Employment Law Update

New Guidance, Sort of, About COVID-19 in the Workplace

By Mike O’Brien

EEOC provides new COVID-19 guidance

The Equal Employment Opportunity Commission (EEOC) has released some new guidance on COVID-19 issues at work. Here are the four EEOC-noted highlights of the most recent update, in late May:

First, an employer can require that all employees physically entering the workplace be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the laws prohibiting disability and religious discrimination. Additionally, from the EEOC’s perspective, “employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”

Second, the federal EEO laws do not prevent/limit employers from offering incentives to employees to get vaccinated from a third party (not the employer or its agent). The EEOC does not propose any limits on the incentives an employee may be offered to receive a vaccine from a third party. However, employers must keep vaccination information confidential if employers choose to obtain vaccination information from their employees.


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Third, the incentive rules work differently for employers that are administering vaccines to their employees themselves or through an agent—in this situation an employer may offer incentives for employees to be vaccinated by the employer, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.

Fourth, employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance highlights federal government resources available to those seeking more information about how to get vaccinated. You can read the full update here (scroll down to section K) at EEOC 5/28/2021 new COVID-19 guidance. The EEOC did not yet fully address mandating masks at work, other than suggesting that wearing them may be a form of accommodation, so please see the next update section below.
Masks at work?

The Centers for Disease Control (CDC) has indicated that vaccinated persons need not wear masks indoors, but those non-vaccinated persons should wear them. Many of us are asking what this means for the workplace. We also are waiting for guidance from the federal agencies that regulate the workplace, such as OSHA (the Occupational Safety and Health Administration) and the EEOC (Equal Employment Opportunity Commission) to weigh in on this important issue.

Here is what we have so far, which is not much:

A recent banner on the OSHA website states, “The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.” (See OSHA banner).

Similarly, a recent banner from the EEOC website states, “This section was originally issued on Dec. 16, 2020, and was clarified and supplemented on May 28, 2021….On May 13, 2021, the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention (CDC) issued updated guidance for fully vaccinated individuals, exempting them from masking requirements ‘except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.’ The EEOC is considering the impact of this CDC guidance on EEOC’s COVID-19 technical assistance provided to date.” Thus, despite its May 28, 2021 updates, the EEOC clearly still is considering the impact of this CDC masking guidance on EEOC’s COVID-19 technical assistance provided to date. (See EEOC banner) These are interesting non-update updates from OSHA and EEOC on masks. What should employers do? After 14 months of this difficult pandemic, we all may be tempted to tell vaccinated employees they can ditch the masks and require only unvaccinated workers to keep wearing them. Such an approach has risks, and it may unintentionally place a “Scarlet V” on unvaccinated workers who declined the vaccine for health, or religious reasons.

The best approach for now may be to keep current workplace mask rules in place for everyone, for at least a little longer, and watch for new updated guidance from OSHA—and perhaps even from the Equal Employment Opportunity Commission (EEOC)—which we hope will arrive soon.

Mandating vaccines? Be ready to show why and try to accommodate

According to various studies it appears that most employers are not mandating COVID-19 vaccines for employees returning to onsite work. However, if you are mandating employees receive a COVID vaccine, you need to be able to do two things:

(1) explain the legitimate business reason(s) for the decision as well as why/how an unvaccinated employee is a direct threat to self or others, and

(2) explain why you cannot reasonably accommodate persons who cannot get vaccinated for religious or health reasons.

Here is an excerpt from the Equal Employment Opportunity Commission’s guidance on this point: “Under the ADA, an employer may require all employees to meet a qualification standard that is job-related and consistent with business necessity, such as a safety-related standard requiring COVID-19 vaccination. However, if a particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a ‘direct threat’ to the health or safety of the employee or others in the workplace.” How do you make this determination?

The EEOC says, “To determine if an employee who is not vaccinated due to a disability poses a ‘direct threat’ in the workplace, an employer first must make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job. The factors that make up this assessment are:

(1) the duration of the risk;

(2) the nature and severity of the potential harm;

(3) the likelihood that the potential harm will occur; and

(4) the imminence of the potential harm.

The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Such medical knowledge may include, for example, the level of community spread at the time of the assessment. Statements from the CDC provide an important source of current medical knowledge about COVID-19. The employee’s health care provider, with the employee’s consent, may also provide useful information about the employee. Additionally, the assessment of direct threat should take account of the type of work environment, such as whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.”

If the unvaccinated employee is a direct threat, the EEOC says you should do this analysis:

“If the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.” You can read the full EEOC guidance at EEOC COVID-19 guidance.

IRS releases new HSA amounts

The Internal Revenue Service (IRS) recently released the 2022 inflation-adjusted amounts for Health Savings Accounts (HSAs) and the maximum amount available for excepted benefit health reimbursement arrangements (HRAs). For the calendar year 2022, the annual limitation on contributions to an HSA for those under a high deductible health plan is $3,650 for self-only coverage and $7,300 for an individual with family coverage. This represents a $50 increase for self-only coverage and a $100 increase for individuals with family coverage.

The High Deductible Health Plan (HDHP) maximum out-of-pocket amounts were similarly increased, to $7,050 for self-only coverage and to $14,100 for an individual with family coverage. There was, however, no change to the HSA catch-up contribution limit (available for those age 55 or older); it remained at $1,000.

The HDHP minimum deductible also did not change; remaining at $1,400 for self-only coverage and $2,800 for an individual with family coverage. For plan years beginning in 2022, the maximum amount that may be made available for the plan year for an excepted benefit HRA is $1,800. Finally, note that there are two sets of limits that apply to out-of-pocket expenses for health plans, determined annually by federal agencies. In addition to the IRS, the Department of Health and Human Services (HHS) establishes out-of-pocket or cost-sharing limits under the Affordable Care Act (ACA) for essential health benefits covered under an ACA-compliant plan, excluding grandfather plans. On April 30, HHS released the Notice of Benefit and Payment Parameters final rule for 2022. The HHS annual out-of-pocket limits are higher than those set by the IRS, but to qualify as an HSA-compatible HDHP, a plan must not exceed the IRS’s lower out-of-pocket maximums.

NLRB power shift

President Joe Biden intends to nominate union lawyer Gwynne Wilcox to serve on the National Labor Relations Board (NLRB). Wilcox’s approval would allow Democrats to make up a majority of the five-seat NLRB, the federal agency that enforces the National Labor Relations Act (the labor law that governs union activity). Wilcox could be appointed to the NLRB by fall 2021 and has long championed pro-union causes. Her appointment further cements Biden’s pro-labor legacy and, particularly on a Democratic-majority board, likely foretells the NLRB’s departure from the pro-management policies put in place by President Trump’s appointees.


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