Managing COVID-19 Vaccine Policies

THIS ARTICLE IS BEING REPOSTED BY LIBERTATE INSURANCES JAMES BUSCARINI. THE ORIGINAL CONTENT WAS WRITTEN IN THE FEBRUARY 2021 EDITION OF RISK MANAGEMENT MAGAZINE. ARTICLE WRITTEN BY JODY MCLEOD, ESQUIRE AND GARY PEARCE

As COVID-19 vaccines become more available and companies return to the office, employers may want to protect their workforce by mandating vaccinations. However, it is essential that they keep in mind certain risks and how to mitigate them, including the legal limits of what they can ask of employees.

When approaching mandatory vaccinations for workers, the legal rules are reasonably established. Employers can mandate vaccinations as long as they have processes to deal with exceptions. The key exceptions concern medical disabilities covered by the Americans with Disabilities Act (ADA), and bona fide religious objections covered by Title VII of the Civil Rights Act of 1964. Because a vaccination is not a medical examination, it does not inherently trigger certain aspects of the ADA.  But beware of violating ADA obligations in the course of asking pre-screening questions or securing proof of vaccinations. Unvaccinated employees—particularly those who refuse or are unable to take a vaccine for medical or religious reasons—may be excluded from the workplace if they pose a direct threat, subject to ADA and Title VII ­obligations to pursue a reasonable accommodation. The ADA accommodation standard is somewhat more favorable to the employee than the Title VII standard. Determining whether an unvaccinated employee poses a direct threat requires a fact-specific determination, considering the duration of risk, the nature and severity of potential harm, and the likelihood and imminence of potential harm.

Excluding an employee from a workplace because they pose a direct threat does not automatically mean termination is justified. The employer first needs to determine whether there is a feasible alternative arrangement that would not impose undue hardship, such as remote work. There remains a general duty under the federal Occupational Safety and Health Act (OSHA) to provide a workplace free from serious recognized hazards, and COVID-19 exposure will typically qualify. Of course, organizations that expose the general public to COVID-19 risk being sued.

If a company imposes a vaccination mandate, it must consistently administer exception processes regarding reasonable medical accommodations and religious objections.  It will need to understand what constitutes business necessity, and must be able to identify reasonable accommodations on a fact-specific, individualized basis. The company will need to decide whether to assume the risks and obligations arising from self-administering vaccinations, or instead depend on collecting evidence of third-party administration. Lastly, it will need to minimize the prevalence of medical inquiries—including medical details unexpectedly proffered by the employee—and preserve the confidentiality of any protected information that may thereby be received.

Other potential issues include whether there is a union contract that the company must consider, or whether any state or local laws forbid mandatory vaccination policies.  

Risks of Vaccination Mandates

If an employer requires vaccinations, it must administer the mandate consistently and consider whether the additional risk is justified. If the employer imposes the mandate for only certain categories (e.g., for customer-facing staff but not home-based workers), it will need a rational basis for its determinations. Also, a mandate could bring any adverse reactions into the realm of compensability for workers compensation, and time spent receiving a mandatory vaccine is most likely compensable for purposes of wage and hour compliance. Data privacy and retention of medical records also need to be considered in the record-keeping process as the relevant regulations and laws are quite demanding. If the company provides financial incentives to encourage compliance, income may need to be reported and taxes owed as well.

Changing and Varying Rules

It was not until December 2020 that the Equal Employment Opportunity Commission issued substantial additional guidance regarding COVID-19 obligations under prominent employment laws. As of this writing, OSHA has yet to issue any rules specific to COVID-19, but the Biden administration is expected to issue a broad rule in the coming months. States and municipalities issue executive orders and ordinances at a pace that only specialists can keep up with. Even if all the written rules are known, there is no assurance that they will be administered in alignment with what governed parties might expect. “Guidance” may become a de-facto obligation.

For all these reasons, companies cannot base their protection and recovery program solely on compliance with current legal requirements. Nor can a static “one and done” determination be sufficient. In light of all these issues, duties and uncertainties, companies should determine whether a vaccine mandate is an effective use of their administrative resources.

Business Expectations

Requiring vaccinations does not mean employers can forego the rest of their COVID-19 management protocol. Employers need to keep in mind that there is no proof that vaccinated people cannot transmit the virus to others, the vaccination seems likely to be less than 100% effective, and some people either will be unable to get the vaccine or at least will not yet have received it. Worry about a new pandemic episode will persist for years.

Many employees likely regard safety as the highest organizational priority and will look to their employer to provide reliable information about COVID-19 risk management. Failure by the organization to respect these new expectations could trigger negative social media reactions, unwanted attention from plaintiffs’ attorneys, and difficulty attracting and retaining valuable talent. While this may be a threat to some managers, it is an unprecedented opportunity to strengthen the bond of trust between employee and employer. 

As a practical matter, legal regulations tend to react to changing circumstances.  This makes it likely that any rescinding of temporary standards will occur in a somewhat tardy fashion. To date, the volume of litigation related to COVID-19 has been less than feared. However, do not take too much comfort in this. Courts have been shut down, causal connections are likely to be better understood as experience accumulates, and plaintiffs’ attorneys may surmise that juries will be more sympathetic after the worst of the crisis has passed. 

Employees Who Refuse

Surveys show that a significant portion of the population would choose not to take a COVID-19 vaccine. Some may eventually be persuaded, while others have deeper objections. Some may be uncomfortable as long as deployment is under emergency use authorizations. This unease reinforces the need to be collaborative in pandemic management and transition planning, and to communicate the reasoning behind critical decisions or policies.

The entire workforce will never agree on how best to emerge from the pandemic. Although communication is important and stakeholder feedback is necessary, securing unanimity is unrealistic. On the other hand, if a significant number of workers refuse to accept a vaccine, even in the face of an employer mandate, is the organization prepared to redeploy or replace these workers?

There is no risk-free path to a post-COVID environment. Employers must continuously assess conditions and be prepared to act promptly despite incomplete information, changing circumstances and inherent uncertainties.

January 15th: Friday Roundup

The weekend is calling as another work week concludes.  According to the Bureau of Labor Statistics, U.S. Department of Labor, the unemployment rate for the country held steady at 6.7% in December.  The number of unemployed persons held stead at 10.7 million.  While these figures are considerably lower than the spike we saw in April, they are still double the pre-pandemic levels we enjoyed last February.    Attached is the Bureau’s new release on The Employment Situation – December 2020, which contains detailed statistics on our current state. 

December bore witness to a continued decline in jobs in leisure, hospitality, and private education sectors.  These losses were offset by some gains in professional and business services, retail trade and construction; sectors which are attempting to rebound. 

Continued high unemployment figures will impact the unemployment tax rates.  This is something we will continue to keep an eye on.  Hopefully, you caught our post earlier this week regarding the anticipated increases in unemployment tax rates in Florida.  

Unemployment Tax Rates in Florida are Increasing

Unemployment often leads to criminal activities.  As COVID-19 diagnosis continue to climb nationwide, so do predatory scams related to the pandemic.  Spreading awareness of these scams is one of the best ways we can help to limit the number of individuals who fall victim.  We hope you saw our post earlier this week sharing recommendations from Regions Bank Treasury Management and the FBI on how to avoid falling prey to these scams.

Regions Bank Treasury Management sends out information on Emerging COVID-19 Scams

Stay safe and have a wonderful weekend everyone!

Preparing for the 2020 Flu Season – Debbie Downer Alert

Knowing the difference in symptoms. Check out this great visual from WFMTV news.
Brought to you by the insurance professionals at Libertate Insurance  

Preparing for Flu Season During the COVID-19 Pandemic

Each year, the seasonal flu has a marked impact on businesses and employers, causing increased absenteeism, decreased productivity and higher health care costs. The past few flu seasons have seen high hospitalization and mortality rates, which has public health experts fearing another deadly flu season.

Unfortunately, the 2020-21 flu season isn’t the only health crisis employers and employees have to address this year. The COVID-19 pandemic is still affecting the workforce, and the combination of another potentially bad flu season and the pandemic has public health experts worried.

As an employer, are you well-positioned to help keep your employees healthy and minimize the impact that influenza has on your business? The Centers for Disease Control and Prevention (CDC) recommends strategies to help employers fight the flu and talk to employees about what a flu season during the pandemic looks like.

Educate Employees on the Flu vs. COVID-19

Unfortunately, because the flu and COVID-19 are both contagious respiratory illnesses, some of the symptoms are similar. For example, as we now know, common flu symptoms include the sudden onset of fever, headache, fatigue, muscle aches, congestion, cough and sore throat. All of those are currently considered symptoms of COVID-19.

One of the difficult aspects of the COVID-19 pandemic is that the symptoms are wide-ranging and vary in severity. Some with COVID-19 may experience little to no symptoms, while others may be severely ill and require hospitalization.

Due to the similarity in symptoms between COVID-19 and the flu, it may be difficult to determine whether an employee has the flu or COVID-19 without being tested. As such, it’s important to encourage employees to stay home if they are sick and suggest a COVID-19 test.

Consider allowing employees to work from home, if they’re healthy enough to complete their work or while they wait for test results, and encouraging employees to take paid time off if they need to. If an employee tests positive for COVID-19 and needs to take time off to recover, they may be eligible for leave under a multitude of federal and state laws.

Preparing Your Workplace for Flu Season During the Pandemic

There are a variety of steps employers can take to protect employees and prepare for flu season—which may include steps you’ve taken in response to COVID-19—regardless of whether employees are in the office or working remotely.

Here are some strategies to consider:

  • Host an on-site, socially distanced vaccination clinic—One of the most important steps for preventing the flu is to get an annual flu vaccination. The CDC recommends that all people over the age of 6 months get a flu vaccine each year. Hosting an on-site flu vaccination clinic can help educate employees about the importance of vaccination and make it easier for them to get vaccinated.
  • Encourage employees to get the flu vaccine—If you choose not to or are unable to provide an on-site flu vaccination clinic, you can still emphasize the importance of vaccination to your employees and educate them about local opportunities to get vaccinated.
  • Disinfect and clean the office—Because the flu virus and the virus that causes COVID-19 can remain on surfaces long after they’ve been touched, it’s important that your business frequently cleans and disinfects the facility. Some best practices include:
    • Cleaning and disinfecting all frequently touched surfaces in the workplace, such as workstations, keyboards, telephones, handrails and doorknobs. Check with your cleaning company, they may not be performing these extra steps to ensure the viability of your employees and ultimately your company.
    • Discouraging workers from using other workers’ phones, desks, offices, or other tools and equipment, when possible. If necessary, clean and disinfect them before and after use.
    • Providing disposable wipes so that commonly used surfaces can be wiped down by employees before each use.
  • Implement and enforce social distancing protocols—Social distancing is the practice of deliberately increasing the physical space between people to avoid spreading illness. Social distancing best practices for businesses can include:
    • Avoiding gatherings of 10 or more people
    • Instructing workers to maintain at least 6 feet of distance from other people
    • Hosting meetings virtually when possible
    • Limiting the number of people on the job site to essential personnel only
    • Leveraging work-from-home arrangements and staggered shifts when possible
    • Discouraging people from shaking hands
  • Employee safety training—Ensure that all employees understand how they can prevent the spread of COVID-19 and the flu, taking into account:
    • Respiratory etiquette and hand hygiene—Businesses should encourage good hygiene to prevent the spread of respiratory illnesses like the flu and COVID-19. This can involve:
      • Providing tissues and no-touch disposal receptacles
      • Providing soap and water in the workplace
      • Placing hand sanitizers in multiple locations to encourage hand hygiene
      • Reminding employees to not touch their eyes, nose or mouth
      • Asking employees to wear a mask or face covering when social distancing is not possible
    • Staying home when sick—Encourage employees to err on the side of caution if they’re not feeling well, and stay home when they’re sick or are exhibiting common symptoms of COVID-19 or the flu.

These strategies may not be right for every organization. Depending on the nature of your business, you may need to implement additional prevention strategies.

The key is having a strategy and making sure everyone is informed and on board. Reach out to Libertate Insurance for additional resources on preparing your workplace for flu season.

As COVID-19 Spreads, Beware of EPL Risks

As businesses of all sizes strive to protect their employees and preserve cash flow during the coronavirus pandemic, likely the last thing on most of their minds is employment practices liability (EPL) exposures. But EPL risks are higher during pandemics and other periods when employers are more likely to furlough, lay off or ask employees to work from home.

Despite federal legislation aimed at relieving financial burdens on workers and their employers, many businesses face difficult choices – and more complicated record keeping.

The Families First Coronavirus Response Act (FFCRA), which takes effect April 1, permits workers to take paid public health emergency leave to care for themselves or their children through the end of 2020. The law requires employers with fewer than 500 employees to provide up to 12 weeks of paid leave for employees who cannot work due to the closure of their children’s school or child-care provider during the public health emergency. The law generally requires employers to restore the employee to his or her former job after leave, unless the employer has 25 or fewer workers, or the position no longer exists due to economic conditions resulting from the public health emergency (source 1, 2).

Several EPL risks for businesses can arise from the current coronavirus (COVID-19) outbreak. These include:

Wage-and-hour issues. Employers should carefully track employees’ working time, especially in work-from- home arrangements, as well as during a furlough. Work hours are common tipping points for eligibility under an employer’s employee benefits plan.

“A lot of employment issues arise from COVID-19. Frequent questions I get from employers concern furloughs, layoffs, and working from home,” said Kunal Shah, Of Counsel at Wilson Elser Moskowitz Edelman & Dicker LLP in Dallas. “If a business temporarily closes its doors, or significantly reduces its staff and hours, how do we navigate employee compensation and benefits? Insureds need to be mindful that furloughs, if not handled properly, can lead to significant wage-and-hour claims.”

If an employer requires employees to take unpaid leave through furlough, problems can arise if employees are asked to spend even a little bit of that time working, Shah cautioned. “An employer can furlough an exempt employee, but if the employee does one second of work, he or she is entitled to full pay for the entire pay period under the Fair Labor Standards Act,” he said.

“Employers need to be mindful of local and state ordinances, too. Employees of businesses that are deemed non- essential should not be working if they are under a shelter-in-place order,” Shah said.

Hours spent working matter, to workers and their employers. “Benefit plans may no longer provide benefits if hours fall below a certain threshold,” Shah explained. “For example, if a full-time employee goes below a certain hours minimum required for benefits under their group health plan, he or she may trigger coverage under COBRA,” or the Consolidated Omnibus Budget Reconciliation Act, a federal law that allows workers to obtain group health insurance temporarily, usually for up to 18 months.

“The reverse can also happen, where an employee works more hours than agreed upon, thus making him or her eligible for certain benefits otherwise not agreed to. For these reasons, timekeeping and logging hours are important steps for every employer, especially in a working-from-home arrangement,” Shah advised. Relying on employees to track their own time can be risky. “Asking employees to report their hours daily, even in an e-mail, is a good way to document work time if an employer lacks a logging system for remote workers,” Shah suggested.

“Also, employees who are on unpaid leave or working less hours due to furlough can still apply for unemployment benefits. An employer must be mindful of these sorts of situations to avoid wage-and-hour claims,” Shah advised.

Wrongful termination. Reductions in force (RIFs) are an unfortunate fact during economic downturns, such as the one that is occurring due to COVID-19. RIFs often lead to wrongful termination claims, and potentially even class-action lawsuits.

Because the coronavirus so far poses greater health risks to people over age 65, people with obesity and underlying uncontrolled health conditions such as diabetes or liver disease, and pregnant women, employers must proceed carefully with terminations. The Centers for Disease Control & Prevention offers information resources to help business and employers slow the spread of COVID-19 (source).

It might seem logical to some employers to lay off workers at greater risk of contracting COVID-19, but that is problematic and could invite lawsuits alleging discrimination and wrongful termination.

Americans With Disabilities Act (ADA) issues. The U.S. Equal Employment Opportunity Commission enforces anti- discrimination laws, including the ADA and the Rehabilitation Act. With the stress and anxiety over COVID-19, employees with disabilities might make more requests for reasonable accommodations under the ADA. Employers should consider any accommodation requests during the pandemic in the same manner in which they otherwise would. The EEOC also has published guidance for employers on COVID-19 (source).

The ADA allows employers to seek certain information about employees’ health and disabilities, insofar as such information is job-related and consistent with “business necessity,” but employers must remain aware of their obligations to apply it consistently and keep information confidential.

“Because we are dealing with a pandemic, it is now OK for employers to take employees’ temperatures or send an employee home if he or she is exhibiting COVID-19 symptoms, but any information an employer collects about an employee’s health must be treated as a confidential medical record,” Shah said. “During a pandemic like COVID-19, employees exhibiting symptoms consistent with the virus post a direct threat under the ADA, warranting an employer’s questions out of business necessity. Employers should remember that all other aspects of the ADA remain in effect. There is still the potential for retaliation claims under the ADA and other laws.”

Third-party discrimination. Another form of EPL exposure is third-party discrimination. Such claims may come from customers or others. For example, refusal of service or preferential treatment could be construed as third-party discrimination.

“Businesses all over the United States have been mandated to practice social distancing and not put their employees or customers in jeopardy. Businesses can’t prevent claims, but they may have lots of meritorious defenses,” Shah said.

Original article posted by CRC Group Wholesale & Specialty

COVID-19 Workers’ Compensation Resources

Due to the nature of the COVID-19 pandemic, rules and regulations are constantly changing. You should be prepared to change your business practices if needed to maintain critical operations. Below are links to resources on how to keep your business, employees and customers safe.

[ninja_form id=2]