Author: Megan Butz

Megan Butz, General Counsel for HR Compliance at Checkwriters, details the OSHA COVID-19 ETS and provides considerations for employers in selecting and implementing a workable policy under this new framework. For summary information about the ETS, see our prior post >

Background

UPDATE: On December 17, the Sixth Circuit Court of Appeals lifted the stay on the OSHA vaccine-or-test mandate (the Emergency Temporary Standard, or ETS), which applies to employers with 100 or more employees. This decision is already being appealed, and the ETS could be put on hold once again. Lifting of the stay means that the ETS is in immediate effect and employers should prepare to comply. The first compliance deadline was December 6 (for policies, notices, masking, vaccination status, etc.), and employers were supposed to begin testing unvaccinated employees by January 4. However, OSHA recognizes that compliance in such a short time frame is not feasible for many employers, so has said the following about enforcement:

“To provide employers with sufficient time to come into compliance, 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. OSHA will work closely with the regulated community to provide compliance assistance.”

The OSHA COVID-19 Emergency Temporary Standard (ETS) published on November 5, 2021, is only the 11th such ETS issued in OSHA’s 50-year history. The ETS will remain in effect for 6 months until on or about May 5, 2022, at which time a determination will be made whether to make the ETS permanent, lest it expire. Public Comment regarding permanence of the ETS is due by December 5, 2021 with OSHA soliciting feedback on areas including feasibility and extension of the ETS to employers with less than 100 employees; how the scope of the ETS would be adjusted to comport with the reduced “significant risk” criteria for permanent standards as opposed to “grave danger” required of an ETS; whether workers previously infected and possessing a natural immune response would be permitted to be excepted from vaccination or testing and face covering requirements and the scientific criteria used to determine same; and employer experience with COVID-19 vaccination policies, among others.

Across 490 pages, OSHA lays out its case for one of the most expansive emergency worker safety initiatives ever issued, covering over 80 million Americans. Employers with 100 or more employees (employer-level, not by location) must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. Employers must produce a copy of such policy upon request by OSHA. The Secretary of Labor, pursuant to the OSH Act, has made a determination that COVID-19 presents a “grave danger” to unvaccinated workers (as subjects contracting the virus and as vehicles transmitting the virus to others), and that an emergency standard is necessary to combat such danger to protect worker safety.

The latest: Court blocks ETS for now, but employers should still prep for compliance

UPDATE: The Fifth Circuit Court of Appeals has reaffirmed the temporary stay previously issued on November 6, 2021, now permanently blocking OSHA from implementing and enforcing its COVID-19 ETS until further order of the court.

The ETS preamble and commentary throughout the publication goes to painstaking detail to defend that determination and establish, and reestablish OSHA’s legal authority for issuance-no doubt in an attempt to fortify itself against the onslaught of legal challenges which loom on the not-so-distant horizon.

Please see the following relevant compliance dates for the OSHA ETS released by OSHA in its recent set of FAQs:

Covered employers will be faced with a difficult choice: to adopt a mandatory vaccination policy for all employees, and risk immediate and potentially significant employee exodus for those that elect not to be vaccinated or adopt a policy which provides a testing and face covering alternative, and still potentially suffer significant employee attrition, if only more insidiously over time. Considerations for employers are discussed below.

Mandatory vaccination policy

Employers who choose to implement a mandatory vaccination policy with no testing alternative must ensure that each employee is vaccinated by January 4, 2022, with the exception of those employees who fall into one of three narrow categories: (1) employees for whom vaccine is contraindicated medically; (2) employees which require delayed vaccination due to medical necessity, or (3) those employees who are legally entitled to a reasonable accommodation on the basis of disability or sincerely held religious belief. Employers should carefully review the recently released EEOC guidance on handling religious exemption requests from vaccination (READ: EEOC updates guidance for employers: religious exemptions and COVID-19 vaccine mandates).

*There are also some select groups of employees who are not subject to the ETS such as those who work remotely 100% of the time, those who work exclusively outside, or those who do not report to a workplace where other individuals are present.

Any employees who remain unvaccinated after the January 4, 2022, deadline and who do not belong to one of these exceptions, puts the employer in violation, and may subject the employee to discipline up to and including termination.

Employers under both types of policies are required to determine the vaccination status of each employee and to keep a roster of the vaccine status of all employees. Employers under both policies should be diligent and organized in their recordkeeping as under the ETS, employers are required to provide OSHA with the aggregate number of fully vaccinated employees along with the total number of employees at the workplace within 4 hours of OSHA’s request for same. Upon a request by an employee or employee representative, an employer must also provide this aggregate vaccination information to the employee or employee representative by the end of the next business day after that employee or employee representative’s request. Employers under both types of policies are also required to provide information to employees on the following topics:

• Requirements of the ETS and the policies and procedures the employer has implemented to comply with same;
• CDC’s document, “Key Things to Know About COVID-19 Vaccines,”;
• Requirements of 29 CFR 1904.35(b)(1)(iv) and section 11(c) of the OSH Act and how those provisions work together to protect employees from retaliation for engaging in OSHA protected activities; and
• The importance of providing truthful information about vaccine status and test results including an explanation of the criminal consequences which may exist under OSHA or other federal law for falsifying information.

Employers are also required to elicit proof of vaccination from each employee. Proof of vaccination can be established through:

• “[T]he record of immunization 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, state, or tribal immunization information system; or
• A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
• A signed and dated employee attestation* is acceptable in instances when an employee is unable to produce proof of vaccination.”

*A personal attestation must include a statement by the employee that the information is true and accurate and the employee understands that the provision of knowingly false information in the context of the vaccine attestation may subject them to criminal penalties.

The ETS preamble describes OSHA’s authority to require employers to bear the costs of particular provisions of a standard as being “solidly grounded in the OSH Act. . . and the costs of compliance with the Act and OSHA standards are part of the cost of doing business and OSHA may foreclose employers from shifting those costs to employees.” Accordingly, under the ETS, OSHA has made employers responsible for the costs of vaccination, including paid leave to accommodate vaccination and reasonable paid time off for vaccination recovery. The actual cost of vaccination is $0.00 for the employer as vaccine is provided at no charge by the federal government. “Although the ETS does not require all covered employers to implement a mandatory vaccination policy, OSHA expects that employers that choose that compliance option will enjoy advantages that employers that opt out of the vaccination mandate option will not.” Some of these advantages are reduced absenteeism due to illness, and therefore a reduction in loss of productivity, as well as less administrative costs associated with testing and face covering compliance.

Employers should remain mindful that the science surrounding transmissibility and break-through infections for the vaccinated population is still developing, and employers should consider vaccination as a possible means to reduce rather than eradicate employee infection and illness.

Employers should also anticipate that they may suffer significant upfront costs in the loss of valuable members of their workforce who will not submit to vaccination, and who do not qualify for medical or religious exemptions. Nonconforming employees will subject an employer to penalties, ultimately leading to that employee’s resignation or termination. A recent Gallup poll article published on October 29, 2021, shows that “30% of all U.S. workers are strongly opposed to employer vaccine requirements, and of these, 52%–equivalent to 16% of all U.S. workers–say they would be ‘extremely likely’ to look for a job with a different organization if they disagreed with their employer’s policy on vaccine mandates.” This contrasts with “45% of U.S. workers [who] strongly favor employer vaccine requirements,” and of these, 33%–equivalent to 15% of all U.S. workers, say “they are extremely like to look for a different job over disagreements about employer vaccine policy.”

OSHA has provided a sample Mandatory Vaccination Policy for employer use, linked here.

Vaccination or testing and face covering policy

For those employers that elect a policy which accommodates a testing and face covering option for unvaccinated employees, covered employees must submit to testing once every 7 days and provide verification of a negative COVID-19 test result no later than the 7th day following the date of the last result received. Employees may not report to work without providing a negative test result each week. Employers must retain all testing results for employees as confidential medical records for at least during the time period that the ETS remains in effect. The ETS defines an acceptable COVID-19 test as follows:

“A ‘COVID-19 test’ means a test for SARS-CoV-2 that is: (1) cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test); (2) administered in accordance with the authorized instructions; and (3) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.”

The types of tests which meet these criteria and are most well-known to the general public include:

• NAATs (nucleic acid amplification tests) such as RT-PCR tests which have a high accuracy rate, and typically take 24-48 hours of processing time to receive results; and
• Antigen tests most often performed at point of care entities such as a doctor’s office or urgent care center. These are considered “rapid tests” with results usually within 15-30 minutes and are considered less reliable than RT-PCR tests. Included in this category are Over-the-Counter (OTC) self-administered and self-read tests that are available at local pharmacies and other retail locations.

Employees may only use OTC testing kits if the self-administration and reading of the test is observed by the employer or an authorized telehealth proctor. As recognized in the commentary of the ETS, where testing is done in the presence of the employer during normal working hours, this will likely implicate compensable time issues under the FLSA. However, OSHA disclaims any responsibility for definitive guidance on the matter, stating, “[t]he subject of payment for the costs associated with testing pursuant to other laws or regulations not associated with the OSH Act is beyond OSHA’s authority and jurisdiction.”

The ETS requires all persons who are not fully vaccinated (unvaccinated or partially vaccinated) to wear a face covering indoors or when occupying a vehicle with another for work purposes, except, “when an employee is alone in a room with floor to ceilings windows and a closed door. However, if that employee exits the room or another individual enters the room, they are required to wear a face covering.” Employees may also remove their face coverings for a limited time while eating of drinking at the workplace or for identification purposes in accordance with employer safety and security requirements. The ETS does not require employers to pay for any costs associated with face coverings, but also does not prohibit same.

OSHA has provided a sample Vaccination or Testing and Face Covering Policy for employer use, linked here.

In contrast to OSHA’s requirement that employers assume the cost of vaccination for their workforce, OSHA has decided to exercise its discretion in abstaining from requiring employers to pay for testing or face coverings for employees who choose to remain unvaccinated, commenting: “OSHA only requires employers to bear the costs of employee compliance with the preferred, and more protective, vaccination provision, but not costs associated with testing. The agency does not believe it appropriate to impose the costs of testing or face coverings on an employer where an employee has made an individual choice to pursue a less protective option.” OSHA takes the limited position that employers will not be required to pay for testing and face coverings, unless required pursuant to other law or collective bargaining agreement. Accordingly, employers implementing a vaccination policy with a testing and face covering option should carefully review and consult with employment counsel in their state to discern if a payment obligation exists relative to testing costs.

“Who pays” may ultimately become a negotiation between employers and their workforces or employers could decide to pass on the entirety of testing costs to their employees for electing to remain unvaccinated if permitted by state or other law. OSHA opines that employers may choose to pay for some or all of the costs of testing as “an inducement to keep employees in a tight labor market.” Employers should take the temperature of their workforce both as to the potential financial impact of testing on employees who elect it, as well as the cost of not providing a testing option for employees who desire it. Employers already struggling in the “Great Resignation” may decide to heed the advice of OSHA and subsidize or fully assume the cost of testing in order to keep valuable members of their workforce at work, especially as employees may soon begin to feel the squeeze of the testing market.

Previous federal guidance required health plans and insurers to cover the cost of testing for asymptomatic individuals without requiring them to submit to a medical examination and without known or suspected COVID-19 exposure, meaning that many persons were able to have their testing costs covered by insurance. An important qualification to this guidance is especially relevant now: this guidance does not extend to “public health surveillance or employment purposes.” Therefore, it is likely that the total cost of testing will fall on the employee as an out-of-pocket expense. A 2020 study performed by the Peterson-KFF Health Tracker, showed 203 distinct prices for COVID-19 diagnostic tests from 93 hospitals in fifty states (including Washington, D.C.) ranging from $20.00 to $1,419.00 per test, with a median test cost of $149.00. Yet, vaccination is available nationwide at no cost. The Over-the-Counter option ranges from $15.00 to approximately $24.00 (2 pack) depending on brand. By contrast, in Europe and the United Kingdom, the cost of a COVID-19 test is often free or can cost as little as $1.00.

For employees submitting to weekly testing, OTC testing is likely the most cost-efficient option. However, the employee must work for an employer wiling to proctor the test each week- or the employee must arrange a telehealth proctor to do so, and an employee must be able to regularly purchase the tests for use.

While OSHA found the ETS technologically feasible after “thoroughly review[ing] current and future projections of the availability of COVID-19 tests, testing supplies, and laboratory capacity”, supply chain issues which have been plaguing the country in recent months, has made accessing OTC tests very difficult. Recent reporting by KFF on November 4, 2021, has found that supply chain issues coupled with the stringent regulatory framework for approval for at-home tests by the FDA (which has limited the number of approved manufacturers) has intensified scarcity. Scarcity of at-home tests will force employees to submit to point-of-care or hospital- based testing at increased costs, at least temporarily. While OSHA touts the increased sufficiency of laboratory capacity, laboratory tests are the most expensive option for employees, and for those hourly wage workers, or with modest salaries, it may eventually price them out of a testing option, or could even push them below state or federal minimum wage. Then again, this may be the intention of the ETS to begin with, especially if it projects that “75.3 million (89.4 percent) of covered employees will be vaccinated when the ETS is in full effect,” as compared to . . .“approximately 6.3 million [7.5% of] covered employees who will be tested for COVID under the ETS”.

Final thoughts

OSHA comments in the ETS “[b]ecause employees who choose to remain unvaccinated will generally be required to pay for their own COVID-19 testing, this standard creates a financial incentive for those employees to become fully vaccinated and avoid that cost.” (emphasis added). Employees who are opposed to vaccination and who are modest earners will find themselves presented with a Hobson’s choice: submit to vaccination or risk potentially significant financial strain by avoiding it.

Therefore, despite trying to ameliorate the harshness of a blanket vaccine mandate, some employers may find themselves with significant employee attrition anyway, if only by a drip rather than a potential gush.

In a press briefing released by the White House on November 3, 2021, one senior administration official recently commented, “[a]nd just keep in mind that the OSHA rule coming out is not a mandate for a vaccine; there’s a — employers can put in a mandatory vaccination program, or there’s the other route of vaccination for those who choose to, and testing and masks for those other employees that don’t. So, just wanted to make sure that was clear.” (emphasis added). Ultimately, a testing option that employees can’t afford or can’t access is a mandate in fact, if not in name. Employers should remember that the ETS is temporary, and it is difficult to speculate what, if any, permanent standard entails in May 2022 when the ETS expires, or if the pending legal challenges carry the day before the ETS can really have an impact. With that in mind, employers should take stock of both the human and financial costs which could result with implementation of each type of policy in order to mitigate risk.

UPDATE 11/16/21: While the fate of OSHA’s ETS remains uncertain, employers should not sit idle. While some may take a “wait and see” approach, employers may find themselves woefully unprepared in the event the ETS is upheld, and compliance is demanded in potentially very short order. Employers should take the opportunity to evaluate their readiness and perhaps begin some initial preparations while legal challenges proceed including drafting their vaccination policies, assembling employee informational notices, and determining the logistics of testing (if they have decided to offer it) and recordkeeping requirements. See statement from OSHA suspending implementation of ETS >

UPDATE: The Fifth Circuit Court of Appeals has reaffirmed the temporary stay previously issued on November 6, 2021, now permanently blocking OSHA from implementing and enforcing its COVID-19 ETS until further order of the court. See statement from OSHA suspending implementation of ETS >

On Thursday, November 4, 2021, the Department of Labor’s Occupational Health and Safety Administration (“OSHA”) released its long-awaited Emergency Temporary Standard (ETS) requiring vaccination or masking and weekly testing protocols for employers with 100 or more employees. Key provisions for employers include:

• Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. Employers must produce a copy of such policy upon request by OSHA.
• The ETS requirements do not apply to employees who work remotely 100% of the time or exclusively outside.
• All covered employers must ensure that their employees are fully vaccinated by January 4, 2022. Following January 4, 2022, unvaccinated employees must produce a verified negative test to their employer on at least a weekly basis. Failure to produce a negative test result requires an employer to prohibit an employee from entering the workplace until a negative result is received. Acceptable SARSCoV-2 tests include those that are:
• Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the FDA to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
• Administered in accordance with the authorized instructions; and
• Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
• Unvaccinated employees must wear a mask at all times, effective December 5, 2021.
• Employers are not required to pay for employee testing under the ETS, but may be required under state law or pursuant to collective bargaining agreements.
• Any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider must be removed from the workplace and not permitted to return until they are cleared. Infected employees must not be required to submit to COVID-19 testing for a period of ninety days following infection.
• The ETS does not require employers to provide paid time off to any employee for removal from the workplace as a result of a positive COVID-19 test or diagnosis of COVID-19; however paid time off may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.
• All covered employers are required to provide paid time for their employees to get vaccinated and, if needed, sick leave to recover from side effects experienced that keep them from working. This requirement is effective December 5, 2021.
• Employers must maintain records of each COVID-19 test result and each employee’s vaccination status. This information must be kept as a confidential medical record.
• Employees are required to report a positive COVID-19 diagnosis regardless of vaccination status.
• Any work-related COVID-19 fatality must be reported to OSHA within eight hours of the employer learning of the fatality.
• Employers are required to provide information to employees on the following topics: • Requirements of the ETS and the policies and procedures the employer has implemented to comply with same; • CDC’s document, “Key Things to Know About COVID-19 Vaccines,”; • Requirements of 29 CFR 1904.35(b)(1)(iv) and section 11(c) of the OSH Act and how those provisions work together to protect employees from retaliation for engaging in OSHA protected activities; and • The importance of providing truthful information about vaccine status and test results including an explanation of the criminal consequences which may exist under OSHA or other federal law for falsifying information.

For detailed FAQs, please see OSHA’s “COVID-19 Vaccination and Testing ETS Frequently Asked Questions” >

For a Fact sheet, please see “Workers’ Rights under the COVID-19 Vaccination and Testing ETS” >

For a list of effective dates, see below chart from OSHA:

What are the effective date and the compliance dates?

The effective date for the ETS is November 5, 2021, which is the date the ETS was published in the Federal Register. Although the ETS becomes effective immediately, employers are not required to comply with the requirements of the ETS until the compliance dates, as follows:

Stay tuned for more updates on this issue from the Checkwriters Compliance Team.

Disclaimer:The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

The US Equal Employment Opportunity Commission (EEOC) published updated guidance for employers in how to analyze and process employee requests for religious exemptions from COVID-19 vaccination mandates imposed by employers, which have become more widespread in recent months. This guidance also serves as a primer for employers in advance of the upcoming release of the federal COVID-19 mandate for employers with 100 or more employees via the OSHA Emergency Temporary Standard (ETS). The ETS has not been released as of the date of this publication, but the Department of Labor has indicated that the draft ETS was sent to the White House on October 12, 2021, for final regulatory review. The regulatory review process can take as long as 90 days, but the administration has urged OSHA to expedite the process.

READ: Biden administration reveals plan for COVID-19 vaccine mandate for private employers; threatens fines >

Updated guidance

The updated guidance expands upon key exemption issues and questions for employers such as:

1. What must employees do to notify their employers of the conflict between the employer’s vaccination policy and the employee’s sincerely held religious belief;
2. If and to what extent employers can inquire about the religious nature and/or sincerity of an employee’s asserted belief; and
3. What constitutes an “undue hardship” for employers such that an employer is not required to provide a reasonable accommodation under Title VII of the Civil Rights Act?

Similar to those employees seeking an accommodation on disability grounds under the ADA, an employee need not utter any special words or phrasing triggering an accommodation dialogue, however an employee must inform the employer of their request for an accommodation on religious grounds.

The updated guidance reiterates longstanding prior guidance under Title VII that an employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. However, an employer may make a limited factual inquiry and make seek additional supporting information IF the employer has an objective basis for questioning either the religious nature or the sincerity of the employee’s represented belief. Employers should proceed with caution in navigating this issue and should seek additional information only if they have an objective basis for questioning the employee’s representations. An employee does not need to belong to a traditional or well-recognized faith or religious practice, but the belief has to be grounded in the employee’s religion or faith and cannot be based upon “social, political, or economic views, or personal preferences.”

The EEOC has provided the following factors in assessing employee credibility which in turn may provide an objective basis for an employer to further inquire about an employee’s sincerely held religious belief:

• “Whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance);
• Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons;
• Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); or
• Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.”

Once a request for accommodation is established based on a sincerely held religious belief, an employer is required to provide a reasonable accommodation unless it would cause the employer undue hardship. Under Title VII, an employer should consider all possible reasonable accommodations, including telework and reassignment. An employer is not required to bear more than a de minimis or a minimal cost to accommodate an employee’s religious belief as previously stated by the US Supreme Court (this contrasts with the undue hardship standard under the ADA which requires that the reasonable accommodation pose “significant difficulty or expense” to the employer). Costs include not only financial considerations, but also the impact of the accommodation on the employer’s business. In the COVID-19 context, the EEOC provides that a consideration for employer’s evaluating undue hardship includes the risk of transmission of COVID-19 to other employees or to the public. Factors used to assess this risk include whether the employee works indoors or outdoors, works in isolation or in a group setting; or has close contact with members of the public or other employees.

Employers must assess each employee’s request on an individual basis and cannot rely on speculative hardships. While employers may conduct a limited factual inquiry regarding an employee’s conduct that may appear inconsistent with the expressed belief, employers should not become the arbiters of orthodoxy especially in interpreting religious doctrine when evaluating an employee’s request. The EEOC provides in its updated guidance that an “employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others.”

Employers should carefully and methodically address each request for religious accommodation to prevent employee claims of discrimination. Employers should also be mindful of any state or local laws which may impact employee religious protections as the EEOC’s guidance is limited to employment rights and obligations under Title VII of the Civil Rights Act.

Disclaimer:The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

As companies continue to welcome employees back to their physical workspaces, many have taken the opportunity to reexamine internal practices and develop a new perspective on remote work. While some companies have abandoned a physical workspace completely in exchange for a virtual one, an increasing number of companies are experimenting with a hybrid workforce featuring a combination of remote and in-person work. Remote employment can provide flexibility for employer and employee alike, it can increase productivity, and it can provide greater work-life balance especially for those accustomed to a lengthy commute.

However, remote work also has its pitfalls: employers, HR departments, and legal teams must take into account impacts on productivity and employee privacy; tax, insurance, and employment law considerations; and the potential negative effects on employee morale and company culture.

Checkwriters has compiled its top three considerations for employers when deciding whether to make remote work a permanent fixture in their organizations.

Productivity and employee privacy

An impediment to implementing or expanding a remote workforce for many employers has been concerns over decreased productivity due to a lack of supervision, as well as managing and deterring inappropriate use of company equipment and resources by employees from afar. Some strategies to address these concerns include daily virtual check-ins, requiring employees to maintain and submit worklogs documenting projects or tasks completed, and the use of employee monitoring software.

Employee monitoring software appeared to be the answer for an increased number of employers who transitioned to remote work during the height of the COVID shutdowns. A recent survey indicated a fifty percent (50%) rise in the use of employee-monitoring software during shutdowns, with use continuing to grow. Software offerings in this sphere have touted their ability to track all manner of employee activity on company-provided equipment ranging from computer keystrokes to internet activity to GPS monitoring and video and audio monitoring.

Prior to implementing employee-monitoring software in the workplace, employers should carefully consider and weigh the utility of such technology against the legal and financial exposure which may result if such technology is implemented improperly.

Employers must first clearly and objectively determine the reason for implementing such technology, ensuring that the reason(s) for use is/are lawful and the scope of surveillance and monitoring is reasonable to achieve a legitimate business purpose. Legitimate or lawful reasons for employee monitoring include:

1. Measuring and improving employee performance and productivity;
2. Protecting against liability for employee misconduct; and
3. Protecting trade secret, confidential information, and company branding.

With heightened monitoring comes myriad possible compliance pitfalls in navigating federal and state wiretapping laws, state privacy laws, and employment and labor law considerations. At least two states have enacted laws specific to the issue of employee monitoring software. The states of Connecticut and Delaware both require employers to provide employees with notice of monitoring practices prior to implementing the technology, with Delaware further requiring written employee acknowledgement of such monitoring or intercepting activity or policies.

Employers who implement employee-monitoring software should provide a detailed policy to their workforce defining the scope of acceptable and prohibited use of company equipment and technology. This policy should clearly and succinctly state the lack of privacy expectation that employees should have when they use company-provided equipment and resources. Employees should be put on notice that some or all activity on work-provided computers may be monitored, including when they engage in activity that is beyond the scope of their employer’s acceptable use policy such as accessing personal email and social media, conducting personal and private telephone calls, and non-work related internet use.

Tax, insurance, and employment law considerations

Nonresident employees who have ceased commuting to the state of their employer due to the availability of remote work will present compliance considerations for employers which they may have not had to address in prior years. Employers with remote employees working from a state other than that of their employer will now have to be mindful of their potential obligations in additional jurisdictions. Income tax withholding obligations typically run from the state where services or work is performed, but may also apply where an employee resides, with special rules applying for those states in which reciprocity agreements exist. Corporate and business income tax obligations may also be implicated in jurisdictions where remote employees are based, as well as foreign qualification requirements.

Employers will also have to be mindful of unemployment insurance obligations for employees who may be located in multiple states, as well as state requirements regarding worker’s compensation insurance, state disability insurance in some states, and paid family and medical leave insurance.

Finally, labor law requirements typically apply where an employee is working. Employers may be subject to more than one set of employment laws, which may not be consistent. Employers navigating two sets of employment laws would be advised to apply the law most beneficial to the employee to ensure compliance.

Employee morale and dilution of company culture

Employers who have worked hard to cultivate and develop organizational culture may find that remote work has had a significant impact on employee perception of the work that they do, where they envision the company is going, and more specifically where they fit into the whole equation. While many companies often have mission statements or mantras to describe their company or organizational culture, it all often boils down to how employees feel while they are in it. Remote work takes employees out of that experience, and has the potential to convert employees to spectators rather than participants. When this happens, organizational culture can suffer, as the personality of the organization is characterized by the employees who comprise it. Employers who have a large contingent of remote employees should proactively seek not only to maintain employee morale and the positive company culture they once fostered in their physical workspaces, but should also seek to adapt the culture of their organizations to the digital world. Virtual events and team building, peer to peer engagement, and collaboration across departments and specialties can all contribute to a more inclusive and thriving company culture, while boosting employee morale by providing tangible mediums for employee expression, contribution, and acknowledgement.

The COVID shutdowns did not create remote work, but did provide an opportunity out of necessity for employers to experiment with it, and to do so on a large scale. With the return to physical workspaces, employers can finally take a breath and be introspective on that experience to determine if and how it should be incorporated.

One certainty is that remote work is here to stay. A recent survey of 1,000 hiring managers by Upwork, Inc. revealed that “40.7 million Americans expect to be working remotely by 2026, or almost 28% of respondents. . . That’s 4.5 million more than in a previous poll in the third quarter of 2020 — and about 21 million above prepandemic levels“. How employers and employees continue to navigate this changing face of work remains something to watch, but the ability to adapt, to pivot, and to evolve when necessary for employer and employee alike, will no doubt enhance the chances of success no matter the path or paths chosen.

Disclaimer:The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

On September 9, 2021, the Biden administration announced sweeping new measures under the Path out of the Pandemic Plan (“Plan”) to “reduce the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements—these requirements will become dominant in the workplace.” The initiatives under the Plan include more widespread vaccination requirements across healthcare, education, and private labor; increased funding for and availability of COVID-19 testing; and paid time off from work to become vaccinated or recover from the effects of vaccination, among others.

Key points

• Private employers with 100 or more employees must ensure their workforce is fully vaccinated or require workers who remain unvaccinated to produce a negative test result each week prior to reporting to work.
• OSHA will issue an Emergency Temporary Standard (“ETS”) to implement the new requirements.
• Employers with more than 100 employees will be required to provide paid time off for employees to become vaccinated and to recover from any side effects resulting from vaccination.
• Estimates from the White House suggest that the new rule will affect over 80 million workers in the private sector.
• Employers who fail to comply with the new requirement may be subject to fines up to $14,000.00 per violation.

Under the Plan, workers in most health care settings “that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies,” will be required to be vaccinated as will all federal executive branch employees and employees of contractors that do business with the federal government. For federal employees, the ability to test weekly in place of the vaccination requirement will not be available. Federal employees will have 75 days to come into compliance from the date that the executive order is signed.

The federal employee vaccine mandate extends to teachers and educational staff employed by the federal government including “teachers and staff at Head Start and Early Head Start programs, teachers and child and youth program personnel at the Department of Defense (DOD), and teachers and staff at Bureau of Indian Education-operated schools.” The Plan does not extend this vaccine requirement to all teachers and staff generally, instead calling upon each state governor to require vaccination for all educational employees in their state in order to “keep all children safely learning in school” Whether this is an indication that a broader mandate for educational staff generally is on the horizon remains to be seen.

Anticipated OSHA Emergency Temporary Standard (ETS)

The Department of Labor has indicated that the new OSHA ETS could be available in the coming weeks, however the timeline for employers to comply with the ETS is still unknown.

The exact language of the new ETS will be incredibly important in the practical implementation of these new requirements and will provide much needed direction for employers especially in the realm of testing, confirming an employee’s vaccination status, and protection for employees who are unable to be vaccinated on medical or religious grounds. Where the Plan states that an employer must ensure vaccination or require unvaccinated workers to produce a negative test result, it is not clear whether an employer is obligated to offer testing for those who refuse vaccination for any reason, or whether testing is available only for those who qualify for an exemption.

Another consideration for today’s mobile workforce is the impact of the ETS on remote employees. For employees who do not report in person, will there be a carve out for them from vaccination and/or testing requirements?

And finally, who will bear the cost burden for testing for employers?

Legal challenges loom

The effectiveness of a legal challenge to the new ETS will likely also turn on the specifics of the ETS and how it is implemented. It is imperative for employers to carefully review and digest the ETS once it is released. Several states have already pledged to challenge the ETS once issued, with employers sure to follow. Possible legal challenges to the new mandate could include: whether OSHA has met the standard for issuance of an ETS under the requirements of its own Act, whether the mandate infringes upon a state’s authority to set healthcare policy, and whether the mandate impermissibly discriminates against those who decline the vaccine on medical or religious grounds, to name a few.

Historically, OSHA has issued only 10 Emergency Temporary Standards during its 50-year history, with few surviving judicial review. OSHA issued its tenth ETS in June 2021 relative to COVID-19 which was applicable to healthcare workers only.

The last ETS issued pre-COVID-19 was in 1983 regarding asbestos, and was struck down by the courts. For those employers in states with OSHA-approved state plans, these states will have a period to “either amend their standards to be identical or ‘at least as effective as’ the new standard, or show that an existing State standard covering this area is ‘at least as effective’ as the new Federal standard.” Employers in states with OSHA-approved state plans should closely monitor how the ETS will be implemented in their state.

An ETS is an expedited standard (six months) and requires a determination by the Secretary of Labor that a “grave danger” to workers exists, and the ETS is necessary to combat such danger to protect worker safety. Community acquisition of the virus, breakthrough infections for those who are vaccinated, and previously issued federal guidance that employers considering mandates should provide exemption where appropriate, may give pause as to whether OSHA has met its burden. While the agency is given deference in its findings in support of an ETS, these determinations are not unassailable.

Historical perspective: vaccine mandates

Employers may be interested to know that a federal vaccine mandate of this breadth is unprecedented in U.S. history. The constitutionality of vaccine mandates has been addressed before, most notably in the 1905 Supreme Court case Jacobson v. Massachusetts, 197 U.S. 11 (1905), which dealt with smallpox inoculations mandated by the Cambridge Board of Health during an outbreak of the disease at the turn of the 20^th century. Adults who were fit for inoculation but refused were required to pay a $5.00 fine. The Supreme Court upheld the Massachusetts mandate finding that the vaccination requirement fell within the “state’s police power.” However, the Court did not provide carte blanche approval for vaccine mandates without limitation. In Jacobson, the Court reiterated the importance of personal liberty secured by the Fourteenth Amendment, and while recognizing that the “rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint. . . .” such restraint was to “be enforced by reasonable regulations, as the safety of the general public may demand.”

Providing for a weekly testing option mitigates the severity of the mandate and adds a color of reasonableness to the overall scheme. Given the rarity of use of ETS by OSHA in the past, and the fact that many have not survived judicial review, the Biden Administration has no doubt considered this and will try to hedge their bets as much as possible.

The Checkwriters Compliance Department will continue to monitor developments on this issues and be sure to update as more information and/or the ETS is made available.

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

On April 26, 2021, the Equal Employment Opportunity Commission (EEOC) officially opened employment data collection (EEO-1 Component 1) for years 2019 and 2020. This Report captures certain demographic data of eligible employers and their workforces including sex, race/ethnicity, and job category. Employers will recall that the EEOC also collected pay and hours data (Component 2) for years 2017 and 2018 in the past. However, there is no Component 2 collection or filing requirement for 2019 and 2020, which reduces the employer burden from the two previous filing years. The EEOC has stated that it may revisit a less burdensome pay reporting requirement in the future, but there is nothing definite at this time.

After repeated COVID-19 related delays, both Reports now have a FINAL submission deadline of October 25, 2021 (extended from the previous deadlines of August 23 and July 19).

Who needs to file?

Employers subject to the EEO-1 Component 1 Data Reporting include private employers subject to Title VII of the Civil Rights Act of 1964 with 100 or more employees including non-profits and not for profit organizations, among others. Full-time and part-time employees are includable in the Report.

Employers who are first-time filers:

Employers must register on the EEOC EEO-1 website to receive a Company ID and passcode which will be used to access the EEO-1 portal and file the reports electronically.

Employers who have filed in the past:

Eligible employers should have received a EEO-1 Notification Letter containing their Company ID and passcode for the 2019 and 2020 reporting years. These letters were sent in mid-April by the EEOC. Employers that did not receive a letter (U.S. Mail) should contact the EEOC’s Filer Support Team at FilerSupport@eeocdata.org for assistance. Employers that have received the Notification Letter, may now create user accounts using the Company ID and passcode provided in the Notification Letter. Employers will need these credentials to access the online portal to submit their EEO-1 DATA.

How to file:

Employers can file their EEO1-CO 1 Reports by (1) completing a secure data entry form via the EEO-1 Component 1 Online Filing System which went live on April 26, 2021, or (2) by data file upload which became available May 26. The process and instructions for the data file upload were also released May 26 and can be accessed here >

Checkwriters clients are able to run this report within the Checkwriters platform, and we have posted an instructional video on the Dashboard.

Additional information

Please review the EEO1- Component 1 Job Classification Guide for additional information on how to classify employees regarding job category, and the 2019-2020 EEO-1 Component 1 Instruction Booklet which includes provisions for assigning employees into the race/ethnicities categories.

• For any employees who have failed to designate race/ethnicity or have declined to answer, employers must take certain steps in order to gather this information. Per the EEOC, employers must attempt to allow employees to use self-identification. In gathering this data, the EEOC advises that employers emphasize to their workforces that such elections and or disclosures are voluntary.
• To facilitate data collection, the EEOC has provided sample language which employers may distribute to their employees:
• [Insert Employer Name] is subject to certain governmental recordkeeping and reporting requirements for the administration of civil rights laws and regulations. In order to comply with these laws, [Employer name] invites employees to voluntarily self-identify their race or ethnicity. Submission of this information is voluntary and refusal to provide it will not subject you to any adverse treatment. The information obtained will be kept confidential and may only be used in accordance with the provisions of applicable laws, executive orders, and regulations, including those that require the information to be summarized and reported to the federal government for civil rights enforcement. When reported, data will not identify any specific individual.”
• If an employee declines to self-identify, then employer records and/or employer observation may be used.

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.