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
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
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?
What should I be doing right now?
Vaccine Data Bank (Templates and Forms)
- Model Non-Mandatory Vaccine Policy
- Accommodation Procedure
- Request For Medical Exemption/Accommodation Related To Vaccine
- Request For Religious Exemption/Accommodation Related To Vaccine
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.
- 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.
- 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.
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.
- 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?
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
Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus
Sample Employee Questionnaire to Evaluate Employee for COVID-19
Stop the Spread of Germs Poster
Telecommuting Application Form
Temporary Telecommuting Arrangements
Telecommuting Policy and Procedure
Reopening New York: Office-Based Work Guidelines for Employers and Employees
NYS Reopening Safety Plan Template
Interim Guidance For Office-Based Work During The Covid-19 Public Health Emergency
New York Forward Business Affirmation
Office-Based Work Guidelines for Employers and Employees
For information on COVID-19 onsite testing reach out to your Human Resources Business Partner.
Frequently Asked Questions
Hiring During the COVID-19 Pandemic
If an employer is hiring, may it screen applicants for symptoms of COVID-19?
May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam?
May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
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?
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?
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
Has there been a change to the Form I9 process?
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.”
Are part-time employees (less than 20 hours/week) that are laid off due to COVID-19 able to apply for unemployment?
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?
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 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:
- Use this online symptom checker to assess your risk for COVID-19 and get treatment options, or
- Use our online tool to find a COVID-19 testing location in your area
How should I manage work from home requests?
An important item to note during this process is to ensure any decisions on working remotely are made objectively and nondiscriminatory.
My employee alleges they contracted COVID-19 while at work. Will this result in a compensable workers’ compensation 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?
What if an employee appears to have flu-like symptoms?
If one of our employees is quarantined, what information can we share with our employees?
What guidance can I give employees who commute and take mass transit to work?
What guidance can I give my employees who typically travel to client appointments and worksites?
Are there rules that can be imposed to prohibit an employee from traveling on their personal time?
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?
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?
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.