We were thrilled to have Amy Beckstead of Beckstead Terry PLLC back IN-PERSON for our popular Employment Law Roundup Lunch & Learn this past June. We had a lot of catching up to do, especially in the era of COVID-19 guidance. Below are just a few of the areas to address at your workplace as you ramp up through the rest of 2021:
Federal COVID-19 Safety Guidance
Federal regulations regarding COVID-19 protections in the workplace have been more lenient than expected since widespread U.S. vaccinations have helped drive down infections. The only mandatory COVID-19 Emergency Temporary Standard released in June is for healthcare workplaces. For most employers, guidance was updated on June 10, 2021—with no further mandates included.
“With the new administration, we were anticipating comprehensive OSHA regulations but—surprisingly—that’s not what happened,” Beckstead told us, pointing to a recent statement from OSHA (under the advice of the CDC) that drives home that point:
“…most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure. This guidance focuses only on protecting unvaccinated or otherwise at-risk workers in their workplaces (or well-defined portions of workplaces).”
The guidance can be found here, and includes recommendations to:
- Grant paid time off for employees to get vaccinated.
- Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work.
- Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas.
- Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE.
- Educate and train workers on your COVID-19 policies and procedures using accessible formats and in language they understand.
- Suggest that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces.
- Maintain ventilation systems.
- Perform routine cleaning and disinfection.
- Record and report workplace-contracted COVID-19 infections and deaths per mandatory OSHA rules in 29 CFR 1904.
- Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.
- Follow other applicable mandatory OSHA standards including requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and OSHA’s requirements for employee access to medical and exposure records.
State and Local COVID-19 Safety Guidance
Along with federal guidance, keep an eye on state and local rulings. The latest in Texas on that front are:
- The removal of the statewide mask mandate and limitations on business operations. Only counties with high hospitalization rates are allowed to enforce a limited amount of restrictions (local mask mandates and up to 50% capacity limitations).
- Texas Bill 968 banning “vaccine passports” or documentation certifying a customer’s COVID-19 vaccination or post-transmission recovery status to gain entry or receive services. This does not include employees/employers or limit a company’s right to offer incentives to vaccinated individuals.
In Austin, the “Health Authority Rules” released on May 18, 2021, were quickly changed from rules to guidance. But they remain helpful for employers wondering how to proceed with their back-to-work plans. The guidance can be found here and includes areas like:
- Masking requirements for indoor/outdoor gatherings
- Social distancing
- Signage and other posting guidance
- Restroom and breakroom procedures
- Handwashing guidance
Employers have more flexibility in figuring out the best ways to return employees to working in-person, but that can then complicate return-to-work plans, Beckstead says.
“Eliminating those requirements makes HR’s job more difficult because you can no longer just point to the law as your reasoning. You’ll continue to have a dynamic between those wanting enhanced safety protocols and those that don’t,” she adds, recommending that, as rates of COVID-19 continue to decrease (and hopefully not increase), employers take time to reevaluate and rewrite plans as needed.
COVID-19 Vaccine Mandates and Incentives
Considering a vaccine mandate for employees? The Houston Methodist lawsuit (in which employees claimed required COVID-19 vaccines were illegal and akin to forcing them to participate in a clinical trial) may be weighing on your mind. The case was dismissed at the pleadings stage, providing Houston Methodist a big win. The employees bringing the suit have since appealed.
Before mandating vaccines or asking vaccine status at your workplace, Beckstead says to be aware of current EEOC guidance. Right now, federal law permits vaccine mandates, but they’re subject to reasonable accommodation provisions under the ADA and Title VII. Employers can also ask employers about vaccine status and require proof, but the information must be treated as confidential medical information.
“Managers should be trained on reasonable accommodation policies prior to rolling out mandatory vaccine policy,” Beckstead says.
When offering vaccine incentives, be sure to follow Department of Labor guidance on how it affects employee compensation (the incentive is a gift excluded from regular pay, but it’s still taxable income) and anti-discrimination policies (What incentive opportunities are available for those who can’t get vaccinated?).
And So Much More
Beckstead continued with additional employment law updates including:
- Diversity, equity, and inclusion (DEI) efforts—how are you ensuring all employees feel welcome and included?
- EEOC updates including LGBTQ+, age, and gender discrimination cases.
- The latest on unemployment benefits involving the discontinuation of enhanced payments, extensions for independent contractors/gig workers, and job refusal allowances as they pertain to the risk of COVID-19 as a reason to refuse a job offer.
- The voluntary extension of federal COVID paid sick leave through September 30, 2021, for employers with less than 500 employees.
- COBRA subsidies through September 30, 2021, including definitions of special enrollment rights, notification requirements, and tax credits.
- Remote work considerations including for those out-of-state.
- Other return-to-work considerations for HR including mental health resources for anxiety, depression, and substance abuse issues.
- DOL updates on independent contractors, the joint employer rule, and tipped employees.
- Important state law changes outside of Texas including pay equity in Colorado and drug testing in Oklahoma.
Of course, the information above is only a roundup of law updates and should not be considered legal advice—every employer’s situation is unique and should be discussed one-on-one with a legal expert. Plus, regulations are changing quicker than ever with the new administration and a rapid return-to-work for many. That said, if you’d like access to the full presentation or slides from the event, let us know.
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