This Tire Dealer Survival Guide exclusive can also be found inside the May edition of MTD.
On March 11, 2020, the World Health Organization declared COVID-19 to be a pandemic. This, in turn, led virtually every country and their regional and local jurisdictions to make similar pronouncements.
Within days, employers in the United States scrambled to figure out if they met the definition of an “essential business” and could remain open.
Much has occurred during the ensuing 14 months. Although a handful of states are still reporting surges in COVID-19 cases, hospitalizations and death rates are trending downward throughout the country.
As of mid-April, more than one-third of Americans had received at least one dose of a COVID-19 vaccine, while 21% were fully vaccinated. All this is paving the way for the full reopening of the American economy. Still, you need to understand that substantial efforts must be undertaken before your business can return to “normal” — whatever that will look like in the post-COVID-19 era.
It is important to remember at the outset that the Occupational Health and Safety Administration (OSHA) requires all employers to provide a “safe and healthful” workplace for their employees and others upon their premises.
OSHA also has a number of standards that employers need to follow when employees get sick at the workplace and on the use of personal protective equipment and respiratory protection in certain environments. In addition, 21 states have their own, OSHA-approved plans that apply to private sector workers.
Therefore, until America reaches the point of herd immunity with respect to COVID-19 and OSHA, the Centers for Disease Control and other health authorities remove their call for the use of masks and social distancing, employers should continue to pursue existing practices of requiring personal protective equipment and masks, having employees screen themselves daily for COVID-19 symptoms, monitoring potential exposure, ensuring adequate ventilation indoors, conducting temperature checks, recording responses to health screening questions, maintaining social distancing norms and sanitizing all work areas on a daily basis.
Moreover, if an employee reports that they have tested positive for COVID-19 and believes that they were exposed or infected at work, an employer must investigate immediately, inform the employee’s work colleagues that they may have been exposed, monitor their health for possible symptoms during the next five to seven days and immediately isolate, sanitize and ventilate the work area for at least 24 hours.
The employer must also report the matter to its workers’ compensation carrier and then record it on the OSHA 300 and 301 forms. And if the infected employee is hospitalized or dies, the employer must report this to OSHA within eight hours, in the case of death, or 24 hours, in the case of hospitalization.
Further, should the employer choose to do so, it can require that its employees get vaccinated. But one must follow the rules and get it right.
The Equal Employment Opportunity Commission’s (EEOC) recent guidance provides employers with enough flexibility to allow them to implement a mandatory vaccination program.
Many employers are struggling with whether to pursue this route and some states have already issued executive orders banning so-called “vaccine passports.” Nonetheless, employees may force the issue as they could refuse to return to work unless they can be assured that a substantial percentage of the workforce has been vaccinated.
Wherever an employer lands on this issue, it should be remembered that vaccination information is considered confidential medical information and therefore protected under the Americans with Disabilities Act.
If an employer decides to require vaccinations, it can also require proof of vaccination.
The EEOC has made it clear that the employer should never ask the employee why they have not yet been vaccinated. If the employee offers a medical reason for not taking the vaccination, the employer will have to engage in what is known as the “interactive process.”
This involves a dialogue with the employee that is sufficient to allow the employer to determine whether the medical condition in fact constitutes a “disability” that precludes the employee from receiving the vaccine. This information will then be used to determine whether a reasonable accommodation is possible and whether the unvaccinated employee poses a direct threat to the health and safety of co-workers.
In order to determine whether or not an employee poses a direct threat, the employer is required to look at four factors:
• The duration of the risk;
• The nature and severity of the potential harm;
• The likelihood that potential harm will occur, and;
• The imminence of the potential threat.
If there is objective evidence that a direct threat exists and that threat cannot be reduced to an acceptable level, then the employer can exclude the employee from the workplace. However, excluding the employee does not always mean that they must be terminated. For example, if their job can be performed remotely, that option must be considered and offered if it is reasonable under the circumstances.
The same interactive process is to be used whenever an employee claims that a religious belief prevents them from receiving the vaccine.
According to the EEOC, employers should normally give employees the benefit of the doubt and assume that their stated religious belief is sincere. That said, the employer does have the right to request additional information if it has a good reason for questioning either the nature or sincerity of the claimed religious belief.
Employers should expect to encounter workers who are unwilling to provide a reason — or who will offer a questionable reason — for refusing to obtain the vaccine. In such circumstances, the employer should consider seeking advice from its HR consultant or attorney. The EEOC’s guidance only addresses disability and religious accommodation hypotheticals, so the employer will want to consider all options in order to best justify whatever position is taken with the employee.
In an effort to improve vaccination rates and make the workplace safe, many employers are implementing vaccination incentive programs. These include paid time off for traveling to and from the vaccine site, as well as any wait time to take it. Other incentives could include bonuses and debit and gift cards.
Employers, however, need to be careful with such incentives because if they are significant in monetary value, those employees who have a legitimate basis for not taking the vaccine will be left out and could raise either disability and/or religious discrimination claims. The key is to not make these incentives too large.
If an employee is terminated for refusing to comply with the employer’s COVID-19 protocols or because their request for an accommodation cannot be met, their eligibility for unemployment compensation benefits likely varies from state to state. If the employer intends to contest the claim, the employer should seek legal advice so its position can be properly presented and defended.
In sum, there are no simple answers when it comes to COVID-19 and the workplace. But if the employer proceeds with care, trains its managers and employees on the rules and obtains legal advice when needed, the employer can minimize its risk of legal liability and keep its business rolling.
Norton Rose Fulbright US LLP (NRF) has 100 years of legal experience and provides counsel in employment and labor matters and other areas. Mario Barrera is a partner and senior trial attorney at NRF’s Austin and San Antonio, Texas, offices. He is board-certified in labor and employment law and has 30-plus years first chair trial experience handling complex litigation. Kevin Mayer is a partner and senior trial attorney in NRF’s California office and has advised companies on federal and state OSHA compliance. For more information, email [email protected].