Monday, December 20, 2021

Sixth Circuit Lifts Nationwide Stay of OSHA’s Private Employer COVID-19 Emergency Temporary Standard -- Enforcement Begins on January 10, 2022

By David R. Vance*

On Friday, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit issued a highly anticipated decision dissolving a stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”). See In re McP No. 165, 2021 U.S. App. LEXIS 37349 (6th Cir. Dec. 17, 2021). The ETS requires private employers with 100 or more employees to mandate either (1) COVID-19 vaccinations or (2) weekly testing and masking requirements for unvaccinated employees. Among other requirements, covered employers must confirm and keep records of their employees’ vaccination status. Employers who fail to comply with the ETS face penalties up to $13,653 for each violation and up to $136,532 for each willful violation. A more in-depth summary of the ETS’s requirements, previously provided by Z&R, is available here.

On Saturday, the U.S. Department of Labor issued a news release stating: “OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

Background

After OSHA issued the ETS in early November, private employers, state governments, and other organizations filed lawsuits challenging the ETS. Shortly after the ETS went into effect, the U.S. Court of Appeals for the Fifth Circuit issued a stay preventing OSHA from enforcing the ETS. Given the numerous legal challenges to the ETS filed in federal courts across the country, the matters were consolidated and randomly assigned to the Sixth Circuit for resolution. OSHA then filed a motion with the Sixth Circuit to dissolve the stay issued by the Fifth Circuit.

Sixth Circuit Decision

In its decision, the Sixth Circuit held “OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace.” Id. at 13. Rejecting arguments that OSHA improperly expanded its regulatory authority, the Court stated “[t]he ETS is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.” Id. at 15.

With respect to the showing of a “grave danger” necessary to warrant the issuance of an ETS, the Court held “OSHA has demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.” Id. at 21. The Court emphasized the risk of transmission posed by traditional workplaces where people work in close proximity, the possibility of transmission from asymptomatic or pre-symptomatic individuals, empirical evidence associating outbreaks with workplaces, and the severity of harm posed by the virus.

The Sixth Circuit also held OSHA adequately showed the ETS is “necessary to alleviate a grave risk of worker deaths” during the timeframe that it is effective. Id. at 26. Based on evidence presented by OSHA, the Court held: “Vaccinated employees are significantly less likely to bring (or if infected, spread) the virus into the workplace. And testing in conjunction with wearing a face covering will further mitigate the potential for unvaccinated workers to spread the virus at the workplace.”

With respect to the ETS’s threshold for coverage (i.e., 100 or more employees), the Court noted: “OSHA’s ETS readily shows a relationship to the underlying regulatory problem—larger employers are better able to implement the policies, are at heightened risk, and regulating them will be a significant step in protecting the entire workforce from COVID-19 transmission.” Id. at 30. Regarding the costs imposed on those employers, the Court pointed to OSHA’s economic analysis concluding the costs to be “about $11,298 per affected entity” which is “modest” compared to costs imposed by other OSHA standards, especially when considering the economic harm posed by closures due to workplace outbreaks. Id. at 31.

The Court concluded by stating, “[f]undamentally, the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs. In a conservative estimate, OSHA finds that the ETS will ‘save over 6,500 worker lives and prevent over 250,000 hospitalizations’ in just six months.” As such, the Sixth Circuit determined the stay of the ETS posed a “significant injury to the public” and dissolved it.

Conclusion

Multiple parties challenging the ETS already have petitioned the U.S. Supreme Court for review of the Sixth Circuit’s decision. Regardless of whether you agree with the decision or the Sixth Circuit’s reasoning, absent the U.S. Supreme Court overturning the decision, the deadline for complying with nearly all of the ETS’s requirements is January 10, 2022. Most significantly, these employer requirements include obtaining proof of vaccination for all employees and requiring unvaccinated employees wear face coverings. The only requirement for which enforcement is delayed until February 9, 2022 is the weekly testing of unvaccinated employees.

As employers prepare for the ETS, they should start by asking whether they intend to mandate the COVID-19 vaccine or require their unvaccinated employees test weekly. For many employers this is a difficult question to answer and requires considering the impact of a vaccine mandate on what already may be a depleted workforce, how to address religious and disability accommodations, the cost and administrative burden of weekly testing, etc. For help weighing these considerations and complying with the ETS requirements, employers should contact counsel.

*David R. Vance, an OSBA Certified Specialist in Labor & Employment Law, regularly advises employers on COVID-19 related issues. If you have questions about the Sixth Circuit’s decision, OSHA’s ETS, or other employment law issues, please contact David at drv@zrlaw.com or 216-696-4441.

Thursday, November 4, 2021

COVID-19 Alert: OSHA Issues Emergency Temporary Standard Affecting Private Employers

*By Scott Coghlan

Today, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) expected to reach two-thirds of all private sector workers in the nation.

The ETS requires private employers to either mandate COVID-19 vaccinations for their employees or have unvaccinated employees show a negative test for the virus at least weekly and wear masks. Covered employers must provide employees up to four hours of paid time to receive each vaccination dose (if during working hours) and reasonable time and paid sick leave to recover from side effects of the vaccine. Additionally, employers must provide each employee with information about the ETS (see Workers’ Rights fact sheet issued by OSHA available here). This information includes the following: workplace policies and procedures to implement the ETS; COVID-19 vaccine information; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Who Does the ETS Cover?

The ETS covers private employers with 100 or more employees. The 100-employee count is based on the number employees that are employed company-wide, not at each individual work location. Therefore, for a single corporate entity with multiple locations, employers must count their total employees at all locations. Employers must include part-time, temporary, and seasonal employees in the employee count. Independent contractors do not count towards the total number of employees.

Importantly, once an employer falls within the scope of the ETS, they remain within its scope – even if their total number of employees drops below 100. The determination of whether an employer falls within the scope of the ETS is based on the number of employees as of November 5, 2021. If an employer has 100 or more employees on November 5 and later reduces their workforce below 100, the ETS continues to apply to the employer for the remainder of the time the ETS remains in effect. Conversely, if an employer who has less than 100 employees on November 5 (and therefore the ETS would not initially apply) later hires more employees that exceed 100, the employer must comply with the ETS at that time.

The ETS does not apply to employees covered by previous mandates such as federal contractors and healthcare workers. Additionally, if an employer is covered by the ETS, it does not mean all of its employees must follow the ETS requirements. The ETS does not apply to employees who do not report to a workplace where other individuals are present, work from home, or work exclusively outdoors (so long as they do not routinely occupy vehicles with other employees).

For employers that do not comply with the ETS by its effective date, OSHA can impose a maximum penalty of $13,653 per citation. For willful violations, OSHA can increase the fine up to 10 times that amount.

Effective Date

By December 5, 2021, employers must comply with all requirements of the ETS (except the testing requirement for employees who are not fully vaccinated). By January 4, 2022, employers must comply with all requirements of the ETS, including the testing requirement for employees who are not fully vaccinated.

Emergency temporary standards generally remain in effect for six months at which time a determination is made as to whether the standard will become permanent. Due to the nature of COVID-19, OSHA anticipates that the ETS will remain effective for six months but states that it will update the ETS if it determines that the grave danger from the virus no longer exists or new information requires a change in the measures necessary to address the virus.

Additional Requirements

There are a number of additional requirements under the ETS. Most significantly, employers also must require their employees to provide proof of vaccination and maintain a roster with this information. Employers must keep this information strictly confidential and treat it as it would other confidential medical information. Employers also must require employees to provide prompt notice of when they test positive or are diagnosed with COVID-19.

Employers should contact counsel for the full list of requirements and any questions they may have (including, but not limited to, disability and religious accommodations). For an earlier article on the ETS, please see Z&R’s blog post here.

*Scott Coghlan chairs the firm’s Workers’ Compensation Group and regularly advises clients on all workers’ compensation and OSHA related matters. If you have a question about the Ohio BWC’s OSHA’s response to COVID-19 or any other workers’ compensation or OSHA related questions, please contact Scott at sc@zrlaw.com or (216) 696-4441.

Wednesday, October 6, 2021

EMPLOYMENT LAW QUARTERLY | Volume XXIII, Issue ii

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Employers, OSHA’s Emergency Temporary Standard is Coming. Are You Ready?

By David R. Vance*

The Biden Administration recently announced that it directed the Occupational Safety and Health Administration (“OSHA”) to issue an Emergency Temporary Standard (“ETS”) requiring employers to have their employees test negative for COVID-19 each week or get vaccinated. The ETS applies to employers with 100 or more employees. For additional information about the ETS, please see Zashin & Rich’s alert available here. This article provides helpful information for employers that intend to require weekly testing, as compared to mandating the vaccine. Employers with mandatory COVID-19 vaccination policies should also require testing for employees who are exempt from their mandatory vaccination policy based on a medical reason or a sincerely held religious belief.

Depending on the size of your workforce and its level of vaccination, weekly testing can present a significant administrative burden that requires additional staff or the reshuffling of job duties. In addition to creating a weekly testing infrastructure and possibly hiring new employees, additional employer testing considerations include when employees will test, how will employees report their test results, how will employers store the test results, should employers pay employees for the time it takes to test, where will employees test, etc.

While the ETS likely will address some of these questions, the government already has addressed some. For example, the Department of Labor has stated that the Fair Labor Standards Act requires employers to pay employees for employer mandated testing, particularly when such testing occurs during the employee’s normal workday. Employers also likely must compensate non-exempt employees for mandatory tests occurring outside normal work hours. The time involved with taking a COVID-19 test, including the time it takes to receive the test results, varies widely based on the type of test. Since employers should pay employees for testing time, employers will want to limit the time spent testing to the greatest extent possible.

For most employers, the most efficient and cost-effective testing method is rapid antigen testing completed at the employer’s location. Most antigen tests are easy to administer, can detect the presence of COVID-19 in just 15 minutes, and numerous companies provide them.

The COVID-19 pandemic has resulted in significant growth in the rapid test industry. The expected testing requirement under the ETS works similarly to requiring attendees at concerts or sporting events to test negative for COVID-19 before entering such events. Companies like KOACORE (www.koacore.com) have handled many of these types of events and can provide the rapid antigen tests and other testing solutions.

Unfortunately, rapid tests remain increasingly difficult to obtain. Once OSHA issues its ETS, they likely will become even more difficult to obtain. Employers that intend to allow employees to test weekly, as compared to mandating the vaccine, should begin discussions with third party providers (like KOACORE) to ensure they have tests readily available when the ETS takes effect.

We expect legal challenges to OSHA’s ETS. While it is difficult to discern the outcome of any such challenges, OSHA may have a difficult time proving the need for the emergency temporary standard. Regardless, employers should plan as if the ETS will take effect. By controlling the method of testing, employers can control the associated costs and timing of such testing. Doing so also avoids constant employee questions relative to testing locations, types of approved tests, and delayed PCR test results, among other questions.

As with all things COVID-19 related, a number of moving parts exist and employers should contact counsel to evaluate their options and intended plans of action.

*David R. Vance, an OSBA Certified Specialist in Labor and Employment Law, regularly advises clients on labor and employment matters. If you have questions regarding COVID-19’s continued impact on the workplace or other employment matters, please contact David at drv@zrlaw.com or (216) 696-4441.

NLRB: Vague “Savings Clause” Fails to Salvage Overbroad Arbitration Agreement

By Scott H. DeHart*

Arbitration is a popular alternative to litigating employment disputes in court and for good reason: arbitration has many distinct advantages that may include lower costs, quicker results, simpler procedures, and greater confidentiality. Arbitration’s favored status with employers received a major boost in 2018, when the U.S. Supreme Court issued its decision in Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S. Ct. 1612 (2018). In Epic Systems, the Court held arbitration agreements containing class action (or collective action) waivers - and which require that employment disputes resolve by individualized arbitration – do not violate the National Labor Relations Act (“NLRA”) and are enforceable under the Federal Arbitration Act (“FAA”).

Surely with such a ringing endorsement of mandatory employment arbitration agreements from the nation’s top Court, employers could expect little scrutiny of such policies by the National Labor Relations Board (“Board”) right? Unfortunately, as illustrated by a recent Board decision, the Board did not read Epic Systems to allow employers to run roughshod over employees’ collective-bargaining rights.

In Brinker Int’l Payroll Company L.P., 370 NLRB No. 137 (June 11, 2021), the Board found that a company had committed an unfair labor practice (“ULP”) by compelling its employees to sign a mandatory arbitration agreement that unlawfully restricted the employees’ access to the Board and its processes. Although the company attempted to narrow the scope of its policy with a “savings clause,” the Board found that the savings language did not salvage the company’s unlawful policy.

Since at least 2013, Brinker required its employees (as a condition of their employment) to sign an agreement that required “binding arbitration” of “all disputes involving legally-protected rights (e.g., local, state and federal statutory, contractual or common law right(s)) regardless of whether the statute was enacted or common law doctrine was recognized at the time this agreement was signed.” In 2015, the Board held that Brinker’s policy violated the NLRA. Applying the labor law precedents at that time, the Board found unlawful Brinker’s policy because it required employees to waive their right to pursue class and collective actions in any forum. The Board also found the policy unlawful because it restricted employees’ rights to file ULP charges with the Board. The Board sought enforcement of its ruling against Brinker in the U.S Court of Appeals for the Fifth Circuit. That case remained pending in 2018 when the U.S. Supreme Court issued its decision in Epic Systems. Based on the Supreme Court’s decision, the Fifth Circuit denied enforcement of the Board’s order and returned the case to the Board for additional proceedings.

Taking up Brinker’s arbitration policy for a second time, the Board explained that the FAA’s mandate (to enforce arbitration agreements) is not absolute – it can be overridden by a contrary command from Congress. The Board’s power and responsibility to prevent ULPs is one such command – in other words, “the FAA does not authorize the maintenance or enforcement of [arbitration] agreements that interfere with the right to file charges with the Board.” Brinker, 370 NLRB No. 137, Slip op. at *2. The Board explained that an arbitration agreement that expressly prohibits an employee from filing ULP is unlawful. However, the inquiry does not stop there. The Board established a balancing test in Boeing, 365 NLRB No. 154 (2017) to evaluate whether employer policies pass muster under the NLRA. Under Boeing, some policies are always lawful to maintain (Category #1), others are always unlawful to maintain (Category #3), and others require individual scrutiny by the Board (Category #2).

The Board considered the language of Brinker’s policy and found that it made arbitration the “exclusive forum for resolving all disputes” with Brinker’s employees, which would include claims brought under the NLRA. Because this language restricted employees’ access to the Board, the Board found Brinker’s policy unlawful.

“But wait!” responded Brinker – the mandatory arbitration agreement had a “savings clause” that told employees that the agreement “does not limit an employee’s ability to complete any external administrative remedy (such as with the EEOC).” Surely this would stop employees from wrongly interpreting the policy as a restriction on their right to file ULP charges? Not quite, according to the Board.

Yes, employers might salvage an otherwise overbroad arbitration agreement with a “savings clause” stating that employees “retain the right to file charges with the Board, even if the agreement otherwise includes claims arising under the [NLRA] and within its scope.” But the savings language must explicitly inform employees that they retain the right to file charges and to access the processes of administrative agencies (even if “the Board” or “the NLRB” is not named specifically). Brinker’s “savings clause” made a reference to an “administrative remedy,” but it named the Equal Employment Opportunity Commission (“EEOC”) and not the NLRB. This reference to the EEOC, a “competing” federal agency according to the Board, canceled out any benefits that the savings clause might have had to “safeguard employees’ right to file [ULP]” charges. The Board assigned Brinker’s agreement to Boeing “Category #3” (always unlawful) and ordered Brinker to rescind its arbitration agreements.

Brinker is a cautionary tale about the importance of careful, clear, and explicit drafting and misplaced reliance on “savings” clauses. The lesson applies not only to companies with mandatory arbitration agreements, but any company that maintains employee handbooks or other various policies. A “savings clause” can shape the interpretation (and enforceability) of an arbitration agreement or other policies, but employers should not haphazardly or vaguely write them. The savings clause should adequately safeguard employees’ NLRB rights. Sometimes employers do not want to mention in their documents anything that might invite or inspire employees to consider organizing – for example, specific references to “Section 7” or “collective bargaining” rights or the “NLRB” or “unfair labor practices.” However, the Brinker decision reminds employers that if their language remains too vague, then they might invite scrutiny from the NLRB.

*Scott H. DeHart, a member of the firm’s Columbus office, regularly advises clients on labor and employment matters, including issues relating to arbitration agreements and employee handbooks. If you have questions about the NLRB’s Brinker decision or other employment related issues, please contact Scott at shd@zrlaw.com or (614) 224-4411.

In it for the Long Haul: Long COVID and Reasonable Accommodations

By Marcus A. Pringle*

The COVID-19 pandemic continues to present employers with a multitude of practical and legal issues impacting their workforces. One such issue revolves around employees suffering from long-term effects of COVID-19, i.e., Post-Acute COVID-19 Syndrome or “long COVID,” and whether an employer must provide these employees with reasonable accommodations under the Americans with Disabilities Act (“ADA”).

Under the ADA, a covered “disability” includes a physical or mental impairment that substantially limits a major life activity. Employers cannot discriminate against individuals with disabilities and have a duty to reasonably accommodate employees/applicants with disabilities, unless doing so creates an undue hardship. A reasonable accommodation is a change or adjustment to a job or work environment that permits a person with a disability to perform their job. For example, reasonable accommodations can include a modified work schedule or leave, reassignment, or providing/modifying equipment to aid the employee.

According to the Centers for Disease Control and Prevention, individuals suffering from long COVID experience “a wide range of new, returning, or ongoing health problems . . . four or more weeks after first being infected,” including, but not limited to: difficulty breathing or shortness of breath; tiredness or fatigue; worsening symptoms after physical or mental activities; difficulty thinking or concentrating; chest or stomach pain; headaches; and dizziness. Furthermore, COVID-19 can cause long-term damage to organs including the heart, lungs, and brain.

In July, the Department of Health and Human Services (“HHS”) and the Department of Justice (“DOJ”) jointly issued guidance (available here) addressing long COVID as a disability under the ADA and related statutes. The guidance does not address Title I of the ADA, which covers private employers, and states that “employment is outside of the scope of this guidance document.” However, the guidance still provides information on how government agencies and courts may apply the ADA with respect to employees suffering from long COVID.

In the joint guidance, HHS and the DOJ state that long COVID can meet the definition of a disability under the ADA. In making this determination, an individualized assessment is necessary, i.e., whether a particular person’s symptoms substantially limit a major life activity. The guidance provides the following as examples:

  • “A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.”
  • “A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.”
  • “A person with long COVID who experiences memory lapses and ‘brain fog’ is substantially limited in brain function, concentrating, and/or thinking.”

The guidance also advises that individuals suffering from long COVID may be entitled to reasonable accommodations. While it does not address employment-related accommodations, the guidance provides examples in other contexts, including allowing a student additional time to take a test on account of difficulties with concentrating and allowing a service animal to accompany an individual experiencing dizziness.

In light of the HHS/DOJ’s guidance, it is possible that the U.S. Equal Opportunity Commission and courts may take a similar approach with respect to the ADA and long COVID. As such, employers should consider whether long COVID may trigger the ADA’s (and similar state laws’) protections and requirements, including providing employees with reasonable accommodations. As the ADA requires an individualized approach, employers should contact counsel with questions regarding whether an employee with symptoms of long COVID may qualify as disabled and the types of accommodations that they may have to provide.

*Marcus A. Pringle practices in all areas of labor and employment law. For more information about the HHS/DOJ’s long COVID guidance or questions about the ADA and reasonable accommodations in general, please contact Marcus at map@zrlaw.com or (216) 696-4441.

EEOC Releases New Resources on the Workplace Rights of LGBTQ+ Employees

By Jantzen D. Mace*

In June, to honor Pride Month and the anniversary of the U.S. Supreme Court’s ruling in Bostock v. Clayton County, the EEOC released new resources to educate employees, applicants, and employers about the rights of all employees to remain free from sexual orientation and gender identity discrimination in employment. The EEOC released the new resources online which include a new landing page and a new technical assistance document titled: “Protections Against Employment Discrimination Based on Sexual Orientation and Gender Identity.” The EEOC confirmed that these resources rely on previously voted positions adopted by the Commission and do not represent a change in EEOC policy.

The EEOC’s new landing page consolidates information and resources regarding the scope of protections against sexual orientation and gender identity discrimination in the workplace. The page also contains information about harassment, retaliation, and how to file a charge of discrimination with the EEOC. Additional resources include links to EEOC statistics and updated fact sheets about recent EEOC litigation and federal sector decisions regarding sexual orientation and gender identity discrimination.

The technical assistance document, accessible through the new landing page, contains a series of questions and answers which should help the public understand the Bostock decision and the EEOC’s positions on the laws that the agency enforces. The Q&As address issues concerning Title VII coverage of employers, employees, and types of discriminatory actions that may fall under the statute’s protections, as well as issues more closely related to discrimination based on sexual orientation and gender identity.

Employers should take note of the following points raised by the Q&As:
̶ Workplace Attire. Covered employers may not require a transgender employee to dress in accordance with the employee’s sex assigned at birth. Prohibiting an employee from dressing or presenting themselves consistent with that person’s gender identity constitutes sex discrimination.

̶ Bathrooms, Locker Rooms, and Showers. Employers may have separate, sex-segregated bathrooms, locker rooms, and showers for men and women, or may choose to have unisex or single-use bathrooms, locker rooms, and showers. Where an employer has separate bathrooms, locker rooms, or showers for men and women, employers should allow transgender individuals to use the facilities of the gender with which they identify.

̶ Pronouns and Names. The use of pronouns or names that are inconsistent with an individual’s gender identity may amount to harassment, which includes unwelcome conduct that is based on gender identity. To be unlawful, the conduct must be “severe or pervasive” when considered along with all other unwelcome conduct based on the individual’s sex (which includes gender identity), such that the conduct creates a work environment that a reasonable person would consider intimidating, hostile, or offensive. Though accidental misuse of a transgender employee’s preferred name or pronouns does not violate Title VII, intentional and repeated use of that individual’s wrong name or pronouns could contribute to an unlawful hostile work environment.
The new landing page and technical assistance document are part of the EEOC’s effort to ensure that the public can find accessible, plain language materials in a convenient location on the EEOC’s website. “All people, regardless of sexual orientation and gender identity, deserve an opportunity to work in an environment free from harassment or other discrimination,” EEOC Chair Charlotte A. Burrows said. “The new information will make it easier for people to understand their rights and responsibilities related to discrimination based on sexual orientation and gender identity.” They also provide a good resource for employers hoping to address these topics.

The new landing page can be accessed at the following link: https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination.

*Jantzen D. Mace, a member of the firm’s Columbus office, practices in all areas of labor and employment law. For more information about these resources or the rights of LGBTQ+ employees, please contact Jantzen at jdm@zrlaw.com or (614) 224-4411.

Safer Federal Workforce Task Force Issues COVID-19 Workplace Safety Guidance for Federal Contractors and Subcontractors

*By Scott Coghlan

On September 9, 2021, the Biden Administration announced a six-point COVID-19 Action Plan to combat the coronavirus. The Action Plan directed the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) applicable to private employers with 100+ employees that will mandate full vaccinated status or weekly negative COVID-19 tests for such employees. OSHA has not issued the ETS and the Action Plan did not set a deadline for the issuance of the ETS.

On that same date, President Biden issued an Executive Order directing the White House’s Safer Federal Workforce Task Force (Task Force) to issue new guidance (Guidance) regarding vaccination requirements and other COVID-19 safety measures for federal contractors and subcontractors. On September 24, 2021, the Task Force published its COVID-19 safety protocols. The Guidance imposes three primary requirements on federal contractors and subcontractors:
  1. Employees of covered contractors must be fully vaccinated, except for those that are legally entitled to an accommodation;
  2. Covered contractor workplaces must require masks and physical distancing for all employees, visitors and others; and,
  3. Covered contractors must designate a person to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

Which Federal Contracts Are Subject to the Guidance?

The following delineates the contracts or contract-like instruments entered into with the Federal Government subject to the Guidance:
  • For services, construction or a leasehold interest in real property;
  • For services covered by the Service Contract Act;
  • For concessions, including any concessions contract excluded by Department of Labor regulations; or
  • Entered into with the Federal Government in connection with Federal property or land and related to offering services for Federal employees, their dependents or the general public.
The Guidance does not apply to grants, contracts under the Indian Self-Determination and Education Assistance Act, under certain values set forth in the Federal Acquisition Regulation or subcontracts that relate solely to for the provision of products. Notably, the Guidance also does not apply to covered contractor employees who only perform work outside of the United States.

The Executive Order requires that contracts contain a clause that specifies that the contractor or subcontractor shall comply with all guidance for contractor and subcontractor work locations published by the Task Force. The prime contractor must include this clause in contracts with first-tier subcontractors and subcontractors must ensure that the clause exists with lower tier subcontracts.

When Do the Guidance Requirements Go Into Effect?

For contracts awarded before October 15, 2021, the requirements must become part of the contract when an option is exercised or an extension is made. Between October 15 and November 14, 2021, federal agencies must include the requirements in the solicitation documents. From November 14, 2021 forward, the requirements must be made part of any new contract.

Important Definitions

The Guidance has many defined terms, but those of primary importance are:
  • A covered contractor – means “a prime contractor or subcontractor at any tier who is a party to a covered contract.”
  • A covered contractor employee – means “any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace” and “includes employees of covered contractors who are not themselves working on or in connection with a covered contract.” The phrase “in connection with” refers to employees who perform tasks necessary to perform the contract but are not directly engaged in performing the actual work such as human resources and billing personnel.
  • A covered contractor workplace – means “a location controlled by a covered contractor at which any employee of a covered contractor is working on or in connection with a covered contract is likely to be present during the performance for a covered contract” but “does not include a covered contractor employee’s residence.”

The Primary Requirements Imposed on Federal Contractors and Subcontractors

Vaccination

The Guidance requires fully vaccinated covered contractor employees by December 8, 2021 unless they are legally entitled to an accommodation due to a medical condition or sincerely held religious belief, practice or observance. After that date, all such employees must be fully vaccinated by the first day of the performance of a newly awarded covered contract. This includes employees that have already had COVID-19 and employees working remotely from home. The Guidance also provides for an “urgent, mission-critical” exception if a federal agency requires covered contractor employees to commence work before becoming fully vaccinated. In that case, the covered contractor must ensure that the employees are fully vaccinated within 60 days of their beginning work on the contract.

Covered contractors are not required to provide vaccines to their employees nor are they required to pay employees for their time and expense for getting vaccinated (Note: This differs from the forthcoming OSHA ETS which will require employers to provide employees with paid leave to get vaccinated and to recover from vaccine side effects). However, covered contractors must verify each employee’s vaccination status by having the employee show or provide one of the following documents (a digital copy such as PDF, digital photograph or scanned image is acceptable):
  • A copy of the immunization record from a health care provider or pharmacy
  • A copy of the COVID-19 Vaccination Record Card
  • A copy of medical records documenting the vaccination
  • A copy of immunization records from a public health or State immunization information system or
  • A copy of any other official documentation verifying vaccination that states the vaccine name, date(s) of administration of the vaccine and the name of the health care professional or clinic site that administered the vaccine

Mask and Social Distancing Requirements

Covered contractors must ensure that all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing at covered contractor workplaces. In areas of high or substantial community transmission, even fully vaccinated persons must mask indoors. In areas of low or moderate community transmission, fully vaccinated persons do not need to mask indoors. Regardless of transmission levels, fully vaccinated persons do not have to physically distance.

Consistent with CDC guidelines, covered contractors may provide exceptions to masking and/or physically distancing if an individual is alone in an enclosed office or while eating or drinking, if physical distancing is maintained. Similarly, if a workplace risk assessment determines that wearing a mask would create a safety risk, an exception to masking is permitted. Exceptions must be approved in writing by the person designated by the contractor to ensure compliance with the Guidance.

Covered contractors are required to check the CDC COVID-19 Data Tracker County View website at least weekly to determine the level of community transmission in all areas where they have a covered contractor workplace in order to determine the appropriate safety protocols. When the community transmission level rises from low or moderate to substantial or high, the contractor is instructed to put it place more protective safety protocols consistent with CDC guidelines. However, when the community transmission level is reduced from high or substantial to moderate or low, the level must remain at the lower level for at least two weeks before a contractor may implement safety protocols recommended for the lower community transmission rate.

Designation of a Person to Coordinate COVID-19 Safety Efforts

Covered contractors must designate one or more persons to ensure compliance with the Guidance and its workplace safety protocols. The designated persons must provide information on required COVID-19 safety protocols to covered contractor employees and all other individuals at a covered contractor workplace. Communication of these safety protocols may occur by email, websites, signage or other means in a readily understandable manner.

What About Work From Home Employees?

Individuals authorized to work from home under the covered contract must comply with the vaccination mandate. This is true even if the employee never works at a covered contractor workplace or Federal workplace during the performance of the contract. However, residences are not considered covered contractor workplaces so work from home employees do not have to comply with masking and physical distancing while in their residence.

Will Federal Contractors Have to Comply with OSHA’s Forthcoming ETS?

Yes. Covered contractors will need to comply with other workplace safety standards, including OSHA’s forthcoming ETS for employers with 100 or more employees.

What Should Employers Do Now?

Employers should consider taking the following steps now in order to follow the new Guidance:
  • Review existing contracts or current bids for solicitation to see if the Guidance applies to your contract, workplace and employees
  • Designate a company representative to implement the Guidance
  • Create a plan to obtain employee vaccination verification
  • Develop a protocol to ensure weekly review of the CDC COVID-19 Data Tracker County View and the manner in which updated transmission levels and safety protocols will be communicated to employees, visitors, vendors or others that are likely to be present at a covered employer workplace
  • Determine how medical and religious based vaccination and mask requirements accommodation requests will be processed and what accommodations are available
  • Ensure that you are prepared to amend existing contracts with lower tier subcontractors to include the mandatory clause requiring compliance with all guidance published by the Task Force

*Scott Coghlan chairs the firm’s Workers’ Compensation Group and regularly advises clients on all workers’ compensation and OSHA related matters. If you have a question about the Ohio BWC’s or OSHA’s response to COVID-19 or any other workers’ compensation or OSHA related questions, please contact Scott at sc@zrlaw.com or (216) 696-4441.

Z&R Shorts

Please join Z&R in welcoming Sarah Moore and Marcus Pringle to its Employment and Labor Groups


Sarah Moore has served both public and private sectors for over 25 years regarding labor and employment matters. Sarah has utilized traditional, modified, and IBB bargaining models in negotiations with unions that include AAUP, AFSCME, Cleveland Building Trades, CWA, IAFF, IBEW, FOP, NCF&O, OAPSE, OEA/NEA, OFT/AFT, OPBA, Laborers, SEIU, Steelworkers, Teamsters, and UAW. She regularly supports management with contract administration and handles arbitrations and factfinding proceedings. Sarah also litigates labor issues before state and federal courts (including injunctions and mandamus actions) and administrative agencies (ULPs and representation matters). Sarah advocates on employment matters in state and federal courts, including issues of benefits and pay, discrimination, harassment, restrictive covenants, as well as constitutional and contract-based claims. She has also litigated workers’ compensation appeals, negligence, and special education cases.

Marcus Pringle's practice encompasses all areas of employment and labor law. Marcus has experience defending against charges of discrimination and retaliation, sexual harassment, unfair labor practices, and workers’ compensation matters. Marcus earned his law degree from Cleveland-Marshall College of Law, where he was the Director of Operations for the Entertainment and Sports Law Association, Executive Assistant for the Great Lakes Sports and Entertainment Law Academy, and member of the Trial Advocacy Team. Marcus earned his B.S. in Broadcast Journalism from the Pennsylvania State University and is a graduate of Hudson High School.

Upcoming Speaking Engagements


October 14, 2021
Stephen Zashin presents “Trade Secret Boom: Key Trends in Non-Compete and Trade Secret Cases” with Justin Flamm at the Ohio State Bar Association’s 58th Annual Midwest Labor and Employment Law Seminar in Columbus, Ohio. Information regarding day one of the OSBA’s Midwest Seminar can be found here.

October 15, 2021
Sarah Moore presents “Technology Changing the Labor Law Practice: Negotiations, Mediations and Arbitrations” with Paul Unger, Daniel Zeiser, and R. Jessup Gage at the Ohio State Bar Association’s 58th Annual Midwest Labor and Employment Law Seminar in Columbus, Ohio. Information regarding day two of the OSBA’s Midwest Seminar can be found here.

Tuesday, September 21, 2021

OSHA To Issue Emergency Temporary Standard Requiring Employers to Ensure Employees Are Vaccinated Or Tested Weekly

*By Scott Coghlan

On September 9, 2021, the Biden Administration announced a six-point Covid-19 Action Plan that includes measures to vaccinate the unvaccinated to combat the coronavirus. Garnering the most attention, is the administration’s directive to the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) applicable to private employers with 100 or more employees. The ETS will likely impact 80 to 100 million workers. The Action Plan requires that employers mandate vaccines or require a weekly negative Covid-19 test. Employers also must provide workers paid time off to get vaccinated and recover from vaccine side effects. The Action Plan contained few specifics, and many questions remain unanswered.

Which Employers Does the ETS Cover?

Based on the Administration’s Action Plan, the ETS will cover all private businesses with 100 or more employees. OSHA exempts public employees from coverage. In Ohio, public employers must comply with the Ohio Public Employment Risk Reduction Act (PERRP) which is part of the Ohio Bureau of Workers’ Compensation. PERRP typically adopts OSHA regulations.

It is not known whether OSHA will count the number of employees at an individual work location or on a company-wide basis to reach the 100+ employee threshold. For traditional workplace safety and health regulations, OSHA typically uses a company-wide approach. However, policy considerations may drive the manner in which employers must count their employees. Due to concern about Covid-19 outbreaks in work locations with large numbers of people in close proximity, OSHA could utilize a location-based calculation. Alternatively, OSHA may adopt a company-wide calculation.

When Will OSHA Publish the ETS, When Will It Take Effect And How Long Will It Last?

The Action Plan did not set a deadline for OSHA to publish the ETS. For comparisons sake, on January 21, 2021, the Administration issued an executive order directing OSHA to develop an ETS to protect healthcare workers from contracting the coronavirus. Nearly six months later, on June 10, 2021, OSHA published its Covid-19 Healthcare ETS. However, the Covid-19 Healthcare ETS was very comprehensive covering many topics, including personal protective equipment, engineering controls to reduce to risk of contracting the coronavirus, employee training and health screening. OSHA’s directive to develop the private employer ETS appears more focused in its application and we expect publication in a shorter time period.

The ETS will become effective immediately upon publication in the Federal Register. However, OSHA will likely provide employers with forty-five to ninety days to comply with the temporary standard before OSHA will begin enforcing its provisions. Most vaccines require two-doses. As a result, OSHA will likely delay enforcement to allow for this two-dose regimen.

To enact an ETS, OSHA must demonstrate that workers are in grave danger due to exposure to toxic substances, a physical harm or to a new hazard such that an emergency standard is necessary to protect them. An ETS can remain in place for six months unless it becomes a permanent OSHA standard following a formal rulemaking process and public comment period.

How Much Paid Leave Will Employees Receive To Get Vaccinated And Who Pays For Testing?

The Action Plan states that EFT developed by OSHA will require employers with 100+ employees “to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination.” The Action Plan does not state the amount of paid time-off employers must provide.

The Action Plan also does not indicate who must pay for the weekly Covid-19 testing (the employer or the employee). The Action Plan states that the ETS will require “any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.” Thus, it appears that the burden of production will fall on the employee. The Action Plan also announced that large retailers that sell at-home, rapid Covid-19 tests, such as Walmart, Amazon and Kroger, will sell the test kits at-cost for the next three months. The temporarily reduced test costs may signal that employees will bear the cost of testing. In contrast, OSHA historically requires employers to incur the cost of traditional workplace safety and health measures.

Will Exemptions Exist Under The ETS?

We expect that the ETS will provide for exemptions based on medical conditions or sincerely held religious beliefs. The Action Plan gives no indication that it will provide for other exemptions beyond those required by Title VII and the ADA.

What Should Employers Do Now?

Although many of the detailed requirements of the ETS remain unknown, employers should begin considering how to comply with the general vaccination or testing mandate set forth in the Action Plan, including:

  • 100+ employee threshold: Employers should calculate the number of current workers employed company-wide and at each individual location, including full-time, part-time, temporary, seasonal and remote employees.
  • Documenting employee vaccination status: Employers should consider how they will account for employee vaccine status. The EEOC has indicated that employers can request documentation or other confirmation of Covid-19 vaccination status. However, like all medical information, employers must keep that information confidential and store it separately from employee personnel files.
  • Tracking Test Results: If vaccination is not a condition of employment, employers will have to create a procedure to track the weekly Covid-19 tests for its unvaccinated employees.
  • Responding to requests for medical and religious exemptions: Employers should base medical exemptions on objective medical documentation, keep them confidential, and store that information separately from employee personnel files. Religious exemption requests will prove more difficult to ascertain. Employers generally have no reason to inquire into the religious beliefs of its employees. An employee must base a religious exemption request on a sincerely held religious belief rather than a personal philosophy or objection to vaccination. We recommend legal consultation on religious exemption requests if decision makers are not well versed in this area. Considerations for accommodating these workers include mandatory mask wearing, physical distancing, remote work, etc.
  • OSHA inspections: OSHA performs on-site inspections and “phone/fax” investigations. The later occurs when the agency contacts the employer, describes the safety or health complaint and requests documentation of compliance with the standard, problems found and/or corrective actions taken. Although the ETS enforcement guidelines remain unknown, employers should preparation for inspections. Employers should identify the company representative that will take part in any inspection related to the ETS and review injury and illness logs (OSHA 300, 301 and 300A) for accuracy and to ensure completed hazard assessments readily available for review by the investigator.
*Scott Coghlan, chairs the firm’s Workers’ Compensation Group and regularly advises clients on all workers’ compensation and OSHA related matters. If you have a question about the Ohio BWC’s or OSHA’s response to Covid-19 or any other workers’ compensation or OSHA related questions, please contact Scott at sc@zrlaw.com or (216) 696-4441.

Thursday, September 9, 2021

President Biden Issues COVID-19 Plan, Which Includes Employer Mandates for Vaccines/Testing

By By George S. Crisci*

In a speech delivered late this afternoon, President Biden issued his six-part plan for addressing the persistent and rising number of COVID-19 cases throughout the country. This plan includes mandates for certain employers to vaccinate employees or require regular testing. Some of the specifics include:
  • a new Emergency Temporary Standard drafted by the Department of Labor’s Occupational Safety and Health Administration, requiring all businesses with 100 or more employees to ensure all their workers are either vaccinated or tested weekly and produce a negative test result before coming to work, with the prospect of thousands of dollars in fines per employee for failing to do comply, and further requiring that employers provide paid time off to employees to be vaccinated;
  • a requirement that health care facilities receiving Medicare and Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, must vaccinate their employees;
  • extending the vaccination requirement for nursing facilities to include nursing home staff, staff in hospitals and other Medicare/Medicaid-regulated settings, clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient resident, or client care;
  • an executive order requiring all federal government employees be vaccinated against COVID-19, with no option of being regularly tested to opt out, or risk termination of employment;
  • an executive order directing the same standard be extended to employees of contractors who do business with the federal government;
  • and asking entertainment venues, such as sports arenas, large concert halls, and other venues where large groups of people gather, to require vaccination or a negative test for entry. These requirements will cover approximately 100-million employees, or two-thirds of all workers in the United States.
Further details regarding these requirements will be provided as soon as they become available. Employers are strongly encouraged to consult with legal counsel as this entire process unfolds.

*George Crisci is a member of Z&R’s Labor and Employment Group. If you have questions, contact George (gsc@zrlaw.com) or any member of the Z&R Labor and Employment Group at (216) 696-4441.

Tuesday, June 22, 2021

Employer Considerations for the Juneteenth Holiday

By Jonathan J. Downes and George S. Crisci*

Last week, Congress, President Biden, and Governor DeWine declared June 19th (often referred to by the portmanteau “Juneteenth”) as an officially recognized holiday.

Juneteenth commemorates the end of slavery in the United States. The holiday originates from the events of June 19, 1865, when Gordon Granger, a Union general, arrived in Galveston, Texas and announced that the Civil War had ended and that the enslaved African-Americans were free. Granger’s announcement put into full effect the Emancipation Proclamation, which President Abraham Lincoln issued more than two and a half years earlier on January 1, 1863.

How should employers respond to the federal and state recognition of Juneteenth, especially in light of the last-minute nature of these announcements?

For private sector employers, these changes do not constitute a binding mandate. Such private sector employers should consider whether to include Juneteenth in the list of recognized holidays in their company policies, handbooks, and/or collective bargaining agreements. Such employers should also review the existing language of their holiday leave policies and applicable collective bargaining agreements to determine whether they have already incorporated federal or state recognized holidays (which would now include Juneteenth).

For public sector employers without unionized employees, the same considerations would generally apply, subject to statutory provisions that establish paid holidays for employees (such as the civil service laws or statutes regulating cities, villages and counties). However, the last-minute nature of these announcements may create some confusion – at least, for 2021. For public sector employers with collective bargaining agreements, such employers should also review the existing language of their applicable collective bargaining agreements to determine whether they have already incorporated federal or state recognized holidays (which would now include Juneteenth).

Ohio Revised Code References for Public Sector Employers

Under Ohio’s civil service laws, specifically R.C. § 124.19, state holidays include several specific dates along with “any day appointed and recommended by the governor of this state or the president of the United States.” R.C. § 124.18(B)(1) requires that, “[a]n employee, whose salary or wage is paid in whole or in part by the state, shall be paid for the holidays declared in section 124.19 of the Revised Code and shall not be required to work on those holidays, unless, in the opinion of the employee’s responsible administrative authority, failure to work on those holidays would impair the public service.”

For county employees, employers may not charge against a county employee’s vacation leave days defined as holidays under R.C. § 124.19 See R.C. 325.19(C). However, that statute (at present) omits Juneteenth as a specifically enumerated holiday. See R.C. 325.19(D)(1).

For municipal employees (cities and villages), the provisions of R.C. § 124.19 do not apply, and cities may establish their own holidays by local ordinance. City officials should consult their existing ordinances, policies, and handbooks to determine whether they have incorporated any of the holiday lists (such as the “any day” language found in R.C. § 124.19) into their policies, which may trigger an obligation to recognize Juneteenth in 2021 or subsequent years. Similarly, Townships may designate holidays for their employees, but should consult the existing language to determine whether it would automatically include recognition of Juneteenth.

In addition, public employers should carefully review their policy manuals or handbooks for references to holidays outside of those listed in the Ohio Revised Code or ordinance.

Union Collective Bargaining Agreements in Public and Private Sectors

Some collective bargaining agreements (“CBA”) have general language in their contract which provides for any holiday established by Act of Congress or the Ohio General Assembly or declared by the President or the Governor. If the employer’s CBA has the same or substantially similar language, the Juneteenth holiday likely applies –even in 2021. Employers will need to negotiate how to address the observance of Juneteenth for 2021, as the actual date of the holiday passed before employers could implement the new holiday.

Absent such language (e.g., the CBA just lists the observed holidays and contains no language that could expand the list during the term of the CBA), employers can argue that they do not have to permit– and cannot unilaterally provide the new holiday. This is because the new holiday constitutes a change in working conditions that the employer and union must negotiate.

Regardless of the employment setting, employers might want to consider two alternatives for observing Juneteenth during 2021:
  1. Give employees an extra vacation day this year; or
  2. Establish a holiday this year or early next year, possibly appending the day to an existing holiday, such as:
  • the Friday before the Independence Day holiday weekend (July 4 falling on a Sunday and Monday as the observed holiday),
  • the Friday before the Labor Day weekend,
  • the day before or after Thanksgiving (depending upon whether the employer observes the day after Thanksgiving as a holiday),
  • the day before Christmas Eve (Christmas occurring on a Saturday, making Christmas Even the observed holiday),
  • the day before New Year’s Eve or New Year’s Eve (depending upon whether the employer observes New Year’s Eve as a holiday),
  • the Friday before the MLK holiday weekend or MLK Day (depending upon whether the employer observes MLK Day as a holiday),
  • the Friday before the President’s Day holiday weekend or President’s Day (same rationale as MLK Day), or
  • the day before Good Friday, Good Friday or the day after Easter Sunday.
Employers could designate these extra holiday options as a ‘late’ observance of Juneteenth for 2021.

Conclusion

Employers have many options relative to this holiday. These options depend on the type of employer, relevant laws and ordinances, the employer’s policy manual, or the existence of a CBA. Given that both state and federal governments have recognized Juneteenth as an official holiday, employers should consider how and when to implement policies and answer employee questions regarding the Juneteenth holiday moving forward.

*For more information about implementation of Juneteenth, employer policies generally or collective bargaining issues, please contact George S. Crisci (gsc@zrlaw.com) at 216-696-4441 or Jonathan J. Downes (jjd@zrlaw.com) at 614-224-4411.

Thursday, May 27, 2021

EMPLOYMENT LAW QUARTERLY | Volume XXIII, Issue i

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Breathe Easy: With Vaccinations on the Rise, Ohio Rescinds COVID-19 Health Orders on June 2nd

By Scott H. Dehart*

On May 12th, Governor DeWine announced that, effective June 2nd, Ohio will rescind the majority of its COVID-19 health orders. Accordingly, with limited exceptions, Ohio will no longer mandate the use of masks and social distancing, nor impose COVID-related capacity restrictions. Despite the State lifting its orders, businesses still may voluntarily continue to require mitigation measures. As Governor DeWine explained, “[l]ifting these health orders will not prevent a business from imposing its own requirements. In fact, based upon the experiences of other states, we expect that many stores or businesses may require social distancing and masking.”

Following Governor DeWine’s announcement, the Centers for Disease Control and Prevention (“CDC”) issued interim recommendations on May 13th (available here) stating that, in non-healthcare settings, fully vaccinated people can resume activities without wearing masks or social distancing. In response, Governor DeWine instructed the Director of Ohio’s Department of Health to amend existing orders in accordance with the CDC’s guidance. That amended order (available here) provides, among other things, that fully vaccinated people are no longer required to wear masks with limited exceptions, e.g. public transportation, and can resume activities without social distancing.

Ohio’s lifting of its COVID-19 health orders is a promising sign that the worst of the pandemic is behind us. However, Ohio employers now must decide what mitigation measures, if any, they wish to maintain. This presents a challenging decision, and employers should consider consulting with counsel on effective approaches for revising and communicating changes to their COVID-19 policies and procedures.

*Scott H. Dehart, a member of the firm’s Columbus office, practices in all areas of labor and employment law. If you have questions about Ohio’s pandemic health orders or the impact of COVID-19 on your workplace, please contact Scott at shd@zrlaw.com or (614) 224-4411.



Coming Soon: Covered Employers Must File EEO-1 Component 1 Reports by July 19, 2021

By Tiffany S. Henderson*

The Equal Employment Opportunity Commission (“EEOC”) collects annual workforce demographic information from covered employers. However, due to the pandemic, the EEOC did not collect data last year. On March 19, 2021, the EEOC announced it was accepting EEO-1 Component 1 Reports (“EEO-1”) and that covered employers must file their 2019 and 2020 data by July 19, 2021.

What is an EEO-1? 

The EEO-1 is an annual report the EEOC requires covered employers to file that includes demographic data for employees sorted by job category, ethnicity, race, and gender. Title VII of the Civil Rights Act of 1964 requires the filing. Last year was the first time the EEOC did not require covered employers to file a report. 

Which Employers Are Covered? 

The EEOC requires private employers with at least 100 employees to file an EEO-1. In addition, federal contractors with more than 50 employees that are not exempt under 41 CFR 60-1.5 must file an EEO-1.  

How Long Will Employers Have to File an EEO-1? 

The EEOC is accepting EEO-1s now, and employers must file their EEO-1s by July 19, 2021. This year’s EEO-1 filing period differs from years past, as the EEOC usually only allows employers 10 weeks to file. However, the EEOC recognized the COVID-19 pandemic’s impact on the workforce and extended the deadline by two weeks to ensure employers have time to provide accurate and reliable data.

How do Employers File? 

Covered employers should visit the EEOC’s EEO-1 website which can be accessed here. Prior to filing, employers should have received 2019 and 2020 EEO-1 notification letters via U.S. mail that should have contained the “Company ID” and “Passcode” employers need to create user accounts.

Employers can file an EEO-1 either: (1) by entering the data into a secure form available at https://eeocdata.org/eeo1/signin; or (2) by uploading a data file using an EEOC-approved format available at https://eeocdata.org/eeo1.

Employers should be aware that they must file an EEO-1 for each year they were in business and met the filing requirement. Due to the pandemic, this year’s collection includes 2019 and 2020 data. Covered employers must file two EEO-1 reports beginning with 2019. The EEOC will certify the 2019 report and then employers can file their 2020 report.

Employers that have not received notification letters or that have questions about filing an EEO-1, including eligibility, should contact counsel or visit EEO-1 Help for more information.

*Tiffany S. Henderson practices in all areas of labor and employment law. If you have questions about the EEO-1 or any employment law questions, please contact Tiffany at tsh@zrlaw.com or (216) 696-4441.



Zip It: NLRB Provides Guidance on Confidential Investigations

By Jantzen D. Mace*

Maintaining confidentiality during a workplace investigation may seem like a common-sense practice to help ensure the integrity of the investigation. Yet, directing employees to do so can give rise to allegations of interference with employee rights under the National Labor Relations Act (“NLRA”). Fortunately, in a recent decision, the National Labor Relations Board (“NLRB”) reinforced employers’ ability to issue reasonable directives to employees on maintaining confidentiality during workplace investigations.

In Alcoa Corp., 370 NLRB No. 107 (2021), an employer received reports that one of its employees made racially offensive comments and engaged in other disrespectful behavior. The employer began an investigation which included interviewing employees. During those interviews, a representative for the employer told each employee “to keep in mind that their interview conversation was confidential, to keep the conversation confidential, including from supervisors and other employees, and to decline to answer if others asked about the conversation.”

Based on the results of the investigation, the employer terminated the employee who made the offensive comments. The union representing the employee subsequently filed an unfair labor practice charge alleging, among other things, that the employer violated the NLRA by instructing employees to keep their interviews confidential.

Initially, an Administrative Law Judge (“ALJ”) found in favor of the union. As to the confidentiality directives, the ALJ held the employer unlawfully interfered with employees’ “right to discuss a workplace disciplinary matter.” The ALJ emphasized that the employer did not expressly advise the employees that they could discuss the interviews once the investigation ended. The employer appealed the ALJ’s decision to the NLRB.

In its decision, the NLRB reversed the ALJ and held the employer’s confidentiality directives were lawful. The NLRB relied on its recent decision in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), which overruled prior holdings prohibiting employers from restricting discussion of ongoing investigations unless they could make “a particularized showing of a substantial and legitimate business justification.” Instead, the NLRB held that investigative confidentiality rules, that by their terms apply only for the duration of any investigation, are categorically lawful.

In support of its finding, the NLRB noted that no evidence or allegation existed that: (1) the employer’s directives were given pursuant to a general company policy or rule; (2) the directives applied to anyone other than the employees interviewed during the investigation; or (3) the directives prevented those employees, or any other employees, from discussing the events giving rise to the investigation. Notably, the NLRB disagreed with the ALJ’s conclusion that the employer had to provide an express statement that employees could talk with others about the interviews once the investigation ended. Under the circumstances, the NLRB found that the employees would have reasonably understood that the confidentiality instruction lasted only through the duration of the investigation.

The NLRB’s decision in Alcoa Corp. reinforces employers’ ability to provide reasonable confidentiality directives to employees that interviewed as part of an internal investigation. In doing so, employers should not restrict employees’ ability to discuss the events giving rise to the investigation, or their ability to discuss the interviews once the investigation has ended. When conducting workplace investigations, employers should consider consulting legal counsel for advice on conducting them effectively while avoiding potential claims by employees or their unions.

*Jantzen D. Mace, a member of the firm’s Columbus office, practices in all areas of labor and employment law. For more information about workplace investigation issues, please contact Jantzen at jdm@zrlaw.com or (614) 224-4411.



To Pay or Not to Pay: DOL’s Opinion On Employee Travel and Training Time

By Lauren M. Drabic*

The Department of Labor’s Wage and Hour Division (“WHD”), recently issued two opinion letters interpreting the Fair Labor Standards Act’s (“FLSA”) compensation requirements for work-related travel and voluntary training hours. Specifically, the WHD examined three work-related travel scenarios for a construction company’s non-exempt foremen and laborers, and six voluntary training or continuing education scenarios for a hospice care provider’s non-exempt employee. This article summarizes the WHD’s opinion letters to help employers gain a better understanding of their FLSA obligations in comparable scenarios.

Work-Related Travel 

In its recent opinion letter, the WHD addressed the following scenarios:

  1. Local Job Site: The foremen of a construction company must first retrieve a company truck from the employer’s principal place of business, drive it to a local job site, and then return the truck at the end of the day.

  2. Remote Job Site (1.5 – 4 hours of travel time): The employer pays for hotel accommodations and per-diem meal stipends for employees working at the job site. Each foreman retrieves a company truck from the employer’s principal place of business at the beginning of the job, drives it to the job site, and returns it at the end of the job. Laborers can drive their personal vehicles to and from the job site at the beginning and end of the job; or they can drive their personal vehicles to the principal place of business and ride to and from the job site with the foremen.

  3. Remote Job Site (1.5 – 4 hours of travel time): Same facts of the second scenario except the laborers choose to travel to and from the job site each day instead of staying at the hotel.
Generally, the FLSA requires employers to compensate employees for time suffered or permitted to work. Under the FLSA, travel time between home and work, typically, is not compensable. However, time spent traveling between an employer-designated reporting place to a separate work location could fall within the definition of compensable working hours. In Integrity Staffing Solution, Inc. v. Busk, the Supreme Court clarified employer FLSA obligations for preliminary and postliminary travel requirements. According to Busk, employees’ preliminary or postliminary travel is not compensable simply because the employer requires it. The U.S. Supreme Court stated that travel time is compensable if the purpose of the travel is “integral and indispensable to the [employee’s] principal activities,” meaning the activity must be:
1) “an intrinsic element” of the employee’s principal activities; and

2) one the employee “cannot dispense [with] if he is to perform his principal activities.”

Integrity Staffing Solution, Inc. v. Busk, 135 S. Ct. 513, 518-19 (2014).

The WHD concluded that in each of the three scenarios, the foremen’s travel time to and from the employer’s principal place of business with the company truck is both integral and indispensable to their principal activities because (1) the employer mandates the pickup and return of the company truck as part of the foremen’s job responsibilities; and (2) the principal activities at the construction site require the company truck. Accordingly, the foremen’s travel time in the company truck to and from the employer’s principal place of business is compensable travel time under the FLSA regardless of jobsite location. 

Employer compensation requirements under the FLSA for employee travel time to remote job sites in another city depend on when and how employees travel. If an employee’s travel time is for a special one-day assignment, then the travel is compensable worktime. In these situations, the FLSA permits employers to account for the actual travel time or the average commute time that the employee would have used to travel to their usual work site and deduct it from the compensable travel time. Similarly, if an employer offers transportation but the employee chooses to utilize their own transportation, the employer can calculate compensable travel time with either (1) the amount of time the employee spent traveling; or (2) the amount of time that would have accrued using the employer’s offered transportation. If the travel keeps an employee away from home overnight, then travel that occurs during the employee’s normal working hours, even during typical nonwork days, is compensable work time because the travel is in place of the employee’s normal duties. On the other hand, travel that occurs after the employer relieves the employee for long enough “to use the time effectively for [the employee’s] own purposes” is not compensable, even if the employee uses the time to travel to an employer-provided lodging accommodation or to the employee’s home multiple hours away. 29 C.F.R. § 785.16(a).

Applying these principles to the second scenario, the WHD concluded that the laborer’s travel time to a remote jobsite is not compensable under the FLSA, unless the travel occurs during the laborer’s normal working hours. Further, the FLSA considers the travel time occurring between the jobsite and the hotel at the beginning or the end of the workday as part of the everyday commute, which is not compensable travel time. Additionally, since laborers have the option to travel to and from the job site with the foremen, the employer may choose to calculate the laborer’s compensable travel time using either the time that would have accrued if the laborer rode with the foremen or the laborers actual compensable travel time.

The WHD reached the same conclusion for the laborer’s travel time in the third scenario. When a laborer chooses to forego the hotel accommodation and drive between the remote job site and their home each day, the laborer is traveling during their personal time after the employer has relieved the laborer for the day. Therefore, the laborer’s travel time is not compensable under the FLSA.

Voluntary Training Time 

The WHD, in its recently issued opinion letter, states that according to the FLSA, employee “attendance at lectures, meetings, training programs and similar activities” is not compensable working time if it meets all four of the following criteria:

(a) Attendance is outside of the employee’s regular working hours;

(b) Attendance is voluntary;

(c) The course, lecture, or meeting does not directly relate to the employee’s job; and

(d) The employee does not perform any productive work during such attendance.

29 C.F.R. 987 § 785.27. Generally, training time that fails to meet any one of the above four criteria is compensable work time. However, the WHD recognizes two “special situation” exceptions to this general rule even when the training directly relates to the employee’s job. If an employee attends (1) a course offered by an independent bona fide institution of learning related to the employee’s job; or (2) an independent school, college or independent trade school to take courses related to the employee’s job, that time is not compensable for FLSA purposes so long as the other three criteria apply. If an employer mandates training, if the training (voluntary or not) occurs during regular working hours, or the employee performs productive work for the employee’s job duties during the training, then the training is compensable as work time. Employers may, however, establish policies prohibiting employees from participating in training courses during regular working hours.

In each of the following scenarios, the WHD assumed that employee attendance was voluntary, and that the employee did not perform any productive work. 

Scenario 1: A nurse participates in an on-demand webinar after working hours that directly relates to the nurse’s job and counts towards professional licensing requirements. The WHD concluded that this scenario is exempt as a special situation for a course offered by an independent bona fide institution of learning related to the employee’s job. Thus, the voluntary training time is not compensable. The WHD also noted that the special exception applies regardless of whether the course is offered by the employer or by a third party.

Scenario 2: An accounting clerk participates in an on-demand webinar after working hours that directly relates to the clerk’s job but has no continuing education component. The WHD stated that it did not have sufficient facts to issue an opinion because it could not determine whether an independent bona fide institution offered the training course. If an independent bona fide institution of learning offered the training course, the employee’s time is exempt as a special situation. Otherwise, the training is compensable for FLSA purposes.

Scenario 3: An accounting clerk participates in an on-demand webinar during working hours that directly relates to the clerk’s job but has no continuing education component. The WHD concluded this is compensable training time because the training takes place during working hours.

Scenario 4: An accounting clerk participates in an on-demand webinar during working hours that does not directly relate to the clerk’s job and has no continuing education component. The WHD concluded this is compensable training time because the training takes place during working hours.

Scenario 5: A nurse participates in an on-demand webinar during working hours that directly relates to the nurse’s job and counts toward professional licensing requirements. The WHD concluded this is compensable training time because the training takes place during working hours.

Scenario 6: A nurse participates in an out-of-state weekend conference that has some topics relating directly to the nurse’s job and professional licensing requirements and some topics that don’t. Travel time to the conference occurs during some of the nurse’s normal work hours, but the conference occurs outside of the nurse’s normal work schedule. The WHD concluded that the training time is exempt as a special situation and not compensable time. Additionally, the WHD stated that since the conference is not compensable work hours, travel to and from the conference is personal non-compensable travel time. 

While the above referenced opinion letters provide some helpful interpretation of employer requirements, they are not the law. If you have questions about your obligations, please contact counsel, as even small FLSA compliance errors can create significant liability.

*Lauren M. Drabic regularly advises clients on labor and employment matters, including FLSA compliance. If you have questions about wage and hour issues, please contact Lauren at lmd@zrlaw.com or (216) 696-4441.



Z&R SHORTS

Please join Z&R in congratulating Jzinae N. Jackson

Z&R is proud to congratulate Jzinae N. Jackson, a Stokes Scholar Alumni, on joining the Cleveland Metropolitan Bar Association’s Louis Stokes Scholars Advisory Committee, which is committed to expanding diversity in the legal profession. To learn more about the Stokes Scholars Program and to read a recent feature on Jzinae by Court News Ohio, please click here.

Upcoming Speaking Engagements

June 2, 2021
Ryan C. Spitzer presents “CBD Products, Hemp and Employee Positive Drug Tests” for the Ohio Municipal Attorneys Association. Registration information for this webinar can be found via the following link: https://www.anymeeting.com/AccountManager/RegEv.aspx?PIID=E053DC80824F3E  

June 26, 2021
Jonathan J. Downes presents “Budgets, Revenues, Expenditures – Oh My!” at the 2021 Ohio Prosecuting Attorneys Association Summer Workshop. Information regarding the OPAA Summer Workshop can be found via the following link: http://www.ohiopa.org/training/summer2021.html  

September 14, 2021
Jonathan J. Downes presents “Bargaining for Results: Achieving Agreement while Maintaining Flexibility for Management” for the Ohio Association of Chiefs of Police in Hilliard, Ohio. Information regarding this full-day workshop can be found via the following link: https://oacp.org/bargaining-results2021/

Monday, February 15, 2021

Z&R OrangePaper

COVID vax conundrum: to mandate, to implore, to ignore?

Considerations for employers contemplating employee vaccination

By Helena Oroz*

In the scheme of things, it’s not surprising that the issues presented by mandatory vaccination continue to evolve. As COVID-19 vaccines become more widely available to the public, employers understandably want to know: should we require employees to get vaccinated for COVID-19?

The best question for employers, both public and private, is not a new one: what’s right for our organization right now? What’s new are the many considerations, some developing in real time, that employers must consider to answer that question.

CAN WE MANDATE VACCINATIONS FOR OUR EMPLOYEES?

The short answer.

Right now, employers, both public and private, can legally mandate COVID-19 vaccination for their employees as a condition of employment. However, all employers must understand the applicable limitations set forth in state and federal law. How employers choose to mandate vaccination will make a big difference in terms of which laws are implicated. Also, employers should be mindful of the potential need to bargain for a mandatory vaccination policy where a collective bargaining agreement exists.

The longer answer.

EEOC Guidance. The U.S. Equal Employment Opportunity Commission (“EEOC”) has issued pandemic-related guidance since October 2009, during the spread of the H1N1 virus.[i] While the EEOC doesn’t endorse employer-mandated vaccination policies, it doesn’t prohibit them either. The EEOC’s guidance, past and present, focuses on the limits that federal nondiscrimination laws place on such policies. Under the Americans with Disabilities Act (“ADA”), an employee may be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation for a disability. Under Title VII of the Civil Rights Act (“Title VII”), an employee may be entitled to an exemption for a sincerely held religious belief that prevents the employee from taking the vaccine. The EEOC has long recommended that employers encourage, rather than compel employees to get vaccinated.

When the EEOC updated its pandemic guidance in March 2020 to address COVID, it definitively stated that COVID-19 is a direct threat under the ADA. This was an important development for employers because the direct threat analysis informs so much of what the EEOC deems permissible in the context of the pandemic, from screening employees for COVID symptoms to testing them for the virus. The updated pandemic guidance also gave employers something of a safe harbor by stating that EEO laws, while still applicable during the COVID-19 pandemic, do not interfere with or prevent employers from following guidelines from the Centers for Disease Control and Prevention (“CDC”) and other public health authorities.

The EEOC issued new COVID technical assistance in March 2020 that it updated in December 2020 to address vaccines.[ii] The EEOC echoed its previous guidance and explained in more detail the limits that federal non-discrimination laws place on employer vaccine mandates. Employers considering vaccine mandates should review this guidance in detail, but here are the high notes:

  • Vaccination itself is not a “medical examination” under the ADA, but pre-vaccination screening questions may be. The ADA restricts medical information that an employer may obtain from an employee to that which is “job related and consistent with business necessity.” If an employer requires an employee to receive a COVID vaccination from the employer and asks screening questions, which may elicit information about whether an employee has a disability, those questions are subject to that standard. If an employee receives vaccination from an unrelated third party (e.g., a pharmacy), this is not an employer concern.

  • If an employee can’t comply with a mandatory vaccination policy due to disability, the prevalence in the workplace of employees who have already been vaccinated and the amount of contact with others may impact accommodation options and undue hardship considerations. The first step, always, is to engage in the interactive process to identify accommodation options that do not constitute an undue hardship (which means significant difficult or expense in the ADA context). Importantly, “[e]mployers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available.” The guidance doesn’t provide accommodation ideas, but a few might include allowing the use of an approved mask or other types of appropriate personal protective equipment, or reassignment to a position or department without co-worker/client/customer interaction.

  • If a safety-based qualification standard, like a vaccination requirement, screens out a person with a disability, the employer must show that an unvaccinated employee would pose a direct threat before excluding them from the workplace. “Direct threat” means that the employee poses a significant risk of substantial harm to the health or safety of the individual or others at the workplace that cannot be eliminated or reduced by reasonable accommodation. It’s an affirmative defense with a high bar, and a full discussion is beyond the scope of this paper. In brief, a determination of direct threat requires a four-factor individualized assessment under existing ADA regulations and “would include a determination that an unvaccinated individual will expose others to the virus at the worksite.”

  • If an employee can’t comply with a mandatory vaccination policy due to a religious belief or practice, believe them. Title VII defines “religion” broadly. An employer should not ask an employee for more information to support a religious accommodation request unless it has an “objective basis” for questioning the nature or sincerity of the employee’s belief or practice. Also, “undue hardship” in the Title VII context means more than a minimal burden on operation of the business. The EEOC has previously provided examples of burdens that are more than minimal, including “jeopardizing security or health.”[iii]

  • An employer cannot automatically terminate an employee upon excluding them from the workplace. If an employee can’t get vaccinated for COVID due to disability or religious belief, and there is no accommodation possible, it is lawful to exclude the employee from the workplace. The EEOC is quick to point out, however, that employers must consider all other options first (remote work, leave of absence, and any other rights under other applicable laws).

  • Administering a COVID vaccine or requiring proof of it does not implicate GINA, but pre-screening questions might. Broadly speaking, the Genetic Information Nondiscrimination Act of 2008, or GINA, prohibits employment discrimination based on genetic information. Pre-vaccination medical screening questions may elicit genetic information, including family medical history. To avoid implicating GINA, the EEOC recommends that employers warn employees not to provide genetic information as part of any required proof of vaccination.

Union Contracts. Mandatory vaccination may be a mandatory term and condition of employment that an employer arguably cannot unilaterally impose. Employers should review employer and employee rights under applicable collective bargaining agreements, and if the issue is not addressed, evaluate the breadth of the management rights provision. Employers should at least consider discussing vaccination now with any unions to reach a written memorandum of understanding.

Practical considerations.

When considering whether a mandatory vaccination policy makes sense, employers should consider all aspects of their particular situation, including but not limited to their industry; their geographic location(s); the amount of interaction with coworkers and the public required to do the work; and of course, employee concerns about the vaccine and potential reactions to a vaccine mandate at work. Here are a few others:

  • Does such a policy fit the organizational culture? This is a big question that may require some deep reflection and meaningful input from a variety of stakeholders.

  • Will a mandate apply to every employee, or just those in specific roles or areas? Employers could consider whether mandating vaccines on a smaller scale is an option.

  • How will the organization respond to objections and refusals (unrelated to ADA/Title VII requests)? Employers should consider whether they will discharge strong, long-term performers who object to getting vaccinated.

Alternatives.

There are alternatives to mandating employee vaccination. Big, big caveat here: not every option is appropriate or desirable for every type of employer, and only time will tell whether these options age well. 

  • Don’t address it. This option leaves COVID vaccination completely up to employees without informing, encouraging, or communicating a position on vaccines. This option, more than any other, takes into account the full range of potential employee feelings and concerns about the COVID vaccine.
    However, employee vaccination status will likely not disappear completely from the organization’s radar. For example, the CDC recently issued updated guidance eliminating quarantine periods for those who have been fully vaccinated, are within 3 months following receipt of the last dose in the series, and have remained asymptomatic since the COVID-19 exposure.[iv] If an employee experiences COVID exposure at work, their vaccination status may impact whether they should quarantine per CDC recommendations.
  • Encourage vaccination. This option also leaves COVID vaccination up to employees but requires a more active approach that says: we want you to get vaccinated, employee. This is also the approach long-favored by the EEOC.
    An easy, no-cost way to encourage vaccination is to simply share information (or links to information) from the CDC or other public health authorities with employees, such as the CDC’s “Frequently Asked Questions About Vaccination.”[v] Other options include assisting employees who need help navigating the vaccine appointment process and giving employees paid time off to attend vaccine appointments or recover from side effects after vaccination.
  • Incentivize vaccination. Some employers are going the carrot-dangling route. Just last week, The Kroger Family of Companies, which employs nearly 500,000 employees, announced that it will pay $100 to all associates who receive the COVID-19 vaccine. What’s really interesting is Kroger’s plan B: employees who cannot receive the vaccine due to medical or religious reasons “will have the option of completing an educational health and safety course to receive the payment.”[vi] Other incentive options might include additional paid time off, subsidized parking, or other benefits that employees consider valuable.
    Employers should remember that everything about COVID is a moving target. It is unclear whether the EEOC would deem vaccine incentives as wellness plans covered by the ADA. The EEOC may soon issue guidance that changes the permissible scope of vaccine incentives, prompted by a recent request for such guidance by business groups.

SHOULD WE MANDATE COVID VACCINATION FOR OUR EMPLOYEES?

Each employer should take stock of its situation (industry, workforce, level of interaction with the public, etc.) and do some organizational “soul-searching” to determine whether such a policy makes sense for the organization and its employees. If the conundrum persists, consult counsel.

*Helena Oroz is a member of Z&R’s Labor and Employment Group and an OSBA Certified Specialist in Labor and Employment Law. She regularly advises clients on all employment-related matters, including COVID-related compliance issues. If you have questions about COVID vaccination policies, contact Helena (hot@zrlaw.com) or any member of the Z&R Labor and Employment Group at (216) 696-4441. 

[i] EEOC, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (Oct. 9, 2009), https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act(updated March 21, 2020).

[ii] EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (updated Dec. 16, 2020).

[iii] EEOC, What You Should Know: Workplace Religious Accommodation (March 6, 2014), https://www.eeoc.gov/laws/guidance/what-you-should-know-workplace-religious-accommodation, No. 4.

[iv] CDC, Interim Clinical Considerations for Use of mRNA COVID-19 Vaccines Currently Authorized in the United States, https://www.cdc.gov/vaccines/covid-19/info-by-product/clinical-considerations.html (updated Feb. 10, 2021).

[v] CDC, Frequently Asked Questions About Vaccination, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/faq.html (updated Jan. 25, 2021).

[vi] Kroger Announces New Vaccine Payment for All Associates (Feb. 5, 2021), http://ir.kroger.com/CorporateProfile/press-releases/press-release/2021/Kroger-Announces-New-Vaccine-Payment-for-All-Associates/default.aspx.