COVID Vaccine Mandates: Legal Questions and Answers Employers Need Now

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MP: Good afternoon, and thank you for joining us today for an MP webinar on COPA vaccine mandates legal questions and answers employers need now.

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MP: i’m Amy Wieman head of marketing here at MP and for those of you joining us on a webinar for the first time MP, is a full service human capital management company.

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MP: offering a complete suite of products and services to support employers through the entire employee lifecycle.

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MP: Including recruiting HR payroll benefits administration time and attendance and compliance assistance.

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MP: We support our clients with cutting edge technical solutions, as well as proactive reliable service and deep HR and payroll expertise and NP we are wired for HR and help our clients succeed by aligning their people strategy with their business goals.

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MP: i’m excited to introduce your presenter for today, we have Tony Alvarez Tony is an employment law attorney with Vera law.

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MP: tani centers her practice and the understanding that the employment landscape is ever changing and organizations don’t have the time or the resources to keep abreast of all of these changes.

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MP: Connie has represented diverse clients in a broad range of industries from small family owned businesses and nonprofits to fortune 100 companies across the country.

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MP: Very law very deep rooted history dates back to 1862 today barrel, is a full service law firm with 120 attorneys and seven offices throughout the Northeast.

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MP: The firm’s attorneys provide award winning client service to businesses and individuals.

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MP: across the country and around the globe in a variety of industries, including construction energy estate planning fiduciary services, food and beverage and higher education and many others for more information about the firm and its values visit www Vero dash law COM.

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MP: Before we begin the program today, I just want to remind everybody that if you would like to submit a question during the program please use the Q amp a feature at the bottom of the screen and we’ll also be sending out a recording of the program along with the slides later in the day.

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MP: And with that I will hand the MIC off to Tony.

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Tawny Alvarez: Thank you so much for that wonderful introduction I really appreciate it, as mentioned my name is Tony Alvarez, I am a Labor and employment attorney.

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Tawny Alvarez: At viral I practice throughout the Northeast and stay abreast on all of the ever changing federal topics and everything related to covert that we’re currently dealing with now.

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Tawny Alvarez: throughout the course of the presentation, as mentioned, please use the Q amp a function if you have questions about something that we’re discussing and my goal will be to answer those questions as we’re going through the slide.

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Tawny Alvarez: Now I usually find it helpful for everyone to know what we’re going to talk about during the course of the presentation, so that they can get ready and excited for the next piece of information or hold questions.

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Tawny Alvarez: With the thought or understanding that hopefully i’m going to get to that we have a lot of information to cover in a really short period of time.

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Tawny Alvarez: So we’re going to talk about what regulations have been created and where one would find vaccine mandates generally throughout the country and in specific regions.

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Tawny Alvarez: The current legal status of different regulations that have been created which rules are going to apply to what organization, so that you are aware of what regulation your organization may be bound by.

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Tawny Alvarez: What happens if an employee refuses a vaccine, where do we go from there, what obligations does an organization have to provide religious accommodations.

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Tawny Alvarez: What obligations does an organization have to provide medical accommodations can employees be required to take regular coven tests if they’re unvaccinated.

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Tawny Alvarez: What would happen or Kennan employee refuse regular coven 19 test who pays for such testing and then, what are the record keeping obligations we’ll also talk about best practices, more generally, as it relates to all all of these different elements so let’s get started.

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Tawny Alvarez: first thing we’re going to talk about is what regulations have been created so specifically the OSHA vaccine mandate, the.

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Tawny Alvarez: Emergency temporary standard is the one that you have most likely heard the most information about so that’s the one that was issued in November and it covers all employers in the United States, who have 100 or more employees.

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Tawny Alvarez: The second regulation that may be applicable to your organization or that’s been created is President biden’s executive order on ensuring adequate coven safety protocols for federal contractors, that is going to be.

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Tawny Alvarez: The federal contractor mandate and we’re going to discuss it in much more detail, but for employers who have contracts with.

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Tawny Alvarez: The Federal Government, the third one, that may be applicable to your organization, when I say, maybe there’s not going to be times in which all of these are applicable.

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Tawny Alvarez: But understanding which one may be applicable would be the cms vaccine mandate that’s the Center for medicaid services that vaccine mandates.

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Tawny Alvarez: And then also understanding state or local rules and regulations in the locations in which you have employees.

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Tawny Alvarez: Or, in which you provide services, just to give a sense as to how broad the different state and local rules are.

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Tawny Alvarez: In California state workers healthcare workers school staff correctional facilities individuals and higher settings they have to be vaccinated or test once per week.

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Tawny Alvarez: And Colorado State employees and state contractors need to be vaccinated in Connecticut nursing home staff State employees school staff.

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Tawny Alvarez: On in Delaware DC Hawaii Illinois maine Marilyn all of those locations have different restrictions in place and rules concerning vaccines.

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Tawny Alvarez: You most likely heard late last week about New York city’s vaccine mandates and then Massachusetts currently is mandating skilled nursing.

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Tawny Alvarez: home executive part department employees and home care workers all be vaccinated so if one of this three federal vaccines that we’re going to spend a good chunk of time talking about today don’t apply to your organization.

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Tawny Alvarez: still be mindful that state and local rules and regulations on may be applicable so.

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Tawny Alvarez: What are the legal status of some of these regulations, however, because you’re likely thinking to yourself well today you’re.

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Tawny Alvarez: going to spend a whole hour telling us about these rules and regulations, but my understanding is that none of them are applicable, all of them have been shot down.

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Tawny Alvarez: They have not been shut down shut down at this point in time, none of the coven vaccine requirements that have been issued by the Federal Government have been found to be overreaching or.

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Tawny Alvarez: have been found to be unconstitutional so at this point in time, what we have our stays so stays are issued by a core in this situation, a multitude of different federal courts that have indicated that they believe that different administrative agency is have.

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Tawny Alvarez: overreached in their authority, so the big one that you likely have heard about is the OSHA ETS mandate for employers with 100 or more employees.

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Tawny Alvarez: Now this rule was was recently stayed and it was stayed by the fifth circuit Court of Appeals down in Louisiana.

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Tawny Alvarez: And the case was then transferred to the sixth circuit because multiple different pieces of litigation were filed.

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Tawny Alvarez: And they took all of those cases they created a lottery for all the jurisdictions, in which cases had been filed in the sixth circuit ended up winning that lottery.

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Tawny Alvarez: Yesterday the sixth circuit came to a decision that it would have a three judge panel, who would review whether or not.

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Tawny Alvarez: The state that was issued by the fifth circuit should be maintained, or if it should be lifted if the state is lifted, that means that the rules and regulations would be in a fact, while the lawsuit goes on.

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Tawny Alvarez: While a stay on is, in effect, however, OSHA cannot take any action to implement or enforce the hundred plus ETS standard okay.

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Tawny Alvarez: So thats related to the hundred plus ETS from OSHA in the fifth circuit decision, there is a number of different arguments that the Court made or statements, a court made and it’s finding that.

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Tawny Alvarez: The ETS was shouldn’t be stated, because it was an overreach of osha’s authority one was at the mandate is over, inclusive.

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Tawny Alvarez: because not every workplace in the country has been shown how covert cases to the mandate is under inclusive, why does it only apply to employers who have 100 or more employees.

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Tawny Alvarez: To under the rules concerning one and emergency temporary standard can be issued by OSHA one of the specific things.

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Tawny Alvarez: That set forth is that it can be used as a stopgap measure and, in this situation because OSHA mentioned, you know we understand that a meatpacking.

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Tawny Alvarez: plant and an accounting firm may have different issues with coven it showed that they were using this as a stopgap until they could create more specific rules and regulations in different industries.

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Tawny Alvarez: The mandate flunks a cost benefit analysis at this point in time, it is estimated that the OSHA hundred plus etfs standard will cost about 3 billion in compliance costs.

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Tawny Alvarez: And then, in addition to all those concerns the Court also noted that there were constitutional concerns both under the commerce clause.

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Tawny Alvarez: And also under the police power provision as a result, they ordered, or should it take no steps to implement or enforce the mandate until further court order.

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Tawny Alvarez: The cases now with the sixth circuit and the sixth circuit i’ll make a ruling, as to whether or not to lift the stay.

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Tawny Alvarez: As the federal contractor executive order this executive order has also been stayed so um it’s a it’s a nationwide stay a Georgia Federal Court granted.

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Tawny Alvarez: In addition, it’s important to understand that there have been other courts, who are also granting injunction so right now Georgia federal courts granted a nationwide injunction which the United States has appealed and sought to.

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Tawny Alvarez: overturn this day, so an injunction and a stay or the same thing, so the federal contractor mandate, then could not be implemented, while the stair the injunction is in effect.

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Tawny Alvarez: Kentucky have a Federal Court and Kentucky has also granted an injunction or a stay on the order in Kentucky Ohio and Tennessee.

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Tawny Alvarez: And earlier today actually a judge issued a third stay as it relates to the federal contractor rules and that stay applies to Louisiana Mississippi and indiana.

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Tawny Alvarez: you’re likely thinking to yourself well Tommy if there is a nationwide stay, then why is this Kentucky car and the Louisiana core, why are they issuing stays that only apply to a couple of different States.

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Tawny Alvarez: And the reason is clear when we start looking at the cms vaccine mandates, so the current status the cms vaccine mandate is it in certain States, it is stayed in other states, it is not stayed.

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Tawny Alvarez: So on the 30th of November, a nationwide stay had been issued as it relates to the cms vaccine mandate, meaning that.

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Tawny Alvarez: The United States Government could not enforce the cms vaccine mandate in any state.

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Tawny Alvarez: But on December 15 the fifth circuit lifted the nationwide stay and this becomes interesting because fifth circuit is the one who issued.

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Tawny Alvarez: The stay as to the OSHA hundred plus mandate and just yesterday they lifted the nationwide stay.

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Tawny Alvarez: But they allowed this day to continue as it applied to Louisiana Montana Arizona Alabama Georgia.

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Tawny Alvarez: Idaho indiana Mississippi Oklahoma South Carolina utah West Virginia Kentucky and Ohio those are the course of this those are the.

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Tawny Alvarez: States in which the cms vaccine mandate would not take a factor, or is currently stayed, and the reason why it’s limited to those states is because those are the states that suit or were part of the lawsuit.

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Tawny Alvarez: However, in late November on November 29 an Eastern district of Missouri judge had also granted a preliminary injunction for 10 states.

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Tawny Alvarez: Those states were Missouri nebraska Arkansas Kansas iowa wyoming Alaska South Dakota North Dakota and new Hampshire.

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Tawny Alvarez: So if you are in if you have operations in any of the 24 states that I just listed i’m currently and I apologize, because I just moved backwards on the side.

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Tawny Alvarez: Currently, on, there is a stay in effect if you are not in one of those 24 states of cms vaccine mandate is not currently stayed and would be an effect and you would need to be in compliance with it.

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Tawny Alvarez: Additionally, we’re seeing a lot of different state and local rules and regulations that are being created, and in many situations are being.

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Tawny Alvarez: are being challenged in the courts, one of the interesting aspects is that the fifth circuit and finding that the OSHA.

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Tawny Alvarez: vaccine mandate may be unconstitutional they found that the police power is such that these are rules that should be undertaken at a state level.

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Tawny Alvarez: That state governors or legislators are the ones that should be legislating something like this.

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Tawny Alvarez: That argument that we’re seeing what would provide a stronger argument that the state or local rules and regulations are appropriate and within.

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Tawny Alvarez: The police power of the state in a similar vein to what we saw at the beginning of the pandemic when we saw the ability of States to limit gathering sizes or otherwise put regulations into effect.

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Tawny Alvarez: So there is a lot to understanding the legal challenges and one of the things that you’re likely going to to hear a lot about in the news in the coming.

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Tawny Alvarez: weeks days and I, you know what it’s honestly hours and days at this point in time.

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Tawny Alvarez: Two hours before this presentation started and when we’re doing it live it’s currently December 16 1:16pm Eastern time but I mean two hours before this presentation we had another order issued from a court.

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Tawny Alvarez: Yesterday we had a second order issued and understanding the Court makeup is something that a lot of individuals find to be extremely important, and there is a belief that the courts that are.

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Tawny Alvarez: Have a higher representation of judges who have been appointed by republican President on are more likely to find that the rules and regulations are.

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Tawny Alvarez: An old are overreaching and should be struck down it’s interesting, however, because, as you saw with yesterday’s ruling from the fifth circuit on the fifth circuits, then you can enjoin the whole nation, and that is a much more.

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Tawny Alvarez: The fifth circuit has a much larger pool of republican appointed judges than many of the other states so it’s interesting than that that.

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Tawny Alvarez: flies in the face of what a lot of jurist kind of believe will happen when it when they’re stating that they believe that the outcome will turn on who was which judges were appointed by which President.

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Tawny Alvarez: I really struggle with that because I don’t think that this is a political question, I think that there is a lot more to the legal argument here about authority and that this doesn’t truly become a.

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Tawny Alvarez: A question that involves politics, but we will see.

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Tawny Alvarez: We do know, however, that we’re not going to have an answer to the OSHA ETS mandate anytime soon, so the briefing of the matter ended on December 10.

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Tawny Alvarez: Only yesterday was a determined that a three judge panel on would hear the issue and we haven’t had oral argument on it, yet so we still have a ways until we determine whether or not the OSHA mandate will will be maintained.

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Tawny Alvarez: But then that leads to another big question, which is how do state laws interact with federal.

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Tawny Alvarez: Restrictions so under the OSHA hundred plus employee ETS the ETS very specifically says the ETS preempt State law.

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Tawny Alvarez: On so if there is, if you operate in Texas and Texas has a restriction that says that you can’t.

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Tawny Alvarez: mandate, the vaccine in this situation, the ETS would preempt that law, however, as it applies to other state laws that have provide employee protections.

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Tawny Alvarez: Wage and hour leave laws all of those in those situations, the state laws going to preempt so in different states, there may be rules that say.

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Tawny Alvarez: You if you require your employees to have a medical screen or do any medical testing that that.

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Tawny Alvarez: Testing has to be paid for by the employer now under the ETS, it says employees are responsible for paying for costs of tests associated with being unvaccinated however State law would preempt that role and state that an employer needs to pay for it.

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Tawny Alvarez: One of the the questions that we got maybe the that relates to this is if an employee is traveling and test positive or is required to quarantine who is responsible for paying for the hotel food and change and travel plan fees.

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Tawny Alvarez: If the employee is traveling for work related purposes there, there may be restrictions in the states in which you work at that say if it was for work related reasons if they’re performing work that then they’re going to need to continue.

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Tawny Alvarez: To pay if they’re performing work.

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Tawny Alvarez: or were there because of work related reasons, most likely the employer would have some obligations, if they were simply doing it for vacation or for personal reasons that’s all going to most likely be an employee cost.

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Tawny Alvarez: As to the federal contractor man day um the federal contractor mandate includes within it that it.

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Tawny Alvarez: overrules or pre amps any State laws Similarly, the cms mandate, says the same thing the supremacy clause.

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Tawny Alvarez: is going to take a fact, and if State law prohibits the vaccine mandates and cms mandate is going to trump that rule and preempt State law.

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Tawny Alvarez: If, however, you do not fall under any of these three federal.

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Tawny Alvarez: Regulations and you’re creating a private man day you’re going to have to be mindful of the different state laws in your jurisdiction that may restrict the ability to.

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Tawny Alvarez: mandate, the vaccine or provide other regulations or rules related to it, so if none of the three a vaccine mandates under federal law apply you’re going to look purely at State law and that’s going to rule if you’re attempting to put into place at private mandate.

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Tawny Alvarez: Now so we’ve talked kind of generally about what these rules are at and where they land from a.

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Tawny Alvarez: standpoint of jurisdictional or legal challenges to them, but it’s important to understand which regulations cover what organizations.

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Tawny Alvarez: So the ocean etfs mandate, it covers employers who have 100 or more employees at any point in time between November 5 and the end of the ETS.

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Tawny Alvarez: Now ETS is normally would be in effect for six months so we’d look be looking at a six month period of time from November 5 2021 forward.

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Tawny Alvarez: We know, right now, however, that the mandate is stayed that stay wouldn’t really be able to affect the six months period of time it just decreases the period of time in which I think we have an effective ETS.

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Tawny Alvarez: So what is an employee becomes a big question we count all employees at all level whether or not they’re full time part time, remote or in person.

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Tawny Alvarez: None of those matters so if if an individual works one hours a week there one employee, for the purposes of determining if you have 100 or more employees if on.

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Tawny Alvarez: Between November 5 and January 20 you have 97 employees and on February first you have 104 employees and then on march 3 you only have 97 employees again so you only had over 100 employees, for you know 30 days.

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Tawny Alvarez: The ETS is going to apply to you for all periods of time after you have 100 employees as long as the ETS is, in effect, and not in a stay.

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Tawny Alvarez: So as soon as you have 100 employees the ETS coverage you, even if, after that period of time you go below 100 employees.

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Tawny Alvarez: It does exclude independent contractors and staffing agency workers those individuals would be counted under the organization that hires and employees them towards 100 individuals.

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Tawny Alvarez: On Unionized work forces are covered under the OSHA ETS standards and.

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Tawny Alvarez: Then national Labor relations board has come out with notices indicating that if there’s anything that isn’t required.

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Tawny Alvarez: Under the ocean etfs it would be subject to bargaining, but the general rules do not count towards on that bargaining we got a question as to whether or not.

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Tawny Alvarez: Employees outside the United States count towards the headcount they do not so we’re looking at us workforce good question.

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Tawny Alvarez: um work forces that are covered by the safer federal workforce Task Force koba 19 workplace safety guidance for federal contractors.

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Tawny Alvarez: and subcontractors, they are excluded, so if you are covered by the Federal Condor contractor mandate.

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Tawny Alvarez: Then you are not covered by OSHA even though you even if you have 100 or more employees.

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Tawny Alvarez: i’m also employers you’re covered by the healthcare ETS are excluded and the cms mandate that we’re going to speak about shortly.

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Tawny Alvarez: So then, if this is the OSHA ETS, and we know that the people are covered by the Federal contractor mandate are excluded from the OSHA ETS.

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Tawny Alvarez: Who is covered under the federal contractor mandate so under the federal contractor man day.

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Tawny Alvarez: It is required to include or once the state is lifted, all new contracts that are awarded after November 14 if the solicitation was before October 15.

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Tawny Alvarez: New orders after October 14 if they’re under an indefinite delivery service contract new solicitations for services that are issued after October 15.

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Tawny Alvarez: extensions of service contracts renewals of service contracts options that are exercised on existing service contracts.

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Tawny Alvarez: And what you’re going to be seeing in the contracts that you enter into with these government agencies is language of default to the following a fact.

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Tawny Alvarez: The contractor shall comply with all guidance, including guidance conveyed through frequently asked questions as amended during the performance of this contract.

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Tawny Alvarez: And then there’s going to be a hyperlink to the data that’s provided by the safer federal workforce Task Force and it’s going to be updated regularly, so it would be important if this regulation applies to you that you have a member on your team, who is.

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Tawny Alvarez: very specifically and daily checking the new rules and regulations.

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Tawny Alvarez: Additionally, if you’re a prime contractor, so this language is included, not just in the prime contract and, that being the contractor who contacts directly with the government.

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Tawny Alvarez: But any of the contracts, the down flowing contracts, so if you’re a prime contractor and you use subcontractors subcontractors at any and all tier so not just the first few tears, but all tears.

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Tawny Alvarez: If the work exceeds the simplified acquisitions threshold, the prime contractor is going to be responsible for including similar language in their contract.

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Tawny Alvarez: With subcontractors and the simplified acquisitions threshold is defined by statute, but it means over $250,000 worth of work, except in certain exceptions, and if you believe one of those exceptions would be applicable to one of your contracts.

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Tawny Alvarez: You should really talk to counsel about whether or not it needs to be included in contracts moving forward.

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Tawny Alvarez: um So those are who’s covered under the federal contractor but that’s who must be covered the interesting issue or or concern becomes.

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Tawny Alvarez: That right now federal agencies are able to choose whether or not other contracts, aside from the ones that must be included in.

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Tawny Alvarez: Different federal agencies could expand the list of organizations that are required to to meet these requirements, so it could be included in contracts and subcontracts for the manufacturing of products.

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Tawny Alvarez: So contracts or contracts that are under that 250,000 that simplified acquisitions threshold.

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Tawny Alvarez: On contracts that are awarded prior to November 14 without regard to one solicitation occurred or contracts that are not covered by the order because it’s under the threshold just more generally.

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Tawny Alvarez: So it is really important to understand, though, while the Biden federal contractor mandate specifically sets forth it must apply to these type of contracts, it also has a very broad definition of different organizations that can.

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Tawny Alvarez: include or can add on to the contracts that are currently.

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Tawny Alvarez: In effect, one of the questions that we’ve got is even if the international employee doesn’t count towards 100 employer account are they required to be vaccinated if those international employees are coming on to work sites that are.

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Tawny Alvarez: that are required to have the mandate, then yes, they would need to be vaccinated so it’s about entrance into the work site itself and making sure that your staff is.

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Tawny Alvarez: Everyone who is employed by the organization who’s at a work site is vaccinated So if you have a location in France.

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Tawny Alvarez: Those French employees don’t count toward your hundred employee, but if you have those individuals from France, who are visiting.

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Tawny Alvarez: Your work locations when they come over in order to enter your facilities, they need to be vaccinated because all of your employees at the work site must be.

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Tawny Alvarez: must be vaccinated So those are your federal contractor rules as to who’s covered and also your Rules concerning the hundred plus OSHA etfs.

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Tawny Alvarez: let’s jump over to the cms mandate to understand who’s covered under that now.

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Tawny Alvarez: cms mandate requires its staff be vaccinated if they are a medicare or medicaid certified provider and supplier and it’s going to include ambulatory surgery centers.

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Tawny Alvarez: Community mental health centers comprehensive outpatient rehabilitation facilities critical access hospitals and stage renal disease facilities.

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Tawny Alvarez: home health agencies home infusion therapy suppliers hospices hospitals intermedia carefully facilities for individuals who have intellectual disabilities.

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Tawny Alvarez: clinics rehabilitation agencies programs for all inclusive care for the elderly organization rural health clinics medicare federally qualified health centers long term care facilities.

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Tawny Alvarez: The list goes on and on, so it’s a very broad list.

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Tawny Alvarez: And then, all eligible staff that are working in the cms certified facilities, regardless of whether or not they have clinical responsibilities or patient contact are going to be required to be vaccinated So even if they’re in.

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Tawny Alvarez: accounting and they just are in the building, but are only on the phone and don’t have any patient centered responsibilities or clinical responsibilities, they will still be subject to the vaccine mandate.

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Tawny Alvarez: The only ones who would be exempted from it, if they are employed by one of the healthcare providers that are set forth kind of in this list or under the cms is going to be individuals who.

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Tawny Alvarez: full time 100% telework and when I say 100% telework they can’t go in to pick up a check they can’t go in once a month or once every six months, they have to 100% be teleworking never coming into the work environment.

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Tawny Alvarez: So one of the questions that we got with regards to the who’s covered goes back to the.

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Tawny Alvarez: executive order and the Federal contractor mandate, the question was whether or not it applies to all staff, regardless of whether they’re working on site, or in the office or if they’re remotely located and working from home, that is correct, so if they go and if they are.

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Tawny Alvarez: federal contractor, even if they’re not working on a federal contractor job.

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Tawny Alvarez: So let’s say they never would enter a federal contract they never perform any work thats related to a federal contract, they would still need to be.

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Tawny Alvarez: On vaccinated on if they’re working on site, or in the office, even if they don’t touch the federal contract, they need to.

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Tawny Alvarez: If they’re working from home it’s similar to the ETA it’s similar to the cms man day if it’s 100% never touches another person never comes into the office.

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Tawny Alvarez: Then the mandate wouldn’t be applicable, but if they had any time are going to come into the office that then that man day on.

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Tawny Alvarez: is going to be applicable to that individual so one of the big places that we’re seeing confusion is with regards to the OSHA etfs the hundred plus um.

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Tawny Alvarez: And it’s whether or not it’s truly amanda and I think that the.

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Tawny Alvarez: Media has done a really poor job by calling it a mandate, because it’s not a mandate if you are vaccinated great.

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Tawny Alvarez: there’s specific rules that you have to follow if you’re unvaccinated it doesn’t mean that you’re terminated or any adverse action will happen it just means.

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Tawny Alvarez: That there’s these additional provisions that are going to apply to the organization, so if you’re on vaccinated or have employees who are unvaccinated and the OSHA hundred plus ETS mandate applies to you.

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Tawny Alvarez: You do not have to remove those individuals from the work environment, instead, you can record, you need to require that they be tested for.

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Tawny Alvarez: within seven days of coming into work so every every seven days they would need to be tested, they also.

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Tawny Alvarez: would need to have a face, covering on isolation and face covering is insufficient, so you can’t say this individual is going to be locked in a room all day and wear a mask so.

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Tawny Alvarez: Therefore they don’t need to get tested every seven days, OSHA said that’s insufficient, you can as an organization use pool testing take a whole group of unvaccinated individuals.

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Tawny Alvarez: swab test together and then, if it’s positive do individualized test and if it’s negative virile so.

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Tawny Alvarez: If, however, an individual had a prior positive testing would be suspended for 90 days after that positive cast So if you have employees who are unvaccinated.

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Tawny Alvarez: who have had coven for a 90 day period following that period of time you wouldn’t be testing them on instead you’d be taking other precautions the face covering potential social distancing.

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Tawny Alvarez: One of the big questions that we get a lot is who maintains, do you have to maintain records of each test result and then who pays.

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Tawny Alvarez: So each testers all the results need to be saved in the employees medical record file and.

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Tawny Alvarez: The employee will have to pay for the test unless you live in a jurisdiction like I mentioned earlier, that has a state or local rule that requires medical testing or screening to be paid for by the employer or.

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Tawny Alvarez: Another aspect that we’re getting a lot of confusion about is what constitutes a coven 19 tasks this screen and, as I mentioned before you’re going to get a copy of this screen.

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Tawny Alvarez: On you have to remember that the employee cannot do the coven 19 tasks at home themselves and read the result, so it can’t be both self administered and self read unless the employers.

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Tawny Alvarez: watching the reading or there’s an authorized Tele health proctor who’s overseeing it so that’s with regards to the OSHA 100 plus ETS mandate.

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Tawny Alvarez: What happens if you’re not covered by any of these regulations and you decide that you want to have a private mandate, so you need to review State Law and the jurisdictions that you operate in.

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Tawny Alvarez: And then you also, in addition to the State Law, you need to look at local laws, where you have employees, so any place that you have employees.

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Tawny Alvarez: Or that you have a workplace check the local laws there to see what regulations are in place.

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Tawny Alvarez: You also need to understand your obligations to provide religious accommodations and medical accommodations and we’re going to talk about those more, but there is no such thing as.

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Tawny Alvarez: 100% mandate, where there’s no exceptions to it so it’s important to understand that there’s no such thing as 100% mandate, everyone has to be vaccinated or out.

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Tawny Alvarez: And that leads to this question, what happens if an employee refuses of vaccination right so under the hundred plus OSHA ETS there’s a testing alternative there’s no true requirement that someone be vaccinated they could test weekly and wear a mask if you’re covered by the cms mandate.

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Tawny Alvarez: There is no hey I just don’t want it, but if an employee is unvaccinated as a result of a medical condition.

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Tawny Alvarez: or a disability or sincerely held religious belief right then on the employee would.

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Tawny Alvarez: You know we’d have the dialogue concerning an accommodation if it’s none of those things if it’s not a health reason, if it’s not sincerely held religious belief.

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Tawny Alvarez: On employment, would cease and you’d be in a position where you need to terminate the individual based off of their failure to be vaccinated.

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Tawny Alvarez: that’s the same standard that would be applicable to the federal contract or one on so you know you’re filing in that same position.

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Tawny Alvarez: With the cms or I mean, arguably, and the problem is is in most situations this isn’t going to work.

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Tawny Alvarez: If the hundred as a person can work 100% remotely and never have any access to the organization and the workplace, you might be able to use that but my findings have been that in most situations that’s not something that can easily occur.

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Tawny Alvarez: And then, if you have an independent mandate again you’re going to have to go through sincerely held religious belief or determine whether a medical accommodation is necessary.

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Tawny Alvarez: But then, if it’s neither of those reasons, and an individual refuses in most states you’d be in a position to.

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Tawny Alvarez: To to to terminate the individual one of the questions that we just got was whether or not the test needs to be a PCR cast for the.

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Tawny Alvarez: OSHA ETS hundred plus no, it does not have to be a PCR test as long as it is one that has been certified by.

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Tawny Alvarez: CDs FDA as an appropriate test i’m under the cms accommodation, does the employees don’t need to be tested weekly, we are actually going to talk about that in further detail so.

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Tawny Alvarez: What obligations, do I have to provide a medical accommodation under the ETS a cms and the Federal contractor role title seven and State law likely are going to provide.

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Tawny Alvarez: An obligation to provide a religious accommodation now if you’re providing a religious accommodation under the ETS you’re going to have to.

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Tawny Alvarez: Provide require them to to test weekly under the cms and federal contractor there’s no requirement for a weekly tasks, so you can make an accommodation to not be vaccinated and choose what that accommodation looks like.

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Tawny Alvarez: Under the ETS, however, it would have to include weekly testing now if an individual and that’s as it relates to the vaccination we’re seeing a higher on.

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Tawny Alvarez: The level of individuals who are arguing that they’re sincerely held religious belief limits their ability to be tested they don’t believe in vaccines and they don’t believe in coven tests.

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Tawny Alvarez: Under the cms and the Federal contractor mandate there’s no testing requirements, so there would still be an accommodation that potentially is available, as long as it doesn’t create an undue burden.

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Tawny Alvarez: Under the etfs there’s language that says that simply being.

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Tawny Alvarez: masked and staying away from individuals is insufficient to protect the unvaccinated but it simultaneously says.

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Tawny Alvarez: That you have to provide a religious accommodation that makes it unclear whether or not you could permit an individual to stay in the workplace who’s refusing to be tested weekly and whether or not.

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Tawny Alvarez: Permitting them not to be weekly tested would be a reasonable accommodation, because a strong argument could be made that it violates ETS language it’s important to understand as sincerely held religious belief doesn’t have to be in conformance with.

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Tawny Alvarez: The the powers that operate the religion so just because the Pope says one thing doesn’t mean that you an employee who believe something different doesn’t have a sincerely held religious belief.

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Tawny Alvarez: It can be an independent belief that isn’t with the same viewpoints or teaching of the Church.

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Tawny Alvarez: Really, we need to look at the undue burden standard is to provide an accommodation will that create an undue burden for my organization, whether it puts a health and safety of individuals at risk, whether.

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Tawny Alvarez: or not kind of their presence or refusal to follow this policy is going to create an undue burden so under the cms accommodation.

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Tawny Alvarez: Rule there’s not a requirement that there is a weekly tasks are you testing for variants you’re testing for whatever you know if it’s a certified.

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Tawny Alvarez: test and you’ll see the listing of what’s required that’s going to determine whether or not there’s coven in your system and the tests themselves likely aren’t testing for all the different variants based off of the speed of the law versus the speed of of science um.

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Tawny Alvarez: We have a question as to the fact that vaccinated employees can still get in transmit coven.

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Tawny Alvarez: And breakthrough cases.

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Tawny Alvarez: wise testing only of those who are unvaccinated so vaccination status is not a form of discrimination, so you’re determined your choice whether to be vaccinated or unvaccinated isn’t a protected class under Title seven so discrimination doesn’t come into effect.

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Tawny Alvarez: But, on the question about why isn’t testing required for the vaccinated individuals, when you look at the science of it is a good question and it’s one of the things that the courts are looking at us to wise OSHA.

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Tawny Alvarez: kind of doing in this limited fashion, and the reason that OSHA did it in the limited fashion as set forth in the ETS is because they felt as though.

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Tawny Alvarez: it’s a protection of the employees, not other individuals and that employees who are already vaccinated have taken you know the best possible step in protecting them.

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Tawny Alvarez: But that the OSHA ETS isn’t to protect the public, it is to protect the individuals who are unvaccinated.

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Tawny Alvarez: As far as franchises do we grew up franchises together as each individually owned entity each individually owned entity.

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Tawny Alvarez: would be include would be its own so you don’t use a franchisee and the franchise or numbers, but if you own multiple franchises and it has the same owner and.

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Tawny Alvarez: Ownership right so you’re not the franchise or but you own multiple franchises the not likely is going to be seen as joint employment and all hundred are going to fall within that.

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Tawny Alvarez: Most religious accommodations that have received seem that the reason are regarding fetal cells in the use of vaccine testing.

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Tawny Alvarez: With this require an approval for an accommodation, yes, even though to have the vaccines.

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Tawny Alvarez: indicate that they do not rely upon or did not use fetal cells in their creation from a science perspective, there is a chance well the argument is is that the research to create the vaccines.

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Tawny Alvarez: is built off of the science that was developed using fetal cells, so in most situations, the fetal cell religious accommodation request is one that should be.

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Tawny Alvarez: That should be followed, if our company falls under the hundred employee requirement, do we still need to comply with any of these etfs obligations you don’t need to comply with.

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Tawny Alvarez: The ETS obligation, but what we have now is, we have an understanding from OSHA as to what the standard is so recall all employers with one or more employees are subject to osha’s on.

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Tawny Alvarez: duty to provide a safe and healthy work environment to employers up until this point, we have not throughout the whole pandemic the CDC has been telling us things.

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Tawny Alvarez: State CDC has been telling us different things, but we haven’t gotten very specific guidance from OSHA about what that means to provide a safe and healthy work environment.

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Tawny Alvarez: Even if you’re under 100 employees, you should read this ETS and get an understanding as to what they believe providing a safe and healthy work environment is.

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Tawny Alvarez: and talk to your leadership team about aspects of it that could easily be implemented, whether or not that’s masking whether or not it is trace.

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Tawny Alvarez: it’s identifying when someone has coven and keeping them out of work, all of those would be things that you should consider, in order to.

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Tawny Alvarez: meet the ocean general duties clause and to maintain that health safe and healthy work environment.

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Tawny Alvarez: I know there’s still a bunch more questions we’re going to move with the slides as to medical accommodations and i’m going to try to get back to the questions.

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Tawny Alvarez: um but medical accommodations are required under the ETS under the cms and under the federal contractor obligations right, so if someone had a medical condition which restricted their ability.

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Tawny Alvarez: To be vaccinated you would have to make an accommodation under the ETS the individual would have to be tested under the cms and the Federal contractor.

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Tawny Alvarez: Mandate there wouldn’t be that requirement, you could require a but it’s not mandated.

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Tawny Alvarez: you’re going to make a determination as to whether or not it’s going to be an undue burden to provide a medical accommodation of the individual being unvaccinated.

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Tawny Alvarez: In most situations, the answer is going to be no it’s not an undue burden and there’s case law from a state level that talks about different state health organizations that have recently created vaccine mandates.

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Tawny Alvarez: On for healthcare providers, specifically at a State level and the importance of making sure that we don’t put one.

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Tawny Alvarez: on health condition above another in this case that we treat coven 19 as a preempt every health condition, when someone else may be struggling with another health condition.

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Tawny Alvarez: Another question we’re getting a lot kind of employees, be required to take regular covert tests if they’re on vaccinated and under the ocean ETS that answer is yes and it’s not may it’s they will be required to take it.

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Tawny Alvarez: within seven days of working on a work site under the federal contractor and under the cms rules that would be an accommodation so requiring covert testing.

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Tawny Alvarez: For the unvaccinated or even for the vaccinated potentially as as accommodations can an employee refuse regular code 19 tasks on.

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Tawny Alvarez: If they refuse it under the ETS it’s unclear whether or not they could continue to be employed because.

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Tawny Alvarez: For a religious reason or for medical reason, if they refuse it for no reason at all just say I won’t do it and they don’t fall within a protected class.

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Tawny Alvarez: Then termination would be necessary, because they either have to be vaccinated or they have to have the weekly testing on if they refuse regular coven 19 testing and you’re not subject to the OSHA etfs.

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Tawny Alvarez: And the individuals unvaccinated because of a religious belief or because of medical condition, you could determine other ways in which you could provide a safe and healthy work environment, whether or not that be.

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Tawny Alvarez: By symptom checking or or other ways in which the CDC has said it’s important for us to to maintain information and the status of employees health conditions.

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Tawny Alvarez: That question about who is paying for the test under the OSHA ETS the employer pays for it, but you need to look at the State Law in each of the States in which you operate in in main.

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Tawny Alvarez: A main employer would be required to pay for it under the cms.

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Tawny Alvarez: If you’re providing testing covert testing as a reasonable accommodation, the employer is going to have to pay for that reasonable accommodation same thing with a federal contractor it’s going to be a reasonable accommodation.

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Tawny Alvarez: it’s important to know, however, that there was an announcement by the Biden administration on December second in which.

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Tawny Alvarez: It indicated that ensures are going to be required to pay for at home tests.

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Tawny Alvarez: So there’s a chance that in those situations, you can use the federal test, you could use the at home test recall, however, that if you’re subject to the OSHA ETS standard you could use the at home tasks.

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Tawny Alvarez: But you can’t have the individual employee self administer the test and read the results you’d have to have a member of your team who’s reviewing or reading those results in order for it.

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Tawny Alvarez: On in order for it to occur on the question that we just got was regarding the so in Massachusetts are we still waiting for the state to be lifted moving forward so in Massachusetts the OSHA ETS stay is in place.

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Tawny Alvarez: The cms day has been lifted so cms day has been lifted federal contractor stay remains, in effect, and so, those are so federal contractor and mass in effect cms lifted, no stay OSHA.

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Tawny Alvarez: Stay is is, in effect, now what and then as to who pays for testing an employee or can pay for the test, even in the states, no matter what the employer can choose to pay for the test, and that would be permissible.

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Tawny Alvarez: record keeping, so it is important to understand the information concerning vaccine status concerning negative COPA 19 tasks concerning positive covert 19 test.

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Tawny Alvarez: information concerning past coven positive situations information concerning disabilities and information concerning religious beliefs, all of this is confidential information.

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Tawny Alvarez: All of it should be limited to only the people you need to know in most situations that’s going to be human resources or whoever handles your human resources.

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Tawny Alvarez: functions, so that is an important to understand on you’re going to need to keep information concerning the vaccine status negative and positive tests, all in the employees medical file.

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Tawny Alvarez: information concerning past coven positive situations you’re going to need in order to implement the other aspects of the regulations.

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Tawny Alvarez: and disabilities and religious beliefs, even if we weren’t dealing with coven those are confidential documents and information that you need to keep.

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Tawny Alvarez: confidential, we have a question is the US postal service buildings covered by the executive order or federal contractor rule, no, they are not covered by that executive order.

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Tawny Alvarez: How do we pro an employee to determine whether or not they have a sincerely held religious belief, you can shoot me an email, and I can provide you with a copy of a document that I like to use that is.

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Tawny Alvarez: Request for a reasonable accommodation document and then, once you get that document back we’re going to have a discussion about.

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Tawny Alvarez: You know how How long have you had this belief and, depending on what different type of belief, it is, is going to dictate what type of questions you can ask on if it’s that they don’t agree with vaccines.

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Tawny Alvarez: And they don’t take they believe in the sanctity of life.

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Tawny Alvarez: And because of the fetal cell us, we then would ask questions about do you take my at all, do you take advil, these are all other drugs that have been created using the same science, so those would all be appropriate things to to ask um.

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Tawny Alvarez: there’s also under the OSHA ETS reporting requirements of reporting fatalities and hospitalizations if it’s.

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Tawny Alvarez: Definitely related to the work that’s done in the work environment, so if the employee can show that they got coven outwork you’re going to have to report if they’re hospitalized and have coven or if they die as a result of coven.

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Tawny Alvarez: Best Practices really understanding that none of these rules have been overturned all of these rules are still.

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Tawny Alvarez: There it’s just whether or not they’re currently being enforced Okay, so we know the ocean one is not being enforced across the country cms is being enforced in half of the States.

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Tawny Alvarez: And we know the federal contractor one is currently stayed and not being enforced.

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Tawny Alvarez: And what will happen in the future is anyone’s guess osha’s general duty clause, however, remains in effect for for all of us, for every single employer who’s here and understanding, providing a safe and healthy work environment is most important is really.

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Tawny Alvarez: What we should be focusing on I have time for one more question um.

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Tawny Alvarez: Yes.

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Tawny Alvarez: managers of each department may need to know on whether or not somebody can work at a certain job or a job site, due to their vaccination status.

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Tawny Alvarez: Really, the goal would be the HR knows who.

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Tawny Alvarez: Is vaccinated and unvaccinated and they will be able to provide managers, with a list of people that say like these individuals are qualified to work at these job sites.

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Tawny Alvarez: The document wouldn’t say vaccinated unvaccinated, we need to focus on their ability to work at different job sites versus their vaccination status um.

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Tawny Alvarez: The question concerning the ocean general duty clause if you have under 100 employees just Google OSHA general duty clause and that’s going to bring up your obligations it’s very broad it’s all it says is.

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Tawny Alvarez: All employers have an obligation to provide a healthy work environment on free from identified risks and that can be read very broadly and with that i’m going to turn it back over to MP, thank you all for your time and attention, I apologize that I didn’t get to every question.

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Tawny Alvarez: My email address will be included in the slides when they are sent out, but it is T Alvarez at verrill-law.com Thank you all for your attention and i’m going to turn it back over to pay.

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MP: Thank you, Tawny that was terrific information to help us better understand the continuously changing covert vaccine mandate landscape.

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MP: Thank you all for attending, as I mentioned, we will be sending out a recording of today’s program as well as the slide deck later today.

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MP: Also, next week, please join us the same day and time for important information on employee handbooks and how you need to update them.

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MP: With HR compliance in 2022 you can visit our website to register and see our full calendar of events and resources, and thank you all for joining us have a terrific rest of your day.