On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal emergency temporary standard (ETS) to address the grave danger of COVID-19 infection in the workplace. Affected employers will be required to comply with most provisions of the ETS by Dec. 6, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees (firmwide or companywide count).

The ETS requires each covered employer to establish and implement a written mandatory vaccination policy unless the employer adopts an alternative policy requiring COVID-19 testing and face coverings for unvaccinated employees. To meet the definition of “mandatory vaccination policy,” the policy must require vaccination of all employees, including all new employees as soon as practicable, other than those employees for whom:

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On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal emergency temporary standard (ETS) to address the grave danger of COVID-19 infection in the workplace. Affected employers will be required to comply with most provisions of the ETS by Dec. 6, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees (firm- or company-wide count).
On Nov. 6, 2021, the 5th Circuit Court of Appeals issued a temporary stay effectively blocking enforcement of the ETS until a final decision is made.

The ETS creates new employer obligations with respect to employees who are not fully vaccinated, including a requirement to ensure unvaccinated employees are tested for COVID-19. While OSHA’s stated preference is for employers to implement written mandatory vaccination policies, the ETS also regulates procedures to protect workers who remain unvaccinated—regular testing, use of face coverings and removal of infected employees from the workplace.

Click here to learn more and download the latest Compliance Bulletin

On Oct. 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued additional answers to frequently asked questions (FAQs) about how employers should comply with Title VII of the federal Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA) and other federal fair employment laws while also observing all applicable emergency workplace safety guidelines during the coronavirus pandemic.

Title VII/ADA Rules Do Not Prevent Safety Measures
Employers must follow all applicable rules under federal fair employment laws while also observing emergency guidelines issued by federal, state and local health authorities during the COVID-19 pandemic.

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Notice 2021-58 clarifies that the disregarded periods to elect COBRA coverage and make initial and subsequent COBRA premium payments generally run concurrently. The guidance provides the following rules to illustrate the applicable time frames:

• If an individual elected COBRA coverage within the initial 60-day COBRA election time frame will have one year and 45 days after the date of the election to make their initial COBRA premium payment.

• If an individual elected COBRA coverage outside of the initial 60- day COBRA election time frame, they generally will have one year and 105 days after the date the COBRA notice was provided to make the initial COBRA premium payment (subject to transition relief).

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Under federal law, employers generally may provide incentives to employees for receiving the COVID-19 vaccine (or penalize employees for failing to get vaccinated).

However, this type of strategy would likely need to be structured as a group health plan wellness program.

Employers may need to make exceptions for employees who are unable to get vaccinated due to a disability or a strongly held religious belief.

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On July 26, 2021, the U.S. Department of Justice (DOJ) and Department of Health and Human Services (DHHS) issued joint guidance on a medical condition called “long COVID” and how it may be considered a disability under various federal laws that protect individuals against discrimination. These laws include:

• Title II of the Americans with Disabilities Act (ADA), which applies to state and local governments;
• Title III of the ADA, which applies to public accommodations;
• Section 504 of the Rehabilitation Act of 1973 (Section 504), which applies to certain schools and other educational entities; and
• Section 1557 of the Patient Protection and Affordable Care Act (Section 1557), which applies to certain health plans.

Although employment is outside the scope of topics addressed in the new guidance, it includes information that may be relevant to employers. For example, it may help determine whether an individual with long COVID has a disability under Title I of the ADA or Section 501 of the Rehabilitation Act, both of which apply to employers with 15 or more employees. However, employers that wish to learn more about workplace issues relating to COVID-19 should review separate guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC).

Action Steps

All employers should follow the most current guidelines and suggestions for maintaining workplace safety, as issued by the Centers for Disease Control and Prevention (CDC) and any applicable state or local health agencies. Businesses and other entities subject to the laws listed above should also review the guidance issued by the DOJ and DHHS, which is provided in this Compliance Bulletin below.

What Is Long COVID, and What Are its Symptoms?

According to the CDC, people with long COVID have a range of new or ongoing symptoms that can last weeks or months after being infected with the virus that causes COVID-19 and that can worsen with physical or mental activity. Examples of common symptoms of long COVID include:
• Tiredness or fatigue;
• Difficulty thinking or concentrating (sometimes called “brain fog”);
• Shortness of breath or difficulty breathing;
• Headache;
• Dizziness on standing;
• Fast-beating or pounding heart (known as heart palpitations);
• Chest pain;
• Cough;
• Joint or muscle pain;
• Depression or anxiety;
• Fever; and
• Loss of taste or smell.

This list is not exhaustive. Some people also experience damage to multiple organs, including the heart, lungs, kidneys, skin and brain.

Is Long COVID Always a Disability?

What Rights Do People Whose Long COVID Qualifies as a Disability Have Under the ADA, Section 504 and Section 1557?

What Federal Resources Are There For People With Symptoms of Long COVID?

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ADA Rules Still Apply but Do Not Prevent Safety Measures

Employers must follow ADA rules while observing emergency guidelines issued by federal, state and local health authorities during the pandemic

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The EEOC’s new FAQs clarify, among other things, that employers may:

• Require employees who will be physically entering the workplace to be vaccinated, as long as certain requirements are met;
• Offer to provide vaccinations to employees on a voluntary basis;
• Offer incentives for employees to receive COVID-19 vaccinations, as long as the incentives are not coercive;
• Offer to provide vaccinations to employees’ family members on a voluntary basis (but may not require or provide incentives for family members’ vaccinations).

Mandatory Vaccines and Reasonable Accommodations

Employers with mandatory vaccination programs must provide reasonable accommodations for individuals who refuse the vaccine due to disability, pregnancy or religion.

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Highlights

Serious Medical Condition
Employees may be entitled to leave for their own or a family member’s COVID-19 illness if it constitutes a “serious medical condition” under the FMLA.

FFCRA Leave Enforcement
The DOL will enforce the FFCRA for leave taken or requested between April 1, 2020 and Dec. 31, 2020.

Extension of FFCRA Tax Credits
The American Rescue Plan Act extended tax credits for employers who voluntarily provide FFCRA leave through Sept. 30, 2021.

Child Care Leave
Federal law does not mandate leave to care for a healthy child. The FFCRA required leave for certain COVID-19-related child care through Dec. 30, 2021.
Testing Before Returning to Work Employers may require a COVID-19 test before employees return to work from FMLA leave if it is nondiscriminatory.

Click here to view and download the latest HR Compliance Bulletin