It continues: Virginia updates its permanent COVID-19 workplace safety standard

On August 26, 2021, the Virginia Department of Labor and Industry’s (DOLI’s) Safety and Health Codes Board (Board) voted 8 to 5 to update and continue its COVID-19 permanent workplace safety standard. That vote came despite the fact that the bulk of COVID-19 business requirements issued by Virginia Governor Ralph Northam ended on May 31 and the Commonwealth’s COVID-19 state of emergency declaration ended on June 30, 2021. After the Board’s vote and review by the Governor, the updated standard became effective upon publication on September 8, 2021 and replaces the earlier permanent standard promulgated in January. While the original standard’s general framework remains largely intact, the updated standard contains several notable new or substantially updated requirements and attempts to more closely align Virginia’s regulations with the guidance from the Centers for Disease Control and Prevention (CDC).

Attempt to align with CDC guidance

At the Governor’s request, the Board amended the language to better align the Virginia standard with the CDC’s often changing COVID-19 guidance. The updated Virginia standard removes language that merely allowed employers to follow CDC guidelines where it provided “equivalent or greater protection” than the Virginia standard, and instead now states that an employer who “actually complies” with current CDC guidelines (both mandatory and non-mandatory) will be considered to be in compliance with the Virginia standard. This amendment should ease the burden on employers faced with dueling federal and the state requirements. Nonetheless, employers still should be mindful that only “actual compliance” with current CDC guidelines will be evidence of good faith in any enforcement proceeding by the Virginia Occupational Safety and Health Program (VOSH) under the updated standard.

Notable workplace safety changes

While the overall framework in the original standard remains intact (with universal requirements for all covered employers, heightened requirements for higher-risk employers, an infectious disease plan for higher risk employers, certain training requirements, and anti-discrimination protections), the updated Virginia standard makes a number of notable changes that employers should carefully review:

  • Mandatory written COVID-19 policy: The updated standard now requires all covered employers to implement a COVID-19 policy, covering areas such as (i) workplace safety practices and procedures, (ii) mandatory reporting, (iii) return to work procedures after a COVID-19 exposure or diagnosis, (iv) practices for workplace visitors, and (iv) a method to receive anonymous complaints of violations. Employers will need to review any existing policies promptly to ensure compliance with the updated standard and where needed, update their policies.
  • Updated hazard assessment: While the updated standard removes the earlier risk designations of very high, high, medium, and lower risk employees, it continues to require that employers conduct a workplace safety hazard assessment of each job position (and a PPE assessment for certain positions). It also introduces the concept of a “higher-risk” workplace, which includes employers with mixed-vaccination status employees, work places in areas of substantial or high community transmission, or with otherwise at-risk employees. Employers will need to conduct or update existing hazard assessments to reflect these updated hazard concepts.
  • Updated workplace safety practices: The updated standard changes many of the applicable workplace safety practices and procedures to differentiate between fully vaccinated employees and employees who are unvaccinated or otherwise at risk. The updated standard also provides for enhanced safety requirements for higher-risk workplaces.
  • Updated screening requirements: While the updated standard requires all employers to require employees to report if they are experiencing any signs and symptoms of COVID-19, the daily health assessment or screening requirement now only applies to higher-risk workplaces.
  • Face covering requirement: The updated standard now requires employers to provide and require face coverings for employees who are not fully vaccinated, employees who are fully vaccinated employees in areas of substantial or high community transmission, and employees who are otherwise at-risk, with certain exceptions and accommodation requirements.
  • Revised reporting requirement: The updated standard continues to require that employers report to the Virginia Department of Health (VDH) when there are two or more confirmed COVID-19 cases at the worksite within a 14-day period and now aligns this same reporting standard to DOLI (previously reports to DOLI were only for three or more cases). VDH and DOLI have established a combined online reporting mechanism.
  • Updated return to work requirements: The updated standard now requires that an employee with a known exposure to someone with COVID-19 must follow testing and quarantine guidance by the VDH. An employee suspected to have COVID-19 may only be allowed to return to work after a negative PCR test (paid for by the employer), per the advice of a healthcare professional or VDH, or consistent with CDC guidance.
  • Updated infectious disease control plan: The updated standard requires employers with higher-risk workplaces and 11 or more unvaccinated employees to prepare a written infectious disease preparedness and response plan covering certain specific practices and to train employees on such plan. The deadline to implement such a written plan is October 8, 2021.
  • Updated training: The updated standard requires employers with higher-risk workplaces to provide COVID-19 training to employees on the requirements of the standard as well as site-specific procedures to be followed (although employers may satisfy the training requirement by providing fully vaccinated employees’ written information in lieu of training). The deadline to conduct the required under the updated standard training is November 7, 2021.

Application to healthcare employers

Except for the mandatory reporting requirements to VDH and DOLI and the standard’s anti-discrimination provision, the updated Virginia standard suspends the application of the permanent standard for healthcare employers covered by the federal COVID-19 Healthcare Emergency Temporary Standard (ETS), which became effective earlier in June. The updated standard will only apply the healthcare employers if the federal healthcare ETS expires, is rescinded, or is stricken by a state or federal court. Therefore, healthcare employers covered by the federal healthcare ETS should continue following the federal healthcare ETS as the applicable primary workplace safety standard.

Potential impact by announced federal OSHA vaccine mandate

The same week that Virginia updated its permanent standard, the White House announced that federal OSHA is developing an emergency rule to require all employers with 100 or more employees to mandate vaccination or provide proof of a weekly negative test. When federal OSHA enacts an emergency federal requirement, for states that operate their own state occupational plan under OSHA (such as Virginia under VOSH), the state agency will be required to choose to either amend their own standards to incorporate the federal requirement or make a determination that the state standard is “at least as effective” as the federal standard. Therefore, if and when federal OSHA issues any such federal rule, VOSH will have 30 days from the promulgation of any such federal rule to determine which course of action it will take. This is the same procedure VOSH utilized when adopting the federal healthcare ETS for Virginia healthcare employers.

Virginia employers should immediately review the updated Virginia standard to determine how their operations may be impacted. If you have any questions on these requirements, need assistance developing policies and procedures to comply with these regulations, or have other questions regarding your workforce related to COVID-19, please contact Betty Graumlich at bgraumlich@reedsmith.com, Noah Oberlander at noberlander@reedsmith.com, or the Reed Smith lawyer with whom you normally work.

 

Biden announces major COVID-19 vaccine requirements for employers

On Thursday, September 9, 2021, President Biden issued a memorandum, “Path Out of the Pandemic” (the Memo), announcing a six-pronged national strategy to combat COVID-19. Among other things, President Biden has ordered the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop and issue an Emergency Temporary Standard (ETS) to require all employers with 100 or more employees to ensure that their workers are vaccinated against COVID-19 or to require them to submit to weekly testing before coming to work. This emergency rule is estimated to impact over 80 million workers in private business sector businesses. Employers with 100 or more employees will also be required to provide paid time off to employees to get vaccinated and to recover from any side-effects. Businesses who violate these requirements may be subject to a $14,000 penalty per violation. The ETS is expected in the coming weeks and will be effective shortly thereafter.

Executive Order relating to federal contractors

Biden also signed an executive order specifically aimed at federal contractors. The requirement to be vaccinated, with no option to be tested instead, applies to “any workplace locations in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.” Unlike the previous EO addressing federal contractors, the scope does not appear to be limited to only those employees working at government sites. The requirement applies only to new government contracts or extensions or renewals of existing contracts entered into or renewed/extended on or after October 15, 2021. There are also certain types of federal contracts that are excluded from the EO (e.g., subcontracts solely for the provision of products). The EO directs the Safer Federal Workforce Task Force to provide further guidance on the requirements for federal contractors by September 24, 2021.

Vaccination requirements for health care providers

The Memo also states that the Centers for Medicare & Medicaid Services (CMS) are taking steps to require vaccinations for workers in 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 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. The CMS requirements will mandate vaccines for over 17 million health care workers across the country.

Other issues in the memo

The Memo also calls on large entertainment venues to require proof of vaccination for entry, expands accessible and free COVID-19 testing, requires masking for interstate travel on public transportation, doubles fines for mask violations, increases economic incentives and protections for small businesses, increases support for COVID-burdened hospitals, and addresses booster shots for eligible Americans, anticipated to begin around the week of September 20, 2021.

The Reed Smith team will continue to monitor these developments and provide updates pending the issuance of OSHA’s emergency rules. If you have any questions or require assistance with any employment related matters, please contact your Reed Smith employment attorney.

FAQs on US employee privacy issues related to the COVID-19 vaccine

In addition to the issue of mandated COVID-19 vaccine policies, employers must also manage the related privacy risks. Below are some of the frequently asked questions surrounding the issues of employee privacy as it relates to the COVID-19 vaccine. We also have a downloadable version of our privacy FAQs.

Question: Does it matter what type of information the company asks employees to provide to confirm their vaccine status?

Answer: Absolutely. Asking employees to confirm yes/no information seeks different information than, for example, requesting a copy of the employee’s vaccination card or more detailed records (such as lab results confirming presence of antibodies from a medical provider). Companies should be mindful of what information they are requesting because the inquiry might trigger heightened data-privacy and document-retention requirements. Companies should request only the information they require to confirm the vaccination status of the employee and should not collect any other information that is not necessary for that purpose. Companies should also be mindful of the privacy, security and other legal requirements involved in communicating with employees about any requested exception to a mandatory vaccine program based on a medical condition. The interactive process would likely include asking employees disability-related questions—and potentially questions implicating genetic nondiscrimination and health-data privacy laws (such as GINA or HIPAA).

Question: Our company plans to require employees to provide proof of their vaccine status by emailing human resources a copy of their vaccine card. Does this present any data-privacy concerns?

Answer: There are several issues to consider. How secure is your company’s email system? Can employees access their work email on their phones? If so, are there password and other security measures in place to prevent unauthorized access to that information? What does HR plan to do with the information once it receives it? Will it be printed out and stored in a paper file? Does the company plan to insert that information into the employee’s personnel file and/or HR database? Who would have access to that information? If the company plans on storing the data electronically, does the company have sole possession, custody and control of the servers where the data will be stored? If so, the company may want to confirm where those servers are physically located, and whether any state or local laws of that jurisdiction impose additional data-privacy, data-security and breach-notification requirements.

It’s worth noting here that HIPAA does not typically apply to the relationship between an employer and its employees. That being said, employers should still follow best practices and remain sensitive to the fact that they requesting and maintaining potentially sensitive employee health data. Additionally, if an employer performs services that are regulated under HIPAA, employees could be due additional protections. In this set of circumstances, an employer could be maintaining different data sets about an employee – of which one is regulated under HIPAA, and the other is not. Continue Reading

BREAKING: New York HERO Act prevention plans must be implemented following the state’s designation of COVID-19 as an “airborne infectious disease”

As we have previously reported, several months ago, New York enacted the HERO Act, a sweeping overhaul of the state’s workplace health and safety laws.  On September 6, 2021, the New York State Commissioner of Health designated COVID-19 as an airborne infectious disease under the HERO Act. As such, all New York employers are now required to implement the airborne infectious disease exposure prevention plans they were previously required to prepare and circulate to their workforce. 

According to the Commissioner of Health, the designation will remain in effect until September 30, 2021, at which point the level of transmission of COVID-19 in the state will be reviewed and a determination will be made on whether to continue the designation.

To ensure compliance with the HERO Act in light of this new development, New York employers should immediately implement their airborne infectious disease exposure prevention plans. Employers who fail to implement or abide by their plan may be subject to civil penalties of up to $10,000, with repeat offenders subject to increased penalties.

If you have any questions or concerns about the HERO Act or how it affects your company, Reed Smith’s experienced Labor & Employment Group is ready to speak with you.

 

 

Practical steps to ensure compliance with Texas’ robust new sexual harassment laws

On July 6, 2021, we released a blog post on Texas’ new sexual harassment laws, which became effective September 1, 2021. These laws expand liability for sexual harassment to companies with at least one employee and to individual supervisors and coworkers. Our July 6 post discusses the details of the new laws; now that they are effective, we provide some practical steps below companies should consider to ensure compliance.

  • Review your employment handbook or policies. Texas employers will be expected to have policies in place that ensure the following:
    • Employees know who to complain to if they are experiencing sexual harassment;
    • Complaints of sexual harassment are immediately and appropriately investigated;
    • Corrective action is taken immediately and appropriately; and
    • The corrective action is sufficient to stop the harassment and prevent it from reoccurring.
  • Consider implementing anti-harassment training for employees at all levels.
    • Explain to employees, especially supervisors and managers, the importance of compliance now that anyone acting directly in an employer’s interest in relation to an employee can be held individually liable for a sexual harassment claim.
  • Prepare for the extended statute of limitations for a sexual harassment claim.
    • Employees now have 300 days – instead of 180 – from the date of the alleged sexual harassment to file a charge with the Texas Workforce Commission.

If you have any questions about these new laws, or would like any guidance, assistance or advice regarding your organization’s anti-harassment or other equal employment opportunity policies, practices or procedures, please contact a Reed Smith attorney.

As of August 2021, 19 states enact COVID-19 related liability shields

On July 15, 2021, we released an article discussing the Texas liability shield for businesses against COVID-19 related claims.  Texas, however, is not the only state to enact such a shield. We have drafted a brief summary of the 19 states that have enacted COVID-19 liability shields to date.  For simplicity, we have summarized the particulars of each state’s laws. If you have any questions about any of these laws, or would like any guidance regarding your organization’s COVID-19 related policies, practices or procedures, please contact a member of Reed Smith’s Labor and Employment Practice Group.

To mandate or not? FAQs on mandatory vaccine programs for employers

Late last year, the U.S. Food and Drug Administration (the FDA) issued the first approvals for a COVID-19 vaccine. Shortly thereafter, the U.S. Equal Employment Opportunity Commission (the EEOC) issued guidance on the interplay between federal anti-discrimination law and vaccine-related issues, including the permissibility of mandatory employer vaccination policies. The below FAQs address some of the more salient questions surrounding such policies and their implementation, as well as other workplace issues triggered by the vaccine. There are undeniably more questions than answers at present with respect to vaccine-related workplace issues. Before taking any material workplace action with respect to the vaccine, therefore, please consult with a Reed Smith employment lawyer. We also have a downloadable version of our FAQs.

Q: Can employers adopt a mandatory employee vaccination policy?

A: Generally speaking, yes. In guidance issued in late May 2021, the EEOC took the position that mandatory vaccination policies are generally permissible under federal anti-discrimination laws. Just a few weeks later, in June 2021, a federal court – in the first ruling on this issue – echoed this sentiment in concluding that such policies are generally permissible. The following month, the U.S. Department of Justice issued a detailed memo reaching the same conclusion.

The two primary exceptions to the general permissibility of employer-mandated vaccination policies are for employees with disabilities and for those with a sincerely held religious belief, practice, or custom. If an employee refuses to be vaccinated and objects to a mandatory vaccination policy on one of these grounds, the employer must engage in the so-called interactive process with the employee and, subject to the “undue hardship” standards discussed below, provide the employee with a reasonable accommodation in line with applicable law.

In addition to legally required accommodations, the EEOC also cautions employers to be cognizant of any potential disparate impact created by a vaccine mandate.

Q: Are there state or local laws that address mandatory COVID-19 vaccination policies?

A: Employers must pay attention to state laws in the jurisdiction(s) where they operate. Several states have introduced legislation attempting to limit private employers’ ability to mandate COVID-19 vaccines. To date, such efforts have been without success other than in Montana.

Q: If an employer adopts a mandatory employee vaccination policy, how should it respond to an employee who indicates that they are unable to receive a COVID-19 vaccination because of a disability or a sincerely held religious belief, practice, or custom?

A: As noted, the employer must engage in an interactive process with the employee. When an employee objects to vaccination, they are requesting an accommodation under Title VII of the Civil Rights Act of 1964 (Title VII) (for a sincerely held religious belief, practice, or custom) or the Americans with Disabilities Act (ADA) (for a disability). The employer must provide a reasonable accommodation unless the accommodation would pose an undue hardship. Undue hardship is defined under Title VII as an accommodation that poses a “more than de minimis” cost or burden. For the ADA, undue hardship is more onerous to establish and is defined as creating significant difficulty or expense for the employer. Continue Reading

Dallas County issues new mask mandate to address increased transmission levels of COVID-19

On August 11, 2021, Dallas County Judge Clay Jenkins issued an order requiring masks in Dallas County businesses, schools, and county buildings. Judge Jenkins’ order comes on the heels of a Dallas County state court issuing a temporary restraining order of Texas Governor Greg Abbott’s July 29, 2021 order barring mask mandates by local governmental entities. The future of the Dallas County order is unclear with a permanent injunction hearing set for August 24, 2021 and Governor Abbott already filing a petition with the Fifth Court of Appeals of Texas challenging the order.

Under the Dallas County order, all commercial entities providing goods or services to the public must implement a health and safety policy that, at minimum, requires “universal indoor masking for all employees and visitors” and that may include other mitigating measures designed to reduce the transmission of COVID-19. Given the breadth of the order’s definition of “commercial entities,” the order arguably applies to all Dallas County employers, not just employers with worksites that are open to the general public. Businesses must post their health and safety policy in a “conspicuous location sufficient to provide notice to employees and visitors.” The Dallas County order took effect at 11:59 p.m. on August 11, 2021, and businesses have three calendar days from the effective date (i.e., until Saturday, August 14, 2021) to comply. Violations of the order may result in a fine of up to $1,000 per violation.

The rapidly changing legal landscape is one of the biggest risks facing employers as COVID-19 transmission levels ebb and flow. Employers should endeavor to adjust their workplace policies on short notice – three calendar days in this instance – to comply with health and safety requirements. Businesses should consult legal counsel to ensure compliance with state and local requirements related to COVID-19.

ADA likely to protect COVID long-haulers, Biden says

On July 26, 2021, President Biden announced that individuals with long COVID (referred to as COVID long-haulers) could be protected under several federal civil rights laws, including the Americans With Disabilities Act (ADA).

While some individuals fully recover from COVID, others experience debilitating symptoms that last long after first developing COVID-19 (long COVID), including extreme fatigue, shortness of breath, chest pain tightness, and brain fog.

The U.S. Department of Justice and the U.S. Department of Health and Human Services issued joint guidance on this issue explaining that long COVID can be a disability under Titles II (state and local government) and III (public accommodations) of the Americans with Disabilities Act , Section 504 of the Rehabilitation Act of 1973 (Section 504), and Section 1557 of the Patient Protection and Affordable Care Act (Section 1557) if it substantially limits one or more major life activities. The guidance noted that the term “substantially limits” is construed broadly under these laws and should not demand extensive analysis, and provided examples of when long COVID can substantially limit a major life activity:

  • A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.
  • A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.
  • A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.

The guidance clarified that long COVID is not always a disability and that an individualized assessment is necessary to determine whether a person’s long COVID condition, or any of its symptoms, substantially limits a major life activity. Notwithstanding this clarification, if an employee suffering from long COVID appears to be struggling and/or requests an accommodation, employers should err on the side of caution and engage in the interactive process to see whether they can provide the employee with a reasonable accommodation without causing undue hardship.

Overview of the governments’ ‘Consultation on sexual harassment in the workplace: government response’

The UK government’s long awaited response to its 2018 consultation on sexual harassment in the workplace has now been published. In this update, we look at the findings made and what may be coming down the line for employers as a result.

  1. Introduction

The 2018 Women and Equalities Select Committee (WESC) report on sexual harassment in the workplace revealed clearly that it was a persistent and important issue, despite the existence of current legal protections. As a result, the government committed to consult on the issue and have produced an official response to the 2018 report.

The government undertook a consultation from 11 July to 2 October 2019, on sexual harassment in the workplace. This consultation took a two-part form, consisting of: 1) a technical consultation with employers on the functionality of the legal framework designed to prevent sexual harassment, and 2) a public questionnaire aimed at gathering insight into the experiences of individuals.

The consultation was designed to explore:

  1. The evidence for the introduction of a mandatory duty on employers to protect workers from harassment and victimization in the workplace
  2. How best to strengthen and clarify the laws in relation to third-party harassment
  3. Whether interns are adequately protected by the Equality Act 2010 (the Act) and the evidence for extending the protections of the Act to volunteers
  4. The views of stakeholders on extending employment tribunal time limits in the Act from 3 months.

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