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Updated OSHA Guidance to Continue Workplace Health and Safety Measures

On August 13, 2021, the Occupational Safety and Health Administration (OSHA) updated its guidance for all employers to reflect the CDC’s July 27, 2021 recommendations on masks and testing for fully-vaccinated individuals. As with the prior guidance on COVID-19, this updated OSHA guidance is not a standard or regulation and creates no new legal obligations. However, the guidance is likely to be relied on to measure employer compliance with OSHA’s “General Duty Clause.” That clause requires employers to provide a workplace free from recognized hazards that cause or are likely to cause death or serious harm.

To reduce the risk of spreading COVID-19 among employees, especially the Delta variant, OSHA recommends that employers:

Require all employees, including those who are fully vaccinated, to wear a face covering, or other appropriate PPE, when indoors with other people in areas of substantial or high transmission.
Encourage or require all customers, visitors, and guests to wear face coverings when indoors in areas of substantial or high transmission.
Adopt policies that require employees to get vaccinated or, if they remain unvaccinated, get regularly tested for COVID-19 plus continue wearing a face covering and physical distancing.
Require fully vaccinated employees who have been exposed to COVID-19 to be tested three to five days after exposure and wear a face mask when indoors for 14 days unless they test negative.

The above precautions are in addition to measures included in OSHA’s previous guidance. See Lake Effect’s blog on OSHA’s guidance for employers.

Employers should work closely with legal counsel and HR to implement an updated COVID-19 workplace program consistent with this new OSHA guidance and any applicable local guidance and orders. Lake Effect is here to help you through this process.

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.

COVID-19 Resources / Legal - 08/18/2021

Maintaining a Respectful Workplace Post-COVID

While some organizations have been on site through the pandemic, others have returned in recent months. Many others are planning a more robust employee return to office in the coming weeks. As more employees return to work in the office, employers may need to reestablish and remind employees about expectations of workplace conduct to foster and maintain a respectful workplace.

While employees have been working virtually, it is likely that their work clothes have become more casual, morning routines have become less regimented, and communications with coworkers have become more informal as they connected from their homes. Employers may want to review, revise, and remind employees about dress code and attendance policies. Further, employers should grant grace during the return, as employees navigate at-home responsibilities, commute times, new health and safety changes to their work environment, and their own well-being.

While the return may be welcome for some, others may struggle. Employees may experience micro-rejections and awkward moments deciding whether to hug, shake hands, or maintain social distancing with coworkers and others. Office banter may become more casual now that video calls introduced us to our coworkers’ personal lives outside the workplace. At the same time, in-person interactions may be stilted after months of virtual exchanges. This is the time for managers – and coworkers – to refine their empathic leadership and listening skills to understand the needs of others, and be sensitive to their feelings and thoughts.

There may also be times employees become upset with one another, feel hurt, over-share, delve into personal information (including vaccination status and health conditions), or even pass judgment on mask wearing or vaccination status. At its worst, there is a risk that these interactions may be perceived as harassment or discrimination. Consider scheduling your annual respectful workplace training to remind employees of appropriate workplace conduct to prevent harassment and discrimination. Keep in mind that the EEOC recommends employers provide such training on an annual basis, in person, and provided by an experienced trainer.

Lake Effect is here to answer your questions about empathic leadership and respectful workplace training. 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.

COVID-19 Resources / Human Resources - 07/27/2021

Increased Fines for Not Posting Employment Posters

The federal government recently increased the fines employers may face for violating federal employment law posting requirements. Going forward, the potential posting fines are:

Family and Medical Leave Act – $178
Job Safety and Health: It’s the Law – $13,653
Employee Polygraph Protection Act – $21,663
EEO is the Law – $576

Employers should also be aware that each state has its own poster requirements, most of which impose fees for failing to comply. It is important for employers to maintain an effective strategy for staying informed about the applicable local, state, and federal posting requirements. Contact your partners at Lake Effect with questions about obtaining and updating required employment posters.

Lake Effect is here to answer your questions about your posting requirements and other employment law and HR compliance matters. 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.

Legal - 07/16/2021

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.

COVID-19 Resources - 06/11/2021

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.

COVID-19 Resources - 03/18/2021

Twelve Months Later: How Has Your Organization Evolved?

The past 12 months have been a time like no other, forcing organizations to pivot quickly to accommodate a new reality. Now is the time to review handbook policies and internal processes that may have been revised on the fly in response to changing circumstances.

You can start by reviewing the ways your organization has changed since the start of the pandemic in terms of policy and process changes:

Did employees’ transition to work remotely?
Will they continue to do so? Did they start or expand use of personal devices for business purposes?
Have schedules or reporting relationships changed to adapt to new circumstances?
Have employees performed remote work from other states? (If they intend to remain there, you may need to register for general business, payroll, and/or unemployment tax purposes in that state. You may also need to review your current benefits offerings, as well specific employment laws for that state or local area. See our blog on state employment laws to consider with remote employees.)
Has your brand or business model changed in response to the pandemic? Do you need to update position descriptions or organizational charts?

As you identify changes that have occurred and adjustments that will be necessary, review your employee handbook and update relevant policies to reflect your decisions. (Note: We do not recommend changing the handbook for policies that are temporary in nature, such as allowing employees to work remotely only until worksites open again. Temporary policies can be freestanding.)

In addition, consider the impact that the past year had on your employees and your organization’s culture:

Some employees may have been working onsite throughout the pandemic. Others may be excited to return to the workplace, and still others may be cautious to return. This can result in actual or potential conflicts between employees who may judge or simply not understand another’s perspective.
Some employees may be experiencing mental health issues resulting from isolation or other challenges encountered over the past year, while others are thrilled to be out of the house and back in the office.
Some employees may feel the stress of changing family routines and expectations, and they may need additional time to adapt or help family members adapt.
Some employees may be grieving the loss of a loved one during the pandemic, while others have experienced minimal personal impact.
Some employees may need more time than others to reacclimate to their commute and former schedule at a worksite.

As your employees and you address these difficult issues, you can reaffirm a culture of inclusion, acceptance, and respect with effective planning, clear communication, flexibility, and empathy.

Lake Effect is here to answer your questions about how to handle these important workplace transitions and evolution, while maintaining your culture and supporting your mission and vision. 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.

COVID-19 Resources / Human Resources - 03/10/2021

Dane County Public Health Emergency Order #14

Public Health Madison & Dane County (PHMDC) has issued a new public health order, Emergency Order #14, effective March 10, 2021. The new order includes significant changes to the indoor and outdoor capacity limits for gatherings, restaurants, taverns, and sporting events. The order also modifies the protective measure policy required for schools. The primary changes are summarized below and are outlined in PHMDC’s summary of Emergency Order #14.

Gatherings

As a reminder, gatherings include exercise classes, meetings, conferences, trainings, sporting events, parties, and other planned events.
Indoor gatherings with food or drink are permitted with up to 150 individuals. Indoor gatherings without food or drink are permitted with up to 350 individuals.
Outdoor gatherings with or without food or drink are permitted with up to 500 individuals.
The capacity limits for indoor and outdoor gatherings do not include employees.
Individuals must maintain 6 feet physical distancing at indoor and outdoor gatherings.

Sports

All sports must follow the gathering limitations outlined above.

Indoor Capacity Limits at Restaurants and Taverns

Indoor capacity at restaurants and other dining facilities is increased to 50% of approved seating capacity.
Indoor capacity at taverns is increased to 25% of approved seating capacity.
Tables and chairs must still be spaced so that 6 feet physical distancing can be maintained between customers who are not members of the same household.

Mandatory School Policies

Schools may need to modify their required protective measure policy and procedure. Under the new order, the protective measure policy and procedure must:
- Ensure employees are provided with and wear face coverings as required under the general face coverings requirements in the emergency order.
- Ensure employees maintain 6 feet distancing at all times to the extent possible.
- When 6 feet distancing is not possible for students, ensure that students and employee groupings are as static as possible. Mixing between groups must be restricted as much as possible.
- Commons areas such as cafeterias, auditoriums, and gyms can be used as classrooms, to provide food, as childcare and youth settings, and for government functions. Student grouping should be in distinct spaces. Student groupings may not mix with other student groupings.
Schools must document employee receipt, acknowledgment, or training on any revised protective measure policy.
The requirements for the hygiene policy and procedure and the cleaning policy and procedure have not changed.

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

COVID-19 Resources - 03/02/2021

OSHA Recommends Measures to Reduce Workplace Spread of COVID-19

Responding to a directive from the Biden administration, OSHA posted new guidance on January 29, 2021 to help non-healthcare employers identify COVID-19 risks and implement effective measures to minimize its spread in the workplace. The guidance is not a standard or regulation, and it creates no new legal obligations. It is advisory in nature, containing recommendations and detailed descriptions of existing safety and health regulations. However, 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 that implementing a workplace COVID-19 prevention program is the most effective way to reduce its spread at work. An effective program includes such elements as:

Assigning a workplace coordinator responsible for COVID-19 issues.
Identifying where and how employees might be exposed at work.
Identifying a combination of measures to limit the spread of COVID-19 at work including separating and sending home potentially infected employees, implementing physical distancing and barriers, requiring face coverings, improving ventilation, and using applicable PPE, as well as good hygiene and cleaning/disinfection practices.
Providing reasonable accommodations or modifications to workers at higher risk of severe illness.
Effectively communicating with employees about COVID-19 in a language they understand and providing them with guidance on screening and testing.
Educating and training employees on COVID-19 policies and procedures.
Minimizing the negative impact of quarantine and isolation on workers by allowing telework or work at alternative locations where possible.
Recording and reporting COVID-19 infections and deaths consistent with applicable OSHA requirements. See Lake Effect’s blogs on this issue.
Establishing a process for employees to anonymously express concerns about COVID-19 hazards and ensuring that they are not discriminated or retaliated against in any way.
Making COVID-19 vaccines available to employees and requiring all employees to follow preventive practices, regardless of whether they are vaccinated. See Lake Effect’s blog on this issue.

This is not an exhaustive list of OSHA’s new recommendations, and this new guidance contains detailed information about each aspect of an effective workplace COVID-19 prevention program. 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. 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-19.

COVID-19 Resources / Legal - 02/01/2021

Biden Administration Impact on the Workplace

Just one week into his administration, President Biden has signaled that he will take a fresh look at current issues affecting American workers and workplaces. His recent executive orders and memoranda include the following actions:

Halt Final Rules governing tip pools and independent contractors: This Executive memorandum stays pending final rules that have been published but which had not yet taken effect to allow the Biden Administration to review their impact. This also directs that any rules which had been sent to the Federal Register but had not yet been published must be immediately withdrawn for review. This results in a stay of the Independent Contract Final Rule and the new Tip Pooling Rule. As a result, the Department of Labor has withdrawn 3 opinion letters related to those rules. See Lake Effect’s previous blogs on the Independent Contractor Final Rule, the Tip Pooling Final Rule, and two of the tip pool opinion letters.
Expand COVID-related unemployment benefits: This Executive Order permits employees who refuse work based on COVID health-related concerns to receive unemployment benefits.
Promote racial equity: This Executive Order directs the Biden administration to conduct equity assessments of its agencies and reallocate resources to “advanc[e] equity for all, including people of color and others who have been historically underserved, marginalized and adversely affected by persistent poverty and inequality.”
Reaffirm gender equity: This Executive Order expands protections against discrimination based on sex in federal agencies to explicitly include sexual orientation, gender identity, and gender expression. This does not have a direct impact on private employers, but does follow the U.S. Supreme Court decision in Bostock v. Clayton County, Georgia (see Lake Effect’s blog here).
Enhance COVID-related workplace safety: This Executive Order requires administrative agencies to take “swift action to reduce the risk that workers may contract COVID-19 in the workplace.” This will most likely result in action from OSHA setting forth “science-based guidance to help keep workers safe from COVID-19 exposure, including with respect to mask-wearing; partnering with State and local governments to better protect public employees; enforcing worker health and safety requirements; and pushing for additional resources to help employers protect employees.”

The attorneys and HR professionals at Lake Effect will continue to closely monitor the Biden administration’s executive actions, legislative developments, and their impact on workplaces.

Human Resources / Legal - 01/27/2021

New CDC Guidance Requires Informed Consent for Workplace COVID-19 Testing

On January 21, 2021, the U.S. Center for Disease Control (CDC) issued new guidance for non-healthcare employers who conduct workplace COVID-19 testing. While the CDC previously confirmed that workplace testing is permissible as part of a comprehensive approach to reducing virus transmission, the new guidance clarifies that it should not be conducted without employees’ informed consent. According to the CDC, “informed consent requires disclosure, understanding, and free choice, and is necessary for an employee to act independently and make choices according to their values, goals, and preferences.”

According to the CDC, employers should adopt at least the following measures to promote free decision-making and informed consent to COVID-19 testing in the workplace:

Implement safeguards to protect employee privacy and confidentiality.
Provide complete and understandable information about how a testing program may impact employees’ lives, such as whether a positive test result or refusal to participate in testing may mean exclusion from work for any period of time.
Explain parts of the testing program that would be particularly important to employees as they decide whether to participate (i.e., key reasons that may guide their decision).
Inform employees about the testing program in their preferred languages using clear, non-technical terms. Solicit employee input on the readability of the information.
Train supervisors and managers on their roles and responsibilities regarding testing and encourage them to avoid pressuring employees to participate in testing.
Consider the consent process as an active information-sharing process between the employer and the employee. Throughout the process, encourage and answer employees’ questions, facilitate their understanding, and promote their free choice.

In addition, employers must ensure the disclosures listed below are made to employees:

The manufacturer and name of the test.
The type of test and its purpose.
How the test will be performed.
The known and potential risks of harm, discomforts, and benefits of the test.
What it means to have a positive or negative test result, including test reliability and limitations and any public health guidance triggered by a particular result.

Many of these are contained in the FDA’s emergency use authorization patient fact sheet for each approved COVID-19 test (scroll down on the linked page to find the test-specific fact sheet), which must be provided to any party receiving that test.

Employers who conduct workplace COVID-19 testing must develop plans to address a host of other testing-related topics and questions, including:

Their reasons for testing, frequency of testing, and consequences to employees of testing/non-testing.
Locations, scheduling, procedures, and payment for testing.
Communication and interpretation of test results, applicable leaves and/or benefit policies.
Personal information needed to test and privacy of results.
Internal resources for employees who need additional information, assistance, treatment after test procedure.

Given the CDC’s detailed requirements for informed consent and disclosures relating to workplace-based COVID-19 testing, employers in non-healthcare settings should proceed cautiously when considering the implementation of testing programs or protocols. Rather than conduct workplace testing, some employers may be well-advised to minimize administrative burdens and legal exposure by strongly encouraging employees to undergo frequent COVID-19 testing administered by reliable, unrelated third parties.

COVID-19 Resources / Legal - 01/26/2021

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(844) 333-5253 (LAKE)
info@le-hrlaw.com

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