces.

It is also interesting to see that after an initial surge in COVID-19 claims, there was a steep decline and steady number of claims reported. These numbers may change if there is a large spike in overall number and severity cases of COVID-19 in the fall and winter, which would most likely affect the healthcare sector.

Bottom Line

The cost of COVID-19 workers’ compensation claims may not be known for many years since we are not yet able to gauge the long-term effects of the illness.  We anticipate, however, that those effects will prove to be dramatic.

The post Minnesota Labor Department Tallies Up COVID-19 Workers’ Comp Cases appeared first on Felhaber Larson.