COVID-19 Vaccinations, Masks, and Screening: Where Do We Stand?
Posted by [email protected] on Nov. 11, 2021 / Subscribe 0
COVID-19 Vaccinations, Masks, and Screening: Where Do We Stand?
By Tracey I. Levy, Esq.
In the ever-evolving experience of legal obligations related to COVID-19, and the push at the federal, New York State and local levels for individuals to get vaccinated, employers are struggling to balance keeping employees safe and their obligations under employee privacy protections and wage and hour laws. Four areas that appear to be at the forefront of these considerations at present pertain to requiring face coverings in the workplace, mandating vaccinations, gathering information on vaccination status, and compensating for screening and testing of employees.
What’s the status of face coverings in the workplace?
Since July 27, 2021, the Centers for Disease Control and Prevention (CDC) has reinstated its recommendation that even fully vaccinated persons (anyone having received one dose of Johnson & Johnson or two doses of Moderna or Pfizer, where at least two weeks have passed since the final dose) resume wearing a face covering in public indoor settings. Additionally, the CDC recommended that anyone known to have been exposed to someone with COVID-19 should quarantine for three to five days following the exposure and continue wearing a face covering in public indoor settings for the following 14 days after the exposure or until the individual has received a negative COVID-19 test, whichever is sooner.
The CDC website has launched a county-level map for employers to consult in order to determine whether their workplace falls within a “substantial or high transmission zone.” The map is set to automatically update each day at 8:00p.m. Eastern Standard Time. The CDC quantifies zones where there are 50-99.99 cases per 100,000 persons as a substantial transmission zone, and zones with 100+ cases per 100,000 persons over the preceding seven-day period as a high transmission zone. All employers within these transmission zones should consider reinstating, if they have not already, their face covering guidelines in the workplace, especially where indoor social distancing is not possible.
Can employers mandate vaccinations?
Yes, the CDC, OSHA and New York State all strongly encourage employers to make COVID-19 vaccination mandatory for their employees. Certain employers are legally required to have those mandates in place, including healthcare providers and federal contractors and subcontractors. Under the “Key to NYC” program, New York City employers of indoor dining, fitness and entertainment facilities and certain meeting spaces are similarly required to mandate vaccinations. Most recently, under an Emergency Temporary Standard (ETS) that was issued by the Occupational Safety and Health Administration (OSHA) on November 5, 2021, all large employers with 100 or more employees must adopt mandatory vaccination policies. Each of these vaccination mandates recognize an exception for individuals who need a reasonable accommodation due to a disability or religious belief or practice, and such requests need to be considered on an individualized basis. The latest OSHA ETS applicable to large employers permits employers to offer weekly COVID-19 testing and continuous wearing of face coverings as an alternative to vaccination. Note that a federal appeals court has issued a temporary stay of the ETS for large employers while it considers challenges to the legality of OSHA’s mandate.
Isn’t vaccination status protected by HIPAA? Can an employer ask about it?
The Department of Health and Human Services has clarified that employers are permitted to ask their employees, contractors and others performing services on their workplace property for their COVID-19 vaccination status. Requesting this information is not a violation of any HIPAA regulations, and employers that are subject to the recent federal vaccination mandates are legally required to gather and retain documentation of employees’ vaccination status. The Equal Employment Opportunity Commission has made clear, however, that employers need to treat this information as confidential, as they would with any other employee medical information.
The legality of compelling a non-employee to disclose their vaccination status varies from state to state, but in New York, such requests, and the use of “vaccine passports,” are authorized. Employers are therefore permitted (and actually required in some industries, such as those covered by the Key to NYC program) to refuse entry to patrons, guests, or customers who fail to furnish proof of vaccination.
Do employers have to pay for continued testing and screening protocols?
Testing and screening protocols may range from requirements of frequent testing, particularly as a condition for employees who have received an exemption from vaccination requirements, to simple temperature checks and online or paper health screening questionnaires. With each of these measures, there are questions of whether, and when, an employee is owed compensation for the time spent screening/testing, as well as who will absorb the cost of the test itself. Presently, there is incomplete legal guidance on this issue, but there are some bright-line parameters and other factors for consideration.
Exempt employees
Exempt employees are, by definition, required to be paid their salary regardless of the number of hours worked in a particular day and, therefore, should not experience any reduction in pay for time spent on screening or testing for COVID-19. Exempt employees are also not entitled to any additional compensation for time spent outside their normal work hours meeting the employer’s screening and testing requirements. This is true whether such screening or testing occurs during the workday, on or off the employer’s premises, outside of work hours, or on an employee’s day off.
Testing and screening during the workday
For non-exempt employees, regulations issued by the U.S. Department of Labor (DOL) provide that “time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee’s normal working hours on days when he is working constitutes hours worked.” The requirement to compensate employees for medical screening and testing is based, therefore, on factors independent of the location of the testing, and applies irrespective of whether it is conducted on the employer’s premises or at a nearby facility. In its FAQs on COVID-19 and the Fair Labor Standards Act, the DOL states that time spent waiting for and undergoing a temperature check, completing a health screening related to COVID-19, or undergoing testing during the workday must be paid.
Testing or screening outside of regular work hours
The practicalities of screening and testing become a bit more nuanced, with less clear guidelines, when an employer dictates testing and protocols that take place before or after the non-exempt employee’s workday or on non-workdays. The same FAQs from the DOL note that an employee is to be compensated for time spent, even on a day off, to perform tasks required by the employer that are necessary for the work the employee is paid to do. The obligation to compensate employees thus turns on the necessity of the screening or testing to enable the employees to perform their jobs safely and effectively. The DOL provides two examples, of somewhat limited value:
- a grocery store cashier for whom, because of the cashier’s significant interaction with the general public, the DOL said testing would likely be considered “integral and indispensable” to the cashier’s work, and thus compensable time; and
- a nurse who performs direct patient care services, who the DOL said likely would be entitled to be compensated for mandated time spent checking the nurse’s temperature upon arrival, before the start of the nurse’s shift.
Both examples involve employees who engage in significant interpersonal interactions with the general public, but the DOL does not address whether other considerations, such as extensive interactions with coworkers in workspaces where social distancing is generally not possible, would similarly lead to a conclusion that mandated screening and testing outside of work hours should be considered “integral and indispensable” to the employees’ work. Employers will need to make this assessment regarding their own workplaces, with respect to the business reasons behind screening and testing requirements, and the nature of individual jobs.
New York State law does not provide any further guidance on this particular issue. The fact that the state amended the Labor Law earlier this year to grant employees up to four hours of paid time off for a COVID vaccine suggests that there was no prior obligation under state law to compensate employees for time spent getting vaccinated. Although imperfect, this suggests that state law similarly does not impose any additional requirement to compensation for time spent meeting screening and testing requirements. As a result, employers should focus their analysis on compliance with the federal law guidance issued by the DOL.
Paying for the testing itself
New York State law does, however, come into play with respect to the question of who pays for COVID-19 testing. Section 201-b of the New York Labor Law states that an employer cannot require an employee as a condition of continued employment to pay the cost of any medical examination or the cost of furnishing any health certificate where:
- the employee is not covered by any health insurance or the employee's health insurance does not cover the exam/certificate or the employer does not provide qualified medical personnel to conduct the exam without cost to the employee, and
- the exam or certificate is not required by a state, local, or federal law.
A COVID-19 test likely falls into the category of a medical examination or health certificate. To the extent, however, that employees are covered by health insurance and their policy covers the cost of testing, the employer has no payment obligation. Additionally, where testing is mandated solely by employer policy and the employer is not subject to any of the federal, state or local mandatory vaccination requirements, the second portion of the New York test is not satisfied, and the employer should have no obligation to pay the cost. Where, however, the employer is covered by a legal testing mandate, the analysis becomes more challenging. It may be possible for an employer to assert that the federal legal requirement is vaccination or testing, and thus weekly testing is an option elected by the employee, not a legal requirement, and need not be paid for by the employer. Here, too, employers are advised to consult legal counsel about their obligations before taking that approach. It should be noted that employers can easily resolve this issue entirely by administering testing on their premises, during the workday, which many employers have already elected to do.
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