Human Resource Solutions for a Changing World
August 6, 2021
How does the new CDC guidance for fully vaccinated people affect our business?
Do fully vaccinated employees who are exposed to a COVID+ person need to quarantine?
If we offer an incentive for people to get vaccinated, does it violate EEOC rules?
Can we mandate that employees get vaccinated or give them an ultimatum?
Can we still offer emergency paid sick leave in exchange for a tax credit?
Are there new qualifying reasons for emergency paid sick leave?
Some of our employees are contracting COVID; are the
quarantine and isolation procedures the same?

It is indeed COVID Central for employers.
And Delta holds the cards.

You're not alone if you're asking these and other COVID-related questions. We have the answers. Consider this e-bulletin your complete guide to the most relevant, up-to-the-minute COVID-related information that you need to effectively manage your human resources throughout the current surge.

After you get up to speed from the articles, be sure to save and use our updated Employee COVID Chart (v.9). This version has a new page devoted exclusively to fully vaccinated employees who are exposed to a COVID+ person. With v.9, you'll find that, once again, we’ve taken the latest confusing CDC guidance and translated it into meaningful workplace procedures, so you can easily apply it in your business.

You'll also want to review and save our COVID ARPA Leaves Client Advisory that outlines the top 12 provisions for emergency paid sick and family leaves under the American Rescue Plan Act of 2021 (ARPA).

For clients, we also have a new Employee Vaccination Status Certification form (see below for why NOW is the time to get this information from employees) and updated paid sick and family leave request forms with the latest provisions and qualifying reasons for the leave (you might be surprised . . . then again, probably not!)

Exceptional times in business call for exceptional HR support.
We’re here for you.
As you continue to address COVID issues, we understand that no two situations are alike. If you are a client of our firm using our HR Consultation Service, we encourage you to contact us with questions about specific employee COVID scenarios, the latest CDC updates, leaves of absence, or any other HR topics.

NOTE: COVID-19 is a rapidly evolving global pandemic and, as a result, federal regulations, rules, and guidance, along with our recommendations for employers, are subject to change at any time. Information in this e-bulletin is not intended to be legal, tax, medical, or financial advice; nor is it intended to provide recommendations for any specific circumstances. 
New CDC Guidance for Fully Vaccinated Individuals
COVID 19 coronavirus Delta plus variant Sars ncov 2 2021. Delta plus Strain. Coronavirus delta plus variant. B.1.617.2 E484Q L452R. 3D illustration
Just when we thought we were on the home stretch, along comes the Delta variant and, with it, a resurgence of COVID-19 in most locations across the country.

The Delta variant now accounts for more than 80% of all COVID-19 cases in the United States and can be transmitted to and from vaccinated individuals (although hospitalization among this population occurs in less than .004 percent of the cases and death in less than .001 percent of the cases). The current surge is affecting primarily unvaccinated people.

In an effort to reduce the spread of the Delta variant, on Tuesday, July 27, the Centers for Disease Control and Prevention (CDC) announced three changes for fully vaccinated individuals, all of which impact the workplace:

1.   Fully vaccinated individuals in locations with substantial or high COVID-19 transmission rates should wear masks in public indoor settings. This reverses the CDC’s May 13 guidance that fully vaccinated individuals no longer needed to wear masks in public indoor settings. While fully vaccinated individuals are now being advised to wear masks in public indoor settings, they are not being advised to socially distance from others.

A “public indoor setting” is, essentially, any place (private or public employer) open to the public. Employers in locations with substantial or high COVID-19 transmission rates who choose to follow the guidance should require masks for all employees in common areas, shared workspaces, elevators, and in conference rooms or where groups gather. Employees who work alone in private offices do not need to wear a mask. Consistent with current CDC guidance, unvaccinated employees should also be required to maintain a distance of at least six feet from others at all times.

2.     Fully vaccinated individuals who have been in close contact with a COVID+ person should be tested 3-5 days after exposure and wear a mask in public indoor settings for 14 days OR until they receive a negative test. They do not need to quarantine if they remain asymptomatic (per the CDC’s March 12 guidance). They should also monitor for symptoms of COVID-19 for 14 days following exposure and isolate if they develop symptoms.

Although this particular CDC recommendation permits fully vaccinated employees who test negative at least 3 days after exposure to discontinue wearing a mask, if your business is located in an area with substantial or high COVID-19 transmission rates and you elect to follow the CDC’s July 27 guidance, fully vaccinated employees who test negative after being exposed to COVID-19 would need to continue wearing a mask.

3.     Fully vaccinated individuals with weakened immune systems or underlying medical conditions may NOT be protected even though they are fully vaccinated. For this reason, such individuals should follow all precautions for unvaccinated people, including but not limited to wearing a mask, maintaining a 6-foot distance from other people, avoiding crowds and poorly ventilated spaces, and washing their hands often.

Employers in areas with high numbers of COVID-19 cases should be prepared to consider reasonable accommodations for such individuals due to the highly transmissible Delta variant.
In light of the CDC’s new guidance for fully vaccinated employees, we have updated our popular Employee COVID Chart. The updated version (v.9) includes a new table for fully vaccinated employees who are exposed to a COVID+ person, an updated definition of close contact, and a number of other changes to ensure you have the latest information and step-by-step procedures for administering quarantines, following contact tracing guidelines, and ending home isolation for employees who contract COVID-19.

If you are using a previous version of the chart, we strongly recommend
that you replace it with the latest version: Employee COVID Chart (v.9).
Employee Vaccination Status: Now is the Time!
Coronavirus vaccination record card. Protective mask divided into two parts. Concept of defeating Covid-19
Based on the latest CDC guidance, one thing is clear: Knowing employees’ vaccination status is becoming more important to effectively manage workplace outbreaks and business operations.

Knowledge of employees’ vaccination status is particularly useful now for these reasons:

  • Quarantines: To help employers effectively follow the CDC guidance pertaining to quarantines, which is based on an individual’s vaccination status.

  • Paid Sick Leave: To help employers determine if they should voluntarily elect to adopt emergency paid sick leave under the American Rescue Plan Act of 2021 (ARPA) and receive a tax credit in exchange for sick leave paid through September 30.

  • Incentive Costs: Employers who are thinking about incentivizing unvaccinated employees to get the vaccine can determine the potential costs associated with offering various incentives.

  • Customer Requirements: If your business has clients or customers that must or do require their vendors to be vaccinated (e.g., your employees who work on their property), it can help determine who is eligible to work on given job sites or projects. 

  • Mask Requirement: Once fully vaccinated people are no longer required to wear masks in indoor public settings and until the pandemic subsides, it can help ensure that you have accurate knowledge of who is unvaccinated and, therefore, must wear a mask and distance themselves from others.

Given the increased need for employers to know the vaccination status of employees, we have developed a new Employee Vaccination Status Certification form. If you are a client using our HR consultation service, you can request a copy of the form HERE.

Currently, there are no state or local laws that prohibit employers from asking about the vaccination status of their workers or job applicants. However, if an applicant or employee reports that he or she is not vaccinated, employers should not ask “Why not?” since this question could disclose the existence of a disability.

Also, under the Americans With Disabilities Act (ADA), the act of administering the vaccine is not a medical examination and obtaining employees’ vaccination status is not a disability-related inquiry; however, because information about employees’ vaccination status is still “medical information,” it is subject to ADA’s confidentiality provisions. This means that employers must store copies of vaccination records and other vaccination-related information (such as forms used to obtain employees' vaccination status) in confidential medical files. Employers must also maintain the confidentiality of employees' vaccination status, subject to very limited exceptions.

Some employers would like to identify vaccinated employees by way of a pin, sticker, lanyard, T-shirt, or other item worn by the employee. In keeping with ADA confidentiality provisions, employers that wish to do so should not require employees to wear one of these items; however, they can offer such items to employees who are fully vaccinated and permit them to voluntarily wear the item if they like. This practice can help managers readily identify who is required to wear a mask and follow other health and safety protocols, assuming they are different for vaccinated and unvaccinated employees.
State Vaccination Restrictions

A number of states and localities with high COVID-19 transmission rates are beginning to reinstate masking rules, distancing requirements, capacity limits, and other measures for employees or patrons, regardless of vaccination status. The rules and requirements vary widely across the country.

Prior to the current surge of infections, Florida and Texas banned businesses from requiring “vaccine passports” (proof of COVID-19 vaccination) from customers and patrons. There are currently 20 states with similar laws, some of which were implemented by governors via executive orders and some by state legislators. In a move that's completely contrary to these states, New York City Mayor Bill de Blasio implemented a citywide ordinance—the first of its kind—that requires customers to show proof of vaccination to attend most indoor events (such as dining indoors at a restaurant). The ordinance takes effect August 16.

To date, no state other than Montana has adopted vaccine passport laws that affect employees. In Montana, employers are prohibited from discriminating against employees on the basis of their vaccination status, although they can still ask employees if they have been vaccinated. They cannot, however, use the information (or failure to provide the information) to discriminate against employees on the basis of vaccination status; for example, by adopting a policy that requires masks for only unvaccinated employees.

We recommend that you stay abreast of state and local requirements
pertaining to employer vaccination mandates or prohibitions
and adjust your practices accordingly. 
Vaccination Requirement Options
Vaccination against the new Coronavirus SARS-CoV-2. Doctor holding Corona virus vaccine and syringe using for prevent COVID-19 infection.
On July 6, 2021, the Office of Legal Counsel of the U.S. Department of Justice (DOJ) issued an 18-page Memorandum Opinion that concluded public and private entities CAN require COVID-19 vaccinations as a condition of employment despite their emergency use authorization (EUA) status.

While the DOJ opinion is not legally binding, it gives employers (outside of Montana) more confidence that requiring employees to receive a COVID-19 vaccination as a condition of employment would pass legal muster if they were sued. For some employers with large populations of unvaccinated workers, a vaccine mandate has recently become more appealing due to the surge in cases from the Delta variant.

For employers contemplating vaccine requirements, generally speaking
there are two models to consider:

—Job or Jab: This vaccination model makes getting the COVID-19 vaccination a condition of employment; employees must get vaccinated to work at the company and anyone who chooses not to is terminated. Although employees have the choice to resign, this model is referred to as a “vaccine mandate” because vaccinations are mandatory (get it or go). Employers adopting this model should give employees a reasonable period of time to get vaccinated before facing termination.

If you adopt this model and your business is covered under federal or state laws that protect employees from discrimination based on disability and religion, you must make exceptions to the mandate for those who cannot get vaccinated due to a sincerely held religious belief or a disability. The burden is on employees to request an accommodation, which will likely be to remain employed while unvaccinated or to work remotely.

When an employee requests a reasonable accommodation for a religious or medical reason, employers should engage in an interactive discussion with the employee to explore accommodation options, such as wearing a mask, social distancing, or working remotely. Each request should be handled on a case-by-case basis.

—Jab or Swab: This vaccination model gives employees an ultimatum to either get the COVID-19 vaccination OR get tested regularly by a third-party COVID-19 test provider and submit a negative test result. Employers using this model can add additional conditions for unvaccinated employees, such as wearing a mask regardless of community transmission level, submitting to health screens prior to entering the worksite, and physically distancing from others. 

This model is similar to the one that President Biden announced on July 29 for federal government employees and on-site contractors. While such workers are not mandated to receive the COVID-19 vaccination (contrary to what has been reported!), after attesting to their vaccination status, if they are unvaccinated or choose not to provide their vaccination status, they must comply with certain protocols, including weekly or twice-weekly testing, physical distancing, wearing a mask (regardless of community transmission level), and restrictions on official travel.

The “jab or swab” option is more appealing to employers who don’t want to be viewed as punitive or dictating employee healthcare. It can alleviate many concerns and sends a message to employees that the company values their personal choice and takes their concerns seriously. However, this option may be burdensome and disruptive to administer, especially if it involves regular COVID-19 testing. It can also be costly if employers are required to pay for the test and/or the time an employee spends getting tested.
Employers adopting either model should communicate to employees that due to the rapidly evolving nature of the pandemic, vaccination requirements are subject to change at any time. They will also need to designate an individual to receive and address accommodation requests, obtain and track the vaccination status of employees, and establish a system for confidentially retaining information about employees’ vaccination status and COVID-19 test results.

To assist with obtaining the vaccination status of employees, if you are a client using our HR consultation service, you can request a copy of our new Employee Vaccination Status Certification form HERE.
Vaccination Mandates and Ultimatums: Employer Considerations
Vaccinated tick emblem isolated on white background_ green vaccinated icon
There are important considerations that employers should be aware of if they require a COVID-19 vaccine as a condition of employment OR if they give employees ultimatums for getting vaccinated. These include:

—Union Contracts. Employers with unionized employees may have a duty to bargain with the union before implementing a mandatory vaccination policy since this is a new term or condition of employment.

—Potential Exposure to Wage and Hour Claims. Whether or not an employee must be paid for the time spent being tested for COVID-19 will depend on the facts and circumstances of the situation and any state regulations that require payment.

The current prevailing thought among wage and hour advisors is that employers will likely have to pay employees for their time spent obtaining a COVID-19 test; however, the question has not been directly addressed by the U.S. Department of Labor (DOL). According to the DOL, when an employer imposes special tests, requirements, or conditions that an employee must meet, the time that the employee spends traveling to and from the tests, waiting for and undergoing these tests, or meeting the requirements is "probably" hours worked, regardless if the tests are scheduled during the employee's normal working or nonworking hours. (Thanks for the clarity, DOL!)

Until the DOL specifically addresses work time for required COVID-19 testing (or testing that is part of an ultimatum), employers that elect not to pay for the time spent obtaining a COVID-19 test should consider that the practice could open the door to a DOL complaint—leading to the potential for a broader wage and hour investigation.

—Paid Leave for Vaccinations. Currently and through September 30, employers with fewer than 500 employees and certain governmental employers that voluntarily elect to adopt emergency paid sick and/or family leave and follow specific provisions under the American Rescue Plan Act of 2021 (ARPA) can receive a tax credit in exchange for wages paid to employees for qualifying reasons. One of the qualifying reasons is time spent obtaining a diagnostic COVID-19 test, when the test is requested by an employer.

There are potential drawbacks to offering emergency paid sick and/or family leave in exchange for a tax credit. The last article and our COVID ARPA Leaves Client Advisory provide more information.

—The Cost of Testing. Currently, insurers are required to fully cover the cost for coronavirus tests that are ordered by healthcare providers. Rules written by the Trump administration and continued under the Biden administration exclude routine workplace testing from this requirement. Up to this point, insurers may not have been able to identify an employer-mandated test from one ordered by a healthcare provider; however, if insurers start to see tests submitted weekly for certain employees, they can refuse to cover the cost.

Should this occur, employers that require employees to pay for the cost of the test could be in violation of state or federal wage and hour regulations or ADA regulations that require employers to pay for costs associated with a mandatory visit to a healthcare professional by an employee who poses a direct threat to the health or safety of himself or herself or others.

To mitigate liability, employers that plan to implement a vaccination ultimatum that includes regular COVID-19 testing for unvaccinated workers should pay for testing costs that are not covered by insurers.

—Turnover. Polls taken prior to the recent surge in cases from the Delta variant suggested that some 30 percent of workers would be willing to lose their job if their employer required a COVID-19 vaccination. Perhaps some of these employees feel differently in the wake of a more contagious variant; however, given the significant labor challenges most employers are facing, terminating employees (especially top performers) who refuse to get vaccinated may be an untenable option right now. This is something to consider if you implement a vaccination mandate.

—Adverse Health Reactions. Employers have long been hesitant to dictate medical care or procedures for employees—and rightly so since they are not physicians. This same concern exists with the COVID-19 vaccination and is worrisome for some people given the lack of long-term data on the effects of the vaccine.

Some employers are questioning if costs associated with an employee's adverse health reaction from the COVID-19 vaccination would be covered under workers’ compensation if the vaccination is required as a condition of employment. Employers also wonder if there is potential for a negligence claim from an employee who suffers from an adverse health reaction that is linked to the vaccination. And, in states with civil immunity statutes covering COVID-19 injury/negligence claims, employers are questioning if an injury or illness at a company that mandated COVID-19 vaccines would be covered given that most of these statutes were written to address exposure to COVID-19 and an employer’s good faith efforts to comply with health standards.

The answers to these questions are not yet known, which gives some employers reason to pause. While the liability concern may not be politically correct at the moment, it is, nevertheless, one that employers may want to consider.
Although many small business private employers will likely forego vaccination mandates, those with federal government contracts and/or a high volume of customers who require their vendors to be vaccinated may not be able to avoid it.

This week, President Biden directed his administration to adopt vaccination requirements for all government contractors, signaling that it’s only a matter of time before private employers with government contracts are faced with adopting vaccination mandates or ultimatums. Until then, only federal employees and contractors who work on-site at a federal agency (i.e., employees of a private employer that holds the contract for services) are subject to a vaccination ultimatum and may also be required to regularly complete virtual or in-person health checks.
Vaccine Incentive Update
Winner banner. Win congratulations vintage frame_ golden congratulating framed sign with gold confetti. Winners lottery game jackpot prize logo background illustration
With COVID-19 cases surging around the country, many employers are revisiting the idea to offer an incentive for unvaccinated workers to get vaccinated. Prior to May 28, 2021, employers were uncertain if offering incentives violated ADA wellness program provisions. We’ll spare you the details surrounding this concern, but suffice it to say, based on guidance issued by the Equal Employment Opportunity Commission (EEOC) on May 28, we now have a clearer picture of what is permitted.

Here’s the bottom line:

If you offer an incentive for employees to voluntarily provide documentation or other confirmation of vaccination from a third-party (e.g., pharmacy), there is no limit on the amount of the incentive or type of incentive. This is because requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination in the community is not a disability-related inquiry covered under the ADA, so it is not subject to the ADA wellness program provisions.

On the other hand, if you offer an incentive for employees to voluntarily get vaccinated by you or your agent (a service engaged to provide vaccinations on-site), there are restrictions on the amount of the incentive. Essentially, the incentive cannot be such a high value that it is viewed as coercive. In this situation, because the employer or its agent must ask employees prevaccination screening questions that are disability-related, the incentive is subject to ADA’s wellness program provisions for incentives.

Note: If you elect to offer an incentive, to avoid morale problems and the potential for inadvertent discrimination, we recommend that you offer comparable benefits to employees who cannot
receive the vaccine due to a disability or religious belief, practice, or observance.  You may also
want to provide the incentive to employees who have already been fully vaccinated.
Help! We Can’t Remember the Paid Sick Leave Rules!
Medical mask with dollars and the words paid sick leave on a blue background. Concept of economic dependence on the COVID-19 coronavirus pandemic
With an increase in COVID-19 cases and employee absences on the rise, many employers are scrambling to remember if they can or must offer paid sick leave to employees for COVID-related reasons. The memory of multiple versions of federal emergency paid sick and family leaves has, understandably, left many employers in a cloud of confusion. Don’t worry, we can help!

Here’s the current status of emergency paid sick
and family leaves under federal rules:

Beginning April 1, 2021, and through September 30, 2021, employers with fewer than 500 employees and certain governmental employers without regard to the number of employees can voluntarily choose to offer emergency paid sick leave and/or emergency paid family leave in exchange for a tax credit for qualifying wages IF they follow all of the provisions in the Emergency Paid Sick Leave Act (EPSLA), the Emergency Family and Medical Leave Expansion Act (EFMLEA), and the American Rescue Plan Act of 2021 (ARPA).  

If you haven’t offered these leaves in 2021, if you are considering doing so now, there are a number of new provisions that you need to be aware of. We have outlined the top 12 provisions that employers need to know in a special COVID ARPA Client Advisory that is available HERE.

In addition, for clients that voluntarily elect to adopt emergency paid sick or family leave at this time—even though there are only 8 weeks remaining until the tax credits expire—we have updated our Emergency Sick Leave Request Form and our Emergency Family Leave Request Form to reflect the latest qualifying reasons for the leave. These include new COVID-19 immunization reasons added on July 29, 2021. If you are a client using our HR consultation service, click HERE to request these forms.

Depending on your location, your business may be subject to a state or local paid leave law that covers time off for COVID-related illnesses or vaccination-related purposes. For example, in New York, depending on the size and/or income of the employer, employees who must quarantine are eligible for up to 14 days of paid leave. In addition, all employees in New York are eligible for up to 4 hours of paid time off per vaccine injection.

Clients of our firm are welcome to contact us for information about any state or local paid sick or vaccination provisions.
As a client of our firm, if you have questions about HR decisions, state or federal employment regulations, or any other
HR matter, call or email our office for assistance.

Seawright & Associates
(407) 645-2433
Jean Seawright
(407) 645-2433 x 14
Jean Martin
(407) 645-2433 x 12
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