The Center for Disease Control and Prevention (“CDC”) updated its Covid-19 guidance on July 27, 2021, (https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html ) adding a recommendation for fully vaccinated persons in addition to unvaccinated persons to wear a mask in public indoor settings in areas of substantial or high transmission. (Click here to see transmissions by county nationwide:  https://covid.cdc.gov/covid-data-tracker/#county-view).  The CDC further provided a recommendation for fully vaccinated people who have close contact with someone suspected or confirmed to be infected with Covid-19 to get tested three to five days after exposure, and to wear a mask in public indoor settings for 14 days or until they receive a negative test result.

The Occupational Safety and Health Administration (“OSHA”) similarly updated its guidance to employers on August 13, 2021. https://www.osha.gov/coronavirus/safework  OSHA’s update closely resembles the CDC’s updated guidance issued on July 27, 2021.  OSHA now advises fully vaccinated workers in areas of substantial or high community transmission to wear masks in the indoor public areas of workplaces.  Currently, over 90% of counties nationwide have either substantial or high transmission rates.  Similarly, OSHA urges fully vaccinated workers to get tested three to five days after such an exposure to either a suspected or confirmed Covid-19 infected person and to wear a mask in indoor public areas for either 14 days or until they receive a negative test result.

OSHA’s updated guidance includes several additional recommendations for employers.  It stresses that vaccination provides the most effective way to protect against severe illness or death from Covid-19.  It urges employers to allow employees to use paid time off for them to get vaccinated and to recuperate from any side effects of vaccinations.  OSHA further “suggests” that employers adopt policies that require employees either to undergo vaccination or to submit to regular Covid-19 testing.  OSHA’s suggestion provides employers with a ready explanation to those who object to their mandatory vaccination policies, namely, they have merely followed OSHA’s guidance. 

2. Many Large Employers Have Already Announced Changes to Their Policies in Response to the CDC’s Updated Guidance Alone.

Airlines, such as United Airlines, Delta Airlines, and Frontier Airlines have adopted mandatory vaccination policies for their workforces. In the case of Delta Airlines, it has limited its policy so that it affects only new hires.  Other employers, such as, Amazon (the second largest employer in the United States) and JP Morgan Chase now require fully vaccinated workers to wear masks.  Unvaccinated employees of JP Morgan must also undergo Covid-19 testing at least twice a week.  JP Morgan further prohibits such employees from attending indoor employee events with 25 or more workers.  (https://www.nytimes.com/2021/08/06/business/united-airlines-vaccines.html ). 

Some employers have adopted mandatory vaccination policies for less than all of their workers. Disney requires all current salaried and nonunion hourly employees to be fully vaccinated and all of its new hires must be fully vaccinated before they start working.  Walmart now requires all workers at its headquarters and its managers who travel within the United States to be vaccinated. It has further imposed a mandatory mask wearing policy for all of its workers in its retail stores, even if they are fully vaccinated. Both Google and Facebook have announced mandatory vaccination policies for all of their office employees.  (https://www.huffpost.com/entry/walmart-disney-vaccine-mandate-workers_n_610471a3e4b00fa7af82bdbb ). 

3. So Far, at Least, Employee Challenges to Their Employers’ Mandatory Vaccination Policies in Court Have Lost.

At this point, only a handful of lawsuits have challenged an employer’s mandatory vaccination policy.  The early cases have argued that employers cannot impose vaccination mandates, because the Food and Drug Administration has issued only an emergency use authorization for the vaccines, rather than its full approval of them.  They have characterized the vaccines as “unapproved” and “experimental.”  Some have also alleged that their federal common law right to privacy gives them a right to refuse their employer’s vaccination mandate. The only court to render a decision in these cases, the United States District Court for the Southern District of Texas, dismissed all of the claims that employees of Houston Methodist Hospital brought against their employer.  The court found no merit to any of the workers’ arguments.  It further held that the mandatory vaccination policy states a lawful employment policy that limits a worker’s behavior in exchange for her or his remuneration. (https://www.natlawreview.com/article/can-employers-make-covid-19-vaccinations-mandatory).  

Conclusion:

The Covid-19 pandemic has evolved over time. Both the CDC and OSHA have had to adjust their guidance to the public generally and to employers specifically over time. Thus, employers must vigilantly follow new developments in real time with the Covid-19 virus as they occur and how the CDC and OSHA respond to them. As their guidance evolves, employers must modify their workplace policies to conform to their updated guidance. Employers need to take notice of any OSHA advisory guidance that has implications for the employer’s obligation under the General Duty Clause to provide a workplace free from recognized hazards that cause or are likely to cause either serious injury or death.  If employers implement policies and practices consistent with such OSHA guidance, they will likely minimize their exposure to OSHA enforcement actions. For more information about OSHA’s updated guidance or its implementation in a particular workplace, please contact Gerry Richardson at (314) 552-4053 | grichardson@evans-dixon.com.

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1. OSHA Now Exempts Employers from Protecting Fully Vaccinated Workers from Workplace Exposures to the Covid-19 Virus.

OSHA has identified the purpose of its new guidelines as the provision of guidance to employers to protect unvaccinated workers and otherwise at-risk workers from workplace infections by the Covid-19 virus. The guidelines describe otherwise at-risk workers as individuals who experience less than a full immune response from vaccination. It cites persons who have previously had organ transplants or who have used immune-weakening medications as examples. Generally, the guidelines exempt employers from taking any “steps to protect their workers from Covid-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated.”  They, however, oblige employers to “protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.”  The guidelines adopt the CDC’s definition of a fully-vaccinated person, namely, those people vaccinated for Covid-19 two weeks or more after they receive their final dose of a vaccine approved by the U.S. Food and Drug Administration. 

2. OSHA Requires Employers to Protect Their Unvaccinated and Otherwise At-Risk Workers from Workplace Exposures to Covid-19 Infections.

The agency urges employers to consult with their workers and any labor unions representing them to determine how to implement ways to protect their unvaccinated and otherwise at-risk workers from workplace transmissions of Covid-19.  It further recommends that employers take each of the following steps:

a. Grant paid time off for employees to get vaccinated.

b. Instruct any infected workers, unvaccinated employees who have had close contact with anyone who tested positive for Covid-19, and all workers with Covid-19 symptoms to stay home from work.

c. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas.

d. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other personal protective equipment (“PPE”).

e. Educate and train workers on the employer’s Covid-19 related policies and procedures using accessible formats and in a language they understand.

f. Suggest that unvaccinated customers, visitors, or guests wear face coverings.

g. Maintain ventilation systems.

h. Perform routine cleaning and disinfection.

i. Record and report Covid-19 infections and deaths, if work-related, pursuant to 29 C.F.R. 1904.

j. Implement protections from retaliation and establish an anonymous process for workers to voice concerns about Covid-19 related hazards.

k. Follow other applicable mandatory OSHA standards–generally, PPE (29 C.F.R. 1910.132-33), respiratory protection (29 C.F.R. 1910.134), sanitation (29 C.F.R. 1910.141), protection against bloodborne pathogens (29 C.F.R. 1910.1030), and OSHA’s requirements for employee access to medical and exposure records (29 C.F.R. 1910.1020).

Although OSHA has described these steps as recommendations, employers should view them as requirements.  The agency would likely cite any employer that ignored them as the basis for a general duty clause violation of the Occupational Safety and Health Act (“Act”), which requires employers to provide a safe and healthful workplace free from recognized hazards that cause or are likely to cause death or serious physical harm.

3. OSHA Further Views Manufacturing, Food Processing, and High Volume Retail or Grocery Sales as Higher-Risk Workplaces Whose Employers Need to Take Additional Steps to Protect Unvaccinated and Otherwise At-Risk Workers.

According to OSHA, higher risk workplaces share certain characteristics in common.  First, they have unvaccinated and otherwise at-risk workers working in close contact with each other, such as, on production or assembly lines.  Such close contact may also occur in any workplace where employees come into close contact with one another at specific times, for example, when clocking in or out, during breaks, or in locker or changing rooms.  Where unvaccinated or otherwise at-risk workers have prolonged closeness to coworkers, such as for the duration of work shifts, such continued contact increases the potential risk of Covid-19 transmission.  OSHA further addresses other distinctive factors that may increase risk among unvaccinated and otherwise at-risk workers, such as employer-provided transportation in ride-share vans or shuttle vehicles, community settings in areas with elevated community transmission, and communal housing or living quarters onboard vessels with other unvaccinated or otherwise at-risk individuals. It names workplaces involving manufacturing, meat and poultry processing, high-volume retail and grocery sales, and seafood processing as examples of higher risk workplaces.

For such higher risk workplaces, OSHA recommends additional precautions beyond those that its general precautions for all workplaces.  Specifically, in all higher risk workplaces where employers have any unvaccinated or otherwise at-risk workers, OSHA urges employers to implement the following additional precautions:

i. Stagger break times or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks.

ii. Unvaccinated and at-risk workers should socially distance by keeping a distance of at least six feet from others at all times.

iii. Stagger workers’ arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk employees in parking areas, locker rooms, and near time clocks.

iv. Provide visual cues, such as floor markings and signs, as a reminder to maintain social distancing.

v. Implement workplace specific strategies to improve ventilation that protects workers as outlined in the CDC’s Ventilation in Buildings and in the OSHA Alert Covid-19 Guidance on Ventilation in the Workplace.

vi. If food processing or assembly line configurations require workers to stand next to or across from each other, then the use of barriers can help to reduce the risks of Covid-19 transmission for unvaccinated and otherwise at-risk workers.  

vii. In retail workplaces, employers should:

a. suggest masks for unvaccinated or unknown status customers and other visitors,

b. consider the use of barriers  between work stations and the locations where customers stand with pass-through openings at the bottom, if possible,

c. relocate electronic payment terminal/credit card readers to a farther distance away from unvaccinated or otherwise at-risk cashiers, and

d. shift primary stocking activities by unvaccinated or otherwise at-risk workers to off-peak or after hours when possible.

vii. If unvaccinated and otherwise at-risk workers travel to and from work in employer-provided buses and vans, employers should:

a. notify such workers of the risk of Covid-19 transmission that such travel involves and limit the number of such workers in any single vehicle and

b. make sure that all unvaccinated and otherwise at-risk workers sharing a vehicle wear appropriate face coverings.

Like the general recommendations, employers with higher risk workplaces should consider OSHA’s additional precautions for such workplaces to be mandatory, rather than voluntary.  The agency would likely cite an employer for violating the Act’s general duty clause if  unvaccinated or otherwise at-risk workers become infected by Covid-19 from workplace exposure to the virus.   

4. Conclusion.

The development of effective vaccinations for Covid-19 has created a new challenge for employers.  They can lawfully require their workers to get vaccinated as a condition of employment.  Surveys, however, show that the vast majority of employers encourage, rather than require, their workers to be vaccinated.  Hence, employers typically have both fully vaccinated workers and unvaccinated employees. Both the CDC and OSHA have recognized that, at least in terms of workplace precautions to protect workers from Covid-19 transmission, employers can treat fully vaccinated workers in entirely different ways from their unvaccinated workers and otherwise at-risk employees. On the one hand, for fully vaccinated workers, employers need not take any such precautions. On the other hand, the presence of either unvaccinated or otherwise at-risk workers, or both, basically requires employers to require such workers to wear face coverings, to separate such workers by either distances of at least six feet or to erect barriers separating other unvaccinated or otherwise at-risk workers from each other.  They must also implement other strategies, such as, improved ventilation systems and staggered starting and finishing times to minimize workplace exposures to the Covid-19 virus by their unvaccinated or otherwise at risk workers. Therefore, OSHA’s new guidelines for workplaces other than in healthcare or transportation offers great news for employers with fully vaccinated workforces.  It, however, leaves all employers with less than fully vaccinated workforces where they have been since the pandemic began.   For more information about the CDC’s new guidance or its implementation in a particular workplace, please contact Gerry Richardson at (314) 552-4053 | grichardson@evans-dixon.com

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• If you are fully vaccinated, you can resume activities that you did prior to the pandemic.

• Fully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.….

• You will still need to follow guidance at your workplace and local business.

https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html (emphasis added).  The CDC, however, exempted healthcare workplaces from its new guidance and left its most recent guidance for healthcare workplaces issued on April 27, 2021 in place.  See https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-after-vaccination.html.  The new guidance further requires even fully vaccinated persons to wear masks on planes, buses, trains, and other forms of public transportation.   The Occupational Safety and Health Administration (“OSHA”) has yet to update their Covid-19 related guidance, but it has declared their intentions to do so.  In doing so, OSHA has stated that it will follow the CDC’s guidance.  https://www.osha.gov/coronavirus/safework.  Presumably, if employers adopt policies and practices consistent with the CDC’s new guidance, they will avoid any OSHA compliance issues.  A number of states have issued statements to the effect that they endorse the CDC’s new guidance.

Beyond the exemption from wearing masks, the CDC’s new guidance exempts asymptomatic and fully vaccinated persons from procedures required under the CDC’s earlier guidance.  First, they no longer need to undergo Covid-19 testing and quarantining after a known exposure to a person infected by Covid-19.  Second, screening tests may exempt fully vaccinated individuals.  Third, they may travel domestically without testing or quarantine periods.  Finally, they can travel internationally without any United States-imposed requirements before or after their trip.

The CDC’s new guidance includes the following definition of a fully vaccinated person.  Such an individual must have received either both doses of the Pfizer BioNTech or Moderna vaccination or a single dose of the Johnson and Johnson/Janssen vaccine and a period of two weeks must have elapsed since her or his second dose of a two dose vaccine or the only dose of a one dose vaccine.   

As it has in the past, the CDC’s issuance of revised Covid-19 guidance raises new questions for employers to ponder as they implement the revised guidance in their workplaces.  On the one hand, it allows employers to choose whether they will continue to require masks and social distancing.  On the other, most non-healthcare employers may decide to allow fully vaccinated employees to work in both inside and outside work areas without masks.  To implement such a policy change, they must know the vaccination status of their workers.  How an employer gathers that information and what it does with it to change its policies and practices in the workplace has legal implications.  To avoid liability for violations of employment discrimination and occupational safety and health laws, employers must act both thoughtfully and strategically.  The answers to the following questions will help employers to manage their liability risks and to obtain and to document the information that they need to implement the CDC’s revised guidance in their workplaces.

I. Does the CDC’s New Guidance Make State or Local Regulations Requiring Workers to Wear Masks Invalid?

No.  If state or local laws, ordinances, orders, or other regulations require mask wearing and social distancing, then they remain in effect and the CDC’s new guidance defers to them.   For example, currently, neither Missouri nor the vast majority of its local governments require fully vaccinated persons to wear masks either indoors or outside.  https://www.news-leader.com/story/news/politics/2021/04/15/covid-19-updates-where-face-masks-required-mandate-springfield-missouri-mo-vaccine/7189472002/.  In Illinois, furthermore, Governor Pritzker revised the mask mandate to make it consistent with the CDC’s guidance effective May 17, 2021.    https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2021-10.aspx.  Similarly, the City of Chicago also modified its mask requirements to follow the CDC’s new guidance as of May 18, 2021.  https://www.chicago.gov/city/en/depts/cdph/provdrs/health_protection_and_response/news/2021/may/Statement_from_CDPH_on_Updated_Mask_Guidance.html. Thus, before an employer changes its policies and practices to follow the CDC’s guidance for fully vaccinated employees in its workplace, it should consult with its labor and employment law counsel for advice as to whether either state or local regulations requiring mask wearing even by fully vaccinated persons remain in effect.   

II. Can an Employer Lawfully Ask Whether an Employee Has Fully Vaccinated Status?

Yes.  The Equal Employment Opportunity Commission (“EEOC”) issued guidance near the end of 2020 recognizing that employers may ask workers about their vaccinated status without violating the Americans with Disabilities Act (“ADA”).  See https://theblogforbusinesslaw.com/what-questions-do-employers-need-to-ask-about-covid-19-vaccinations/. They, however, should limit their questioning to inquiries that require only a “yes” or “no” answer.  In addition, employers should avoid any questions that seek information about the reasons for an employee’s negative answer in response to whether he has been vaccinated.  An employee’s explanation of the reasons for his non-vaccinated status could cause him to disclose information about a disability, his religious beliefs, or his personal medical history.  Generally, the ADA prohibits employers from questioning an employee as to whether she has any disabilities or about the extent of her disabilities, unless she has requested an accommodation.  In addition, Title VII of the Civil Rights Act of 1964 (“Title VII”) protects employees from discrimination on the basis of religion.  Absent a work-related reason, employers should avoid posing questions likely to cause employees to disclose their religious beliefs. Similarly, the Genetic Information Nondiscrimination Act (“GINA”) makes employer’s questioning about an employee’s medical history unlawful.

Generally, employers should trust but verify an employee’s acknowledgement of her vaccinated status.  They should require such an employee to show the employer a copy of the completed CDC-issued vaccine card or a printout of vaccination status from a health care provider that administered a vaccine.  Employers should also keep a record of the proof by either making a photocopy of it or preparing an employer created log that summarizes the information on the employee’s vaccination record.  If the employer keeps a copy of the employee’s vaccination record, it should maintain the copy in the same manner as confidential medical information and allow access to such information only to managers and supervisors with a need to know it.  In addition, the maintenance of a copy of an employee’s vaccination record likely satisfies the requirements for a medical record pursuant to OSHA’s regulations.  See 29 C.F.R. 1910.1020.  Consequently, employers must maintain such records for the duration of the employee’s employment plus 30 years.

If an employer creates a tracking system or summary document instead of maintaining a photocopy of an employee’s vaccination record, it can avoid the requirements for medical records under OSHA’s regulations.  To accomplish that end, a person other than a physician, nurse, or other health care personnel or technician must make and maintain the tracking system or summary document.  The employer, nonetheless, should treat the tracking system or summary document as a medical record for ADA and GINA purposes and maintain it in a confidential manner apart from the employer’s other employment records.

III. Has the EEOC Modified Its Guidance in View of the CDC’s New Guidance?

Yes.  The EEOC updated its technical assistance guidance regarding Covid-19 and equal employment opportunity laws again on May 28, 2021.  See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.  This update revisited several issues upon which the EEOC had previously provided guidance in view of the CDC’s May 13, 2021 guidance.  Basically, the EEOC confirmed that the equal employment opportunity laws impose no limitation on an employer’s adoption of a mandatory Covid-19 vaccination condition of employment if it also satisfies the reasonable accommodation requirements of the ADA and Title VII.  In addition, the federal equal employment opportunity laws permit employers to offer incentives to employees to provide documentation or other confirmation of their vaccination obtained from a third party in the community, such as a pharmacy, health care provider, or public clinic. Employers that receive such information about their employees’ vaccinations must keep it confidential pursuant to the ADA.  Employers may also administer vaccinations to their employees and offer modest incentives to encourage them to get vaccinated. 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.  Even very large incentives, however, offered to employees to obtain vaccinations from third party providers raise no issues of coerciveness.

IV. If an Employer Adopts a Policy that Allows Fully Vaccinated Employees to Go Mask-less, Can It Require All Other Workers to Wear Masks?

Yes.  The general duty clause of the Occupational Safety and Health Act requires employers to provide to each worker “employment and a place of employment, which are free form recognized hazards that are causing or are likely to cause death or serious physical harm.”  29 U.S.C. § 654(a) (1).  In view of the transmission of the Covid-19 virus primarily through breathing, most employers have implemented policies requiring social distancing and mask wearing in communal areas and shared work areas of an employer’s facility.  If such an employer now decides to allow fully vaccinated employees to work without wearing masks, it would still require either unvaccinated workers or those who have not disclosed their vaccinated status to the employer to wear masks and to socially distance in the workplace.  In addition, the employer must protect the mask wearing employees from mistreatment by either supervisors or co-workers.  OSHA’s existing guidance directs employers to treat unvaccinated workers in substantially the same manner as it treats vaccinated employees.  Thus, employers should communicate to all workers that they prohibit any one or more of retaliation, discrimination, or harassment of unvaccinated employees.  Similarly, employers must include unvaccinated workers in meetings and social events on the same basis as vaccinated employees.  

Conclusion. The Covid-19 pandemic has evolved to the point where effective vaccinations have lessened the need for universal mask wearing.  Most view this development as reason for optimism that the pandemic will end or, at least, continue only at a manageable level with marginal impact on workplaces.  The CDC’s new guidance exempting fully vaccinated persons from wearing masks either indoors or outdoors in most circumstances offers employers the opportunity to adjust their workplace Covid-19 related policies.  For more information about the CDC’s new guidance or its implementation in a particular workplace, please contact Gerry Richardson at (314) 552-4053 or grichardson@evans-dixon.com.

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1. Employers May Claim Tax Credits If They Allow Employees Paid Leave for Covid-19 Related Reasons between April 1 and September 30, 2021.

The ARPA permits employers with fewer than 500 employees to claim tax credits for paid leaves granted to their employees for any of eight reasons.  These reasons include the same ones originally recognized in the Families First Coronavirus Response Act, (https://www.congress.gov/bill/116th-congress/house-bill/6201/text ), (“FFCRA”) (see “Covid-19 Disrupts Workplaces And Confronts Employers With Complicated Labor And Employment Law Issues“, namely:

1. A governmental authority has ordered an employee to quarantine or to isolate because of Covid-19.
2. A health care provider has told an employee to quarantine because of Covid-19 exposure.
3. An employee with Covid-19 symptoms visits a health care provider for a medical diagnosis.
4. An employee must care for an individual ordered to quarantine by either a governmental authority or health care provider because of Covid-19 concerns.
5. An employee provides care to a child because of either a school or childcare provider’s closing related to Covid-19 concerns.
6. An employee experiences other conditions like Covid-19, as identified by the Secretary of Health and Human Services (to date, none exist).

The FFCRA authorized paid sick leave at the employee’s full pay to a maximum equivalent of $511.00 daily for any of these reasons for up to ten days.  It further permitted family leave for reason number 5 for a period of ten additional weeks at two-thirds of the employee’s full pay to a maximum equivalent of $200.00 daily.  The FFCRA covered such paid sick leaves and family leaves during the period between April 1, 2020 and December 31, 2020.  The appropriations bill that President Trump signed on December 27, 2020 had previously authorized the FFCRA’s paid leaves and tax credits through March 31, 2021 on a voluntary basis.  The ARPA further extends those leaves and tax credits on a voluntary basis between April 1, 2021 and September 30, 2021.  It permits employers to obtain a tax credit to offset the cost of paid sick leaves to a maximum equivalent of $511.00 per day for up to ten days.  Similarly, if an employee misses work to care for a child because of school or childcare service closings for Covid-19 related reasons, employees may take paid leave for a maximum of 12 weeks at two-thirds of their full pay.  The employer may also claim a tax credit to offset the paid family leave for a maximum equivalent rate of $200.00 daily or a maximum amount of $12,000.00 per eligible worker.  The ARPA adds two additional reasons for paid sick leave, namely:

1. After being exposed to Covid-19, the employee either voluntarily or at the employer’s direction seeks a diagnostic test or awaits the results of such a test; or
2. An employee misses work to obtain a Covid-19 vaccination or to recuperate from any injury, disability, illness, or condition attributable to such a vaccination.

If an employer decides to grant paid leave to an employee and to claim the tax credit in either, or both additional circumstances, then it may obtain a tax credit equal to the paid leave to a maximum equivalent of $511.00 daily or a maximum amount of $5,110.00 per eligible employee. 

The employer both reports all paid sick leave and paid family leave on its quarterly federal employment tax return, typically an IRS Form 941, when it makes quarterly payroll tax payments.  It may further offset all such sick leave pay and family leave pay from its federal employment tax payments.  If the total amount of its sick leave pay and family leave pay exceeds the amount of its federal employment taxes for the quarter, the employer may claim a payment from the government in the amount by which its credit exceeds its employment taxes for that quarter by filing an IRS  Form 7200.  See Employer tax credits for employee paid leave due to COVID-19 | Internal Revenue Service (irs.gov)

The ARPA imposes no mandate on employers to provide paid sick leaves and paid family leaves to their workers.  If an employer, however, chooses to do so and to claim tax credits to offset their costs to the employer, then it must afford such leaves on a non-discriminatory basis to all employees that satisfy the eligibility standards for paid leaves between April 1 and September 30, 2021.  Before an employer decides whether to provide paid sick leaves and paid family leaves in accordance with the APA, it should consult both its labor counsel and its tax adviser.

1. OSHA Exempts the Reporting of Illnesses Attributable to Covid-19 Vaccinations from an Employer’s Form 300 in Workplaces without Mandatory Vaccination Policies.

The Occupational Safety and Health Administration (“OSHA”) recently issued guidance regarding the reporting of illnesses attributable to Covid-19 vaccinations.  See COVID-19 – Frequently Asked Questions | Occupational Safety and Health Administration (osha.gov) The guidance draws a distinction between voluntary and mandatory Covid-19 vaccination policies.  If an employer merely encourages employees to get vaccinated and an employee experiences an adverse reaction to the vaccine, the employer lacks any duty to report the employee’s illness on its OSHA Form 300.  On the other hand, if an employer requires its employees to receive Covid-19 vaccinations as a condition of employment and an employee suffers an adverse reaction to the vaccine, then the employer must record the employee’s illness on its OSHA Form 300.

OSHA’s guidance uses the same analysis of an adverse reaction to the vaccine in workplaces with either a voluntary or mandatory vaccination policy.  According to the agency,  to be recordable, an adverse reaction must be (1) work-related, (2) a new case, and (3) satisfy one of the general recording criteria, such as cause the worker to experience any one or more of days away from work, restricted work, a transfer to another job, or medical treatment beyond first aid.  OSHA sees a worker’s voluntarily getting a vaccination to fail the work-related criteria.  On the other hand, it views an adverse reaction after a mandatory Covid-19 vaccination to satisfy the work-related standard.  Thus, if  a worker suffers an adverse reaction to a mandated Covid-19 vaccination and experiences time away from work (or any other events that involve general recording criteria)  because of it, the employer must report the adverse reaction on its OSHA Form 300.  Employers, however, may have no reason to know that an employee suffered an adverse reaction to a vaccination, unless it occurs immediately after the employee receives the vaccination.   They may need medical evidence to determine whether a worker experienced such an adverse reaction.  Before reporting a potential adverse reaction to a mandated Covid-19 vaccination on an OSHA Form 300, an employer should consult its labor counsel. 

In situations in which employers impose no Covid-19 vaccination requirements, OSHA’s guidance provides welcome news.  Even if an employee suffers an adverse reaction to a Covid-19 vaccination, the employer has no duty to include that reaction on its OSHA Form 300.  The key issue in such a situation concerns the absence of a mandatory vaccination requirement.  The OSHA guidance considers voluntariness based on the absence of any adverse employment consequences for employees who do not get vaccinated.  

In closing, Covid-19 vaccinations create new wrinkles for employers to consider.  Whether they have voluntary or mandatory vaccination policies, employers with fewer than 500 employees may provide paid leaves to their workers to enable them to get vaccinated and obtain a tax credit to offset the cost of the paid leaves.  The decision to have either a mandatory or voluntary vaccination policy may also determine whether an employer must report a worker’s adverse reaction to the vaccine on its OSHA Form 300.  For more information about either of these topics, please contact: Gerry Richardson | (314) 552-0453 | grichardson@evans-dixon.com  

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The Ides of March have come and gone, but OSHA has implemented no such emergency temporary standard.  It, instead, has established the National Emphasis Program-Covid-19 (“NEP”) Here and has updated and replaced its former Interim Enforcement Response Plan for Covid-19 Here (“Enforcement Plan”). The NEP designates higher hazard industries for OSHA’s enforcement activities.  The Enforcement Plan emphasizes in-person worksite inspections by the agency’s compliance safety and health officers (“CSHO”). 

The NEP guides OSHA in the selection of sites for inspections.  The Enforcement Plan further instructs CSHOs as to how they conduct their enforcement activities.  In this case, the NEP and the Enforcement Plan in tandem identify which types of workplaces and the sorts of enforcement procedures that OSHA has established as its highest Covid-19 related safety priorities.

The Enforcement Plan emphasizes Covid-19 related inspections that involve deaths or multiple hospitalizations attributable to occupational exposures to Covid-19.  It further instructs CSHOs to perform on-site workplace inspections where practical.  The Enforcement Plan also includes detailed directions as to how CSHOs should conduct Covid-19 related investigations and inspections.  Finally, it instructs them regarding the bases for citations issued to employers.

Generally, OSHA uses national emphasis programs as temporary measures that focus the agency’s resources on particular hazards and high-hazard industries.  In this case, OSHA stated its expectation for the plan to remain in effect for a maximum of one year, although the agency may amend or cancel the program in response to further developments in the pandemic.  It further implemented the NEP and Enforcement Plan immediately in workplaces located in states subject to federal OSHA enforcement, such as Missouri.  Approximately 28 states and territories, however, have their own state or territory plans, such as Illinois.  OSHA has strongly encouraged those states and territories to adopt the NEP.  By May 11, 2021, they must notify OSHA whether they will adopt the NEP.

1.         Which Employers Face the Heightened Risk of OSHA Covid-19 Related Inspections and Enforcement Activities?

The NEP names three categories of primary target industries: healthcare workplaces, non-healthcare workplaces, and critical infrastructure.  The specifically named healthcare primary target industries include:  (a) physicians’ offices, (b) dentists’ offices, (c) home health care services, (d) ambulance services, (e) hospitals, (f) nursing care facilities, (g) residential intellectual and developmental disability facilities, (h) continuing care retirement communities, and (i) assisted living facilities for the elderly.  The NEP lists the following non-healthcare industries among the primary targets: (1) meat processing, (2) animal slaughtering, (3) poultry processing, (4) supermarkets and grocery stores, (5) discount department stores, (6) general warehousing and storage, (7) temporary help services, (8) full-service restaurants, (9) limited-service restaurants, and (10) correctional institutions.  The NEP has further designated the following non-healthcare critical infrastructure industries as primary targets:  (i) agriculture, forestry, fishing, and hunting, (ii) construction, (iii) manufacturing, (iv) nursery, garden center, and farm supply stores, (v) general merchandise stores, (vi) transit and bus transportation, (vii) school bus transportation, (viii) special needs transportation, (ix) postal service, (x) electronic and precision equipment repair and maintenance, and (xi) commercial and industrial machinery and equipment repair and maintenance.  Those workplaces that OSHA inspected for Covid-19 related hazards in 2020, furthermore, receive no exemption from inspections done pursuant to the NEP and Enforcement Plan.

In addition, employers in industries other than those prioritized for OSHA enforcement in the NEP still face a higher risk of an OSHA inspection.  President Biden has stated his intention to double the number of CSHOs.  The more inspectors that OSHA has, the greater number of inspections that it will conduct.  The resumption of onsite inspections pursuant to the NEP and Enforcement Plan will curtail the agency’s use of hazard alert letters and desk audits.  All employers have an increased likelihood of CSHOs visiting their workplaces to do onsite inspections. 

2.         How Can Employers Prepare for Covid-19 Related OSHA inspections? 

OSHA urges employers to develop and to implement a Covid-19 prevention program and to train their employees on the program’s requirements.  On January 29, 2021, the agency issued updated guidance to employers entitled:  Protecting Workers:  Guidance on Mitigating and Preventing the Spread of Covid-19 in the Workplace (“Guidance”) .  It gives employers a roadmap to follow to minimize workplace exposures to Covid-19 and OSHA citations if the agency inspects an employer’s workplace because of either an employee complaint or the NEP and Enforcement Plan.  The Guidance emphasizes OSHA’s view that the most effective Covid-19 prevention programs include the input of workers and their representatives in the program’s development and implementation at every step.  It further urges employers to assign a workplace coordinator to act on the employer’s behalf as the clearinghouse for all Covid-19 issues.  Typically, an employer would name a manager or administrator to speak with one voice internally and as a single point of contact with OSHA.  The Guidance also encourages employers to identify where and how workplace exposures to Covid-19 occur.  It further recommends the identification of a combination of measures that will restrict the spread of Covid-19 in the workplace.  Such measures include: eliminating the hazard, engineering controls, workplace administrative policies, personal protective equipment (“PPE”), and other measures.  The Guidance provides the following examples:

1. Eliminating the hazard by separating and sending home infected or potentially infected workers;

• Implementing physical distancing in all communal work areas (including remote work and telework);

• Installing barriers where any one or more of the workspace, fixtures, or furniture make physical distancing unfeasible;

• Suppressing the spread of the hazard by the use of face coverings;

• Improving ventilation;

• Using applicable PPE to protect workers from exposure;

• Providing the supplies necessary for good hygiene practices; and

• Performing routine cleaning and disinfection.

Employers should, furthermore, both identify and consult with their workplace safety counsel.  Such a counsel can advise the employer regarding its development and implementation of its prevention program and represent the employer during any OSHA workplace inspections.  CSHOs typically visit a workplace without advance notice.  They never tell the employer that it has a right to have its legal counsel represent it during an inspection.  If the employer requests, however, the CSHO will delay the start of a workplace inspection by up to an hour to enable the employer’s counsel to represent the employer during the inspection. 

3.         What Statutory Violations Can Employers Expect OSHA to Cite as the Legal Basis of Covid-19 Related Citations?

Before now, OSHA has issued citations to employers for Covid-19 related issues primarily under its respiratory, reporting and recordkeeping, and PPE standards.  Both the Guidance and the NEP, however, state the agency’s intention to issue citations alleging violations of the General Duty Clause of the Occupational Safety and Health Act (“OSH Act”), 29 U.S.C. § 654 (a) (1), Here.  It requires employers to maintain a workplace free from recognized hazards that cause or are likely to cause either death or serious harm to their employees.  OSHA may issue citations for violations of the General Duty Clause even if the agency has adopted no standards that address the specific hazard.  To prove a General Duty Clause violation, OSHA must show that four conditions existed.  First, a condition or activity in the workplace exposed the employer’s workers to a hazard.  Second, either the employer or the industry recognized the condition or activity as a hazard.  Third, the hazard caused or was likely to cause either death or serious physical harm.  Fourth, a feasible means to eliminate or otherwise reduce the hazard existed.

The NEP specifically identifies Covid-19 guidance issued by the Centers for Disease Control and Prevention (“CDC”) as “one source of evidence of hazard recognition and potential feasible methods of abatement.”  Thus, employers must stay current with the evolving guidance issued by the CDC regarding Covid-19 both generally and specifically where the CDC has issued guidance for certain industries, such as healthcare, and its more general guidance for workplaces and businesses.  Both the CDC’s guidance and OSHA’s guidance set minimum recognition levels for workplace Covid-19 related hazards and feasible ways to eliminate or otherwise mitigate such hazards.  For example, the CDC recently published a report to the effect that cloth masks and medical procedure masks when worn simultaneously reduce exposure from infected wearers and decrease the exposure of uninfected wearers. Here  No one knows whether OSHA will view double masking of the sort described in the CDD’s report as establishing a feasible means of mitigating airborne Covid-19 spread in workplaces.

4.         How Does OSHA Plan to Emphasize Anti-Retaliation Principles?

As previously mentioned above, President Biden’s executive order directed OSHA not only to develop a national enforcement plan to address Covid-19 workplace issues, but also to address “anti-retaliation principles.”  The OSH Act, furthermore, prohibits employers from firing workers or otherwise discriminating against them for their participation in protected occupational safety and health related activities.  29 U.S.C. § 660 (c) Here .  For example, employers must avoid taking any adverse action against an employee for raising a reasonable concern about Covid-19 related infection control to the employer, its agent, other employees, a governmental agency, or to the public by any one or more of print, online, social, or other media.  Similarly, employers must allow workers to provide and to wear their own PPE, such as a respirator, face shield, gloves, or a surgical mask.  The Guidance directs employers to notify employees of (a) their rights to a safe and healthful work environment, (b) the employer’s representative to contact if they have workplace safety and health concerns, and (c) the employer’s prohibition against any retaliation against any employee who raises such concerns.  It also urges employers to offer a hotline or other means by which employees may voice their concerns anonymously. 

The NEP also makes a specific reference to President Biden’s executive order and states that it “will include an added focus of ensuring that workers are protected from retaliation through information sharing and prompt referrals.  If a worker complains to OSHA about Covid-19 related issues and requests an inspection, the NEP directs the agency to “[i]nform workers of their protections from retaliation and refer them to Whistle blowers for more information, including how to file a retaliation complaint.” In addition, the NEP requires OSHA’s area offices to refer all workers that allege retaliation to the Regional Whistleblower Protection Program.  It further directs CSHOs to tell workers of their right to file a whistleblower complaint if they experience retaliation for providing assistance to OSHA during an inspection, filing a safety and health complaint with OSHA, reporting a work-related injury or illness, or complaining about Covid-19 exposure or any other workplace hazards to the employer. 

Conclusion

The Biden Administration has taken prompt action to increase OSHA’s enforcement activities relating to Covid-19 issues in the workplace.  So far, OSHA has avoided the development of any Covid-19 related emergency temporary standards.  It will, instead, use the OSH Act’s General Duty Clause to cite employers for workplace Covid-19 hazards.  OSHA will use its own Guidance and the guidance and reports published by the CDC as the basis for determining hazard recognition and the feasibility of eliminating or mitigating a hazard.  The evolution of such guidance over the course of the Covid-19 pandemic means that employers must monitor the OSHA and CDC websites vigilantly to stay current with recognized hazards and how to eliminate or reduce them.  The biggest take away from the NEP and Enforcement Plan concerns the need for all employers, and especially those in industries that OSHA has identified as primary targets, to develop and to implement a Covid-19 prevention program that adopts the Guidance’s recommendations.  Finally, OSHA’s new emphasis on “anti-retaliation principles” will likely lead to more employers facing retaliation claims.  For more information about how the NEP, Enforcement Plan, and Guide affect your workplace, please contact Gerry Richardson, (314) 552-0453, grichardson@evans-dixon.com.  For more information about workplace Covid-19 issues, see other posts on this blog at  https://theblogforbusinesslaw.com/covid-19-disrupts-workplaces-and-confronts-employers-with-complicated-labor-and-employment-law-issues/, https://theblogforbusinesslaw.com/how-does-the-collision-of-the-covid-19-pandemic-with-workplaces-pose-safety-issues-for-employers/, https://theblogforbusinesslaw.com/how-does-the-law-regulate-mass-layoffs-and-plant-closings/, and https://theblogforbusinesslaw.com/what-questions-do-employers-need-to-ask-about-covid-19-vaccinations/.  

The post OSHA Announces New Workplace Covid-19 Enforcement Actions first appeared on Blog for Business Law.

Introduction

One would think that when a state creates an “official” code of its statutes, the public would have the right to freely copy and share that collection of laws.  One would also think that fair-minded judges would unanimously agree with this point and objurgate any view to the contrary.  Well, think again. The 2020 Supreme Court case of Georgia v. Public.Resource.Org. ratifies a point that I make often: much of the copyright law of this country is a messy pig’s breakfast of uncleanly written and historically complex statutes interpreted by complicated, contradicting and fact-specific court cases.  This latest case dealt with what many of us take for granted – the critically important right of citizens to copy and share the official version of laws enacted to govern them.  Here’s how the case came about.

The Making Of The Official Code

The State of Georgia has one “official” code — the “Official Code of Georgia Annotated.”  Georgia assembled that code through the work of its legislature’s Code Revision Commission that hired Lexis publishing company to help prepare the code.  In preparing the code, Lexis added helpful notes and commentary (“annotations”) regarding the statutes in the code. As helpful as the notes were, they were merely editorial comments that were legally non-binding.  Nevertheless, when completed, the published official code included those annotations.  The agreement between Lexis and the Commission stated that any copyright in the code belonged to Georgia, but that Lexis had the exclusive right to publish and sell the “official” version of the code.  In exchange, Lexis had to limit the price charged for the official code and also had to make an unofficial version, without annotations, available to the public online for free.  Lexis charged the public $412 for the official version of the code. 

Want To Know the Actual Law? – Buy The Code!

The agreed-upon pricing strategy created a consequence that many might find troubling.  In this respect, a citizen who could only afford the free, online version of the Georgia code would see laws on the books that one would reasonably assume were valid and in force.  However, without the official annotations, one would not know that may of the laws in the cheapo version of the code were laws that were unquestionably not valid.  The laws were not valid because – surprise! – they had been declared uncon­stitutional by the Georgia Supreme Court.  Yet, they were showing up in the code (i.e., “still on the books”) because the legislature had not gotten around to repealing the laws.  Thus, the only way readers of the free online code would know that a particular statute was void was if they would do further research on that statute.  Meanwhile, those who could afford the expensive, annotated and official version of the statutes, would see notes nearby the judicially invalidated statutes, quickly alerting them to the true status of those statutes.

Georgia Insists That Only It — And Not The Public — Owns The Official Code

Public.Resourec.Org, Inc. (“PRO”) believed that, notwithstanding the annotations, the official code, being “official,” could be copied and freely disseminated to all.  The State of Georgia asserted otherwise and claimed a copyright to the official code.  It sued PRO in federal district court, claiming copyright infringement, for posting the code online. The key question in the case was whether copyright law protected the editorial and non-binding annotations contained in Georgia’s official code. The district court ruled for the State of Georgia.  The court of appeals reversed and found for PRO.  The Supreme Court agreed to hear the case.

The Supremes Tell Georgia You Cannot Copyright The Official Code

In a five to four ruling, the Supreme Court affirmed the ruling of the court of appeals — but did so for reasons other than those relied on by the court of appeals.  (The ole’ judicial oxymoron — affirming by contradiction!)  To reach its decision the Court had to go back and blow the dust off some really old cases.  By old, I mean from the 1800s.  These cases, according to the five-judge majority, created a principal called the “government edicts doctrine.”  Under that doctrine, government officials, like judges, cannot be the “authors” of — and therefore cannot copyright—the written opinions they create in the course of their official duties.  Because the judges work for the public, the “real” author of the judicial opinions is the public. In finding in favor or PRO, the Court extended the government edicts doctrine to explanatory legal materials (annotations) created by a legislative body vested with the authority to make law.  Because Georgia’s official code included notes and comments — and that code was created by the legislature’s Commission performing legislative duties — the government edicts doctrine made the annotations ineligible for copyright protection.  In other words, because the Georgia legislature made the annotated version of the code the official code, that version of the code could not receive copyright protection.  If on the other hand, the annotations had been added unofficially to the compilation of statutes by a private publisher, then according to the dusty old cases that compilation of the statutes could receive copyright protection.  Got it?

The Decision Is Fundamentally Important

It is no overstatement to say that the decision of the Supreme Court critically impacts all citizens.  Had the Court ruled in Georgia’s favor, all of the annotations included in the official code, and therefore the official code itself, would be copyright protected.  Citizens wanting to copy, distribute or display that code would face potentially crippling civil damage awards, if not criminal penalties — unless they could prove fair use.  Ordinary citizens, however, cannot afford to hire lawyers to defend them and argue fair use.   The truth is, defending a claim of copyright infringement on the basis of fair use is neither easy, nor cheap.  As Justice Roberts noted in his majority opinion, fair use is not a simple determination; it is “notoriously fact sensitive and often cannot be resolved without a trial.”  (Amen, Chief Justice Roberts!)

This Proves How Complicated And Unsettled Copyright Law Is.

In the end, this case proves that average citizens should do their utmost to steer clear of copyright disputes.  There is usually nothing simple about the typical copyright case.  In this latest Supreme Court case, the majority opinion took eighteen pages to justify its decision.  Justice Thomas’ dissent took seventeen pages and Justice Ginsberg’s dissent added another four pages.  The fact that the difference in the ruling was only one vote, emphasizes that predicting the outcome of a copyright case is like throwing darts in the dark.  Indeed, accounting for the rulings of the district court and the court of appeals, the case spawned at least five opinions. 

If it takes judges (who have years of legal education and experience, as well as armies of law clerks to help them with legal research) that much work and arguing amongst themselves to reach a ruling (a disputed ruling at that) on a fundamental point, how reasonable is it to expect the average citizen to ever understand that same point?  The clear answer is — it is not reasonable.  

Your best protection against getting pulled into a costly copyright dispute is to think very carefully before you copy and distribute someone else’s work.

The post Another Example of How Copyright Law Touches Our Everyday Lives: The Georgia Official Code Case first appeared on Blog for Business Law.

The Center for Disease Control and Prevention (“CDC”) established priorities for the distribution of these vaccines and others that will also get EUA’s as time progresses.  Until now, the CDC’s priorities have limited the distribution of the vaccines primarily to healthcare workers, residents of long-term care facilities, first responders, and frontline essential workers.  As supplies of the vaccines increase, the availability of Covid-19 vaccinations for the general public will occur during the first quarter of 2021. 

Employers can use the time before Covid-19 vaccinations become more widely available to consider the impact of such vaccinations on their rights, their responsibilities, and their risks.  A balancing of these factors will determine how they will answer a number of questions about the workplace implications that these vaccinations pose.  Typically, these questions lack any “right” or “wrong” answers.  Rather, the answers will vary widely from one workplace to another in view of the industry and culture of each workplace and the risk tolerance of any particular employer.

1. Can Employers Require Their Employees to Get Covid-19 Vaccinations?

Generally, yes.  The Equal Employment Opportunity Commission (“EEOC”) updated its technical assistance guidance entitled, What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO Laws [https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=] on December 16, 2020 (“Guidance”).  The EEOC recognizes the right of employers to require employees to be vaccinated for Covid-19, subject to the employer’s obligations to avoid discrimination pursuant to The Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Genetic Information Non-discrimination Act of 2008 (“GINA”).  The Guidance provides that an employer may establish a qualification standard that requires workers to pose no direct threats of imminent harm to their co-workers.  It further cautions, however, that a safety-based qualification standard, such as a vaccination requirement, must avoid any screening out of persons with disabilities.  To implement a strict Covid-19 vaccination qualification standard, an employer “must show that an unvaccinated employee would pose a direct threat risking substantial harm to the health or safety of the individual or others that no reasonable accommodation could eliminate or reduce.  The EEOC directs employers to conduct an individualized assessment of four factors to determine whether a direct threat exists: (i) the risk’s duration, (ii) the potential harm’s nature and severity, (iii) the likelihood of the potential harm’s occurrence, and (iv) its imminence.  A conclusion that a direct threat exists would include a determination that an unvaccinated worker would expose others to the virus at the worksite. Upon such a determination, an employer could exclude an unvaccinated employee from the worksite.  The employer, however, could only exclude such a worker from its workforce if it further lacked any reasonable accommodation by which it could eliminate or reduce the risk of the direct threat posed by the unvaccinated worker without undue hardship. Thus, an employer that requires Covid-19 vaccinations must provide a reasonable accommodation to a worker whose disability makes her or him unable to get such a vaccination.  According to the EEOC, a reasonable accommodation could include allowing such a worker to work remotely or either a paid or unpaid leave of absence.  The EEOC emphasizes that only if no reasonable accommodation exists can an employer terminate a worker’s employment because of her or his disability related inability to be vaccinated. 

Title VII, furthermore, potentially limits an employer’s right to establish a Covid-19 vaccination qualification standard.  It provides that employers must make a reasonable accommodation to the sincerely held religious beliefs and practices of their employees unless doing so would impose an undue hardship on the employer.  The Guidance instructs employers normally to assume that an employee has based her or his request for an accommodation on a sincerely held religious belief.  Not every belief, however, has a religious basis.  For example, an appellate court has held that a person generally opposed to vaccines lacks a sincerely held religious belief upon which he bases his refusal to fulfill the employer’s vaccination requirement.  Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania, 877 F.3d 487, 492-93 (3^rd Cir. 2017).  If an employee raises an objection to a vaccination job qualification, then the employer has an objective basis to ask her or him to provide additional supporting information about the employee’s religious beliefs or practices that conflict with the vaccination requirement.  If the employee offers no or insufficient information, then the employer has no accommodation duty and can lawfully terminate the employment of such an employee for the failure to get vaccinated.  On the other hand, if the employee supplies information that establishes her or his sincerely held religious beliefs that conflict with the vaccination requirement, then the employer must determine whether it can provide a reasonable accommodation to the employee without undue hardship.  Existing case law, furthermore has recognized an employee’s adherence to atheism, agnosticism, veganism, and paganism, among others, to constitute sincerely held religious beliefs.  The Guidance views working remotely and either unpaid or paid leaves as alternatives an employer faced with religiously based objections to a vaccination requirement must consider.

The standards, moreover, for an undue hardship under the ADA and Title VII vary.  On the one hand, for ADA purposes, it means a significant expense or difficulty.  On the other hand, for Title VII purposes, an undue hardship need only impose a de mimimus burden on the employer.  Consequently, employers face an easier task to prove an undue hardship under Title VII in the context of accommodating a religious practice or belief as opposed to accommodating an employee’s disability under the ADA.

The Guidance also warns employers that a mandatory Covid-19 vaccination policy could implicate Title VII’s prohibitions against pregnancy discrimination.  If an employee refuses to get a vaccination because of her pregnancy, then Title VII and, in some instances, the ADA require the employer to treat the pregnant worker similar to its treatment of others similar in their ability or inability to work unvaccinated.  First, the employer could direct the employee to provide additional information to confirm that her health care provider has advised her against getting a Covid-19 vaccination because or her pregnancy.  Upon its receipt of such confirmation, the employer could exclude such an employee from its workplace but not necessarily from its workforce.  The employer would further have an obligation to determine whether it could offer a reasonable accommodation to the unvaccinated pregnant worker, such as working remotely or either a paid or unpaid leave without undue hardship. 

• Does the Administration of Covid-19 Vaccinations in the Workplace by Either the Employer or Its Contractor Involve a “Medical Examination” for ADA Purposes?

No.  The Guidance specifically recognizes that an employer’s administration of vaccinations to its workers to protect them against infections by Covid-19 seeks no information about an employee’s either impairments or health status.  It, however, cautions that pre-screening vaccination questions may implicate the ADA’s provisions that limit an employer’s directing disability related questions to its employees.  If an employer or its contractor administers vaccinations to workers, then it must show that its pre-screening questions satisfy the job-related and consistent with business standard for disability related inquiries.

• If an Employer Encourages, Rather Than Requires, Its Workers to Get Covid-19 Vaccinations How Do Its Legal Duties Change?

First, a voluntary Covid-19 program eliminates most of an employer’s reasonable accommodation obligations under the ADA and Title VII for such a program.  If a disability, religious belief, or pregnancy causes a worker to avoid being vaccinated, the employee needs no accommodation.  Nothing adverse, furthermore, such as removal from either the workplace or workforce, happens to her or him. 

Similarly, if the employer makes Covid-19 vaccinations available in the workplace, the employee must answer pre-vaccination medical inquiries only if she or he voluntarily seeks a vaccination.  Thus, the employer, or its contractor, may ask questions whose answers may disclose information about an employee’s disability or medical condition without satisfying the job-related and consistent with business necessity standard.  If the employee refuses to answer the questions, then the employer, or its contractor, merely provide no vaccination to the worker.  Her or his doing so produces no adverse effect on his employment. 

Some employers have established a voluntary Covid-19 vaccination program by providing incentives to workers to get vaccinations away from the workplace from independent third parties, such as pharmacies, clinics, or hospitals.  These employers have offered to pay employees who get vaccinated sums equivalent to two to four hours at their regular pay rate. [https://www.usatoday.com/story/money/business/2021/01/14/covid-vaccine-dollar-general-instacart-pay-employees-getting-vaccine/4160708001/].  In proposed regulations issued on January 7, 2021, however, the EEOC restricted the incentives that employers may furnish to encourage employees to get vaccinated in participatory wellness programs that ask participants to provide medical information.  By definition, a participatory wellness program cannot condition any program rewards on a participant’s satisfaction of a standard related to a health factor.  Both the ADA and GINA limit participation in wellness programs that include medical questions and exams to voluntary programs.  Neither the ADA nor GINA define the meaning of voluntary wellness programs.  The proposed regulations state that to satisfy the voluntary participation requirement imposed by the ADA and GINA, employers must limit incentives to participate in wellness programs to “de minimus” ones, such as a water bottle or gift card of modest value.  The EEOC also gave the following examples of incentives that exceed the de minimus standard:  monthly $50 credits toward the employee’s annual healthcare costs, the employer’s payment of an employee’s annual gym membership, or an airline ticket.  [https://www.eeoc.gov/regulations/proposed-rule-amendments-regulations-under-americans-disabilities-act and https://www.eeoc.gov/regulations/proposed-rule-amendments-regulations-under-genetic-information-nondiscrimination-act].  The inauguration of President Biden on January 20, 2021 may ultimately cause the withdrawal of these proposed regulations before they become final and take effect.  Given the uncertainty regarding the proposed regulations, employers that implement voluntary Covid-19 vaccination programs should limit any participation incentives to relatively modest ones, such as several hours of paid time off to a maximum equivalent to $100.   

• If an Employer Requires Employees to Get Vaccinated, Must Employers Pay Their Employees for the Time that They Spend to Get Their Vaccinations?

Yes.  If the employer requires an employee to be vaccinated as a condition of employment, then it must pay the employee for the time that it takes the employee to get a vaccination.  Most employers with mandatory Covid-19 vaccination policies, offer their employees the opportunity to get their vaccinations in the workplace.  This practice minimizes the unproductive paid time for employees to get their vaccinations.  Otherwise, if the employees go to offsite locations to get their vaccinations, the employer must pay them for any travel time during their work day to and from the vaccination site, any waiting time at the vaccination site, and time spent to be vaccinated.  In addition, if the employee must pay any amounts to be vaccinated, then the employer must pay for such vaccination costs if the employee’s payment of them would effectively reduce her or his pay to a pay rate below the minimum wage for the work week in which she or he received the vaccination.  From an employee relations standpoint, however, employers should support their mandatory vaccination programs by paying any costs that the employee otherwise would bear to satisfy the employer’s vaccination requirement.

• How Does a Union Represented Collective Bargaining Unit in a Workplace Affect an Employer’s Implementation of a Mandatory Covid-19 Vaccination Program?

To implement a Covid-19 vaccination program as a condition of employment in a union represented workplace, the employer must typically bargain with the union.  An exception to its having such a duty to bargain would occur if its collective bargaining agreement reserves the employer’s right to establish such a program unilaterally.  Otherwise, the adoption of a mandatory vaccination program involves a mandatory subject of bargaining under the National Labor Relations Act.  This means that the employer must negotiate with the union about such a program to implement it during the term of a collective bargaining agreement.  If the employer cannot reach agreement with the union on the issues relating to its mandatory Covid-19 testing program, it can normally negotiate to an impasse and then implement the program without the union’s agreement. 

• If an Employer Offers Covid-19 Vaccinations in the Workplace, What Liability Risks Accompany Its Doing So?

According to the CDC severe allergic reactions to Covid-19 vaccinations can occur, but only rarely.  The CDC’s data shows the detection of only 21 cases of anaphylaxis happened during Pfizer’s testing of its vaccine among 1.9 million participants receiving their initial doses.  Pfizer reported that about 70 percent of those reactions took place within 15 minutes of the participant’s receiving the vaccine.

In most cases, whether in the context of a mandatory vaccine program or a voluntary one, a party other than the employer administers the vaccinations.  Where an employer requires workers as a condition of employment to get vaccinated, the employer likely has joint liability with the contractor that administers the vaccine.  In that scenario, workers’ compensation likely covers any claims originating from an adverse reaction to the Covid-19 vaccine.  Before implementing a mandatory vaccination program, an employer should contact its workers’ compensation insurer to confirm that its insurance would cover injuries or illnesses caused by an adverse reaction to the vaccine.

In the context of a voluntary vaccination program for which the employer hired a contractor to administer vaccine to its employees, an employer’s workers’ compensation insurance would likely exclude claims involving an adverse reaction to the vaccine from coverage.  In such cases, an employee could theoretically bring a negligence claim against an employer.  To do so, she or he would have to prove that the employer selected a contractor to administer the vaccine where the employer knew or had reason to know the contractor had experienced an inordinately high number of adverse reactions to the Covid-19 vaccinations that the contractor had previously administered.  Realistically, such a negligence claim would require a highly unlikely confluence of events to occur.

Conclusion.

The availability of Covid-19 vaccinations will soon increase.  An employer sensitive to maintaining a safe and healthy workplace will face a number of questions about whether a mandatory, voluntary, or no vaccination program makes the most sense for its workplace.  Similarly, it may need to decide whether it needs different approaches to vaccinations for some of its facilities as opposed to others or for some groups of workers as opposed to others.  The choices that an employer makes about whether to have a vaccination program and, if so, the specifics of its program affect its rights, responsibilities, and risks dramatically.  An employer making decisions about Covid-19 vaccination workplace issues should discuss them in advance with its labor and employment law counsel for specific legal advice.  For more information about workplace Covid-19 vaccination workplace issues, please contact Gerry Richardson, (314) 552-4053, grichardson@evans-dixon.com.

The post What Questions Do Employers Need To Ask About Covid-19 Vaccinations? first appeared on Blog for Business Law.

Dr. Aprille Ericsson was the first woman (and first African American woman) to receive a Ph.D. in mechanical engineering from Howard University and the first African American woman to receive a Ph.D. in engineering as a civil servant at the NASA Goddard Space Flight Center.  She holds one US patent.

Dr. Ayanna Howard is the founder and Chief Technology Officer of Zyrobotics, a company that uses machine learning and robotics to make educational toys for children, with a particular emphasis on helping children with special needs.  She is also a professor at Georgia Tech, specializing in the intersection of machine learning and robotics.  She holds three US patents.

Dr. Arlyne Simon is a biomedical engineer at Intel’s Health and Life Sciences business unit and the author of the “Abby Invents” picture book series.  She founded a multicultural children’s products company called Timouns, to inspire more girls to become inventors.  To date, Timouns has reached more than 3,500 potential inventors.  She holds two US patents.

Slots are limited, so register today for this free special event by clicking HERE!

The post The United States Patent & Trademark Office Celebrates Black History Month on February 10th first appeared on Blog for Business Law.

Federal alert indicates increased focus on speaker programs and their
potential to violate the anti-kickback statute

On November 16, 2020, the U.S. Office of Inspector General (OIG) issued a Special Fraud Alert 1 focusing on the fraud and abuse risks related to payment, solicitation or receipt of remuneration from speaker programs conducted by pharmaceutical and medical device companies. This special alert provides notice to health care providers and companies that the OIG will be focusing more attention to speaker programs and their potential to violate the anti-kickback statute. The OIG raises specific concerns related to the speeches and presentations given by physicians and health care professionals (HCPs) on behalf of pharmaceutical and medical device companies.

These companies generally pay HCPs to participate in company-sponsored speaker programs on the premise that the speakers help educate and inform other health care professionals about benefits, risks and appropriate uses of the company’s medicines or devices. The OIG raises questions about the educational value of such programs, and often contends the programs provide financial benefits for the HCPs and the drug and device companies instead of focusing on patients’ best interests. Investigation of speaker programs and the related remuneration received by the HCPs for their participation is not new. However, the special alert highlights the additional attention HCPs and the companies can expect from the OIG and Department of Justice (DOJ) as they focus on these programs. HCPs participating in speaker programs need to be aware that any compensation received for their participation could result in a violation of the anti-kickback statute. 2 Although these in-person events have slowed during the COVID-19 emergency, once the emergency ends it is extremely likely these speaker programs and the participating HCPs and companies will receive increased scrutiny by the OIG. The anti-kickback statute prohibits the knowing and willful offering, paying, soliciting or receiving anything of value to induce or reward referrals or generation of business involving drugs or medical devices payable by federal health care programs. HCPs and the companies engaging HCP services for these speaker programs need to be mindful of the manner the events are organized and payments are made. Non-compliance with the anti-kickback statute can result in both civil as well as criminal cases being brought against both HCPs and pharmaceutical and device companies.

The OIG often contends the programs provide financial benefits for the HCPs and the companies instead of focusing on patients’ best interests.

Examples of cases where the federal government has pursued civil and criminal cases against drug and device companies as well as HCPs, included some of the following scenarios:

-Seeking high-prescribing HCPs to speak at programs, and rewarding them with high-paying speaker fees, with some HCPs receiving hundreds of thousands of dollars for speaking;

-Requiring speakers to hit sales targets to receive compensation, i.e., the HCPs would need to prescribe or order a minimum number of prescriptions or devices to receive the speaker honorarium;

-Holding speaker programs at venues for recreation or entertainment, which was not conducive for educational purposes, i.e., wineries, sports stadiums, fishing trips, golf clubs and adult entertainment facilities;

-Holding programs at expensive restaurants, serving lavish meals and alcohol; and

-Inviting audiences consisting of individuals who previously heard the same program or friends, spouses/partners of speakers, or other family members with no legitimate business reason to attend the program.

Based on the special alert, HCPs and such companies need to be especially conscious of the fraud and abuse risks if they offer or receive payment, solicitation or any remuneration related to company-sponsored speaker programs. The OIG has made it clear that it intends to focus on speaker programs where HCPs receive what the OIG regards as substantial remuneration from the companies.

Background: Anti-Kickback Statute (AKS)

To understand the issues raised in the OIG Special Alert, a basic understanding of the anti-kickback statute is needed. The AKS was enacted, in part, to protect patients from HCPs who may be influenced by inappropriate financial incentives to provide referrals or recommendations. Those referrals or recommendations may not be in the patients’ best interests and instead favor the HCPs’ and companies’ financial interests. The following discusses basic AKS background:

What is the AKS? A criminal law that prohibits the knowing and willful payment of “remuneration” to induce or reward patient referrals or the generation of business involving any item or service payable by the federal health care programs (e.g., drugs, supplies or health care services for Medicare or Medicaid patients). 3

What is meant by “remuneration” under the AKS? “Remuneration” includes anything of value and can take many forms besides cash, such as free rent, expensive hotel stays and meals, and excessive compensation for medical directorships or consultancies. These same types of payments may be totally acceptable in other industries, but when it comes to health care providers, payment for referrals is a crime. HCPs as well as pharmaceutical and medical device companies need to use caution in entering arrangements for speaker programs to avoid committing a crime.

What criminal penalties and civil administrative sanctions may be taken against HCPs or pharmaceutical or medical device companies if the AKS is violated? The AKS applies criminal liability to all parties to an impermissible “kickback” transaction. Both the party offering and paying the remuneration as well as the party soliciting or receiving prohibited remuneration are subject to the AKS prohibitions; this may include both the companies and the HCPs. When the receipt, offer or payment of remuneration is paid purposefully to induce or reward referrals, or orders of items or services payable by a federal health care program, the AKS is violated. 4 Violation of the AKS is a felony and is punishable by a maximum fine of $100,000, imprisonment up to 10 years, or both. If a party is convicted of violating the AKS, the criminal convictions may result in mandatory exclusion from federal health care programs including Medicare and Medicaid. 5 OIG initiation of administrative proceedings may also result in exclusion of persons from the federal health care programs and may also impose civil money penalties for engaging in conduct prohibited by the AKS. 6

The anti-kickback statute prohibits the knowing and willful offering, paying, soliciting or receiving anything of value to induce or reward referrals or generation of business involving drugs or medical devices payable by federal health care programs.

Fraud and Abuse Risks for AKS Violation Posed by Speaker Programs

Past OIG investigations reveal that HCPs often receive generous compensation for speaking in which the circumstances are not necessarily conducive to learning, such as at fancy restaurants, sporting events or resort locations. In addition, often those individuals in attendance at these programs are individuals with no legitimate reason to attend, i.e., spouses, friends, employees of the speaker or the speaker’s practice, or other individuals with no use for the information being discussed. As a result, the OIG remains skeptical about the educational value of such programs, since one purpose of the remuneration to the HCP speaker and attendees may be to induce or reward referrals to prescribe or order the company’s drugs or medical devices. Provision of honorariums to speakers, and meals, entertainment, recreation, travel or other benefits in connection with information or marketing presentations may raise issues of AKS violations. 7

Prior OIG educational materials have warned physicians to be aware of consultant or speaking arrangements with drug or device companies. These arrangements could improperly induce HCPs to prescribe or order products due to loyalty to the company or a desire to obtain more money or other inducements from the company. These inducements could influence the HCPs to prescribe a drug or medical device, make an improper referral or generate business to the company. 8 HCPs should be careful in accepting any compensation to avoid a violation of fraud and abuse laws. 9

What Speaker Program Arrangements Should Be Avoided or Entered with Caution?

Whether the OIG recognizes an arrangement involving remuneration as lawful depends on the specific facts and circumstances and intent of the parties. Liability under the AKS requires intent that the HCPs “knowingly and willfully” solicited or received remuneration in connection with a speaker program in return for prescribing or ordering drugs or medical devices reimbursable by a federal health care program.

Intent can be demonstrated by the speaker program’s characteristics as the well as the parties’ actual conduct. As previously addressed above, there are particular situations which demonstrate greater potential for AKS issues. The special alert provides several examples of suspect characteristics, which is not exhaustive, but lists arrangements to consider when deciding whether or not to participate in a speaker program, such as:

-Little or no substantive information is actually presented;

-Alcohol is available or an expensive meal is provided to the program attendees, especially if the alcohol is free;

-Holding a program at a location not conducive to exchanging educational information, i.e., restaurants or entertainment or sports venues;

-The company sponsors a number of programs on the same or substantially same topic or product though there have been no substantive changes to the relevant information;

-No new medical or scientific information or new FDA approved
or cleared indication for the product has been released for a significant period of time;

-HCPs attend programs on the same or substantially same topic more than once, i.e., either repeatedly attend same program or attend a program after speaking on the same or substantially same topic;

-Attendees include individuals with no use for the information, i.e., friends, spouses/partners or family members of the speaker or attendee, employees of the speaker’s own medical practice, or staff of facilities where the speaker is the medical director;

-The company’s sales or marketing business units influence who the company selects to speak or attend programs based on past or expected revenue the speaker or attendees have or will generate by prescribing or ordering the company’s drugs or medical devices;

-Payment to speakers exceeds fair market value for the speaking service or takes into account the volume or value of past or potential future business generated by the HCPs.

Conclusion

Expect more OIG investigations into AKS compliance in regard to speaker programs. The OIG has made its concerns clear regarding remuneration to HCPs engaged in speaker programs. When remuneration is offered or paid to induce the prescribing, ordering or use of the company’s drugs or medical devices paid for by federal health care programs— and the intent of the parties is present—both the company and the HCPs may be subject to criminal, civil and administrative enforcement actions.

Nonetheless, the OIG does not want to discourage HCPs receiving training and education to properly utilize company products. When deciding whether or not to enter an arrangement for a speaker program, physicians should consider the various factors set forth by the OIG in the special alert. However, physicians should continue to obtain all educational information necessary to provide the most medically necessary and reasonable care for their patients.

When in doubt about the propriety of any speaker program arrangement, legal counsel may assist physicians to obtain answers to their questions. Finally, the OIG Advisory Opinion process is available to submit a request for guidance concerning specific factual situations.

References

1. https://go.usa.gov/x7m3B
2. 42 USC § 1320a-7b(b)
3. 42 U.S.C. § 1320a-7b(b).
4. See section 1128B(b)(1)-(2) of the Social Security Act; 42 U.S.C. § 1320a-7b(b)(1)-(2).
5. See 42 U.S.C. § 1320a-7a.
6. See 42 U.S.C. § 1320a-7(b)(7); § 1320a-7a-7a(a)(7).
7. OIG Compliance Program Guidance for Pharmaceutical Manufacturers, 68 Fed.
   Reg. 23731, at 23738 (May 5, 2003), available at https://oig.hhs.gov/authorities/
   docs/03/050503FRCPGPharmac.pdf. The guidance is not limited to pharmaceutical
   manufacturers and may also apply to manufacturers of other products reimbursed by
   federal health care programs, such as medical device manufacturers. Id. At 23742, n.5.
8. See A Roadmap for New Physicians, Avoiding Medicare and Medicaid Fraud and
   Abuse, HHS-OIG, 22 (Nov. 2010), available at https://oig.hhs.gov/compliance/
   physician-education/roadmap_web_version.pdf; OIG Compliance Program for
   Individual and Small Group Physician Practices, 65 Fed. Reg. 59434 (Oct. 5, 2000),
   available at https://oig.hhs.gov/authorities/docs/physician.pdf.
9. Id. At 23.

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In announcing the changes, SEC Chairman Jay Clayton said: “For the first time, individuals will be permitted to participate in our private capital markets not only based on their income or net worth, but also based on established, clear measures of financial sophistication.”

Under the prior definition of “accredited investor”, an individual had to have a regular annual income of $200,000 or more, or $300,000 with spouse, or a net worth of at least $1,000,000, exclusive of personal residence.  Under the amended definition, an individual can qualify as accredited based on certain professional certifications or credentials.  The amendment now allows individuals in good standing under the Series 7, Series 65 and Series 82 securities licenses to qualify as accredited investors.  The SEC may also designate by order from time to time additional professional certificates or credentials which would allow an individual to qualify as accredited. 

The amendment also includes as accredited investors with respect to investments in a private fund natural persons who are “knowledgeable employees” of the fund.

Other changes included in the amendment are as follows:

• Clarification that limited liability companies with $5 million in assets may be accredited investors along with SEC and state regulated investment advisers, exempt reporting advisers and rural business investment trusts. 

• Adding a new category of accredited investor for any entity, including Indian tribes, governmental bodies and entities organized under the laws of foreign countries that own investments in excess of $5 million and that are not formed for the specific purpose of investing in the securities offered.  

• Adding to the accredited investor definition “family offices” with at least $5 million in assets under management and their “family clients” as each term is defined under the Investment Advisers Act. 

• Adding the term “spousal equivalents” to the definition so that spousal equivalents may pool their finances for the purpose of qualifying as accredited investors. 

The amendment should facilitate private fund raising, especially venture capital and seed rounds for startup companies, by expanding the pool of individuals and entities that qualify as accredited investors.    

Joseph S. von Kaenel | (314) 552-4155 | JvonKaenel@evans-dixon.com

The post SEC Updates Accredited Investor Definition first appeared on Blog for Business Law.