By: Kristy Peters, Shareholder, Littler Mendelson

Over the past year, employers have had to pivot frequently to comply with changing laws and guidance. This blog sets forth some key issues employers should consider with regard to employees in the COVID-19 environment.

Workplace Safety

Arizona employers are currently required to implement symptom screening for employees prior to the start of their shift to include wellness/symptom checks, including temperature checks, when possible, as employees arrive on premises or before opening. It is recommended that employees wear face masks in businesses where service cannot be provided without physical distancing. Note, different states and cities have different screening and mask requirements for on-site work so you will want to check the specific jurisdiction when developing policies. 

On January 29, 2021, the U.S. Department of Occupational Safety and Health Administration (OSHA) released guidance for employers that contains recommendations as well as descriptions of mandatory safety and health standards. The OSHA guidance encourages employers to implement COVID-19 prevention programs in the workplace to mitigate the spread of COVID-19 at work. Four key elements that should be included in a COVID-19 prevention program include: 

  1. Identification of where and how workers might be exposed to COVID-19 at work by conducting a hazard assessment. 
  2. Identification of a combination of measures that will limit the spread of COVID-19 in the workplace. 
  3. Instructing workers who are infected or potentially infected to stay home and isolate or quarantine to prevent or reduce the risk of transmission of COVID-19.  
  4. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards. 

The guidance also discusses return-to-work criteria, social distancing measures, engineering controls, face coverings and personal protective equipment, and sanitization, cleaning, and disinfecting practices.

COVID-19 Testing

There are a number of legal considerations involved with the decision to implement COVID-19 testing for employees. When deciding which employees to test and how frequently to test them, employers must tailor their testing program to make sure it aligns with the objective of reducing the direct threat of COVID-19 infection in the workplace. 

First, employers must choose a test that provides accurate and reliable results. The Equal Employment Opportunity Commission (EEOC) opined that antibody tests should not be used because they are not sufficiently accurate or reliable. 

Employers should also avoid using antigen tests. When selecting a virus test, employers need to confirm the test’s reliability before using it to test employees and make employment decisions. 

Second, employers should use a HIPAA-compliant authorization form from employees to provide to the testing laboratory when the testing laboratory is subject to HIPAA. If the laboratory is not HIPAA compliant, the authorization form does not need to be HIPAA compliant, but there are benefits in using a HIPAA-compliant laboratory. 

Third, once an employer receives COVID-19 test results, the employer should implement safeguards and procedures to maintain the confidentiality of the medical information.

Vaccinations

Vaccination requirements implicate a number of federal civil rights laws, including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the religious protections of Title VII of the Civil Rights Act of 1964 (Title VII). 

On December 16, 2020, the EEOC issued guidance to employers related to these federal obligations. While the EEOC guidance did not directly state that mandatory vaccination policies are lawful, the guidance focused on how an employer should respond to requests from employees who cannot or do not wish to obtain a vaccination, suggesting that requiring a vaccination as a condition of returning to the workplace is not per se unlawful provided that certain conditions are met. Specifically, employers that wish to adopt mandatory vaccination policies may be obligated to provide exemptions or accommodations to employees with religious objections, pregnant workers, and employees with disabilities that may prevent them from obtaining a vaccination. Additionally, employers should consider the availability of vaccinations to its workforce when developing vaccination policies. 

Some employers are considering providing awards to employees to incentivize vaccinations. If providing incentives, employers need to take into account various laws, including HIPAA, the ADA, Title VII, and wage and hour laws. Specifically, where the award is health-related or tied to the employer’s group health plan, a “wellness plan” may be established. 

There are many government regulations that govern wellness plans, with some key regulations within HIPAA and the ADA. Employers may need to have reasonable alternatives available to employees to receive the incentive, depending on the circumstances, so all employees have the opportunity to participate. 

With regard to wage and hour laws, employers need to determine whether the time spent receiving a vaccine is compensable time that must be paid. If employers choose to provide a bonus to employees who receive a vaccine, it is unlikely that the incentivizing bonus will be considered “discretionary” under the Fair Labor Standards Act, so it will likely need to be included in the regular rate of pay when calculating overtime for employees. 

Wage and hour obligations vary greatly by jurisdiction, so employers will need to evaluate these considerations in each jurisdiction.

Employee Leaves

On March 6, 2021, the U.S Senate passed its version of President Biden’s “American Rescue Plan.” Key provisions of this bill impacting small business are as follows:

  • FFCRA Leave: The bill continues to allow employers with fewer than 500 employees to provide leave for certain COVID-19-related reasons. The cost of this leave is fully set off by refundable federal tax credits through September 30, 2021. The bill also expands the leave for which reimbursed leave is permitted (such as obtaining a vaccination).
  • Paycheck Protection Program: The bill adds an additional $7.25 billion to last year’s Paycheck Protection Program, which provided for fully forgivable loans for certain employers, provided they maintained payroll and headcount.
  • Gig Company Reporting Requirements: The bill changes current reporting requirements for “third-party network” transactions. Under current law, companies are not required to report certain information about earners who use their platforms unless the amount exceeds $20,000 and is a result of 200 or more transactions. Under the new law, that threshold is reduced to a flat $600, irrespective of the number of transactions. 

Arizona employees are also entitled to earned paid sick time. For employers with 15 or more employees, employees are entitled to accrue a minimum of one hour of earned paid sick time for every 30 hours worked, up to 40 hours per year. For employers with less than 15 employees, employees are entitled to accrue a minimum of one hour of earned paid sick time for every 30 hours worked, up to 24 hours per year. 

Remote Work

Many employees are telecommuting which can raise different legal issues. Employers should keep the following issues in mind when employees are telecommuting – especially if they are relocating to a different jurisdiction:

  • Whether this affects state and local taxation obligations
  • Whether the employer is required to register to do business in the new jurisdiction
  • Whether there are new or additional paid sick leave obligations
  • Whether there are counting issues that create obligations under the Family and Medical Leave Act or similar state laws
  • Whether there are different minimum wage or salary exemption laws
  • Whether there are different meal and rest break requirements
  • Whether there are required job posters, pay data reporting, or hiring notifications
  • Whether there are wage-theft notice requirements where none previously existed
  • Whether there are unemployment insurance payment obligations
  • Whether there is a change in workers’ compensation obligations

For example, if you have an Arizona employee who is working remotely from California, you may be subject to daily overtime obligations and meal and rest break requirements, which are significantly different than obligations under Arizona law.

These are complex issues and jurisdiction specific. Employers need to keep these considerations in mind as their employees work remotely from other locations.

Takeaways

Legal obligations for employers have changed at rapid speed over the past year. Littler Mendelson is a global employment law firm with over 1,600 employment attorneys. The firm has stayed on top of these ever-changing issues. Littler publishes articles on key employment related developments which anyone can subscribe. Littler also provides COVID-19 resources on its website: www.littler.com/covid-19. Please feel free to reach out to Kristy Peters, kpeters@littler.com or (602) 474-3639, for assistance with any employment law issues.