EEOC Provides Additional Guidance on Religious Objections to Vaccine Mandates

On October 25, 2021, the EEOC updated its COVID-19 Technical Assistance to specifically address religious objections to employer vaccine mandates. The update provides employers with additional guidance regarding their Title VII obligation to accommodate employees who request exceptions to vaccination requirements based upon religious beliefs. Key updates in Section L. Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates include the following:

  • Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement based upon a “sincerely held religious belief.” Employers should inform employees about proper procedures for requesting such an exception, and employees need not use any “magic words” to express the request.
  • An employer should normally assume a request for religious accommodation is based upon a sincerely held religious belief. However, if there is an objective basis for questioning the religious nature or sincerity of an employee’s belief, an employer may seek additional information. An employee who fails to cooperate with a reasonable request for additional information jeopardizes a later claim that they were improperly denied an accommodation.
  • Title VII protects nontraditional religious beliefs, but it does not protect social, political, or economic views or personal preferences. Objections to COVID-19 vaccination requirements that are based on these views or nonreligious concerns about the possible effects of the vaccine do not qualify as “religious beliefs” under Title VII.
  • An employer may consider factors bearing on an employee’s credibility when assessing the sincerity of the employee’s stated religious belief, including the consistency of the employee’s prior actions, the timing of a request, etc. The employer may also ask for an explanation of how the employee’s religious belief conflicts with the employer’s vaccination requirement.
  • If an employer shows it is unable to reasonably accommodate an employee’s religious beliefs without suffering “undue hardship,” it is not obligated to provide the accommodation under Title VII. Requiring the employer to bear more than a “de minimis” cost constitutes an undue hardship. Such costs can include direct monetary costs, as well as an indirect burden on the employer’s business, including the risk of spreading COVID-19 to other employees or members of the public. Undue hardship must be assessed based upon specific facts of each situation.
  • An employer who grants some employees a religious accommodation from a vaccine requirement for religious reasons is not required to grant the same accommodation to all employees. The determination is made on a case-by-case basis. Furthermore, an employer need not grant the religious accommodation preferred by an employee if there is another that would resolve the conflict between the vaccination requirement and the religious belief.

If an exception is granted, employers should put in place measures to protect the unvaccinated employee, other employees, and the public, as noted in Section K.6 of the EEOC guidance.  Possible accommodations include wearing of face masks, frequent COVID-19 testing, change in work location or duties.

Employers who receive employee requests for exceptions to vaccination requirements based upon religious beliefs should work closely with HR and legal counsel to assess their accommodation obligations under Title VII.

Lake Effect continues to monitor important legal and HR developments, including COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

CDC Issues Updated Guidance on COVID-19

The United States Centers for Disease Control and Prevention (CDC) held a telebriefing (transcript to be uploaded when available) today at 2:00 p.m. CST to provide updated guidance on the COVID-19 pandemic in light of the prevalence of the highly contagious Delta variant. They key points of the CDC’s updated guidance include:

  • New data shows that the COVID-19 Delta variant behaves uniquely differently from the original Alpha variant. Therefore, some vaccinated people who contract the variant can be contagious and spread the disease.
  • The CDC continues to urge all Americans to get vaccinated, emphasizing that increasing the percentage of the population that is fully vaccinated is key to defeating COVID-19 variants.
  • The CDC’s guidance for unvaccinated individuals remains the same: continue masking until you are fully vaccinated.
  • The CDC further recommends that fully vaccinated individuals in areas of high or substantial COVID-19 transmission wear masks indoors and in public spaces.
  • The CDC notes that some fully vaccinated persons may choose to wear masks regardless of level of transmission in their area if they or members of their household are immunocompromised, at increased risk of severe disease, or not fully vaccinated.
  • The CDC recommends that everyone in K-12 school settings (including teachers, staff, students, and visitors) wear masks, regardless of vaccination status. The CDC continues to support in-person learning for all students.
  • Leaders in areas of high or substantial COVID-19 transmission should encourage vaccination and universal mask-wearing.

The CDC will continue to update its guidance as necessary in accordance with scientific data or other relevant developments.

Lake Effect is here to answer your questions about COVID-related guidance. We continue to closely monitor important legal and HR developments in this area, including updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive deeper into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Long Awaited OSHA Guidance to Continue Workplace Health and Safety Measures

On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) with a very narrow scope, focused on the healthcare industry. Fortunately, OSHA also updated its January 29, 2021 guidance for all employers to reflect the increasing prevalence of vaccinations and the lifting of mask orders around the country. (See our prior blog on the January guidance here.) This new guidance provides a helpful reminder for employers to remain steadfast in their many COVID-related health and safety efforts.

As with the January update, this new guidance is not a standard or regulation, and creates no new legal obligations. Nonetheless, it will likely be one yardstick used to measure compliance with OSHA’s “General Duty Clause,” which requires employers to provide workers with a workplace free from recognized hazards that cause or are likely to cause death or serious harm.

The new guidance specifies ways to protect unvaccinated and other at-risk employees, mitigate the spread of COVID, and encourage vaccinations, including the following:

  • Encourage employees to get vaccinated (See Lake Effect’s prior blog on this issue)
  • Provide employees with paid time off to get vaccinated (See Lake Effect’s prior blog on EPSL leaves for employees to receive or recover from COVID vaccinations)
  • Require unvaccinated employees (and visitors) who are exposed to or experiencing symptoms of COVID to stay home and seek treatment
  • Maintain workplace safety measures for unvaccinated and at-risk workers including physical distancing, physical barriers, reduced employee density in spaces, flexible or staggered work schedules, alternative meeting options, remote work, and the like
  • Provide proper masks to unvaccinated and at-risk workers when working indoors. OSHA noted that unvaccinated persons who are not otherwise at-risk do not need to wear a mask outdoors, unless otherwise required by federal, state, or local requirements
  • Educate and train employees on COVID preventive measures and practices
  • Encourage unvaccinated visitors, clients, and guests to wear masks when onsite
  • Maintain ventilation systems to minimize transmission and spread of COVID
  • Follow CDC cleaning and disinfection recommendations
  • Implement a process for employees to anonymously express concerns about COVID safety practices and ensure that they are not discriminated or retaliated against in any way
  • Record and report COVID infections and deaths consistent with applicable OSHA requirements (See Lake Effect’s blogs on this issue)

Employers should work closely with legal counsel to understand all requirements and implement a COVID-19 workplace prevention program consistent with this new OSHA guidance and any applicable local guidance and orders. Lake Effect is here to help you through this process and ensure that you are taking all possible steps to provide a workplace free from the recognized hazards created by the COVID.

We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253

Mask mandates end, but employers have options

With mask orders lifting around the country, many employers are left wondering what to do in their own workplace. In most communities, employers have several options, including the following:

  • Remove all masking requirements in your workplace or place of business
  • Require all employees and visitors to wear masks at all times
  • Allow fully vaccinated employees and visitors to be maskless, but require unvaccinated employees and visitors to wear masks
  • Allow employees and visitors to report their vaccination status using the honor system
  • Require employees and visitors to provide proof of vaccination status, cautioning them to provide only vaccination documentation, not other medical information

After making such decisions, employers should communicate expectations clearly to all staff and visitors. Employers should also be mindful of treating all employees fairly and with kindness and respect regardless of their masking decisions or vaccination status.

Lake Effect is here to answer your questions about preventive measures, vaccinations, and safely reopening your workplace. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Wisconsin Communities’ Face Covering Requirements Expiring

Outagamie County, Dane County, and the city of Milwaukee have joined the growing list of communities across the country that are lifting their mask and other COVID-related public health orders. Outagamie County lifted its face mask requirements on May 13, 2021. Public Health Madison & Dane County (PHMDC) announced on May 18, 2021 that its public health orders and mask requirements will expire on June 2. On the same day, Mayor Tom Barrett announced that the City of Milwaukee will lift its public health orders and mask requirements on June 1.

These announcements follow the guidance released by the Center for Disease Control (CDC) that fully vaccinated individuals can safely stop wearing masks outdoors and in most public indoor settings. The federal Occupational Safety & Health Administration (OSHA) has indicated that it will release updated workplace safety requirements for employers based on CDC’s guidance. We will keep you informed with updates from OSHA.

Without a mask mandate, employers have several options. Employers may lift all mask requirements; require masks only for individuals who are not fully vaccinated; or require masks for all employees, customers, clients, and/or others on-site. As employers grapple with the best decision for their organization, they should work with HR professionals and employment attorneys to address issues such as:

  • What is your organizational culture?
  • How do your employees feel about returning to the workplace with or without masks?
  • Are you requiring vaccines?
    • If so, have you set up a legally compliant infrastructure to address, among many other things, reasonable accommodations for disabilities and sincerely held religious beliefs, confidentiality, and consistency among your workforce?
    • If you have employees in multiple states, have you checked the laws, including local or state health orders, to ensure vaccinations can be required?
  • If you will allow vaccinated employees to work without masks, are you asking for proof of vaccination or relying on an attestation from employees?
    • Have you set up a legally compliant process for checking vaccination status?
  • If you will not require masks at all, have you adopted cleaning and hygiene protocols to ensure you can satisfy your duty to provide a safe workplace for your employees?

Lake Effect is here to collaborate with you on questions about workplace safety, employees returning to work, and employee vaccinations.

Dane County Public Health Emergency Order #16

Public Health Madison & Dane County (PHMDC) has issued a new public health order, Emergency Order #16, effective May 5, 2021. The new order includes additional exceptions to the face covering requirements and increases to the capacity limits for indoor gatherings and activities.

Face Coverings

  • Face coverings are not required when playing a wind instrument that has a fabric or other cover, as long as individuals are spaced six feet apart.

Gatherings

  • Indoor gatherings where food or drinks are available are limited to 350 individuals.
  • Indoor gatherings where food or drinks are not available are limited to 500 individuals.
  • These capacity limits do not include employees.
  • Individuals who are not members of the same household still must maintain six feet physical distancing when indoors or outdoors, except when in transit (e.g. walking in a hallway).

Businesses

  • Indoor capacity is increased to 75% of approved capacity levels.
  • This increased capacity applies to all organizations, including retail stores, salons, spas, gyms, fitness centers, and places of amusement and activity.

Stores that Sell Food or Groceries, Restaurants, and Taverns

  • Indoor seating capacity is increased to 75% of approved seating capacity levels.

The other requirements from previous PHMDC emergency orders remain in place. You can find Lake Effect’s summaries of the previous orders here.

Lake Effect is here to answer your questions about how local and state public health orders apply to employers. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

CDC Updates Guidance for Vaccinated Persons

Today, April 27, 2021, the CDC issued updated guidance for fully vaccinated persons (2 weeks after last vaccine dose or 2 weeks after the J&J vaccine). Employers should use CDC’s guidance but may require stricter safety precautions for their workplace, if needed. Employers must also follow applicable local and state public health orders.
Per the guidance, fully vaccinated people can now:

  • Visit with other fully vaccinated people indoors without wearing masks or physical distancing
  • Visit with unvaccinated people (including children) from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing
  • Participate in outdoor activities and recreation without a mask, except in certain crowded settings and venues
  • Resume domestic travel and refrain from testing before or after travel or self-quarantine after travel
  • Refrain from testing before leaving the United States for international travel (unless required by the destination) and refrain from self-quarantine after arriving back in the United States
  • Refrain from testing following a known exposure, if asymptomatic, with some exceptions for specific settings
  • Refrain from quarantine following a known exposure if asymptomatic
  • Refrain from routine screening testing if asymptomatic and feasible

Some precautions remain in place. For now, fully vaccinated people should continue to:

  • Take precautions in indoor public settings like wearing a well-fitted mask
  • Wear masks that fit snuggly when visiting indoors with unvaccinated people who are at increased risk for severe COVID-19 disease or who have an unvaccinated household member who is at increased risk for severe COVID-19 disease
  • Wear well-fitted masks when visiting indoors with unvaccinated people from multiple households
  • Avoid indoor large-sized in-person gatherings
  • Get tested if experiencing COVID-19 symptoms
  • Follow guidance issued by individual employers
  • Follow CDC and health department travel requirements and recommendations

Lake Effect is here to answer your questions about COVID-related workplace safety. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Amended Dane County Public Health Emergency Order #14

Public Health Madison & Dane County (PHMDC) issued an Amended Emergency Order #14 on March 18, 2021. It is effective immediately.

The Amended Emergency Order adds a new section on fully vaccinated individuals. The order defines “fully vaccinated” as two weeks after the second dose from a 2-dose vaccine, e.g. Pfizer-BioNTech’s or Moderna’s vaccine, or two weeks after the first dose of a single-dose vaccine, e.g. Johnson & Johnson’s vaccine. Fully vaccinated individuals do not need to maintain six-feet physical distancing or wear a face covering when in an enclosed space:

  • with other fully vaccinated individuals.
  • with individuals from a single household who are not fully vaccinated and are not at increased risk for severe COVID-19 illness as defined by the CDC.

All other requirements from previous PHMDC emergency orders remain in place. This means that fully vaccinated persons must still wear masks in the workplace, when around unvaccinated persons. You can find Lake Effect’s summaries of the previous orders here.

Lake Effect is here to answer your questions about how local and state public health orders apply to employers. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

New Law Limits COVID-19 Civil Liability For Wisconsin Employers

Governor Evers signed 2021 Wisconsin Act 4 into law on February 26, 2021, providing Wisconsin employers with broad protection from civil law claims relating to COVID-19. Effective March 1, 2020, Wisconsin businesses, schools, and non-profit organizations are immune from civil liability for the death of or injury to any individual or damages caused by an act or omission resulting in or relating to exposure to COVID-19. The law applies retroactively to all claims arising on or after March 1, 2020, except it will not apply to lawsuits actually filed before March 1, 2020. Furthermore, immunity under the law will not apply to an entity whose actions or omissions involve reckless or wanton conduct or intentional misconduct.

2021 Wisconsin Act 4 provides employers substantial protection from civil lawsuits brought by employees, contractors, customers, students, vendors, and family members of these individuals. Despite the new protections, Wisconsin employers should continue to closely monitor and follow guidance from local, state, and federal public health officials on COVID-19 safety and mitigation measures. Failure to do so could constitute evidence of reckless, wanton, or intentional misconduct, which would negate the civil immunity afforded under the Act 4. Such a failure could also trigger claims under OSHA’s general duty clause for failure to provide employees a work environment free from recognized hazards. Employers should also note that employees can continue to seek remedies under applicable workers’ compensation statutes.

Learning To Build A Stronger Teams In A Virtual World

Their positive attitudes carry an edge of lighthearted humor that paints the HR field with a ‘can do’ attitude for tackling challenges and employment law changes.

Andrea Conrad, Numbers 4 Nonprofits Inc

Many of us are starting to think about what our workspaces will look like when we are able to return more consistently or completely to the workplace. These options include returning full time to the office, continuing to work remotely, or a blend of the two.  No matter which option your organization chooses for its new normal, leaders will need to focus time on retaining talent by nurturing workplace culture and offering professional development opportunities to team members.

As you nurture your workplace culture, consider surveying your team members to learn what helped them be successful in their work and connect with their coworkers while working remotely. When considering professional development, evaluate your current practices and how they can be adjusted to fit and support your new work environment. If your team members will be working virtually – fully or partly – consider how you can offer them virtual coaching and professional development. Employees have proven that they can work, grow, and learn successfully in a virtual world.

Life-long learning is important to all of us at Lake Effect, so we have adapted our in-person workshops to engage with a virtual audience. We love training in-person, but we have found that we also connect, engage, and share knowledge as effectively over Zoom or Microsoft Teams. We realize that Zoom fatigue is real, so we have shortened our workshops to 1-2 hour sessions. To continue to support our clients, partners, and their employees, we offer a variety of in-person and virtual workshops in the following areas:

  • Aligning Strategic Plan & HR
  • Coaching
  • Communication
  • Conflict Resolution
  • Crisis Management
  • Culture Building
  • Employee Development
  • Legal Compliance
  • HR Compliance
  • Management Training
  • Performance Management
  • Respectful Workplace
  • Team Engagement

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

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