Anyone that has followed the news understands that COVID is not going away any time soon. So while we think it’s important to talk about the “post” COVID workplace, it’s not really all that “post.” That said, there are some new normals and some considerations of which all employers should be mindful.
Vaccinations
With the vaccination of Americans in process, many employers have questions regarding what they can and cannot do with respect to the COVID vaccine. Employers are permitted to require employees to get vaccinated. However, employers must make reasonable accommodations based on ADA-protected disabilities and sincerely held religious beliefs.
Employers also must be cautious when it comes to vaccine pre-screening questions and vaccination contractors hired by the employer. In both instances, the EEOC considers such actions disability-related inquiries under the ADA. As such, they are not permitted unless they are job related and consistent with business necessity. This means that an employer would need to show that without the pre-screening and the vaccination, the employee would pose a direct threat to himself or the workplace.
Employers should also keep in mind that availability of the vaccine may be limited for the majority of the workforce for quite some time. From a practical standpoint, therefore, requiring vaccinations may be extremely difficult.
For more information on vaccine guidance, you can visit the EEOC guidance page here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
Remote Work
Many businesses believe that remote work is here to stay and most employers have already dealt with the various remote work considerations – workers’ compensation, protection of confidential information, and wage and hour issues while employees are working from home. But as employers begin to return their employees to the workplace while also maintaining some level of remote work, further considerations arise. One such consideration is the wage and hour issue surrounding the traditional employee commute. What do we mean? Normally, an employee’s home-to-work and work-to-home commutes are non-compensable time. This is particularly an important consideration with nonexempt employees.
But what about an employee that works a hybrid model – i.e., performing some tasks at home and others at the workplace? In that instance, the commute from home to work or work to home may very well be compensable because it is considered continuous service all within a day’s work. If the employee is expected to report to work upon finishing tasks at home in the morning or is expected to finish tasks at home upon arriving home from the workplace, the commute time is now compensable time and must be paid. However, if the work-from-home is designed to be more of an accommodation such that the employee is permitted to complete personal tasks and/or use time for himself/herself in the periods between the remote work and the work in the workplace, the commute may still be considered non-compensable time.
If you are entering into any hybrid type of relationship with an employee, it is important that you carefully examine the setup and accompanying wage and hour issues.
Masks
With the recent lifting of the Texas statewide mask mandate by Governor Abbott, many businesses believed they were now free to lift the mask mandates in their workplaces. While this may be legally true, lifting any workplace mask mandates carries a risk. On Friday, January 29, 2021, OSHA posted updated guidance regarding “Mitigating and Preventing the Spread of COVID-19 in the Workplace.” Specifically, OSHA provided additional detail on its suggested measures for limiting the spread of COVID-19. In this updated guidance, OSHA put a heavy emphasis on requiring employees and workplace visitors to wear masks.
While OSHA notes that the guidance is advisory in nature, OSHA also reminds employers about the various mandatory requirements that are in place, including the general duty clause (i.e., duty to provide a workplace free from recognized hazards likely to cause death or serious physical harm), existing PPE standards (i.e., those that were in place pre-COVID), and reporting and recording requirements. Because of this, the OSHA guidance becomes relevant because OSHA’s investigation into any potential workplace violations will necessarily involve a review of current OSHA guidance and an employer’s compliance (or lack of compliance) with this guidance. As a result, any employer that abandons the use of masks in the workplace runs the risk of running afoul of OSHA.
You can find the updated guidance here: https://www.osha.gov/coronavirus/safework?fbclid=IwAR0rZlluOpWxzTOFY_0-jwduAHV1AvyapIR8BTohELjluX_U7cWTiNlPPmc#additional-detail-key-measures. While at some point, OSHA is certainly likely to remove the mask guidance at some point, that is not the case currently.
FFCRA
While the Families First Coronavirus Response Act paid leave mandates expired on December 31, 2020, employers initially were given the option to voluntarily comply with the FFCRA through March 31, 2020 in order to take advantage of the associated tax credits. The newest COVID relief bill passed by Congress and signed into law by President Biden on March 11, 2021 extends the tax credit availability for voluntary FFCRA compliance through September 30, 2021. In addition to extending the voluntary compliance date, the new law also provides that any employer that elects voluntary compliance can reset their employees’ paid sick leave 10-day allotment as of April 1, 2021. This means that any employee that previously exhausted his or her 10 days of paid sick leave under the FFCRA now has an additional 10 days of paid sick leave available as of April 1, 2021 (if the employer is voluntarily complying with the FFCRA). The new law also added new reasons for which an employee can take FFCRA leave (again, if the employer is voluntarily complying). These include leave to be vaccinated, to recover from illness related to vaccination, or is waiting for results from a COVID test.
As you can see, employers will be dealing with the fallout from COVID for quite some time and it is important to stay informed as things regularly can change.
