Dear Clients and Friends:
When we last wrote to you in June, we had a bright start to the summer with vaccinations moving along at a good clip, and the need for masking and social distancing seemingly melting away with the summer sun. Sadly, as summer is coming to an end, so too is the relative freedom and sense of (almost) normalcy that we briefly enjoyed here in New Hampshire. While it was nice to take a break from writing about vaccines, testing, tax credits, masks, and quarantines, it’s time for us to be back in touch to help you sort through the conflicting information on these topics.
Reopening or continuing to operate now is more complex than the shutdowns many of us managed at the beginning of the pandemic. The availability of the vaccines has been a helpful relief, yet has also resulted in polarization and tension between the obligation to provide a safe workplace and the desire to respect individuality. While the end of government mandates and stay at home orders brought welcome flexibility, that flexibility itself can make designing workplace COVID protocols more difficult as there are many recommendations to synthesize and many decisions to make, all in the context of a wide spectrum of opinions about each of these issues. And the Delta variant surge that came on so quickly and strongly was a reminder that the stakes remain high. In this alert, we break down the relevant topics and provide as much clarity as we can.
- With the recent full FDA approval of the Pfizer-BioNTech vaccine (brand name: COMIRNATY®), employers are wondering whether they can require employees to be vaccinated as a condition of employment, as the federal government (including CDC and OSHA) has encouraged employers to do.
- The short answer for NH private employers is yes – you can mandate the COVID-19 vaccine, with some caveats and considerations:
- Reasonable Accommodations for Disabilities and Religion: To comply with federal and NH law, any vaccine mandate must include a process for employees to request reasonable accommodations for disabilities or sincerely held religious beliefs that prevent them from obtaining the vaccine. Reasonable accommodations are measures that prevent the employee from being a direct threat to the health or safety of other employees (or clients, customers, etc.) and do not impose an undue hardship. Examples include working from home, schedule changes to times when fewer people are in the workplace, working in cohorts, mask-wearing, social distancing, etc., depending on the job and circumstances.
- Reasonable Accommodations for Pregnancy: There is no express legal requirement under federal or NH law to reasonably accommodate pregnancy. However, this a bit of a gray area. Pregnancy itself is not a disability, but certain pregnancy-related conditions may be disabilities requiring accommodation. In addition, to avoid pregnancy discrimination, pregnant employees must be treated the same way as other employees who are similarly situated in terms of short-term medical conditions that are not disabilities. In issuing Guidance that covers vaccine mandates and reasonable accommodations, the EEOC appears to have largely assumed that pregnancy would be a basis for reasonable accommodation from a vaccine mandate, yet that would be overreaching as it might not be required in all cases.
- Mandates for Subsets of the Workforce: In many circumstances, employers can choose to have a vaccine mandate apply only to a subset of the workforce (e.g., those that involve customer contact, travel, or other duties that involve an increased risk of transmission), and not the entire workforce – for example, not to employees working remotely indefinitely or permanently, without any need to come into the workplace or to travel on business, or not to employees working in a socially-distanced, well-ventilated back office who do not have regular contact with other employees or customers. In these “hybrid” situations, reasonable accommodation must still be made for those employees with disabilities or certain religious beliefs, but in practical terms it may be more difficult to make accommodations without undue hardship because the employer will have already carefully selected the positions with the most compelling need for vaccinated employees.
- Cost: The vaccine is still being offered at no charge, so cost is not presently an issue, but if in the future there is a cost, employers should be aware that NH law would require employers mandating vaccination to pay for the cost of it, unless vaccination was required by law.
- Paid Time: If an employer requires employees to be vaccinated, then time spent by non-exempt (generally hourly paid) employees getting the vaccine may be “hours worked” under the FLSA and NH law, and therefore need to be paid and counted as time worked, even if the employee is vaccinated outside the regular work schedule. The federal DOL guidance on this point to date has been limited and unclear. However, the New Hampshire DOL has informally stated its current position that when an employer mandates the vaccine, time spent getting the vaccine is time worked, no matter when the employee gets the vaccine.
- Multi-State Employers: NH employers with employees in multiple states will want to check the laws of other applicable states. Some states (such as Arizona, Florida, and Montana) have recently passed bills that restrict employers’ ability to impose vaccine mandates on employees.
- NH Public Employers: NH public employers should be aware of the Medical Freedom from Immunization Act (HB220) which may prohibit public employers (including the state, counties, cities/towns, school districts, etc.) from requiring employees to be vaccinated as a condition of entering the workplace, with certain notable exceptions for county nursing homes and other government-operated medical facilities. The language of this new law is not clear, leaving public employers awaiting further guidance.
- While NH employers generally can mandate COVID-19 vaccines, subject to the above, employers are not required to do so. Many employers continue to simply encourage vaccination, or to take a neutral stance. With potentially lower vaccination rates, those employers not mandating vaccination should be particularly mindful to follow other COVID-19 protocols recommended by CDC, OSHA, and NH Best Practices to mitigate the risk of transmission in the workplace.
Paid Leave and Tax Credits
- By “paid leave” we mean paid time off from work. For example, paid time off to voluntarily get the vaccine or recover from vaccine side effects. In contrast, if an employer requires employees to get vaccinated, that would be paid working time, not paid leave.
- OSHA recommends (but does not require) employers to provide employees with paid leave to get vaccinated and recover from any vaccine side effects, regardless of whether the employer mandates the vaccine. The NH Universal Best Practices similarly encourage employers to provide paid leave for these purposes.
- Paid leave can also be a helpful incentive for employees who are reluctant to get vaccinated because they cannot afford to take unpaid time off from work to get vaccinated or recover from the vaccine’s side effects.
- Employers voluntarily providing paid leave for these purposes are reminded that tax credits to reimburse employers for the cost of this benefit are available under the Families First Coronavirus Response Act (FFCRA) through September 30, 2021, for employers with fewer than 500 employees. For detailed guidance on the tax credits and how to claim them, see this IRS webpage. IRS guidance allowing the FFCRA tax credits for paid leave provided to employees to accompany a family or household member, or certain other individuals, to obtain a COVID-19 vaccine and to care for such person recovering from the vaccine is available here.
- Multi-state employers are encouraged to check other states’ laws as some states have adopted requirements to provide paid leave for these purposes. For example, Massachusetts has a temporary law that requires employers to provide up to 40 hours of paid leave due to COVID-19-related reasons similar to those reasons under the FFCRA, including time off to get or recover from a COVID-19 immunization. Employers can seek reimbursement for the cost of providing emergency paid sick leave from a state fund. The Massachusetts law expires on the earlier of September 30, 2021, or when the state fund of $75 million is exhausted. Further details about the Massachusetts COVID-19 Emergency Paid Sick Leave Program can be found here.
- OSHA’s updated COVID-19 guidance for all industries (Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace) encourages (but does not require) employers to implement regular COVID-19 testing for unvaccinated employees to identify and screen out of the workplace employees with COVID-19 to minimize transmission.
- NH’s Universal Best Practices also mention screening testing as a possible measure to mitigate against transmission.
- Instead of a vaccine mandate, some employers have adopted a hybrid approach of allowing employees to either show proof of vaccination or agree to undergo regular COVID-19 testing (e.g., weekly).
- Generally, NH employers can require regular COVID-19 testing. While ordinarily an employer’s ability to require medical tests would be much more limited, the pandemic has us operating under a different set of rules.
- An employer requiring regular testing is obligated by NH law to pay for the cost of the tests (if any), assuming testing is not required by law, and likely also to pay employees for their time spent getting tested. For more information, see Questions 7 and 8 in the US DOL FAQ available here.
Hiring – Asking Applicants about Vaccination Status
- Employers generally can ask applicants whether they are vaccinated. The EEOC made it clear in their guidance that the vaccination question is not considered a medical question, and therefore would not violate the Americans with Disabilities Act.
- However – and this is an important caution – asking any follow up questions or responding to any medical, pregnancy, or religious objections or information the applicant raises could cross the line into a legal violation, and if the applicant is not hired, the applicant could later claim they were not selected for reasons illegally related to their medical condition, pregnancy, or religion.
- To avoid issues, employers should first be very clear about why they are asking the vaccination question, and train anyone who might ask the question how to do it properly, without asking any impermissible follow up questions. It would also be helpful to state in the job ad that vaccination is required (and that the employer is an EEO employer), in the hopes that unvaccinated individuals would screen themselves out.
- One approach that may be effective would be to provide the applicant with a copy of the policy requiring vaccination and pose a simple yes or no question: “If you are hired, can you prove that you have received the COVID-19 vaccine or have a valid religious, pregnancy, or disability-related reason for not being vaccinated.”
- Another approach would be to not ask the question, but to state the policy requiring vaccination, and tell the applicant that, if offered employment, the applicant would need to show proof of vaccination (or valid religious, pregnancy, or disability-related reason for not being vaccinated), and then reiterate that requirement in the offer letter issued to the applicant.
- The CDC now recommends that everyone – vaccinated or not – mask up indoors in communities where the transmission of COVID-19 is substantial or high. All of NH’s counties are presently experiencing substantial or high transmission, according to the CDC Community Transmission Tracker by County.
- OSHA’s updated guidance adopts the CDC’s recommendation for mask wearing in areas of substantial or high transmission. Both the CDC and OSHA recommendations are a change from their earlier recommendations that masks were optional for vaccinated employees.
- OSHA’s updated guidance also recommends that employers provide masks to employees who request them at no charge.
- NH’s Universal Best Practices continue to recommend masking for all when they will be within 6 feet of each other for 10 minutes or longer, regardless of vaccination status.
- The NH DHHS guidance documents have not yet been updated to recommend masking for all.
- All of these are recommendations, not legal requirements.
- Keeping people infected with COVID-19 out of the workplace remains a top priority, which means screening for symptoms and known close contacts with confirmed cases of COVID-19 remains important.
- NH’s Universal Best Practices recommend use of the screening questions contained in the NH DHHS Employer Travel, Screening, and Exclusion Guidance NH DHHS Employer Travel, Screening and Exclusion Guidance (which, as of today, is the version dated June 17, 2021).
- As federal and NH agencies have emphasized, employees who are infected with COVID-19, have symptoms, or (if unvaccinated) have had close contact with an infected person should be instructed to stay home, and not come into the workplace.
- Earlier this month, the NH DHHS issued a Quarantine Guide for Unvaccinated People Exposed to COVID-19 in their Household.
- The Guide recommends quarantine for 10 days after the last contact an unvaccinated person has with a household member with COVID-19 while the household member is infectious.
- The Guide also recommends that the exposed unvaccinated person get tested 5-7 days after their last exposure to the household member during the infectious period, and that the person take their temperature twice per day and otherwise monitor for symptoms for 14 days after the last exposure.
- Note that the NH DHHS guidance is only that unvaccinated people should quarantine after close contact with a household member with COVID-19. This is different than CDC guidance which recommends that unvaccinated people quarantine after close contact with anyone with COVID-19, not just household members. An employer choosing to following the CDC guidance will want to modify its screening question about close contact accordingly.
- NH DHHS has also issued a helpful Self-Observation Guide for People Exposed to COVID-19 Who are Not Required to Quarantine.
- The updated (8/13/21) OSHA guidance mentioned throughout this email (and available here) is advisory. The OSHA guidance does not have the force of a law, regulation, or formal OSHA standard, so employers are not required to comply with it.
- However, employers do have a legal obligation under the OSHA General Duty clause to provide a safe workplace and the OSHA guidance provides a helpful road map for providing a safe workplace for both vaccinated and unvaccinated employees.
- In addition to the topics covered in this client alert, the OSHA guidance also includes recommendations regarding social distancing, educating and training employees, maintaining ventilation systems, performing routing cleaning and disinfection, and recording and reporting COVID-19 infections and death.
- The OSHA guidance also suggests setting up an anonymous process for employees to voice concerns regarding COVID-19 hazards in the workplace, and reminds employers that employees may not be retaliated against for raising safety concerns.
New Hampshire Guidance
- Since May 8, 2021, compliance with NH’s Universal Best Practices has been voluntary, not mandatory. The NH Universal Best Practices are available here.
- NH DHHS has a number of guidance documents for businesses and employers, which can be accessed here. Those documents contain helpful information and recommendations, not requirements.
- With the exception of the Quarantine Guide described above, the NH DHHS guidance documents for businesses and employers have not been updated since June 17, 2021, when the COVID-19 situation in NH was much different than it is now.
Recommendations v. Requirements
- We used the words “recommends” and “recommendations” a lot in this client alert as we want to point out differences between guidance from agencies as contrasted with legal requirements stemming from laws or regulations. We also suggest that you regularly check the links provided above because the recommendations and guidance are subject to change at any time.
- We want to caution that there can be consequences for ignoring recommendations, even though they are not requirements. In addition to the obvious consequence of greater risk of COVID-19 transmission and related health risks, an employer’s lack of compliance with recommendations could be used as evidence against the employer in any lawsuit stemming from COVID-19 transmission.
As always, we hope this information is helpful to you, and we wish you a healthy and prosperous Fall!
Jen and Andrea
Jennifer Shea Moeckel, Esq. Andrea G. Chatfield, Esq.
Direct: 603.621.7112 Direct: 603.621.7118