UPDATE: COVID-19 Vaccine Mandates — OSHA’s Mandate Struck Down
On September 9, 2021, President Biden directed the Occupational Safety and Health Administration (OSHA) to develop a rule to increase the number of workers who have received a COVID-19 vaccination. Consistent with that direction, OSHA developed an Emergency Temporary Standard which would apply to employers with more than 100 employees. On November 4, 2021, OSHA issued an Emergency Temporary Standard, (the “ETS”), requiring that all employees of employers with 100 or more employees either be vaccinated or be tested on a weekly basis and to have a negative test before coming to work. The ETS was immediately challenged in court and, after a series of rulings blocking and then unblocking the ETS, on January 13, 2022, the Supreme Court finally weighed in, striking down the ETS. What does the Supreme Court’s decision mean? First, for those employers with more then 100 employees who have not implemented a vaccination and/or testing mandate for their employees, the Supreme Court’s ruling allows them to continue to decide for themselves whether or not they wish to implement such a policy without worrying about fines and/or penalties from OSHA. For those employers concerned about losing employees as a result of a mandate, concerned about the administrative time and expense connected with enforcing such a mandate, or with philosophical or political objections to such a mandate, the Supreme Court’s decision will be welcome news. Second, the Supreme Court’s decision did not render any private or public employer’s vaccination mandate unenforceable or illegal. If an employer chooses to require vaccination, with or without a testing option, they are still permitted to do so. Many employers voluntarily implemented vaccination mandates using the ETS as a justification—if they do not rescind their policies, they may remain in effect. Finally, the Supreme Court did not strike down the vaccination mandate for employers receiving Medicaid or Medicare funds. In a separate decision, the Supreme Court upheld that requirement. As a result, if an employer is required to have an employee vaccination policy pursuant to another Executive Order, federal agency requirement, state law or regulation, or local law or regulation, that requirement would still be in effect. If you have questions about how the Supreme Court’s decision affects your business or whether your business should implement a vaccination policy regardless, please contact us at (410) 522-1020 to set up an appointment to discuss how your policies can be structured to meet your company’s goals.
Two-Timing Employees in the Work-from-Home Environment
Juggling two or more part-time jobs, or “moonlighting”, has always been the norm for many people struggling to make ends meet. This is especially true in the gig economy, with many people working on several platforms at once. However, recently, with the rise of the work-from-home trend, some full-time employees found a way to double their income without increasing their hours. Working from home with little supervision and no nosy colleagues looking over their shoulders, these employees discovered the capability to manage a second job all the while on the clock for their first job. They simply have another computer or laptop running at their workstation, and switch back and forth between the two jobs. Some seek employment by a second company, others run their own business on the side. For the purposes of this article, we’ll refer to this setup as “two-timing” As much as some employees may view two-timing as ethically ambiguous, employees may not actually be breaking any laws or even violating their employment agreements unless proper policies are in place. Employers are obviously not going to appreciate two-timing employees, but for some employees, the benefit of increasing their income outweighs the risk of being discovered and falling into disfavor with their employers. However, employers have good reason to be wary of employees working several jobs concurrently. The Consequences of Two-Timing While it sounds like a flawless plan for employees, this “two-timing” scheme risks serious consequences. First, if one or both employers find out that you are working two jobs at the same time, they may fire you for cause, since no law protects the right of employees to engage in two occupations at the same time. Second, the room for everyday errors, such as sending an email to the wrong person or from the wrong domain, or scheduling conflicting meetings, is significantly greater when managing two distinct jobs. Importantly, however, when both jobs are in the same industry, there is the heightened risk of disclosing confidential client information or trade secrets to a competitor or violating the common-law duty of loyalty to one employer. This risk is greater when employees are running their own business in the same industry as they may be tempted to poach clients or trade secrets to promote their own business. How Employers Can Prevent Two-Timing First, and foremost, is communication. Have a conversation with your employees about what the expectations are. Two-timing employees often live by the motto that secrets are best kept when not spoken of. By communicating and maintaining an open dialogue, employers can gain insight into the employee’s habits and practices, all the while enforcing company policy on time management. Second, reinforce company policy. Employers can include in employee contracts and in policy handbooks provisions related to both moonlighting and two-timing. If it does not already, your employee agreements and an employee handbook should explicitly prohibit employees from engaging in other, for-profit employment while working on behalf of the company. Similarly, you should ensure that your non-compete and non-disclosure provisions are drafted correctly to apply both during and after the termination of employment. Finally, there is corporate loyalty. Much like the “The Great Resignation,” two-timing often stems from the corporate culture and employees not caring about their work. By taking measures to engage employees, such as stocks, bonuses, or even simply celebrating team accomplishments, employers can increase brand loyalty and keep employees invested in their jobs. If you are interested in having your company’s policies or contracts reviewed, or if you are an employee interested in discussing your rights, give us a call at (410) 522-1020 to schedule a consultation with one of our experienced employment attorneys.
When to Consider the Four-Day Workweek
In the midst of unprecedented numbers of job departures being dubbed “The Great Resignation,” many employers are seeking creative ways to retain or attract new talent. One hot topic in the discourse? The four-day workweek. Common for years among those in the healthcare profession, the four-day workweek is being discussed by employers in other sectors. If your business is considering transitioning to a four-day workweek, here are a few things to consider. First, and foremost, clarity of messaging as to what is meant by a “four-day workweek” is key. Examples of important questions to ask during this process would be “Will your business be closed on one weekday every week?” and “Will your employees work 40 hours, 32, or some other number in those four days?” Clarity of message from the outset can assist both the employer and its employees operating from the same page to smooth the transition. Additionally, the employer should meet with the employees to discuss how existing performance metrics can be maintained with the shorter workweek. Next, consider the effect this change will have on customers. Two of the most important metrics for any business are productivity and customer service; hours of operation can impact both. When considering the hours of operation for your business, carefully weigh whether a staggered schedule of your employees to ensure that there is adequate coverage Monday through Friday might be a better approach versus closing the business one day each week. However, if your business has a particular day where customer traffic is low, perhaps it would be best to close on that day each week. Another important consideration for any four-day work week, especially those that expect the employees to work 10-hour days instead of 8, is the applicable wage and hour laws. Some states require overtime pay after a daily threshold of 8 hours is crossed, in addition to the well-known 40 hours per week one. Consult with either HR or an employment attorney to ensure compliance with all applicable wage and hour laws. A less common, but still very important consideration: unions. Many collective bargaining agreements specify the workweek, and a unilateral alteration to the traditional Monday through Friday workweek by the employer may not be allowed. Any employer subject to a collective bargaining agreement that is considering a switch to a four-day workweek needs to do so in partnership with the employee union. Finally, try it out! As with any substantive change in your business, a trial run is well advised. This will allow the employer to obtain real data to gauge where modifications of policies, staffing, and workload distribution may be necessary. It will also allow for actual data regarding customer service and productivity to determine whether any other course corrections are necessary. At Luchansky Law, we routinely assist employers with all facets of the implementation of policies and procedures, including those for a four-day workweek. If your business would like assistance in implementing a transition to a four-day workweek, give us a call at (410) 522-1020 to set up an appointment with one of our attorneys.
EEOC Issues Updated Guidance on COVID-19 Retaliation
According to EEOC statistics, the most common basis for charges of discrimination filed with the agency is retaliation. Issues related to COVID-19, such as the ongoing need for sick leave, vaccine hesitancy, religious exemption requests from vaccine mandates, and long-COVID have added new retaliation concerns for employers. The EEOC’s most recent guidance provides some helpful items employers should be mindful of to prevent claims that they have violated federal anti-discrimination law. Federal anti-discrimination statutes, such as Title VII and the ADA, contain provisions that make retaliation against someone for engaging in “protected activity” unlawful. Relative to the COVID-19 pandemic, employers need to be wary of concerns that implicate the anti-retaliation provisions of these statutes. For example, a COVID-19 related retaliation concern would be an employee who complains to HR or the EEOC about disclosure of their COVID-19 diagnosis (which could be considered confidential medical information under the ADA). Another example would be an employee who reports disparaging or harassing comments about their religious objections to being vaccinated (Title VII) to management. In either case, so long as the employee’s complaint is in good faith, the employee has engaged in “protected activity” by lodging their complaint and any action taken in reprisal for their complaint is unlawful. “Reprisal” is defined broadly and includes any adverse action which would deter a reasonable person from exercising their rights under the various federal anti-discrimination statutes. Examples of reprisal can include lowered performance evaluations, denying promotions, elimination of job duties, suspension, and termination. The EEOC guidance notes that acts that do not have a tangible effect on the employment of the individual may be unlawful if they are taken to discourage the employee from participating in the EEO process. The employee’s continued participation in the EEO process is not dispositive of whether the employer unlawfully retaliated against the employee. If the action was taken to punish the employee for their complaint or discourage them from continuing in the EEO process, there may be a basis for a retaliation claim. Fortunately, the EEOC’s most recent guidance reaffirms an employee does not become immune from discipline simply because they have engaged in protected activity. An employer may still discipline its employees for failure to follow its policies and procedures, poor performance, or misconduct, the same as it may for any other employee. However, employers should exercise caution when implementing disciplinary action against an employee who has engaged in protected activity. Employers must ensure that the disciplinary action is not disproportionate to that which has been given to employees who have not engaged in protected activity and is consistent with its established policies. Otherwise, the disciplinary action may be found to be an unlawful reprisal, even if the underlying conduct otherwise justified discipline. We here at Luchansky Law are constantly monitoring EEOC guidance and federal anti-discrimination laws. If you and your business would like assistance with navigating these laws, whether generally, or with respect to COVID-19, give us a call at (410) 522-1020 to set up an appointment with one of our attorneys.
How to Hire and Retain Employees During the Great Resignation
For months, employers have been hearing about the Great Resignation, the term coined for the large number of employees suddenly retiring, quitting, or changing career paths. The Department of Labor has now released numbers for October 2021 showing just how large an impact that the Great Resignation has had. In October 2021, 4.2 million employees left their jobs, which represents 2.8% of the total workforce. This number is near the record 4.4 million employees who left their jobs in September. As a result, estimates suggest that the economy has roughly 5 million more open positions than people seeking to fill them. For employers, understanding why your employees are leaving is critical to retaining as many as possible and, when that is not possible, recruiting new employees to replace them. Considerations for Retaining Employees The number of job openings has created a shift in the balance of power between employers and employees. Employees who feel that they are being treated unfairly or that competitors are providing better compensation, benefits, or other terms and conditions of employment are likely to find another opening in the current environment. Employers need to be proactive to ensure that their top talent is not poached by competitors, as studies have shown that making counteroffers to departing employees is, at best, a short-term fix that merely delays the employee’s eventual departure. To ensure this does not occur, employers should review their compensation systems, benefits, and employee handbooks to ensure that what they are offering is competitive to what other employers are offering. Similarly, if you or a competitor are offering sign-on bonuses, consider whether you should also implement retention bonuses tied to continued employment to ensure that employees are not tempted to look elsewhere. Considerations for Hiring Employees If you are looking to hire, there are a couple of critical actions employers should take to ensure that you are accessing the widest pool of candidates possible. One of the first things an employer should do, before posting a job, is ensure that the stated requirements of the position are necessary for success. Is a college degree an absolute necessity? How many years of industry experience are truly needed? Are drug tests or background checks excluding candidates? Even the language used in the job advertisement can limit the responses a company receives, as studies have shown that using certain gendered terms can cause potential male or female candidates not to apply. By advertising to the largest possible pool of applicants, employers are more likely to fill vacancies. The effects of the Great Resignation are not likely to abate any time soon—the employers who thrive will only do so by ensuring that they are retaining and attracting the best possible employees. If you have questions about ways your business can prevent or address the effects of the Great Resignation, please contact Luchansky Law at (410) 522-1020 to set up an appointment with one of our attorneys to discuss how your policies can be structured to meet your company’s goals.
Employer Alert: OSHA Rules on COVID-19 Vaccine Mandates
On September 9, 2021, President Biden directed the Occupational Safety and Health Administration (OSHA) to develop a rule to increase the number of workers who have received a COVID-19 vaccination. Consistent with that direction, OSHA developed an Emergency Temporary Standard which would apply to employers with more than 100 employees. On November 4, 2021, OSHA issued its final rule, requiring that all employees of employers with 100 or more employees either be vaccinated or be tested on a weekly basis and to have a negative test before coming to work. Here are the three critical components of OSHA’s new rule: First, all covered employers must ensure that their employees have received the shots to be fully vaccinated by January 4, 2021. After January 4, 2021, all employees who have not received the necessary shots must produce a verified negative test on at least a weekly basis. Any employee who tests positive must be removed from the workplace. Please note that the OSHA rule does not require that the employer pay for the test. Second, all covered employers are required to provide paid leave, up to four hours per dose, for any unvaccinated employee to get vaccinated and, if needed, reasonable paid sick leave to recover from side effects. If an employee has available sick leave, employers may require that employees use that time to cover those absences. Finally, all unvaccinated employees are required to wear a face mask while in the workplace starting December 5, 2021. As a practical matter, this means that all covered employers will need to determine the vaccination status of their employees prior to December 5, 2021 or require mandatory masking. For covered employers who have not yet implemented a vaccinate-or-test mandate, now is the time to prepare to implement a policy so that you will be prepared to comply with the rule. While the rule permits a testing option, covered employers can choose whether they want to have a mandatory vaccination policy, with testing as the accommodation for employees with religious and medical exemptions. For employees who are subject to weekly testing, the regulations dictate what kind of tests will be accepted for employees subject to weekly testing. Your policy will also need to address who will pay for the weekly test, as well as such practical matters as who in the organization will be responsible for ensuring that employees are complying with the weekly testing policies. Finally, you will need to designate an employee to handle requests for religious or medical accommodations and decide what kind of screening the company will do to ensure that requests for religious accommodations are legitimate. The OSHA rulemaking also requires that employers develop a written policy addressing these issues. Please note that, beyond questions about vaccination status, other medical inquiries by employers and businesses are still governed by the Americans with Disabilities Act. If you have questions about how to comply with the rulemaking or for assisting in preparing a written policy, please contact one of our attorneys at (410) 522-1020 to set up an appointment to discuss how your policies can be structured to meet your company’s goals.
The Latest on Religious Exemptions to COVID-19 Vaccine Mandates
Many employers are being inundated with employee requests for religious exemptions to vaccine mandates. Employers who are evaluating religious exemption requests must take a nuanced approach or risk violating federal anti-discrimination statutes, such as Title VII and the ADA. Those employers hoping for clear-cut answers from the EEOC are likely to be disappointed, as the updated EEOC guidance issued on October 25, 2021, related to religious exemptions leaves more questions than answers. There is good news, however, as employers can utilize the following four steps to help avoid costly litigation:1. The first step an employer should take regarding religious exemption requests is to have a clearly defined policy for submitting such requests. This policy should be communicated to employees as soon as the policy has been implemented. Prior to implementation, supervisors and management should be trained on the specific duties they have in said policy. It is important that supervisors and managers are trained to begin applying the policy based upon any communication from an employee expressing they object to the employer’s vaccine mandate. Since federal anti-discrimination statutes do not contain any “magic words” that must be used, supervisors and managers should be prepared to direct employees to the exemption policy should an employee express a desire for an exemption in any form. 2. The second step is to have a dialogue with the employee. This dialogue must be part of the aforementioned exemption request policy. During the dialogue, the employer should assume that the religious belief is sincerely held. However, the EEOC guidance indicates that the employer should be on the lookout for the following items that would undermine the employee’s credibility: if the employee’s past and present actions are wholly inconsistent with the professed belief; if the employee is seeking a “particularly desirable” accommodation that is likely for non-religious reasons; if the timing of the request is suspicious; and if the employer has other reason to believe that the request is for a non-religious reason. Another item that can either support or undermine an employee’s position that they object to vaccines as part of a sincerely held religious belief is their past stance on vaccines. For example, have they gotten other vaccines since they’ve turned 18, such as the flu vaccine? 3. The third step is the employer’s evaluation of reasonable accommodation. The analysis is whether a reasonable accommodation that allows the employee to perform the essential functions of their position exists and whether the employer can implement that without undue hardship. When exploring reasonable accommodations, the employer should consider all possible accommodations, not just the one proposed by the employee. Federal anti-discrimination statutes entitle employees to a reasonable accommodation (if one exists) but do not require the employer to choose the employee’s preferred accommodation. Remote work, a private work area, masking, and alternative schedules are just a few examples of possible accommodations. If the employer selects a different accommodation, it should be transparent about its rationale. 4. Finally, the employer should be flexible to the changing nature of the COVID-19 pandemic. For example, if an employer has concerns about continuing a religious exemption due to an increase of cases in its area, it should re-engage in the second and third steps of its policy with the employee to find an accommodation that is more suitable to the changed circumstances than the current accommodation. As you can see, handling religious exemption requests requires diligence, nuance, and flexibility. We here at Luchansky Law are constantly monitoring EEOC guidance, and other official guidance, related to the forthcoming OSHA vaccine mandate enforcement. If you and your business would like assistance in creating a vaccine mandate, a religious exemption policy, or assistance evaluating a pending religious exemption request, give us a call at (410) 522-1020 to schedule a consultation.
Does Back to School Mean Back to Work or Quarantining?
Prior to the pandemic, for most employers, children going back to school was a cause forcelebration. With children on a regular routine, working parents’ availability became moreroutine and, outside of holiday periods with school closures, fewer vacations were scheduled. For business owners, this created a level of predictability for scheduling, which was desirable forobvious reasons. Unfortunately, since the pandemic, predictable employee scheduling has beena near impossibility. This year, even with schools mostly returning to normal schedules, thepossibility of exposure-related quarantines for students continues to complicate schedulingdecisions. Further complicating the issue is the uncertainty around whether any paid leavemandates apply to absences due to childcare issues created by school-mandated quarantines. For employers who voluntarily opted into the additional paid sick and family leave forCOVID-related illnesses under the American Rescue Plan Act, those illnesses would have been covered under that law until September 30, 2021. The amounts paid to employees for paid leavewould be also eligible for the tax credits provided under the law. However, starting October 1, 2021,the issue is more complicated as the tax credits provided under the American Rescue Plan Actended. For most employers, this means that the entitlement to additional paid leave would haveended, leaving employees with limited legal protections. Other than the optional extension of paid sick and family leave under the AmericanRescue Plan Act, most leave mandates under Maryland and federal law are limited to caring forfamily members suffering from an actual illness, injury, or disability. At first blush, none of themappear to mandate that employers provide leave, whether paid or unpaid, to employees unable towork due to childcare needs caused by a child’s mandatory quarantine from school. As a result,employers will retain a lot of discretion in how they will formulate their policies and proceduresrelated to leave to care for a child who is unable to attend school because they have been exposedto another student who has tested positive with COVID-19. In practice, though, employers will needto be careful when implementing and applying a policy related to leave and discipline foremployees unable to work due to childcare issues since unequal or uneven enforcement of suchrules can be an immediate source of liability for employers. For example, if certain employeesor classes of employees are provided with differing levels of leave or there is a perception thatcertain employees are being treated more harshly in response to requests for time off, employersmay still face charges or claims of unlawful discrimination. If you have questions about how to implement or enforce a leave policy for employeeswho are unable to work due to a child’s quarantine from school, please contact one of ourattorneys at (410) 522-1020 to set up an appointment to discuss how your policies can bestructured to meet your company’s goals.
Unemployment Benefits Unavailable for Those Who Refuse to Comply with Employers’ Vaccine Mandates
Due to the alarming spread of the COVID-19 Delta variant among the unvaccinated, coupled with FDA approval of the Pfizer-BioNTech Vaccine, many private employers have implemented vaccine mandates. These mandates are permissible, so long as precautions are taken to comply with various anti-discrimination laws. A less obvious implication of these vaccination mandates is that employees who are discharged for failure to comply with a vaccine mandate will likely be barred from receiving unemployment insurance benefits. As the name suggests, unemployment insurance provides benefit payments should the former employee (the “claimant”) become unemployed. These benefit payments are charged to the former employer who is then required to pay a percentage back to the State, akin to an insurance deductible. However, as with any insurance, there are conditions. The most important one is that the claimant must be out of work through no fault of their own. One common way that claimants find themselves on the wrong side of a benefits determination is by being discharged for violating their former employer’s policies and/or procedures. Such discharge is classified as either simple misconduct or gross misconduct. Claimants who were discharged for misconduct or gross misconduct by their former employer are ineligible to receive benefits and this is where the vaccination mandates are implicated. An employee who is discharged for refusal to comply with a vaccination mandate, absent a proper ADA or Title VII accommodation, is guilty of either simple misconduct or gross misconduct, the same way they would be if their discharge were for violation of another policy, such as drug testing or attendance. For cases of simple misconduct, the claimant may only be ineligible for benefits during a penalty period, which is measured in weeks. Simple misconduct cases have an element of reasonable excuse for the violation of the employer’s policy or procedure. However, in Maryland, the Department of Labor requires the claimant to put forth evidence of such mitigating factors regarding their refusal prior to issuing a finding of simple misconduct. The penalty period can range anywhere from 4 weeks to 26 weeks, depending upon how convincing the Department of Labor finds the mitigating factors. Gross misconduct, on the other hand, requires a showing of willfulness or a wanton disregard for the employer’s policies. This is where most claimants who would be discharged for vaccination policy violations would find themselves. Most employees who are refusing vaccination mandates have no mitigating factors; they simply do not want to be vaccinated. Gross misconduct is an absolute bar to unemployment benefits until the claimant is reemployed and earns at least 25 times the amount of their original weekly benefit amount. For an employer to successfully block a claim for benefits filed by a former employee discharged for violating the vaccination policy, the employer will need to ensure its vaccination policy is clear, communicated to the employees, and is uniformly applied. At Luchansky Law, we are well-versed in assisting employers with crafting mandatory vaccination policies as well as defending improper unemployment benefits claims. If your business would like assistance with either creating a vaccination policy or contesting an unemployment insurance claim related to its vaccination policy, give us a call at (410) 522-1020 to schedule a consultation.
No, HIPAA Does Not Prevent Employers from Asking About Vaccination Status
As businesses have begun mandating vaccinations for employees and customers, many have heard a common response, in one form or another, “You can’t ask me that because of HIPAA.” In written form, these responses often invoke the protection of HIPPA, which is not a law. (These responses often echo the statements of certain elected officials, who presumably should know better.) Due to the myriad laws affecting both the type and timing of questions that may be asked of employees and customers, this statement gives many businesses pause as they seek guidance as to whether some other new law affecting their operations has been enacted without their knowledge. Fortunately, for nearly every business, subject to some specific exceptions, the response is that, no, HIPAA does not prevent you from asking your employees or customers about their vaccination status. Why do so many people make this mistake? The Health Insurance Portability and Accountability Act (HIPAA) was enacted, among other reasons, to regulate the flow of healthcare information and address how personally identifiable information and protected health information (“PHI”) are maintained by the healthcare and healthcare insurance industries should be protected from fraud and theft. The HIPAA Privacy Rule limits the uses and disclosures of PHI required for treatment, payment, or healthcare operations. As a result, the HIPAA Privacy Rule only applies to healthcare providers, health plans, and the business affiliates that they contract with in connection with treatment, payment, or healthcare operations. However, due to misunderstandings around the scope of the law, many have taken the HIPAA Privacy Rule to mean that no one may ask questions related to an individual’s medical conditions. That is simply not true. By its express terms, HIPAA does not apply to questions about medical conditions from private citizens, businesses, or the media. If an employer asks an employee to provide proof that they have been vaccinated consistent with a workplace mandate, that is not a HIPAA violation. The United States Department of Health and Human Services (“HHS”), which enforces HIPAA, has provided explicit guidance to that effect. While an employee may refuse to provide information about their vaccination status to their employer, nothing in HIPAA prevents that employer from then terminating that employee if they have enacted an otherwise valid vaccination mandate. Please note that, beyond questions about vaccination status, other medical inquiries by employers and businesses are still governed by the Americans with Disabilities Act. If you have questions about how to implement a vaccine mandate or the types of questions your business can ask its employees, please contact one of our attorneys at (410) 522-1020 to set up an appointment to discuss how your policies can be structured to meet your company’s goals.