COVID-19’S Continuing Workplace Impact: EEOC Revises Pandemic Guidance Again

On July 12, 2022, the EEOC issued updated COVID-19 guidance for employers, reflecting the ever-changing but persistent impact of the virus on the workplace. Key updates include the following:

  • Workplace COVID-19 testing
    • Previously, employers could require COVID-19 testing (although it is a medical exam under the ADA) because the EEOC recognized that a person with the virus would pose a direct threat to the health of others.
    • Under the revised guidance, employers may only mandate COVID-19 testing if they show that the testing is “job-related and consistent with business necessity.” (A.6.)
    • Mandatory COVID-19 testing will meet the “business necessity” standard when it is consistent with current guidance from the CDC, FDA, and state and local public health authorities. Employers may also consider such factors as:
      • Community transmission rates
      • Vaccination status of employees
      • Possibility of breakthrough infections for fully vaccinated employees
      • Transmissibility of and severity of illness from current variants
      • Potential impact on the workplace if an employee enters with COVID-19 (A.6.)
    • Antibody testing does not meet the ADA’s “business necessity” standard for a medical exam; employers therefore may not require such testing before allowing employees to re-enter the workplace. As the EEOC notes, an antibody test does not show whether an employee has a current infection, nor establish that an employee is immune to infection. (A.7.)
  • Hiring and job offers
    • If an employer screens everyone for COVID-19 before allowing entry to the worksite, it can screen an applicant in the pre-offer stage who needs to be in the workplace. (C.1.)
    • An employer can also screen applicants for COVID-19 symptoms after making a conditional job offer, as long as it does so for all applicants in the same job type. (C.1.)
    • After an applicant has been offered a job, an employer may only withdraw that offer based upon the applicant’s positive COVID-19 test, symptoms, or exposure if: (1) the job requires an immediate start date, (2) CDC guidance recommends the person not be in proximity to others, and (3) the job requires such proximity to others, whether at the workplace or elsewhere. (C.4.)
  • Interactive process/ accommodation requests
    • Delays in engaging in the interactive process and/or responding to employee accommodation requests are no longer acceptable unless an employer shows specific pandemic-related circumstances justified the delay. (D.17.)
  • Vaccinations
    • Consistent with prior guidance, employers may require all employees to be vaccinated against COVID-19, subject to Title VII and the ADA’s reasonable accommodation requirements. Employers may also require proof of such vaccination. (K.1.)
    • An employee’s vaccination status must be kept confidential and separated from the regular personnel file. However, an employer may share the vaccination information with other employees who need it to perform their job duties. Such employees also must keep the information confidential. (K.4.)

This is not a comprehensive list of the many issues covered in the updated COVID-19 guidance. Please reach out to your partners at Lake Effect HR & Law to ensure that your organization’s COVID-19 policies and practices are in full compliance with current EEOC guidelines. We are here to answer all of your questions about COVID-19 compliance and will continue to monitor important legal and HR developments in this area. 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’s Latest Guidance: To Mask or Not Mask

On February 25, 2022 the CDC updated its masking guidance. The new recommendations are customized according to community risk. Each county across the US is designated “high,” “medium,” or “low” risk.

  • “High” risk counties: residents are advised to mask indoors in public.
  • “Medium” risk counties: residents should mask in some situations, including in high risk settings (for example in schools, indoor crowds, and congregate settings), if around individuals who are at high risk of severe illness, or if an individual’s doctor recommends masking.
  • “Low” risk counties: residents need not mask.

Regardless of risk designation, the CDC recommends testing if symptomatic, vaccinating if eligible, and improving ventilation in indoor settings if possible.

CDC guidance is not mandatory, but it may assist employers as they establish and implement their own COVID related safety policies for the workplace. Following CDC guidance may also assist in demonstrating compliance with OSHA’s “general duty” clause, which requires all employers to provide a workplace free from known health and safety hazards.

Each employer will be faced with challenging decisions about whether and how to implement the new CDC masking guidelines into workplace safety policies. Soliciting input from your leadership team and employees may be helpful as you continue to manage changes brought about by the COVID-19 pandemic. Renew your commitment to a respectful workplace and encourage your employees to treat one another accordingly during these times of transition. If you need help navigating these changes, please reach out to any of the Lake Effect attorneys or HR professionals.

Lake Effect is here to answer your questions about COVID protocols and mitigation in the 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.

Dane County Face Covering Emergency Order #7

Public Health Madison & Dane County has issued Face Covering Emergency Order #7. The new order is effective February 1, 2022, and remains in place until March 1, 2022. The only change from the previous Order #6 (see Lake Effect’s summary of the previous orders here) is the extension of time.

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.

OSHA Formally Withdraws COVID-19 Vaccination and Testing ETS

On the heels of the US Supreme Court’s recent ruling blocking enforcement of its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), OSHA issued a statement formally withdrawing the ETS as an enforceable temporary standard effective January 26, 2022. OSHA stated that it will continue to pursue the ETS as a proposed rule and focus on finalizing a permanent COVID-19 Healthcare Standard. OSHA continues to encourage COVID-19 vaccination of workers to minimize workplace health risks posed by the virus.

For a complete discussion and history of this issue, please see Lake Effect’s prior blogs on the ETS and the Supreme Court's recent decision.

Lake Effect is here to answer your questions about COVID-19 compliance and will 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.

Milwaukee Institutes New Mask Ordinance

Starting January 22, 2022, Milwaukee’s new mask ordinance will go into effect until March 1, 2022.  While similar to the previous Milwaukee Cares mask ordinance which expired on June 1, 2021 (see Lake Effect’s prior blog), the new ordinance has some distinct differences. 

Supreme Court Decision on Vaccine Mandate

Supreme Court: OSHA Exceeded Its Authority by Requiring Large Employers to Adopt Mandatory Vaccination Policies, But Healthcare Providers Can Require Employee Vaccinations

On January, 13, 2022, The US Supreme Court issued its much anticipated decision on two Biden Administration initiatives aimed at increasing COVID-19 vaccination rates across the nation: (1) OSHA’s Emergency Temporary Standard, which requires large employers (100+ employees) to adopt mandatory vaccination policies; and (2) the Center for Medicare and Medicaid Services’ (CMS’) Interim Final Rule, which requires certified healthcare entities to mandate employee vaccinations. For a detailed discussion of OSHA’s ETS for large employees, please see Lake Effect's prior blog on this topic.

As to the first, the Supreme Court reinstated a nationwide stay of OSHA’s ETS, finding that parties challenging OSHA’s vaccine mandate will likely prevail on the merits of the case. The Supreme Court explained that OSHA is tasked with regulating workplace health and safety. However, allowing OSHA to regulate the hazards of Americans’ daily lives would significantly expand its regulatory authority in a manner not authorized or intended by Congress. Under the Supreme Court’s ruling, the case will be sent back to the Sixth Circuit for a final decision on the merits, and OSHA cannot enforce the ETS in the interim. Given the Supreme Court’s decision, however, it is highly unlikely that the Sixth Circuit will uphold the ETS.

As to the second initiative, the Supreme Court upheld CMS’ ability to enforce its vaccination mandate for certified health care providers. The Court found that the US Secretary of Health and Human Services is authorized to impose detailed conditions on the receipt of Medicare and Medicaid funds, and those conditions are often aimed at preventing and controlling the transmission of communicable diseases. The Court concluded that requiring healthcare providers to mandate employee vaccinations as one such condition is well within the authority of CMS.

What Should Employers Do Now?
At this time, large employers need not implement OSHA’s detailed vaccination and testing requirements, and it is highly unlikely that the ETS will be upheld at all. However, employers of any size may lawfully implement their own vaccination and testing policies, as long as accommodations for eligible employees are granted in accordance with Title VII (religion) and the ADA (disability).

CMS can enforce its Interim Rule as to covered healthcare provider employers nationwide. Although further litigation on the Rule is likely, covered healthcare providers should prepare to meet upcoming compliance deadlines in January and February 2022.

Lake Effect is here to answer your questions about federal, state, and local regulations that impact employers across all industries. 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.

CDC Shortens Recommended COVID-19 Isolation and Quarantine Periods

On December 27, 2021, the US Centers for Disease Control and Prevention (CDC) revised recommendations for people who test positive for or are exposed to COVID-19. The updated guidelines reflect recent evidence that transmission of the now-prevalent Omicron variant typically occurs 1-2 days prior to the onset of symptoms and 2-3 days after. The recommendations are also aimed at returning people to work as quickly and safely as possible in the face of nationwide staffing shortages. The CDC’s updated recommendations provide:

After positive COVID-19 test (regardless of vaccination status) Isolate at home for 5 days

If you have no symptoms or symptoms have fully resolved after 5 days, you may leave your home but continue to mask for 5 more days.

After COVID-19 exposure for people who are not vaccinated or who are more than 6 months out from their second dose of vaccine and not yet boosted Quarantine for 5 days and then mask for 5 more days

If quarantine is not feasible, mask for 10 days.

Note: the day of exposure is considered day zero (0)

After COVID-19 exposure for people who are boosted or completed the primary Pfizer or Moderna vaccine series within the last 6 months, or who completed the J&J vaccine series within the last two months Mask for 10 days

Note: the day of exposure is considered day zero (0)

After COVID-19 exposure (regardless of vaccination status) If possible, take a COVID-19 test on day 5 following exposure.

If you develop symptoms at any time during the quarantine or masking period, get a test and begin isolation at home.

Note: the day of exposure is considered day zero (0)

The new CDC recommendations should provide some relief to the many US employers dealing with staffing challenges related to COVID-19.

Lake Effect is here to answer your questions about federal, state, and local regulations that impact employers across all industries. 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.

Dane County Face Covering Emergency Order #6

Public Health Madison & Dane County has issued Face Covering Emergency Order #6. The new order is effective January 3, 2022 and remains in place until February 1, 2022. The only change from the previous Order #5 (see Lake Effect’s summary of the previous orders here) is the extension of time.

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.

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

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