by Stephen D. Hans | Dec 13, 2021 | COVID-19 NY Workers & Businesses
What questions are legal to ask employees about COVID-19? The EEOC COVIC-19 guidance for employers is extensive. The pandemic has ushered in situations that require compliance. Yet, at the same time, employers must comply with the Americans with Disabilities Act (ADA) and other laws that protect employees’ rights. If you’re an employer, navigating this maze of information can sometimes be challenging. In this blog, we address questions/actions related to COVID-19 based on the EEOC’s guidance rules. Employers need to know what questions they can ask and what actions they can take. To protect your workforce, what can you ask an employee who calls in sick? You can ask whether they are experiencing COVID-19 symptoms. Examples include: fever, chills, cough, shortness of breath or a sore throat. However, you must maintain all the information the employee gives you as a confidential medical record, in compliance with the ADA (Americans with Disabilities Act). When screening employers to enter the workplace, what symptoms can you ask them about? As health authorities have expanded the list of associated COVID-19 symptoms, you can ask employees about those symptoms as well. Examples include the loss of smell or taste, and gastrointestinal problems, such as vomiting or diarrhea. Can you take an employee’s body temperature during the COVID-19 pandemic? Yes, you can. However, keep in mind that not all people with COVID-19 have a fever. Can you require that an employee with COVID-19 symptoms stay at home? Yes, you can. Can you require the employee returning to work to have a doctor’s note stating they are fit for work? Yes, you can. However, some doctors may...
by Stephen D. Hans | Aug 9, 2021 | COVID-19 NY Workers & Businesses
Emergency Temporary Standard (ETS) Has Anti-Retaliation Measures Anti-Retaliation for COVID-19 is something employers should be aware of. The Emergency Temporary Standard (ETS) for OSHA regarding COVID-19 went into effect near the end of June 2021. The ETS only applied to the healthcare sector. The ETS established guidance that protected unvaccinated and at-risk workers. In addition, it encouraged vaccination. However, the ETS also contained important provisions for anti-retaliation. How Does Anti-Retaliation for COVID-19 Apply to Health Workers During the Pandemic? Many workers have worried about dismissal for exercising their rights during the pandemic. What rights are they concerned about? Disclosing a positive COVID-19 test Informing employers they have covid symptoms Having to quarantine after testing positive Notifying an employer about workplace conditions such as insufficient Personal Protective Equipment (PPE) or failures to clean or properly ventilate areas Employees have feared losing their jobs over the above. However, the ETS protects employees from retaliation for disclosing any of the above factors. Why Informing Employees about Anti-Retaliation Helps Employers If you have employees who hide the fact they tested positive, it puts other workers at risk. Also, employees should feel free to advise you about hazardous conditions so you can correct them. For example, if you did not know that another worker was refusing PPE or not wearing PPE correctly, then you could not correct the situation. Remedies Employees Have Under the Anti-Retaliation Provision As an employer, it is vital to realize that remedies exist regarding the ETS anti-retaliation provision: OSHA has up to six months from the date of the alleged retaliation to issue a citation Remedies may include back-pay and...
by Stephen D. Hans | Jun 23, 2021 | COVID-19 NY Workers & Businesses
What type of incentives should or should not employers offer? Determining acceptable vaccine incentives for workers also relates to guidelines issued by the EEOC. According to a JD Supra article the most common incentives that employers offer are cash/gifts and paid time off. In fact, based on a survey conducted in 2021: 38% of employers would offer cash/gifts 30% would offer paid time off as incentives 43% were unsure about offering incentives Cash/Gifts Incentives Of the employers surveyed who were offering cash/gifts, 24% said they would provide compensation worth over $100. Around 22% would consider amounts worth under $100. Of the remaining employers, 6% considered giving company-branded merchandise including, water bottles, t-shirts or company store gift cards. The percentage of employers unsure about what type of cash or gifts to give was 48%. Another option that several employers considered was a company raffle. Inoculated employees could enter to win a prize, such as $1,000 cash, an Apple watch or another luxury item. Paid Time Off Incentives Some employers who took the survey considered paid time off as an incentive. The percentages were as follows: 76% were uncertain about how much paid time off to provide 11% considered giving a full day off 11% considered providing four hours or less time off No Incentives Allowed for Employers Vaccinating Family Members Another issue that came up was whether you could offer incentives to employees who allow your company or agent to vaccinate their family members. EEOC guidelines do not permit this. The reason is it would be in violation of GINA (Genetic Information Nondiscrimination Act). It would violate the Title II...
by Stephen D. Hans | Jun 16, 2021 | COVID-19 NY Workers & Businesses
What guidelines apply to vaccine incentives? Vaccine incentives through employers are another option for promoting worker vaccinations. However, there are guidelines an employer must follow. According to EEOC’s updated guidance, employers can offer an incentive of any kind when the employee receives the vaccine by a third party. A third party would be someone other than the employer or the employer’s agent. Examples of third parties would be pharmacies, healthcare providers and public healthcare departments. When offering the incentive, the employer can require proof of vaccination. In doing so, the employer is not asking about physical disability. When the employer or the employer’s agent offers the vaccine, certain limitations exist regarding the types of incentives the employer can offer. In contrast to a third party, an employer’s agent would be an onsite medical staff person. The staff person or nurse would be acting on behalf of the employer. When the employer provides the vaccination through agents, the incentive cannot be “so substantial as to be coercive.” What does “so substantial as to be coercive” mean? This guideline relates to the EEOC’s wellness rules under the Americans with Disabilities Act (ADA). Employers can offer wellness programs to employees, but the incentive shouldn’t be so large that it makes employees feel pressured to disclose private medical information. In relation to vaccinations, employees would provide medical information during the pre-screening process. The incentive can encourage the employee, but the employee should not feel forced or overly persuaded to get the vaccination. Offering incentives to employees with valid reasons for not vaccinating At the same time, the employer must offer the same types...
by Stephen D. Hans | Jun 9, 2021 | COVID-19 NY Workers & Businesses
Confidentiality of Vaccination Proof or Confirmation Voluntary COVID-19 vaccine programs for employment are an option some employers are considering. Employers who aren’t requiring employee vaccination still have the legal right to inquire whether an employee has received the vaccine. This does not violate disability law. However, they may not ask employees about their reasons for not getting vaccinated. Also, as long as employees agree to answer pre-vaccination questions voluntarily, this is legal, even when the employer provides vaccination directly or through an agent. An underlying medical condition may entitle an employee to reasonable accommodations as long as there is no undue hardship for the employer. For example, some employees may be immunocompromised, and therefore the vaccine does not offer them the same protection. The ADA and Confidentiality of Vaccination Proof or Confirmation Vaccination is a medical record. Therefore, it falls under strict confidentiality requirements based on the Americans with Disabilities Act (ADA). After the EEOC first released guidelines in December 2020, it recommended that employees should not include medical information when providing proof of vaccination. Questions arose as to whether proof of vaccination was medical information and therefore confidential under terms of the ADA. The EEOC affirms that it is. Consequently, employers requesting vaccination proof must store the records separately from the employee’s personnel file. The following restrictions apply as far as sharing the information: When necessary for restricting the employee’s work or duties, employers may inform supervisors and managers If the disability requires emergency treatment, then first aid and safety personnel should be privy to the information Government officials investigating compliance issues can request the information Do you...
by Stephen D. Hans | Jun 2, 2021 | COVID-19 NY Workers & Businesses
To Require or Not Require COVID Vaccination? Mandatory COVID-19 vaccination for employment is still something that the majority of U.S. employers have not required. However, as an employer, it is wise to come to your own decision. In doing so, it is important to understand your rights and the legalities involved with mandating employee vaccination. According to a JD Supra article released June 1, 2021, the EEOC has updated its guidelines for employers. Can Employers Require Employees to Be Vaccinated? The answer is yes, but certain conditions must apply. For example, employers must make reasonable accommodations for employees with disabilities or religious objections. Accommodations might include allowing an unvaccinated employee in the workplace as long as the employee: Wears a face mask Maintains social distancing from others Works a modified shift Receives COVID-19 testing Does telework Could be reassigned to another position Guidelines for Employers Requiring Mandatory COVID-19 Vaccination for Employment Updated best practice guidelines include: Notifying all employees that the employer will consider accommodation requests based on disability or religious objection on an individual basis Inform employees unable to be vaccinated due to disability or religious objections that they are responsible for notifying the employer about their need for exemption Employers should train managers how to recognize a request for accommodation and who in the company should be informed about it Assessing whether the vaccine requirement could have an adverse impact on employees based on their race, color, religion, sex, national origin or age A vaccination requirement may adversely affect some employees more than others, based on their demographic group. Employers should take this into consideration when planning...
