For employers with 100 or more employees, the saga and uncertainty behind OSHA’s Emergency Temporary Standard (ETS) on COVID-19 continues. As detailed below, while there is still a chance that the Supreme Court will strike down the ETS, covered employers should be actively preparing to comply with the ETS by the new January 10 and February 9 deadlines to avoid being caught in a last minute scramble.
Here’s a breakdown of what has occurred so far:
The news has been abuzz with stories about the wave of legal challenges to OSHA’s recently released Emergency Temporary Standard (ETS) on COVID-19. The ETS’ first set of requirements were slated to go into effect on December 5, but now it is unclear where things will stand on that date. This has understandably left many employers confused and questioning what actions they should be taking at this time.
So let’s try to break things down and get some clarity–
On November 4, OSHA released the text of its much-anticipated Emergency Temporary Standard (ETS) setting forth new requirements for COVID-19 vaccines and testing in the workplace. As we previously reported, in early September, President Biden rolled out his “Path Out of the Pandemic” action plan. The action plan included an instruction to OSHA to issue emergency rules to mandate that employers with 100 or more employees require that their employees either get vaccinated or submit to regular testing. This ETS is the result. It is estimated that the ETS will cover 84 million employees.
On September 28, two Montgomery County Councilmembers proposed legislation that would require that the County’s employees be vaccinated against Covid-19. Expedited Bill 34-21 would permit accommodations to the mandate for medical reasons.
On Monday August 23, 2021, the Food and Drug Administration (FDA) announced final approval of the Pfizer-BioNTech coronavirus vaccine for individuals 16 and older. Of course this is a big step for the vaccine which first received emergency use authorization last December. It is also likely to raise significant questions for employers.
On Thursday, September 9, 2021, the Biden Administration rolled out its latest COVID-19 Action Plan (titled “Path Out of the Pandemic”). The Action Plan covers a wide range of areas focused on increasing vaccination rates and addressing various other COVID-19 related safety and recovery measures. For private sector employers, the big news is that the new Action Plan, and its implementation, will require a large swath of businesses to implement specific vaccination requirements for their workforces.
Written with assistance from Erin N. Schiffman, Law Clerk.
Employers should take note of several new Maryland laws taking effect this year.
Written with assistance from Erin N. Schiffman, Law Clerk.
As of July 1, 2021, the following minimum wages are now required for workers in Montgomery County. These increases were scheduled by legislation passed in 2017 (Bill 28-17), which provides for continued increases until all employers are required to pay $15.00 per hour. Medium-sized employers will reach $15.00 on July 1, 2022, as will small employers on July 1, 2023. The $15.00 minimum wages will be subject to continuing annual increases, based on the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) for Washington-Baltimore.
By Jessica Summers, Principal
During its 2021 Special Session, the Virginia General Assembly passed a new law (HB1848) to amend and expand the Virginia Human Rights Act (VHRA).
By Jessica Summers, Principal
On Thursday, the Occupational Safety and Health Administration (OSHA) surprised everyone by announcing that its much anticipated COVID-19 Emergency Temporary Standard (ETS) will apply only to healthcare and healthcare support service workers.
By Jessica Summers, Principal
Recent developments regarding when vaccinated individuals can be permitted to go without masks has left many Virginia employers in a state of confusion. So let’s unpack what has occurred and what we know to date.
By Hayes Edwards, Principal
On May 28, 2021, EEOC issued 21 new and updated points of guidance (Section K) for employers grappling with the legality of requiring, encouraging, and even providing Covid-19 vaccinations for employees. The release primarily addresses the Americans with Disability Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). EEOC also provides resources to which employers can refer employees who are seeking vaccinations or further information.
Incentives
Generally, vaccine incentives are compliant with ADA. Employers can also ask for confirmation of vaccinations received from third-parties (pharmacies, municipalities, etc.) without it qualifying as a “disability related inquiry” that requires justification based upon business necessities—although information received must be treated as confidential. For employer-provided vaccines, where the employer would be asking “screening questions,” incentives must not be so substantial as to be deemed “coercive” in creating pressure to disclose protected medical information.
GINA does not prohibit incentives for employer-provided vaccine programs, so long as no genetic information is obtained during the screening process.
Vaccine Mandates for Disabled Employees
Although mandating vaccines does not generally violate federal law, EEOC highlighted how some employees whose qualifying disability would exempt them from a vaccine mandate and require reasonable accommodations such as working from home, working with a face covering, working at a distance from others, or working a different schedule. In a similar vein of civil rights, employers are advised to ensure their vaccine requirements do not have a “disparate impact” on any particular race, color, religion, sex, or national origin.
However, employers are not completely barred from requesting that disabled employees be vaccinated. If indeed a worker would pose a “direct threat” to themselves or others in the workplace if not vaccinated, and that threat cannot be reduced or eliminated by a reasonable accommodation, then the employer may enforce the mandate. Employers would be wise to clearly announce the vaccine mandates and encourage requests for any accommodations from employees who might qualify—and to employ ADA protocols in any ensuing discussions.
Screening Questions
Screening questions asked during employer-provided vaccinations qualify for ADA protection, which means the questions must qualify as “job related and consistent with business necessity.” To meet that standard, all questions should be examined to make sure that an unsatisfactory answer (or non-answer) would truly pose a direct threat to the health and safety or that employee or others. However, this requirement does not apply to voluntary vaccine administration by employers—but only if the questions (like the vaccines) are voluntary.
Although questions of employees about vaccinations by a third-party is not a “disability-related inquiry,” any documentation provided in response must be treated as confidential.
Family Members
EEOC also clarified that requests for employees to confirm that their family members have been vaccinated does not invoke GINA, because that information does not relate to the manifestation of a disease or disorder in a family member, or any other form of genetic information.
However, GINA would preclude incentives for an employer’s family member to be vaccinated through an employer-provided vaccine program, as the screening questions would necessarily address the employee’s family medical history. GINA specifically prohibits offering incentives for such information. That said, employers can still offer vaccinations to family members without incentives, so long as information obtained remains confidential, especially from any managers or others who make employment decisions about the employee.
If you have questions or need assistance, please contact the employment attorneys at Paley Rothman.
By: Jessica Summers, Principal
On Thursday, May 13, 2021, the Centers for Disease Control and Prevention (CDC) made big news by announcing that, subject to certain exceptions, “fully vaccinated people can resume activities without wearing a mask or physically distancing.”
By: Jessica Summers, Principal
As we’ve previously blogged, last summer Virginia became the first state to enact mandatory COVID-19 workplace safety rules.
By: Hayes Edwards, Associate
As of February 1, 2021, all employers doing business in Montgomery County, Maryland, with at least one employee located in the county, are subject to new prohibitions on inquiries into job applicants’ criminal history. The previous version of the County’s “Ban the Box” law, which only applied to employers with more than 15 employees, allowed such inquiries after the first interview. That original law, effective since January 1, 2015, also includes restrictions on employers’ use of information obtained from a compliant background check and inquiry process.
By: Jessica Summers, Principal
During its 2020 Session, the Virginia General Assembly passed a new law to establish a state minimum wage. Previously, the Commonwealth simply required employers to pay the federal minimum wage (currently $7.25).
By: Jessica Summers, Principal
So far, in 2021 the Virginia General Assembly has completed its regular session as well as one special session. As the Governor recently finished reviewing and signing the legislation passed in the special session, now is a good time for Virginia employers to familiarize themselves with the latest updates.
By Jessica Summers, Principal
Effective July 1, 2021, certain recreational possession and growth of marijuana will become legal in Virginia under a new law that the General Assembly passed during its 2021 session. Originally, the law, which will also establish a system for retail sales of marijuana in the Commonwealth, was not set to go into effect until January 1, 2024. However, the Governor proposed, and the General Assembly approved, to bump up certain portions to make them effective on July 1, 2021.