Employer and HR Manager FAQ

The COVID-19 crisis has created new challenges for HR-related matters. Please see the tools and resources below to get the answers you need. If you aren’t able to find an answer to your question, please contact your HR business partner.

OSHA Withdraws Vaccination-Or-Testing Emergency Temporary Standard (ETS)

January 27, 2022

As we previously alerted you on January 14th, the U.S Supreme Court blocked President Biden’s vaccine or testing requirement aimed at private businesses with 100 or more employees. The Court’s opinion was that the Occupational Safety and Health Administration (OSHA) did not have the power to enact such a mandate in the first place. The vaccine mandate then stayed pending review by the 6th Circuit Court of Appeals.

In follow-up, OSHA officially announced the withdrawal of its COVID-19 vaccination-or-testing ETS, effective January 26th. This withdrawal voids affected employers’ obligations under the standard and formally discontinues the OSHA ETS case before the Court of Appeals.

While this federal ETS is no longer considered a factor employers must continue to comply with state or local government vaccination and/or testing requirements as may be applicable as these regulations and laws are not affected by the withdrawal of this ETS.

Prestige remains committed to keeping you compliant so if you have any questions or concerns regarding this matter, please feel free to reach out to your HR business partner

Supreme Court Blocks OSHA's Vaccine or Test Mandate, Allows Health Care Worker Vaccine Mandate

January 14, 2022

As previously communicated, on January 7, 2022, the U.S Supreme Court met and heard oral arguments regarding legal challenges to both the health care worker vaccine mandate as well as President Biden’s vaccine or test requirement for large private businesses, otherwise known as the OSHA ETS (The Occupational Health and Safety Administration Emergency Temporary Standard).

Breaking news released as of late yesterday afternoon, January 13, 2022, advised that the U.S Supreme Court decided to block President Biden’s vaccine or testing requirement aimed at large private businesses. The justice’s 6-3 opinion, based upon the argument that Congress has not given OSHA the power to enact such a mandate, stays the vaccine mandate pending review by the 6th Circuit Court of Appeals.

In a separate opinion, the Court permitted that the Health and Human Services’ vaccine mandate aimed at certain health care workers could move ahead and go into effect nationwide.

While employers who would have been impacted by the OSHA ETS have gained a reprieve for now regarding the implementation of its requirements by this ruling, it does not mean that the standard will not take effect at some point in the future. That decision will be made by the Court of Appeals down the road. In the meantime, employers should remain vigilant and stay compliant with their state and local vaccine and mask requirements.

As always, PrestigePEO is carefully monitoring the situation and will advise you of any new information that becomes available on this issue. Until then, if you have any questions, please continue to reach out to your HR business partner.

President Biden Requires Insurance Companies & Group Health Plans to Cover Cost of At Home COVID -19 Tests

January 12, 2022

On Monday, January 10, 2022, the U.S. Department of Health and Human Services (HHS) released information regarding the cost of at-home COVID-19 tests. Beginning on Saturday, January 15, 2022, the government will require insurance companies and group health plans to cover the cost of over-the-counter, at-home COVID-19 tests, so people with private health coverage can get them for free.

This update means that most consumers with private health coverage can go online, a pharmacy or store, purchase an at-home COVID-19 test, and either have it covered by their health plan at the time of purchase or get reimbursed for the cost by submitting a claim to their plan.

Some key information includes:

  • Insurance companies and health plans are required to cover 8 free over-the-counter at-home tests per covered individual per month. For example, a family of four, who are all on the same plan, are eligible to get up to 32 tests covered by their health plan per month.
  • No limit on the number of tests, including at-home tests, that are covered if ordered or administered by a health care provider following an individualized clinical assessment, including for those who may need them due to underlying medical conditions.
  • This requirement will incentivize insurers to cover these costs upfront and ensures individuals do not need an order from their health care provider to access these tests for free.
  • The test must be test approved by the U.S. Food and Drug Administration (FDA).
  • Over-the-counter test purchases will be covered in the commercial market without the need for a health care provider’s order or individualized clinical assessment and without any cost-sharing requirements such as deductibles, co-payments or coinsurance, prior authorization, or other medical management requirements.
  • When plans and insurers make tests available for upfront coverage through preferred pharmacies or retailers, they are still required to reimburse tests purchased by consumers outside of that network, at a rate of up to $12 per individual test (or the cost of the test, if less than $12).

NEW BIDEN ADMINISTRATION MANDATE – A PATH OUT OF THE PANDEMIC

September 22, 2021

Overview

Late last week the Biden Administration unveiled the “Path out of the Pandemic” plan, otherwise known as President Biden’s COVID-19 Action Plan. The Department of Labor’s Occupational Safety and Health Administration (OSHA) was directed to issue an Emergency Temporary Standard (ETS) requiring all employers with 100 or more employees to ensure employees are either fully vaccinated or testing weekly to show a negative COVID-19 test result. While the official ruling from OSHA has not yet been provided, employers are recommended to prepare for when it is. PrestigePEO will continue to monitor the situation while awaiting official guidance from OSHA and will continue to advise as we can.

Key points to Know

The Biden Administration stated they will be addressing the COVID-19 pandemic by requiring the following:

  • Employers with 100 or more employees to ensure workers are fully vaccinated or producing a negative test result weekly
  • Federal workers and contractors that do business with the federal government to be fully vaccinated
  • Health care workers at Medicare and Medicaid participating facilities to be fully vaccinated
  • Direction to OSHA to require covered employers to provide paid time off for employees to get vaccinated or recover from the symptoms of said vaccination

Who is impacted?

  • Employers with 100 or more employees (this number will most likely be calculated by company, not per worksite)
  • Federal workers
  • Contractors that do business with the federal government
  • Health care workers
  • As per comments from OSHA, this will likely not apply to employees who are fully remote and never physically work in the office or at the employer’s worksite location. These employees, however, will be counted in the 100-employee threshold.

Note: This information is based on the current guidance that is available. The impacted industries and employers will be fully determined once the ETS has been issued.

What should employers do to prepare?

While there is no guidance provided by OSHA as of when this statement has been published, there are some things employers should start to consider:

  • Start determining the current vaccination status of employees
    • Note: it is lawful to ask employees the initial question regarding COVID-19 vaccination
  • Consider whether you will provide the “test-out” option (allowing for weekly COVID-19 testing in lieu of vaccination)
  • Consider how you will track test results and vaccination compliance
  • Consider testing site vendors and/or local testing sites for employees
  • Have a plan for addressing non-compliance
  • Develop robust and clear policy for accommodations based on medical or religious beliefs
  • If you have not done so already, consider developing a COVID response plan and training materials

Next Steps

PrestigePEO will continue to monitor official guidance and ruling. While this alert provides preliminary information, it is subject to change once an ETS is issued by OSHA. The ETS is currently expected to be provided within the next three to four weeks and will be effective once it is published in the Federal Register.  Once published, the ETS will be effective until a permanent rule is issued.

COVID-19 Vaccination Resources

The Food and Drug Administration (FDA) granted emergency use authorization for Pfizer’s COVID-19 vaccine in the U.S as of December 11, 2020, with other pharmaceutical vaccine equivalents quickly following. The first eligible Americans received vaccines a few days later. The current hope is that vaccinations will be available to most of those in the U.S. by April of this year. While undoubtedly this is much welcome news to everyone across the nation, it also brings to mind a number of numerous questions and concerns for employers and employees alike.

What does the availability of a COVID-19 vaccine mean for employers?

Click here for more information.

What should I be doing right now?

Follow developments as they become known and remain flexible in your approach to whatever vaccination policy you are considering. You should begin to prepare a policy framework and employee communication plan. Please see the links below for some helpful guidance with policies, procedures and vaccination information in general as published by the law firm of Fisher Phillips.

Vaccine Data Bank (Templates and Forms)

50- State Chart on Vaccines, Exemptions, and Related State Issues

Can I require my employees to be vaccinated?

The EEOC states that employers can require employees to be vaccinated for COVID-19 but must make “reasonable accommodations” for employees who don’t get vaccinated because of a disability, religious beliefs, or pregnancy.

Mandating vaccinations can be tricky as each situation is different and must be understood prior to making decisions.

What if I have an employee that is resistant, or refuses to return to the workplace after being remote?

Each situation is different. The following questions should be used to determine how to handle each situation:

  • Are there established policies and safety protocols in place?
  • Does reasonable accommodation or ADA accommodation come into play?
  • Is a leave of absence an option?
  • Is a flexible policy an option and if so what are the benefits?
  • Is in-person work necessary to perform the role?

How do we handle the unmasking issues and those not vaccinated?

There are 3 options we provide our clients while keeping in mind that not all states have adopted the CDC guidelines.

Option 1:

  • The most conservative and low-risk option is continuing to require employees to mask and social distance.
  • Ensure to launch a thorough and clear communication initiative so employees understand why you are continuing with the masking and distancing.
  • Provide your managers with direction on how they should handle possible conflicts that could happen in the workplace over mask policies.

Option 2:

  • This is more burdensome on employers and increases the risk of legal liabilities. With this option, you can require employees to show proof of vaccination before allowing them to stop masking and distancing.
  • This requires employers to collect and protect the privacy of the employee’s vaccination status. This information must be kept separate from personnel files.
  • It is recommended that employers keep a list of workers whose vaccination status has been confirmed rather than copies of the vaccination cards.
  • This option raises questions about how to appropriately distinguish between vaccinated and unvaccinated employees while protecting their confidential medical info.

Option 3:

The honor system:

  • Using this system to determine who has been vaccinated and can remove their masks carries some level of risk including many of those discussed in the previous options.
  • Without tracking, you can run the risk of being cited for not maintaining a workplace free from recognized hazards.
    • You may encounter employees who claim to be vaccinated when they are not. This scenario can increase the likelihood of unvaccinated employees being exposed to each other without safeguards in place thus potentially increasing infection rates in the workplace.

In Summary:

  • Whether you verify an employee’s vaccination status or not, visitors, customers, and coworkers will believe they can readily distinguish the vaccinated from unvaccinated if your policy permits the fully vaccinated to forgo masking and distancing.
    • This not only raises potential privacy concerns but may increase the likelihood of conflict or confrontations and claims of discrimination
  • You should consider these issues and what risks your business is able to tolerate before completely doing away with masks.

Can we ask the vaccination status of someone that we are interviewing in the hiring process?

The recommendation would be not to ask for vaccination status until AFTER a job offer is made to a candidate. The offer of employment should not be based on vaccination status but rather on knowledge, skills, & abilities. After an offer is made, it could be treated as any other condition of employment such as successful completion of a background check or drug test.

CDC Workplace Vaccination Program Guidance

March 16, 2021

Center for Disease Control (CDC) released updated guidance (accessed here) for workplace COVID-19 vaccination programs.

Reopening Resources & Tools

Frequently Asked Questions

Hiring During the COVID-19 Pandemic

If an employer is hiring, may it screen applicants for symptoms of COVID-19?

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.

May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam?

Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.

May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?

Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

CDC has issued guidance applicable to all workplaces generally, but also has issued more specific guidance for particular types of workplaces (e.g. health care employees). Guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety. To repeat: the ADA does not interfere with employers following recommendations of the CDC or public health authorities, and employers should feel free to do so.

May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?

Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

Hiring After a Pandemic

May an ADA-covered employer require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work?

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.

As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

This information is from the EEOC website

General 

Has there been a change to the Form I9 process?

The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) is continuing its discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA) until August 31, 2021. Initially, the flexibilities only applied to employers and workplaces that were operating 100% remotely due to the COVID-19 pandemic. As reported in an earlier article, those flexibilities were later extended to employers and workplaces that opted for a hybrid remote and onsite work environment, but the flexibilities were set to expire on May 31st.

In the updated guidance, effective June 1, 2021, the DHS-ICE advised it will evaluate an employer’s Form I-9 completion practices as it relates to the physical inspection requirements for completing the Form I-9 on a case-by-case basis. As explained in the previous guidance, employers opting for a hybrid working environment may delay the in-person Form I-9 document examination requirements for its remote employees until either the remote employee undertakes non-remote employment on a regular, consistent, or predictable basis, or the DHS-ICE terminates these flexibilities, whichever is earlier.

Onboarding remote employees

As it relates to remote employees, employers must inspect the Section 2 documents remotely (e.g., over video link, fax, or email, etc.), and obtain, inspect, and retain copies of the documents within three businesses days from the employee’s first day of employment. Once the employee resumes non-remote employment (as described above), employers are instructed to enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field. And, after the employer has physically inspected the documents, the employer should note “documents physically examined” and the date of the inspection in the Section 2 Additional Information field. Employers who wish to onboard new employees remotely must maintain written documentation of its onboarding and telework policy for each employee. Finally, the DHS-ICE has advised that in the event of an audit of subsequent Form I-9s, the DHS-ICE will use the “in-person completed date” as a starting point for the employees that were onboarded remotely.

Alleviate the backlog

While this updated guidance certainly provides greater flexibilities for employers, employers are encouraged to minimize their backlog of Form I-9s that require physical inspection of identity and employment authorization documents. Employers may alleviate any backlog of Form I-9s by resuming in-person examination of the affected employee’s documents even while the employee remains in a remote working status. The DHS-ICE guidance only gives an employer three business days to resume in-person inspections once normal operations resume but omits any expressed “grace period” for compliance once the DHS-ICE terminates the Form I-9 flexibilities. Even more, the DHS-ICE has warned that “[t]he employer is liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.”

Updated 6/22/21

Are part-time employees (less than 20 hours/week) that are laid off due to COVID-19 able to apply for unemployment?

Part-time employees may apply for unemployment. The state will make the final determination on eligibility.

I’ve heard you talk about an Employee Assistance Program (EAP). What exactly is it? Where can it be accessed? Is there a cost involved?

National Employee Assistance Program (EAP) is a resource for organizational health and performance management services that are beneficial to clients and employees alike. The program provides 24/7 support from EAP professional specialists in a variety of fields such as mental health, finance, child and elder care and legal who are trained to assist with confidential, effective solutions to assist employees with their concerns. Financial stress, grief and marital discord are just a few of the issues that employees are encouraged to reach out and discuss with these specialists in order to find support and solutions.

In the wake of COVID-19 and the stresses experienced from that alone EAP is hosting daily webinars of their own as well as virtual support groups on topics such as self-care, resiliency, trauma reactions and work organizational changes to name a few.

Prestige clients always have the option to sign-up and enroll for the EAP. During this COVID-19 pandemic, however there are some online services available to all our clients and their employees regardless of being enrolled.

Is there any help I can get through my health plan if I suspect I have symptoms associated with COVID-19 and where can I find test locations in my area?

UHC/Oxford Health has an online symptom checker. You can access it on the pre-login page of myuhc.com and it assesses members based upon their response and triages them into five levels: self-isolation; physician evaluation; same day care; emergency care; and, call 911.

UHC/Oxford Health also provides a test location tool which will provide test locations available to members within a certain mile radius of their zip code.  Here are the links to these invaluable tools:

How should I manage work from home requests?

The first recommended step is to determine what job roles are critical to your company’s operations. This will assist in ascertaining if a position is remote work capable. If the roles are established to have remote work capabilities, the next step would be to inventory what equipment is required and access to the equipment while remote. After these steps have been completed, a policy should be put in place and communicated to employees on the specific expectations of working remotely. These may include; are employees encouraged to work from home and no longer to report to their work location; how meetings will be handled (in person or online); is the company providing the equipment employees are to use or will they be using their own. If during this process a role is determined to not be remote work capable, there are several options to explore. The company may wish to offer unpaid furlough or mandating vacation time. These options must also be compliant with any federal, state and local regulations.

An important item to note during this process is to ensure any decisions on working remotely are made objectively and nondiscriminatory.

Workplace Safety

My employee alleges they contracted COVID-19 while at work. Will this result in a compensable workers’ compensation claim?

This depends. If the employee is a health care worker or a first responder, the answer is likely yes (subject to variations in state law). For other categories of employees, a compensable workers’ compensation claim is possible, but the analysis would be very fact specific. Absent state legislation, an employee seeking workers’ compensation benefits for a coronavirus infection will still have to provide medical evidence to support the claim.

What is the best way for employers to disinfect the workplace if they have reason to be believe (or actual knowledge) that their office has been exposed COVID-19?

Based on guidance put out by OSHA, we recommend that so long as employers are routinely cleaning high-touch areas, there is no need to perform special cleaning upon learning that an asymptomatic employee has tested positive for COVID-19.  Employers should only undertake the below cleaning if a symptomatic employee was present at the job site within 48 hours of testing positive. For further information on this topic, the CDC has issued Environmental Cleaning and Disinfection Recommendations.

What if an employee appears to have flu-like symptoms?

All employees should be made aware to stay home if they are feeling ill or exhibiting flu-like symptoms. The employee should remain home until their fever (temperature of 100 degrees) is gone for a minimum of 24 hours. Employers are permitted to ask an employee exhibiting symptoms of COVID-19 to seek medical attention and get tested for COVID19. For employees who arrive to work ill or become sick while at work, the CDC recommends that the employee should promptly separate themselves from other workers and return home until their fever is gone for at least 24 hours, without the use of fever-reducing medications. An employer may also require workers showing signs of COVID-19 to leave the office and return home.

If one of our employees is quarantined, what information can we share with our employees?

If an employer has received confirmation that an employee has contracted COVID-19, the employers should inform fellow employees of their possible exposure to COVID-19 in the workplace. It is important to note that employers should not disclose to co-workers the identity of the quarantined employee because confidentiality requirements under federal law, such as the Americans with Disabilities Act (ADA), or state law, such as California’s Confidentiality of Medical Information Act (CMIA), may apply.

What guidance can I give employees who commute and take mass transit to work?

Any employee who takes mass transit to work should use hand sanitizer or regularly wash their hands with soap and water for a minimum of 20 seconds once they arrive at work. The employee should also avoid touching their noses, mouths or eyes and cover any coughing or sneezing with either a tissue or elbow. Avoiding mass transit while sick is also guidance to provide to employees.

What guidance can I give my employees who typically travel to client appointments and worksites?

Nonessential travel being limited or avoided during a pandemic is best practice for employee’s health, welfare and safety.

Are there rules that can be imposed to prohibit an employee from traveling on their personal time?

When seeking to limit personal travel by employees, employer’s ability to control the employee’s off-duty travel may be restricted by state and local laws. In an effort to limit the risk, employers may require prior knowledge of any travel plans to an area affected by COVID-19. Employees should also be aware that their return to the work office may be prohibited until they have gone through the incubation period for COVID-19. Lastly, provide your employees with the most up-to-date information on the areas affected by COVID-19.

Layoffs, Furloughs & Business Closures

Do employers have an obligation to provide notice under the federal WARN Act if we are forced to suspend operations due to the coronavirus and its aftermath?

Yes, if your company is covered by the Worker Adjustment and Retraining Notification (WARN) Act. The federal WARN Act imposes a notice obligation on covered employers (those with 100 or more full-time employees) who implement a “plant closing” or “mass layoff” in certain situations, even when they are forced to do so for economic reasons. It is important to keep in mind that these quoted terms are defined under WARN’s regulations, and that they are not intended to cover every single layoff or plant closing.

Employers also should consider state mini-WARN acts, as well as state, county, and local laws and ordinances that may require notices for certain workforce reductions or changes.

Furlough or Terminate, what should I do?

Generally, Furlough or temporary layoff is used with the understanding that the employee is recalled back to work if business conditions improve. Furlough status can be used to continue benefits or offer the employee COBRA while keeping the employee status active.

Terminations should be used when an employer is less certain that improved business conditions will allow the employee to be recalled. Benefits are typically terminated with a permanent lay off.

Please reach out to either your Payroll Specialist or Human Resource Business Partner to discuss your options in detail.

Can an employer furlough or terminate an H-1B worker?

An employer cannot furlough foreign national employees who are on H-1B work visas. If an H-1B worker is terminated before the end date listed on their H-1B Approval Notice, the employer must withdraw their H-1Bs with USCIS to avoid claims for back pay. In addition, the employer is responsible for providing terminated H-1B workers with return transportation to their home country.