In presenting a one-hour seminar on employment law during the 59th Annual Joe Vincent Management Seminar, Ann Price, an attorney with the Austin law firm Boulette Golden and Marin, gave up-to-date (but subject to change) information on the status of employer mandates, as prescribed by the U.S. Department of Labor. Price also provided insight on employers’ compensation and safety issues as employees continue to work from home.
As of Jan. 31, the date of Price’s presentation, the OSHA emergency temporary standard regarding a Covid vaccine-or-test requirement for companies with 100 or more employers had been enjoined by the U.S. Supreme Court. While OSHA withdrew its emergency temporary standard, the federal agency continues to pursue a final rule, which Price expects to be less broadly applied. The rule in development is likely to target only “higher risk workplaces,” such as meatpacking, mortuary or medical transport workers, or indoor poorly ventilated workplaces with contact with the general public.
The case brought on behalf of federal contractors also has the vaccine component on hold nationwide. That decision was rendered at the 11th Circuit in Georgia, and it applies nationwide. Only the vaccine portion was stayed. Requirements for assigning a coordinator and maintaining safety signage and masking or distancing practices remain.
Meanwhile the healthcare workers challenging the vaccine mandate before the U.S. Supreme Court on Jan. 13 were less successful, obligating all facilities participating in Medicare and Medicaid programs to mandate the vaccine for eligible staff. Price said that physicians’ offices were not covered by the mandate because they are not regulated by CMS.
Understaffing has become a problem in hospitals, said Price, noting that vaccinated staff with positive Covid tests are allowed to work. Price wondered aloud how the vaccination mandate can be reconciled with welcoming Covid-positive workers into healthcare facilities.
Price said the new rules on private employers make it permissible for employers to require their employees to be vaccinated, subject to accommodations for medical or religious reasons. Employers can ask for an employee’s vaccine status without running afoul of the Americans with Disabilities Act, which generally would prevent inquiries into an employee’s health matters.
Vaccine status information collected by the employers is considered confidential medical information and it is to be kept separate from the employee’s personnel file. While the ADA prohibits an employer from telling his customers who is vaccinated and who is not, it would not prohibit an employer from requiring unvaccinated workers to wear masks or have different quarantine rules for the vaccinated and the unvaccinated workers, essentially revealing information he would be barred from telling.
“This administration,” said Price, “is not truly worried about the rights of the unvaccinated.”
Price said it remains unclear what medical reasons will qualify for relief from an employer’s vaccination requirement, whether it is “truly medical contraindication for any vaccine or a narrower subset.” It could depend, she said, on “the philosophical bend of the employer.”
An employer who opposed the mandate would take a broader view, said Price.
There is no way, said Price, for an employer to deny a person’s religious objection to the vaccine, as it is not necessary to be part of an organized religion to have deeply held religious beliefs.
Other issues that arise regarding vaccinations can add to an employer’s costs, Price said. The current U.S. Department of Labor guidance is that the employer must pay for time an employee spends getting a job-required vaccination or test if either is done during working hours. The employer must also pay if the shot or test is administered outside the working hours if necessary to perform job safely and effectively due to extensive contact with customers, as nurses or cashiers would experience.
If the shot or test is purely the employee’s choice and obtained on personal time, the employer is not obligated to pay the costs.
The compensation recommendations from DOL and OSHA show “where the government’s head is at,” said Price.
It is important for employers to adopt a policy on paid time for vaccines and testing and to apply the policy consistently. “Lack of enforcing evenly will not prevent a jury award,” said Price. Employers will need a good explanation if they deviate from their normal rule, she said.
Employers may offer incentives to employees to be vaccinated but not if the vaccines are administered by the employer or his agent. The incentive cannot be coercive, said Price. Any bonus given for taking the vaccine is not factored into regular compensation for calculation of overtime for nonexempt employees.
Work from home, said Price, has not proved to be a productivity drain, as more employees were pressed into the arrangement during the pandemic. Price referred to a study by three economists associated with Stanford University.
Their results indicate 58.5 percent of at-home workers found their productivity exceeded their expectations, with 20.6 percent reporting “hugely better” productivity. Most workers, as of the survey conducted July 2020 to March 2021, want to work from home two or more days per week, and 65 percent view the option of working from home as a benefit equivalent to a pay raise, according the published study, Why Working from Home Will Stick.
With more employees likely working from home in the future, Price reviewed the compensation issues that arise, particularly among nonexempt employees for whom employers are obligated to pay overtime. She said it was essential that employers set up a process to report all hours worked and must pay for all hours worked. It’s the employer’s responsibility to exercise control to prevent undesired work.
Childcare breaks and other flexibility are not compensable if the employee is completely relieved of duty and the break is at least 20 minutes long, said Price. Cost of equipment and internet service is not required to be reimbursed by law in Texas; however, these costs borne by the employee must be considered when applying a minimum wage standard to nonexempt employees. Paying them a minimum wage is a hard stop, said Price.
Work from home has meant a move out of state for some employees. Out-of-state moves have tax withholding and business registration implications for employers, cautioned Price, as states require tax identification numbers for remitting unemployment comp taxes.
Employers need to be attentive to how they select employees who are permitted to work from home so they do not run afoul of ADA accommodation requirements or discriminate against the protected characteristics of race, color, sex, age, religion, national origin or a protected activity, such as complaining about discrimination or harassment.
Managers must be fully engaged on these issues, said Price, and monitor employees’ quality and quantity of work in a nondiscriminatory manner. They must maintain an evidence trail to substantiate reasons for adverse actions; they must communicate and mentor evenhandedly. Anti-harassment efforts must continue, she said. Price said there are widely available mouse activity simulators (originally marketed to keep one’s computer screen from going to sleep) and cautioned managers about monitoring mouse movements as a measure of employee diligence.
OSHA does not have regulations regarding home offices, Price said, meaning employers are not authorized to inspect home offices nor liable for safety there.