View source:  Elizabeth Cowit 

Employers must carefully consider whether and how to implement mandatory vaccination and testing policies, including proof of vaccination requirements, and how to handle employees who outright refuse to get vaccinated or be tested.

With the threat of new COVID-19 variants, evolving science and continued pandemic-related guidance on the local, state and federal levels, employers across the country and elsewhere are facing never-before-seen challenges in sustaining their business operations while keeping their workforces safe.

As everyday lives of employees continue to be upended, employers must make difficult decisions, including, among others, whether to implement mandatory vaccine and/or weekly testing requirements, particularly given vaccine hesitancy by some employees; how to best handle COVID-19-related leave and accommodation requests; and how to determine the most effective safety measures for the workforce.

These challenges are further compounded in an evolving pandemic world, which undoubtedly has affected all employees, whose views on work may have changed over the past almost two years and particularly given current worker shortages in certain industries.

Such challenges, along with practical guidance for employers, are addressed below.

 Safety measures

The Department of Labor’s Occupational Health and Safety Administration (OSHA) suggests employers engage in a multi-tiered approach to maintain workplace safety, which includes (aside from vaccination) measures such as physical distancing for unvaccinated and at-risk workers in communal work areas, face coverings, education on COVID-19 policies, safety protocols where workers have or are suspected to have COVID-19, compliance with mandated OSHA recording/reporting for COVID-19 infections and death, and anti-retaliation protection for individuals who express concern about COVID-19 hazards.

For those exposed to COVID-19, recommendations differ based on vaccination status. If an unvaccinated worker has had close contact with someone who tested positive for COVID-19, the employee should be told not to come to work, tested immediately after identification and if negative be tested again five to seven days after the last exposure or immediately if symptoms develop during quarantine. If a fully vaccinated employee (without symptoms) is exposed to COVID-19, the employee should get tested three to five days after exposure and wear a mask in public indoor settings for 14 days or until receiving a negative test result. Employers should also comply with evolving guidance on the state and local levels concerning COVID-19 exposure in the workplace.

Employers with New York worksites have the added burden of complying with the recently enacted HERO Act mandating that private employers (with limited exceptions) implement safety measures to protect employees during outbreaks of airborne infectious diseases, including adoptions of workplace safety plans designed to prevent or limit exposure to airborne infectious agents when outbreaks occur.

In connection with the new law, the New York Department of Labor has developed “minimum standards,” a model safety plan, and industry-specific plans to prevent airborne infectious disease. An employer may adopt the applicable DOL plan or establish its own plan, provided the plan meets or exceeds the standard’s minimum requirements.

In September 2021, Gov. Kathy Hochul designated COVID-19 as an airborne infectious disease under the HERO Act, thus requiring employers to activate their workplace safety plans (until the designation period ends), conduct verbal reviews of their safety plans with employees, and comply with the law’s distribution, posting, and other requirements. See NY Hero Act, Airborne Infectious Disease Exposure Prevention Standard.

Effective Nov. 1, 2021, every employer with 10 or more employees must establish a joint labor management workforce safety committee in accordance with the law’s specified requirements. (Proposed) Labor Law, §27(d). The law also includes enforcement mechanisms and strict anti-retaliation provisions.

Finally, in September 2021, President Biden announced a national and comprehensive COVID-19 plan — a key component of which is increasing the number of vaccinated individuals in the United States. Under this plan, employers with 100 or more employees will soon be required to implement mandatory vaccination policies for their workforces or require unvaccinated employees (on at least a weekly basis) to produce negative COVID-19 tests, in compliance with an emergency rule to be issued by OSHA. The Biden plan also mandates vaccinations for federal workers and federal contractors, along with many other requirements.

Practical considerations

As the pandemic continues, employers face compliance and business challenges on all fronts. Accordingly, employers should carefully review their work-safety policies to ensure legal compliance with ever-evolving standards. Employers must carefully consider whether and how to implement mandatory vaccination and testing policies, including proof of vaccination requirements, and how to handle employees who outright refuse to get vaccinated or be tested.

Employers should update their reasonable accommodation policies to address COVID-19-related issues, consider the types of documentation required to support accommodation requests, determine factors for review in approving or denying such requests, and implement processes to ensure consistent decisions.

Employers must review existing COVID-19 safety measures at their workplaces on an ongoing basis, develop and implement infectious disease exposure plans that comply with the HERO Act, and consider how to address pushback on any safety mandates (e.g., refusal to wear a mask if required). Multistate employers must also assess whether uniform safety policies will work in all locations or need to account for differences in state and local laws (including OSHA-approved state safety plans) and workforce considerations.

Finally, employers must recognize that many, if not all, workers have been impacted by the pandemic and may be returning to the workforce with different expectations for work than those held pre-COVID-19. To that end, employers must assess shifting priorities in the workplace and consider retention strategies, such as increased flexibility for workers, the potential for remote work options, and possible management resistance to any such options.