BCLP At Work

BCLP At Work

Coronavirus

Main Content

US COVID-19: Employees Are Getting Vaccinated… Is It Time To Update COVID-19 Workplace Prevention Protocols?

March 12, 2021

Categories

As more employees across the country have received the COVID-19 vaccination, employers are naturally asking questions.  Should we continue to maintain preventive measures (masking, distancing, gathering restrictions)?  Can we relax the COVID-protocols, at least with respect to vaccinated employees?  Recent guidance from government authorities would suggest that employers continue most preventive measures.

On January 29, 2021, the Occupational Safety and Health Administration (OSHA) issued guidance to employers.  In Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, [https://www.osha.gov/coronavirus/safework] OSHA specifically noted that, for now, employers should not distinguish between workers who are vaccinated and those who are not.  OSHA stated:

Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.

On March 8, 2021, the Centers for Disease Control (CDC) issued guidance for the non-healthcare setting regarding individuals who have

US COVID-19: COVID-Related Leave – When Does The FMLA Apply?

COVID-19 has led to significant employee absences from the workplace.  While the federal Family and Medical Leave Act (FMLA) may well apply to certain such absences, employers must avoid the temptation to count all COVID-related leave against employees’ FMLA entitlement without considering the specific circumstances.  Over-designating absences as FMLA leave when the FMLA does not actually apply can create just as many legal issues as failing to designate covered absences under the FMLA.

For example, an FMLA interference claim may result if an employee is denied additional FMLA leave after the employee’s FMLA entitlement is exhausted due to absences that did not truly count as FMLA leave.  Conversely, by offering FMLA protections when the FMLA does not apply, employers may be establishing a right to reinstatement or other benefits when no such right should exist.  At a minimum, improperly designating absences as FMLA leave can create confusion and administrative nightmares.

Accordingly, COVID-related absences must be evaluated carefully and designated as FMLA leave only in appropriate circumstances.  As a general overview – but with the caveat that this post is not intended to provide legal advice concerning specific situations – below are examples of COVID-related situations in which the FMLA typically

Coronavirus (UK): Is ‘long-covid’ likely to be classed as a disability under the Equality Act?

This post considers whether ‘long-covid’ is likely to be classed as a disability under the Equality Act 2010, and provides practical guidance for employers.

At the time of writing, it is estimated that approximately 100 million people have now contracted Coronavirus. Whilst the majority of those infected go on to make a full recovery, some suffer continuing symptoms once the initial infection has gone. These symptoms are commonly referred to as “long-covid”. According to the NHS, some of the most commonly encountered symptoms of long-covid include; (i) extreme tiredness; (ii) shortness of breath; and (iii) problems with memory and concentration. A recent study estimated that there are currently 60,000 people in the United Kingdom alone suffering from long-covid.

Ultimately, some of those suffering from long-term health conditions may be classed as disabled under the Equality Act 2010 (“EQA”). This article considers the circumstances in which long-covid would classified as a disability under the EQA.

Definition of a disability under the EQA

The EQA prohibits discrimination in respect of numerous protected characteristics, including disability. Section 6 and Schedule 1 of the EQA define a “disability”. It is important to note that the legal definition of disability does not always reflect what

U.S. COVID-19: OSHA Issues Guidance Addressing Mitigation and Prevention of COVID-19 in the Workplace

Partner and Practice Group Leader, Energy, Environment and Infrastructure, Bryan Keyt; Partner Brandon Neuschafer; and Associate David Brankin wrote an article on OSHA’s new guidance to help employers better identify risks of being exposed to and/or contracting COVID-19 and to ascertain appropriate control measures employers can implement to address those risks.

Click here to read the full article.

Coronavirus (US): Key vaccination issues for employers – Part 3

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 3 of the three-part article, we address more of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(Click here to see Part 1, questions 1-6 and Part 2, questions 7-12)

(13) Should employers have a written policy or program? What about training?

Yes and yes

Coronavirus (US): Key vaccination issues for employers – Part 2

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 2 of the three-part article, we address more of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(Click here to see Part 1, questions 1-6.)

(7) What must an employer do if an employee refuses vaccination for a reason that requires a reasonable accommodation analysis (e.g.

Coronavirus (US): Key vaccination issues for employers – Part 1

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 1 of the three-part article, we address six of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(1) May an employer require employees who will be present on company property to obtain a vaccine when it becomes readily available to the general public?

Generally, yes; provided that

Coronavirus (UK): 10 key vaccination issues for employers

1. Can an employer require an employee to be vaccinated?

No.  The Public Health (Control of Disease) Act 1984 provides that individuals must not be compelled to undergo any mandatory medical treatment or vaccination.  In addition, employees may have the protection of Article 8 of the European Convention on Human Rights which provides that individuals have the right to not be physically or psychologically interfered with.  Furthermore, any forced vaccination is likely to amount to a criminal offence.

ACAS guidance advises that employers should support staff in getting the vaccine, but cannot force them to be vaccinated.

2. What are the discrimination risks associated with vaccination?

Discrimination issues may arise either as a result of compelling employees to take the vaccine or putting in place measures which are detrimental to those employees who have not taken the vaccine.

The two key risks are likely to be disability discrimination (where an employee is unable to get the vaccine because of a health condition) and religious or philosophical belief discrimination (where, for example, there may be concerns for vegan employees due to animal testing on the vaccines).

3. What impact will vaccination have on the COVID-secure workplace?

As well as the fact

For the New Year, Colorado Makes COVID-19 the Gift That Keeps Giving (Paid Time Off)

On the night before Christmas Eve, the Colorado Department of Labor and Employment (CDLE) issued a surprise opinion that Colorado employers are required to provide still more paid sick leave for COVID-19 in 2021.  In its Interpretive Notice & Formal Opinion #6C (INFO #6C), CDLE opined that all Colorado employers would be required, as of January 1, 2021, to grant employees up to 80 more hours of paid sick leave for COVID-related absences pursuant to the Healthy Families and Workplaces Act (HFWA).  INFO #6C can be found here.

Background:

  • In response to COVID-19, Section 406 of the HFWA required all Colorado employers, in 2020, to provide the Emergency Paid Sick Leave described in the federal Families First Coronavirus Response Act (FFCRA), without regard to the coverage provisions of the FFCRA. As a result, in 2020, Colorado employers of all sizes were required to provide up to 80 hours of paid sick leave for certain COVID-related absences described in the FFCRA.  That requirement under Section 406 expired with 2020.
  • To address possible future pandemics, the Colorado General Assembly also included Section 405 in the HFWA. Under Section 405, “on the date a public health emergency is declared, each employer

REMINDER: Colorado Now Requires Disclosure of Compensation and Benefits with All Job Postings and Advance Notice of Promotional Opportunities

Employers with at least one employee in Colorado should remember that they are now required to comply with the pay transparency and promotion transparency requirements of the Colorado Equal Pay for Equal Work Act, which took effect January 1, 2021.  The governing regulations can be found at 7 CCR 1103-13.  In addition, the Colorado Department of Labor and Employment (“CDLE”) has issued Interpretive Notice & Formal Opinion #9 (“INFO #9”), a non-binding interpretation regarding these requirements (“INFO #9”), which can be found here.

Pay Transparency

All job postings must now include the hourly or salary compensation, or compensation range, for the position and a general description of the benefits and other compensation that will be provided to the successful applicant.  Employers may use electronic links to compensation and benefit information, rather than including that information in the posting itself.

If compensation is stated as a range, that range must represent the lowest and highest pay that the employer in good faith believes it might pay for that particular job.  Relying on stale data regarding the filling of such positions in the past, or using the same blanket “range” for all positions, will

The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.