Management Update

Hospital Workers Sue Over Texas Employer's Vaccine Mandate

By Fred Preis, Rachael Jeanfreau, and Philip Giorlando

Over 100 employees of Houston Methodist Hospital—one of the first employers to require employees to receive COVID-19 vaccinations or face discharge—have sued the hospital. The workers claim that the hospital’s vaccine mandate makes employees into “human ‘guinea pigs’” because the Food and Drug Administration has not yet fully approved the vaccines, which were instead issued under an Emergency Use Authorization (EUA) and therefore are still considered “experimental.” The lawsuit states that “[t]he abbreviated timelines for the emergency use applications and authorizations means there is much the FDA does not know about these products” and claims that the hospital’s vaccine mandate violates Texas state law and the federal Food, Drug, and Cosmetic Act, which states that no one may be forced to accept an “unapproved” medical product issued under an EUA. The suit also alleges that the hospital’s requirement violates the Nuremberg Code, the medical ethics code issued after Nazi physicians were found guilty of experimenting on human subjects without their consent during World War II. Although a federal district court judge dismissed the lawsuit, plaintiffs have appealed the dismissal to the U.S. Fifth Circuit Court of Appeals.

Previously, Houston Methodist had incentivized employees by offering an extra $500 to vaccinated workers. However, in April, the hospital’s CEO notified workers that the hospital would require all 26,000 employees to be vaccinated by June 7 or face termination, unless an exemption applied based on a medical condition or sincerely held religious belief. According to the hospital, 99% of its employees complied with the vaccine mandate.

As most employers know, recent EEOC guidance states that federal EEO laws do not prevent employers from requiring employees to receive the COVID-19 vaccinations—subject to the rules on reasonable accommodations for certain religious beliefs and medical conditions. However, this lawsuit is a good reminder that employers face other exposure beyond EEO laws, and those wishing to impose a vaccine mandate may still face an uphill battle. However, this lawsuit is a good reminder that employers face other exposure beyond EEO laws, and those wishing to impose a vaccine mandate may still face some challenges.

Indian Workers Allege Human Trafficking, Wage & Hour Violations by Hindu Temple

By Fred Preis, Rachael Jeanfreau, and Philip Giorlando

A group of Indian foreign nationals recently sued a Hindu temple in New Jersey where they worked—and individual supervisors at the temple—claiming that the organization enticed more than 200 Indians to come as religious “volunteers” on R-1 visas to the U.S., where they were forced into labor and held against their will, in violation of wage and hour laws and the federal Trafficking Victims Protection Act. R-1 visas are available to foreign nationals who come to the U.S. as ministers or other religious occupations, but the workers claim that instead of religious labor, they performed grueling manual tasks, including cutting and laying stones weighing several tons, dipping stones in chemicals, removing garbage, and road work. In addition to the civil lawsuit, federal authorities are investigating and may file criminal charges.

The civil lawsuit claims that the workers were lured to the U.S. with promises of standard work hours and adequate time off, but after arriving in New Jersey, the organization confiscated their passports, forced them to live in trailers, prohibited them from talking to outsiders, and subjected them to harsh work conditions including twelve-and-a-half hour workdays, seven days a week. The workers claim that after deductions were taken—including various deductions they claim were illegal—workers earned only $1.20 per hour. The workers allege that their pay was docked for briefly idling, smoking, speaking to outsiders, leaving temple premises, and disobeying temple rules.

The plaintiffs further claim that as Dalits—the lowest level in India’s caste system—they had little opportunity in India and so were especially vulnerable to exploitation. In a similar California case, an Indian engineer who is a Dalit claims that he was discriminated against by higher-caste colleagues. Further, there have been recent calls for the EEOC to formally recognize caste discrimination as illegal under federal law.

Although the allegations in this case are extreme, they are a good reminder for employers to review their practices and ensure they comply with federal, state, and local wage and hour laws—including the classification of workers as independent contractors or employees, the use of unpaid volunteers, and deductions from wages for meals, breaks, and other reasons.

Moreover, employers should be sure to address all complaints of bullying, harassment, and discrimination, regardless of whether they involve members of the same sex/gender or ethnic/national origin/religious background. As this case and others show—including cases involving same-sex sexual harassment—employers can minimize the risk of discrimination and harassment claims, charges, and lawsuits by proactively addressing these issues.

OSHA Issues COVID-19 Emergency Temporary Standards and Guidance on Mitigating and Preventing COVID-19

By Jerry L. "Jay" Stovall, Jr.

In June the Occupational Safety and Health Administration (OSHA) issued a COVID-19 Emergency Temporary Standard (ETS) applicable to healthcare employers. (You can find the ETS here https://www.osha.gov/coronavirus/ets) OSHA also issued an updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace applicable to most other workplaces. (The new Guidance can be found here https://www.osha.gov/coronavirus/safework) Keep in mind that the Guidance is not legally binding, but the ETS is.

Takeaways from the ETS

Are you covered?

The ETS applies to most situations where any employee provides healthcare services or healthcare support services. This will apply to most hospitals, nursing homes, emergency responders, home health, and assisted living situations.

However, the following settings are specifically excluded from the ETS:

the dispensing of prescriptions by pharmacists in retail settings;
non-hospital ambulatory (i.e., outpatient) care settings where all non-employees are screened prior to entry and persons with suspected or confirmed COVID-19 are not permitted to enter;
employees providing first aid who are not licensed healthcare providers;
home healthcare settings where all employees are fully vaccinated, and all non-employees are screened prior to entry, and persons with suspected or confirmed COVID-19 are not present;
well-defined hospital ambulatory care settings where all employees are fully vaccinated, and all non-employees are screened prior to entry, and persons with suspected or confirmed COVID-19 are not permitted to enter;
healthcare support services not performed in a healthcare setting (i.e. off-site laundry, off-site medical billing); and
telehealth services performed outside of a setting where direct patient care occurs.

Develop a COVID-19 plan

The ETS requires employers to develop and implement a detailed COVID-19 plan for each workplace. The ETS provides specific details showing how the Plan must be developed. For instance, employers must seek input and involvement of non-managerial employees.

Implement Safety Measures

Employers must limit and monitor points of entry if direct patient care is provided. This includes screening all clients, patients, residents, delivery people, and other non-employees entering the setting. The ETS includes detailed requirements for PPE, training, and enforcement of PPE use policies. It also requires the continued use of social distancing and physical barriers.

Conduct Employee Health Screenings

In a major change, employers must screen each employee before each workday and before each shift. Employers must also require employees to inform them if the employee begins to experience COVID-19 symptoms. Employers have a short window (24 hours) to inform employees if a person who has been in the workplace is COVID-19 positive.

Paid Leave

Employers with more than 10 employees must provide paid medical removal protection benefits to workers who isolate or quarantine due to COVID-19. This generally means that employees will be entitled to continue to receive the same benefits to which they would have been entitled had they not taken off, including pay up to $1,400/week for two weeks. After two weeks, most employers can reduce the employee’s pay to 2/3 of their regular pay, up to $200/day. An employer’s obligation to pay an employee will be reduced by the amount of compensation the employee receives from other sources (e.g., paid sick leave, administrative leave)

Support Vaccinations

The ETS requires employers to pay for COVID-19 testing, vaccinations, and to recover from the side effects of vaccinations.

Employee Training

Employers must provide each employee with training regarding: (1) COVID-19 transmission; (2) employer-specific policies and procedures on safety precautions; (3) tasks and situations that could result in infection; (4) sick leave policies, any COVID-19-related benefits to which the employee may be entitled; (5) the identity of the safety coordinator(s); and (6) how employees can obtain copies of the ETS and any employer-specific policies and procedures developed under the ETS.

Do Not Retaliate

As one would expect, the ETS requires employers to inform employees that employers are prohibited from retaliating against any employee for exercising their rights to the benefits of the ETS.

Recordkeeping and Reporting

Employers with more than 10 employees must establish a COVID-19 log to record all positive COVID-19 tests, regardless of whether the infection was work-related. The ETS provides a short (24 hour) window for the creation of the record after learning of the infection.

Employers must maintain all records and plans required by the ETS for the duration of the ETS and produce such records for examination upon request by OSHA.

Employers must report work-related COVID-19 fatalities within eight hours of learning about the fatality and hospitalizations must be reported within 24 hours of learning about the hospitalization. The duty to report a death hospitalization applies even if the death occurs more than 30 days after the work-related exposure or the hospitalization occurs more than 24 hours after the work-related exposure. This is a deviation from the standard OSHA reporting obligations.

The good news is that your obligations under the ETS will not become binding until 14 days after it is published in the Federal Register. Considering all that the ETS requires, that is not much time and employers should begin to prepare immediately. And, like I always say, if you don’t document it, you didn’t do it. Make records proving your compliance with every aspect of the ETS.

Takeaways from the Guidance

This Guidance generally applies to workers not covered by the new ETS and it makes it clear that employers not covered by the healthcare ETS no longer need to implement measures to protect fully vaccinated workers unless those workers are “otherwise at risk” or they are required to do so by applicable law, rule, or regulation.

For purpose of the Guidance, “fully vaccinated” means that an employee is two weeks past the final shot in a COVID-19 vaccine series.

The Guidance states that employers should engage with workers and their representatives to determine how to comply with its requirements, including but not limited to:

Allow paid time off for employees to get vaccinated.
Instruct unvaccinated infected, exposed, and symptomatic workers to stay home.
Utilize physical distancing and barriers for unvaccinated and otherwise at-risk workers in common work areas.
Provide unvaccinated and otherwise at-risk workers with PPE at no cost.
Suggest that unvaccinated customers and visitors wear face coverings.
Train workers on your COVID-19 policies and procedures. The training must be in plain language that the employees understand and, in a manner accessible to individuals with disabilities, including ASL.
Training should include:
Basics about COVID-19: how it is spread, physical distancing, ventilation, vaccination, etc. …
Workplace policies to protect workers from COVID-19.
Maintain ventilation systems according to the CDC's Ventilation in Buildings standard.
Follow the CDC cleaning and disinfection recommendations and OSHA’s mandatory standards; 29 CFR 1910.1200 and 1910.132, 133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.
Properly record and report COVID-19 infections and deaths. (29 CFR 1904).
Protect workers from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.
Continue to comply with other applicable OSHA standards such as PPE (29 CFR 1910. 123 et seq.,) respiratory (29 CFR 1910.134), sanitation (29 CFR 1910.141), bloodborne pathogens: (29 CFR 1910.1030), and employee access to medical and exposure records (29 CFR 1910.1020).

Higher-Risk Workplaces with Mixed-Vaccination Status Workers

The Guidance specifically identifies additional measures employers should consider to protect unvaccinated and at-risk workers in higher-risk workplaces. Higher-risk workplaces include manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing, given the potential for workers to work indoors, in close contact for extended durations (e.g., for eight to twelve hours per shift).

OSHA recommends that employers in higher-risk workplaces where there are unvaccinated or otherwise at-risk workers:

Stagger break times or provide temporary break areas and restrooms to avoid groups of unvaccinated/at-risk workers congregating and enforce social distancing.
Stagger workers’ arrival and departure times.
Provide visual cues such as floor markings to reminder workers to maintain physical distancing.
Implement workplace-specific strategies to improve ventilation.

Remember that while the ETS is legally binding, the Guidance is not.