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Webinar: What Employers Should Know if COVID-19 is Really Here to Stay

The Supreme Court recently ruled that the OSHA Emergency Temporary Standard requiring employers with 100 or more employees to require Covid vaccines was unconstitutional while on the same day finding that mandatory Covid vaccines for healthcare workers were valid. The Federal Contractor Covid Vaccine mandate has been enjoined but not yet finally decided. The CDC continues to change its advice. What is an employer to do?

What You’ll Learn

  • What is currently required for my business?
  • When will this ever end and what impact will that have on my business?
  • What implication does this have for the ADA, FMLA, and other laws?

Speakers: J. Larry Stine, James L. Hughes, & James W. Wimberly, Jr.

J. Larry Stine James HughesJames Wimberly

Watch This Webinar 

Webinar Transcription

James L. Hughes (00:01):
Welcome to the webinar on what employers should know if COVID 19 is really here to stay. My name is Jim Hughes. To my right is Larry Stein, and to Larry's right is Jim Wimberley. We want to cover several different topics today primarily in a question and answer format. The topics will focus on things like symptom checks, mask, vaccinations, physical barriers, employees with covid quarantine rules, the return of some OSHA requirements that have been relaxed OSHA record keeping. We'll have a section dealing with just with healthcare workers and the covid requirements there. We'll also take a look at briefly at state and local laws and ordinances that may have an impact. So today I'd like to start off with questions for Larry. Larry,

James L. Hughes (01:05):
Am <laugh>. What symptom checks does OSHA or any other law require with respect to employees now that Covid 19 is declining and we, we still have laws on the books and regs

J. Larry Stine (01:24):
On the books. Right. Well, to start with is, as you know, the O C E T S got struck down, so there's no standard from most employers, and as of right now, there's not a healthcare et s cuz it expired by operational law cause it was six months and they're now doing public comments on it. Again, they've reopened it. So what is out there right now, or guidances as to what you're going to do related to the symptoms and such. On top of that, the C D C, which has been in the last two years of changing all the time, it seems like we're having a check with the CDC guidelines almost weekly to figure out what's going on have changed how they're looking at it. So that basically where once we had the standards more tight, it's loosening up because of the transmission levels low and medium and high.

J. Larry Stine (02:22):
So most of the companies have no longer are doing symptom checks and OSHA seems to be relaxing of that requirement in the comments, the, the notice the OSHA just issued on the permanent healthcare standard, it also appears that they're trying to relax on that, at least from some of the questions they're asking. It looks like they're relaxing from basically treating everybody that walks in the door like a covid to having the requirements when you're actually treating somebody with covid. So those symptom checks are frankly something I don't think the employers are required to do anymore, and a lot of them have, have lessened up on the temperatures. The other thing you might wanna remember is once this pandemic's over those infrared cameras that we all bought to get the temperatures and things, we gotta turn 'em off because the E E O C gave us an exception to testing to do that during the pandemic based upon the existence of the pandemic. So whenever that pandemic ends, when, and I I'm gonna make a prediction. I'm gonna, I'm gonna predict that the official end of the pandemic will be October of this year for some reasons that you can kind of figure out why

James L. Hughes (03:45):
<Laugh>. That's a good

J. Larry Stine (03:46):
One, Larry. Yeah. Right. Well, wait, I I, I had been prophetic on this, a few of these things so far, and I, I, that's my guess is that's when it's gonna officially end. And then we can no longer do temperature checks and no longer use the infor as the, the exception to the ADA medical testing rooms will expire by terms of the memorandum, the e c granted

James L. Hughes (04:10):
To the extent that an employer is doing symptom checks. Right. do we still have ADA confidentiality obligations with respect to the records that are created?

J. Larry Stine (04:22):
Oh, yeah. If you're, if you're creating records based upon medical testing, then you have to treat them as confidential medical records. Now, most people think that that's because of hipaa. It's not, it's because of an OSHA regulation found between on C FFR 19 10, 10 20. And that's the regulation that says these employer records that you're maintaining for medical records are provided for confidentiality. So yes, anyth, if I write them out and put 'em down into a record or a digital record, I have to maintain the confidentiality. What we've recommended throughout the pandemic is don't create the record, because there's another problem with 10 20. You're supposed to keep these records for 30 years and you really don't want to create records that you have to keep for 30 years.

James L. Hughes (05:10):
Let's move to the topic of mask then.

J. Larry Stine (05:13):

James L. Hughes (05:15):
If an employer has a policy of allowing employees to decide whether or not to wear a mask, is there anything that the employer should be aware of when employees have a voluntary choice to wear a

J. Larry Stine (05:30):
Mask? Well, depending on the mask, of course. The first thing is if, if you're letting them wear N 95 s, then what happens under the OSHA standard is there's an appendix one of the respiratory standard called Appendix D, and you have to give them information related Appendix d OSHA will cite you if they come in and find, you're allowing them to use N 95 s, and they haven't been either, they've given a copy of the Appendix D the standard for post-it. Typically, what we've recommended is just to get the stand, the appendix laminated and slap it up against the wall wherever you're handling out the N 95, so that everybody will get the, the notice will be posted. So

James L. Hughes (06:12):
What if the employee comes in with his or her own mask? That's not an N 95 mask. Is there any requirement

J. Larry Stine (06:20):
There? No. Once, once we drop below the level of N 95, and let's just say they're wearing a surgical mask or cloth mask, they don't meet the requirements of a respiratory respirator under the standards. N 95 is kind of the lowest level. So there is no legal obligations to do it. OSHA was trying to make some distinction in the ETS between cloth mask, which even may finally have admitted or, or useless. But there's no legal requirement at this point.

James L. Hughes (06:52):
Are there any safety issues when employees voluntarily choose to wear a mask?

J. Larry Stine (06:58):
There, there are matter of fact, I, I can tell you for an example, I was handling a, a fatality case and a sanitation shift in poultry. And I went in there wearing goggles, supposedly fog assisting goggles and the safety mask. And I would say within 20 seconds, I was blinded the fog on the glass, but got so heavy that I couldn't see. But we were arguing, this was in 2020 when OSHA was hot and bothered about not wearing masks, and we were arguing greater hazard in that area because you, you know, you're, you're blinded is a much greater or hazard. I, I still take a great deal of, of kind of humoring it. While we were walking, the compliance officer were doing the same thing, and she was blinded and there was a big pile of stuff, and she just stepped right in it. And I must've admit I did smile a little bit

James L. Hughes (07:50):

J. Larry Stine (07:51):
But there are, there are things where they kind of get in the way wearing them outside, and the heat's a problem when you're wearing safety goggles because of the fogging. So, and when we get in the summer, wearing them in hot places, that adds to the heat strips. So there are places we're wearing masks even voluntarily are kind of contraindicated.

James L. Hughes (08:12):
Should an employer who is allowing the employees to voluntarily wear a mask, tell the employee to remove the mask in those safety sensitive situations?

J. Larry Stine (08:23):
Well, I would do, I would tell them that they don't need to do it from that particular situation cause of greater hazards, or there's a greater safety hazard from, you know, not walking in a piece of equipment when you're blinded than the covid 19 particularly where we're in places where the CDC guidances now say it's low or medium transmission, and they're not saying we're, or then there's not a legal requirement to wear them. And now the safety concerns in those situations outweigh the very limited protection those type of mask will make.

James L. Hughes (08:58):
Let's change the topic on mask just a little bit from voluntary to mandated situations. Okay. I know that we recently were involved in some litigation involving the OSHA mandate. Could you talk about that for

J. Larry Stine (09:13):
A minute? Sure. the, as as y'all know, the ooc E T s required quite a few requirements including the vaccine and mask. We were involved in to the Supreme Court and filed brief on that particular issue. And as everybody knows at this point, that the Supreme Court ruled in our favor and found that the they joined the enforcement of the E T s and OSHA subsequently withdrew it. We're currently working on the federal contract covid vaccine mandate, which is still outstanding. And that we've, we filed brief and then 11 circuit, we have oral arguments scheduled for that on Friday, April the eighth, before a third 11th circuit panel. So we're still waiting for the ruling on that for the federal contractors.

James L. Hughes (10:03):
So in in effect then, for all employers, there is no OSHA requirement to require their employees to wear

J. Larry Stine (10:13):
Masks. There is no OSHA requirement at this level. What they tend to do in their guidance as they, they follow the CDC d c guidelines. Well, the most recent guidelines for the C D C now basically have divided you into low transmission, medium transmission, and high transmission. And their recommendation currently on the page is that you do not have to wear a mask and indoors and only indoors when into when you're in a high transmission. So there's no longer wearing a, in construction sites or when you're working outdoors. And their guidance now says if it's here in a, in an area of high community transmission, you should wear masks in the indoor settings, OSHA takes position that we should enforce that they would enforce it. The reality is though, that the only tool OSHA has left is the general duty clause. And in order to enforce the general duty clause, you have to show that the industry recognizes the hazard.

J. Larry Stine (11:14):
Well, the problem is that the CDC standards change so quickly that it's, I think it's extremely difficult for OSHA to come in and argue the very specific details when the CDCs changing them, you know, pretty regularly, well, what was the standard they recognize hazard in the industry six months ago is not the same thing now and will not be the same thing in six months. So it's, it's more of a threat. And frankly, they did not cite very many five A one s even during the height of the pandemic. They tended to go to more things like p p e standards, respiratory standards that sort of citations that they issued.

James L. Hughes (11:55):
Now with respect to the federal contractor mandate the court basically said osha, you cannot enforce the max mandate right now. But that's litigation is still ongoing.

J. Larry Stine (12:09):
Well, it's not osha on the federal contractor. Right? Yeah, it's, it's the, it is the agency saying that this is a contract where you have to impose these requirements, including the mandatory vaccines and, and, and guidance is issued by the OM b which includes this time masking, but Right. So that's stayed. So it's not being enforced. It's a pending before three judge panel, and we'll see how far that goes on, on that particular issue as to what the government's gonna continue to

James L. Hughes (12:44):
Do. And you have oral argument on that next Friday?

J. Larry Stine (12:46):
Next Friday, I will be sitting in the 11th circuit with the Solicitor General of Georgia. We'll be doing the oral organ together

James L. Hughes (12:55):
Now still talking about the topic of mask and mask and mandated situations. Mm-Hmm. <affirmative> don't we have ADA disability and accommodation issues with respect to

J. Larry Stine (13:07):
Masks? Oh, we do. We, we, we always have, and it's been some issues. So there's some people, and we just can't simply wear masks. People with respiratory problems, for example, have an extremely hard time wearing masks. It OSHA's acknowledged that because one of the things in the respiratory standard is typically what happens is when you wanna make somebody wear a respirator, you have to have a medical questionnaire filled out and you have to refer it to a physician. And the physician makes a decision whether they're capable of wearing the respirator. So there's always been a process in the the respirator standard by osha for people who cannot do mask because of various ary issues, you can end up having a pulmonary function study if the doctor chooses it used to be required, and then they changed it just a medical questionnaire and let the physician decide whether take a PFS or not. But it clearly are situations where people cannot, where the mask just can't read.

James L. Hughes (14:09):
Now, for those situations in which a person is exempted from the mask requirement cause of an ADA accommodation, can other people be exempted cause they have a hearing disability or diabetes or anything like

J. Larry Stine (14:24):
That? Well, typically not. Because what happens on the ada, unlike a lot of the other discrimination laws, there's the process of reasonable accommodation, which is actually kind of an affirmative step that kind of goes above and beyond that just not discriminated against them. So if there's something that it relates directly to the disability and is an accommodation that you can provide, you have to do so. But in that particular case, you would be looking at somebody's favor. The respiratory problem would be related in one way. But somebody with diabetes who doesn't have a respiratory problem, then no, you wouldn't be giving them the exemption from the mandatory requirement.

James L. Hughes (15:04):
Let's change topics to vaccinations now.

J. Larry Stine (15:07):

James L. Hughes (15:09):
With respect to employers who make vaccinations voluntary on the part of the employee. Right. Are there any OSHA standards or requirements that we have to deal with there?

J. Larry Stine (15:23):
Not right now. Basically what's happening is when you make them available voluntarily OSHA is perfectly happy with that. They strongly encourage it. They had encouragements in the ets, their guidance still encouraged you to get people out there and do it voluntary, and you can give them bonuses, you can give some time off to go get the vaccines. So this is OSHA would affect, encourage that.

James L. Hughes (15:54):
And while OSHA may encourage that there are issues under the A D A and the Genetic Information Non-Discrimination Act, and some of the other laws that could impact employers for example, employers that provide incentives or don't provide incentives for employers who provide the vaccinations on site or require employees to go someplace else for the vaccination. So there are still many issues out there to resolve in a voluntary vaccination situation.

J. Larry Stine (16:28):
Yeah, there are, there are some, but not near as many as if you make a mandatory.

James L. Hughes (16:33):
That's right. So let's talk about the mandated vaccines. Okay. We know that the OSHA mandate is history so that OSHA is not requiring employers of any size to vaccinate their employees.

J. Larry Stine (16:51):

James L. Hughes (16:52):
The federal contractor mandate is still in litigation. Presently, the government agencies cannot enforce a vaccination mandate against employers. Okay. Tell us about the ADA disability and accommodation issues with respect to mandated vaccines.

J. Larry Stine (17:15):
Well, we've always had these issues when you start requiring mandates that you're getting requests for reasonable accommodation for religious reasons and for disability. And what I have always, even during that period of time when we had clients wanting to do it, I've always told them the same thing, is be extremely generous in granting those exemptions. And the reason is a risk management issue really is because if I don't give them a religious accommodation that they think is appropriate or a reasonable accommodation under a d a, the chances of them suing me or my client is relatively good. Whereas if I grant it, the, the chances of the government or somebody else coming in and arguing with you and citing me for it is virtually zero. It's there, but it's almost there. So when you do a risk management, the analysis so strongly favors being very generous in granting the, the religious request and the disability request is that if there's a reasonable, and I'm very likely to use reasonable, I would be inclined to, to give it just so I don't have to have litigations under the ADA or, or the religious discrimination laws.

James L. Hughes (18:29):
All right. In the situation where an employer obtains knowledge about the vaccination status of an employee, whether in a voluntary situation or a mandated situation, are there any confidentiality

J. Larry Stine (18:43):
Obligation? Sure. Well, there is once, once you've gotten medical information if it's physical, you've got a confidentiality requirement to maintain it separately as a medical record. If you have medical information concerning that, it's limited to those people who have a need to know. So it's not something that you can go around spreading all over the place. Although, I will say for a period of time, we were doing, you know, because the OSHA requirements were requiring us to make a distinction between vaccinated and unvaccinated, the way we treated them, if you recall, for a period of time, they made a distinction between vaccinated people not wearing face masks, an unvaccinated people wearing fast mask. All of a sudden we had a need to know who was who to enforce the safety rule. So what happened is the employers tended to react in two ways.

J. Larry Stine (19:39):
One they just made everybody wear the mask regardless of whether they were vaccinated that way I didn't have to know. And the other way they did it, they were doing some sort of designation so that they knew who was vaccinated and unvaccinated so they could go around enforcing the the rules. So in one case, I know they gave him a different color hard hat. So if you were wearing this a hard hat and you were unvaccinated and you had to wear your mask, but you know, the problem was you had to have an ability to enforce that, which from a safety point of view, you could make an argument at that point, you had a right under the 88 to do so because the OSHA requirements made. You have to make that distinction. But since those regulations have gone out the way, I don't think you wanna have any distinction between the two of 'em. Gotta treat 'em the same and keep that knowledge to need to know. And I don't think it goes beyond the medical people at a facility.

James L. Hughes (20:35):
Yeah. Well, ch changing to a different topic. What about physical barriers and social distancing?

J. Larry Stine (20:42):
Well, physical barriers it, it, it's interesting when we were doing the covid investigation by osha, they wanted to have the physical barriers and the break rooms and they wanted to have the physical barriers. And a lot of times between the de-bone areas, the problem with the physical barriers is the virus is a air hole. And the barriers are not little enclosed tubes that we put 'em in, but are simply barriers that went up to this high or so. And you had complete total air circulation. The real problem with 'em is they were never affected. They really never worked. I mean, frankly, the only thing that really worked is, is the same thing as a sneeze guard. Like when you go to a salad bar and there's a thing to keep you from sneezing into food. That's about the same effect this had from a scientific basis.

J. Larry Stine (21:37):
And because the airflow, and remember, one of the other things that OSHA really wanted us to do was to increase the air flow, the turnover, the air rapidly, which is effective and is a good thing to do to get it and out, out and keep the fire load down. So at the same time, we're putting up the physical barriers, we're increasing the ventilation of the air, and so making it move a lot faster. So it really ineffective. And the social distancing, they're beginning to realize that that really was not very scientifically based, but it was something that everybody was making suggestions and was in the guidances. And when you say guidance, that means it was never required, it was just recommended. That was the interesting thing is, except for a short period of time, and of course for the poor people who were the Medicare medicaid, who have a regulation mandating the vaccine, there were always guidances.

J. Larry Stine (22:34):
They really were never regulations. But OSHA would try to cite you under one aspect or another. The interesting thing is, the only psych I got, I had 10 covid investigations by osha. The only citation we got was we had these people who were the test takers and we had decked them out with surgical mask, face mask, gloves, little surgical caps, you know, the gown the whole night. They cited us for not having certified under the P P E regulation that we had done that, not that we hadn't done it, but there's a regulation that says you have to certify the P P E. And they cited us for that. I was not happy when I talked to the area director, cuz that had gotta be the most trivial citation I've seen in a long time. That was the type of citation items you've seen, respiratory protection, citations, P P E citations that they never had. The bill, like I said, I know of one general duty clause, and if you recall, it was a meat packer at the very beginning of the Sioux City that they had an outbreak and, and OSHA did issue a five a one to that group. And that's the only one I'm aware of. Outside of the healthcare industry

James L. Hughes (23:59):
Let's change topics to employees with covid. Of course a lot of these employees will need a little bit of time off from work.

J. Larry Stine (24:09):
Right. And

James L. Hughes (24:12):
I guess the F M L A applies for those who are eligible for F M

J. Larry Stine (24:16):
L A leads? Yeah. If you get COVID and you're qualified for F M L A, there's a little doubt in our minds that that is a qualifying event and you have to make that F M L A. So even if you have a no fault to put attendance and remember, you're gonna have to have exceptions for F M L A type leave. So if somebody goes out on leave for covid then it is clearly covered by the Family Medical Leave Act and you've gotta treat as such now you don't have to give them pay anymore. And all the tax benefits for giving them the leave that were there early on, earlier on have expired. And so they're no longer available to you.

James L. Hughes (24:53):
What about a person who has COVID but is not F M L A eligible? What are you seeing employers doing?

J. Larry Stine (25:00):
Pretty much every, all the employees I have dealt with, with very minor exceptions, basically have just given them excused absences for that period. Now, as I said earlier on, when you got a direct tax credit against your social security, they were paying for it. That has fallen off. I have not seen as many the clients who are having people who are not F M L E go out, pay for that leave anymore mm-hmm. <Affirmative>, and of course the CDC has changed how long the quarantine is.

James L. Hughes (25:31):
Yeah. What are those quarantine rules now?

J. Larry Stine (25:33):
Well, they've changed they started off at 14 days, if you remember, and very early on they came to recognition that if they quarantined all the healthcare workers who were exposed to that or who had asymptomatic, they were going to crush the support, the, the healthcare industry and providing the necessary medical care. So they always made, they cut out an exception that even if you had quarantine, if you wore masks and followed certain protocol, you could actually come back wearing those masks. And that was available to other employees. They didn't make it healthcare exception, and they just said, here's an exception to it. Well, then they moved from 14 days to 10 days, and then recently they have moved to five days of quarantine. And then typically, if you remember, there was no testing requirements because we had so much trouble getting tests that they had to drop the testing requirements that you test out negative. And the other problem is that some people, for some reason seem to be completely over the symptoms and for some reason continue to test positive. And we don't quite know why, but they don't think they're contagious after a few days.

James L. Hughes (26:44):
If an employer learns that an employee is out for covid, is there any confidentiality obligation relating to that?

J. Larry Stine (26:53):
Yeah, there is. Under the ada there is, when you learn medical information, you're not supposed to go around the shop telling everybody, Hey, Joe's got covid, he's out for the day. That's not what you're supposed to do with it. I will tell you, I had a lawsuit once upon a time for exactly that somebody went out in the hospital for this one's a little bit more embarrassing. They were sitting for mental hospital and the boss decided to tell everybody in the shop that Jim was out and the mental health level and they suit. Because when you look at the confidentiality provisions, you're not supposed to spread that type of information. As an employer. It's confidential and it only goes to people that need to know, and there's no need to know for everybody ever.

James L. Hughes (27:39):
Now some people have problems overcoming covid. Are there any disability or accommodation issues relating to people who have problems overcoming covid?

J. Larry Stine (27:53):
There there is, there is some stuff about people who have what they call long covid, which basically seems to be people who either had long adverse reactions to getting covid or to the vaccine. Actually, there's both of them and they're both kind of treated the same. You have to look at the medical information, determine whether they qualify either for disability under ADA or whether they qualify for the F M L A, because of the nature of the long covid. But you do have a duty to look at it. And if they have those symptoms, you gotta figure out how does it impact your work. Now it may be that they can't do the work, but you gotta go through the ADA reasonable accommodation process trying to figure out what to do, and at least exhaust the fact that you cannot accommodate it. And then the last thing you need to do, typically in the reasonable accommodation process is you go back to the employee, say, well, you got this, we've looked, you got any suggestions? And then typically what happens, most of the time the employees go, no, I can't think of anything else. And then you've complete the process. Every once in a while they'll come up with something like, well, you can hire somebody else to do my job and pay me. And the law's pretty clear that that's not a reasonable accommodation. And you can recheck that. And every once in a blue moon, an employee will come up and say, why don't you do this? And you go, oh, that's reasonable. I'll do that. But that happens very rarely.

James L. Hughes (29:16):
Now I understand that OSHA is starting to relax some of the rules that they relaxed because of covid.

J. Larry Stine (29:24):
They they did that. That's the interesting is, for example, under the noise standard you have to get a base audiogram. If you are in a environment with noise levels of 85 D on eight hour time waited average, and then you have to do annual audiograms. Well, under the audiograms for the base, typically when you read the sta the regulation, it says six months unless you use a van. But most employers don't have an audio chamber to do testing in the facility. That's an expensive thing. You gotta have the people certified. I've seen it in a few places, but it's, it's not often. So, well, almost all the employees that do this is they, there's a fan exception where you can do it for a year. Well, during the height of the covid, they relax that because the problem is, you know, I've got a thousand employees in my plant. I got one audiogram chamber and I'm gonna run a thousand people into the same audiogram chambers. They relaxed that for a while. They no longer relaxed that year. If you've, if you thought they relaxed it, they did, but they haven't anymore. And so if you've got people who need their annual audiograms, you need to get started back and doing those again if you haven't already.

James L. Hughes (30:38):
They also relaxed the FIT testing

J. Larry Stine (30:40):
Rule they did under the respiratory standards. There's a fit testing rule for the mask. So what they did is they relaxed it because, well, if I was requiring N 95 s, I'd have to technically fit testing N 95 s, which is an interesting issue. So they basically said, you don't have to do the FIT testing for a period of time, but that relaxation is also no longer allowed.

James L. Hughes (31:03):
Were there any other rules that are now back and forth

J. Larry Stine (31:08):
Other than the audiograms and the FIT testing? That was really the ones that I can recall that they kinda relaxed a little bit, that the relaxation is over. So I can't think of anything else at this time. All

James L. Hughes (31:21):
Right. Let's talk about OSHA record keeping

J. Larry Stine (31:23):
That. Okay.

James L. Hughes (31:24):
What are the OSHA record keeping requirements with respect to covid infections?

J. Larry Stine (31:30):
It's they, they remain the same. That, that was interesting. There was always kind of a little debate about covid. The problem with COVID is, is a community-based infection. And under the OSHA regulations, the, you can have infections that are work related, but you have to be able to establish it's work related. What OSHA said early on is you need to, when you're good, somebody that got covid, you need to check to see if it's work related. Well, the way we set it up is a process of elimination. We basically recommended asking a few questions. Did you go to the grocery store? Have you been to the drugstore? Do you live with more than one person? And basically the response was the only people that I would record recommend recording for those who were hermit. They lived alone and they didn't ever go anywhere. And all they did is we went to work, went back home, and they had all their groceries and everything else done. Believe it or not, I think I had two or three people who claim that and they recorded them. But for the most part, because it's community based and whether you got it at work or you got it from church or you got it, it at the grocery store or the gas station, you can know. And therefore it was not work related. So,

James L. Hughes (32:47):
Well are there any OSHA record keeping requirements with respect to adverse vaccine events?

J. Larry Stine (32:54):
The way I, the way I read the reviews, the, the rules is if I made it mandatory, I made them go get the vaccines and then they did it. I've got an issue now because it's a work related requirement, I'm requiring you to go get the vaccines and you do it and you've had adverse impacts and you're out four days because the vaccine, my problem now is, is it work related? Yeah, I make you take it. And it's related to work that qualifies for that particular issue. So if I've got somebody who's got adverse attack from a mandatory vaccine, and I would say you would've to report it. If it's voluntary, you don't because it's just, we're encouraging you to go get it, but you don't have to do it. It's not work related. That is not a mandatory requirement.

James L. Hughes (33:43):
So if it's a mandatory vaccine, whether it's provided by the employer or, or by a third party, it is a recordable

J. Larry Stine (33:52):
Event. That's the way I would review it. Because the critical issue always in those record keeping regulations is a work related issue on the health aspects. And for that one, when I'm making you do it, it it's work related. Cause I can, the employee will often say, well, I wanna go, go get it, only got it and got sick because you made me, and there's some validity to that now. But the OSHA would cite you for that. I don't know. But since they were strong, you're trying to get you to do mandated vaccines. I don't know if that's something they would pursue. But technically, when you read the regulations I that you have to report,

James L. Hughes (34:27):
Let's turn to the topic of healthcare workers, because they have slightly different rules than most other employer situations

J. Larry Stine (34:36):
They do.

James L. Hughes (34:37):
Is there any distinction between healthcare workers who receive payments through Medicare and Medicaid and those that do not?

J. Larry Stine (34:45):
Yep. Basically what happened is, if you recall during the Supreme Court hearings, they had hearings on two things. One of 'em was the O C E Ts, which they had validated, and the other one was on the Center for Medicare and Medicaid Services regulations, which they affirmed. And then those injunctions that have been out there were all dissolved. And now there's a requirement for those companies under those regulations that the employees are mandated to take the COVID vaccines. And so they are still required. There are some exceptions to who's exactly covered under the what I'll call the C M S regs. If you're covered by then you've got a mandatory covid requirement. And if you do not get the mandatory covid requirement, that employee is has to be terminated.

James L. Hughes (35:39):
So you're talking about vaccines?

J. Larry Stine (35:41):
Yep. Vaccines,

James L. Hughes (35:43):
People who were subject to the

J. Larry Stine (35:45):
CMS regulations. Right. The CMS regulations pretty much, because if you remember at the time the CMS were coming out, OSHA had a healthcare et s they governed all the other healthcare provisions about ventilations and mask and treating between vaccines and not, so it was issued in the context of that. So it went to the mandatory vaccines. Now what's going on is OSHA's now taking those healthcare ets basically noticing comment and they were considering it for a permanent standard. The interesting thing is they have reopened the comments and one of the things I, I reviewed it recently is one of the things that just jumped off the page was that OSHA's not going to require mandatory vaccine for those that the c m s regulations don't required. So you can be in a healthcare setting with, with OSHA's considering, and you don't have to take the vaccine.

J. Larry Stine (36:46):
Also, the other thing that they're asking questions about is following the CDC d c guidelines. Well, one of the things in the guidelines as we talked about is you don't have to wear a mask indoor unless you were in a high transmission. The other thing that it looks like they're considering is basically the way it was originally written is everybody who walked in the door was assumed to have covid and you had to take a safety precautions for everybody. And one of the exceptions was that you screened them out, you didn't have to follow these rules. And they, they're dropping out, but it looks like they're changing the focus from everybody's got covid and you're gonna do this to, you gotta do this for people who have covid. So the rules are more, gonna be more directed to the people who are actually directly handling covid vaccines.

J. Larry Stine (37:35):
At least that's something they're considering in their request for comments. So they've opened up, it's, it's open right now until April 22, I think. So there is some change of thought and I, I think one of the things is when you look at it, part of it is this I wanted to show you this chart. I pulled this off of the web yesterday. Okay. And there it is. And I wanna show you guys here is what I pulled off the web yesterday. If you'll look at that curve, that is a classic bell curve. I mean, everybody in high school probably saw the bell curve. And if you look where we are now, we are on the tail end of the bell curve. We've had the big peak and we're coming out. So it looks like from this chart that what's happening is we're here in March now, and we're down towards the, the tail end.

J. Larry Stine (38:33):
And it looks like osha, those folks are kind of beginning to rethink what's going on because we're no longer at this point where we were at the height where this, at the height of this, when I looked at it, it was close to 800,000 people were getting covid a day. And now we're down to like 23,000. And the other thing that's interesting about this, if you draw analogies to the 1918 influenza we never did have a vaccine. It lasted about two years. And since we really began in the earnest with the Covid vaccine a problem in March of 2020, and here we are in March of 2022, it looks like history's repeating itself and we're coming out of the covid. And when that happens, then a lot of the requirements, what in the end is going to happen, I'm pretty certain is that the pandemic will end.

J. Larry Stine (39:27):
Covid is here to stay, but we'll be handling covid the same way we handle influenza. And that's once again, a community based issue and we'll adjust to handle it as it is. The other thing that's interesting is in a lot of the cities, if you recall, they had cities in which you couldn't go into a store without proof of vaccination. Well, in February, a bunch of them rep appealed that requirement. The LA City Council repealed it this week. So even probably one of the most stringent cities about the vaccine, which was LA City, they have stopped the requirement for showing vaccine mandates to go into stores and bars and stuff. When you begin to see the big democratic cities begin to say you're no longer having to have the vaccine status, you know, you're begin to see the very end of it and it'll, it will come back down to a place in which covid 19 and various sun variants covid 19 are gonna be treated as the same way as we've treated the flu. No, they still want the same thing as when somebody gets the flu, don't come to work. Don't, don't bring it to us. And the same thing is true with when you get covid still quarantine yourself. And the same thing is true for that. But that's what we've been doing for influenza, at least in informally for a very long time. And like regular things. Some people ignore it and some people follow it.

James L. Hughes (40:59):
Yeah. And you just made the point that there are state and local laws that have an influence on mass requirements, vaccination requirements, et cetera. Cause a lot of the challenges that were made to the ocean mandate and the federal contractor mandate were constitutional challenges. And the argument was that this is not a federal area of governance. This belongs to the state local

J. Larry Stine (41:26):
Governance. That's, that's exactly right. A lot of the constitutional arguments was that this was not one of the powers enumerating the constitution given to the federal government. And accordingly, that remained with the state. So the state had the authority. Now, whether the state gives the authority to the local or municipals another one, if you have to look at each state for like example, one of the restaurants, the reasons they're still wearing masks is the food. You know, the local health board is still saying, you guys gotta wear your mask to serve food. And so when you got down to it, you're fine. When you get down to the fine details, you still have to look at the local ordinances and what your particular business is. But the, the local and state governments have not mandated across the board covers. It tends to be related to an occupation restaurant, something along those lines.

J. Larry Stine (42:18):
But as I've pointed out, a lot of the cities and states are beginning to relax the rules. As you know, the city of New York relaxed it for entertainers and athletes and cause controversy as to, well, why can you relax it for those elite people and not the rest of us beyond mm-hmm. <Affirmative>. and so we get that kind of battle going on. But the, and like I said, the AAC council has relaxed it for everybody to go in. Now you can go and I have to show you vaccine that's kind of beginning to be demonstrative of the end of this and it's gonna be treated more like influenza in the future.

James L. Hughes (42:53):
Larry, do you wanna check and see if we have any questions in our chat box there?

J. Larry Stine (42:58):
Sure. The answer is no Q and As and no chances. Anybody got any questions for us about COVID we can't see you cause we're just seeing ourselves like you got, you got a q and a or chat. Let us know if you've got a question about that. And we'll be glad to answer it if they show up. As of right now, no questions.

James L. Hughes (43:24):
If there are no questions and we'll check again shortly. Jim Wimberley has joined us to give us an update on new and exciting things that are happening in the last couple of weeks that people may need to know

James W. Wimberly (43:36):
About. Actually, our public relations people decided we needed a pretty face on this.

J. Larry Stine (43:43):
Yeah, right. Why they

James W. Wimberly (43:44):
And I volunteered for the job, but it's April Fools thing. <Laugh>,

J. Larry Stine (43:51):
I, I can think of a lot of people in our office, Jim, that we could have used besides you for that purpose.

James W. Wimberly (43:57):
But you know, I thought it would be interesting as anything hot that just came out. There is something hot came out Wednesday night. David Wheel was rejected by the Senate as wage and hour administrator, head of wage and hour division of the US Department of Labor. Now that was a position he held during the Obama administration. He was notoriously pro enforcement and he really made his reputation on his insistence that most, if not all workers are all employees. He didn't like the concept of independent contractors. Cause independent contractors are generally not covered by our employment laws and thus had no protections under the employment laws. Besides the government has a more difficult time collecting taxes from independent contractors than they do from employees. So David Wheel was rejected 50 to 47. Three Democratic Senators crossed the line and voted against him. Of course Senator Joe Manchin from West Virginia was one of them.

James W. Wimberly (45:19):
But also the two senators from Nevada, Arizona or Arizona cross the line. And Mark Scott and Kirsten Sinema and voted against him. Secondly, two weeks ago, also related to the independent contractor issue. A judge in Texas ruled that the current administration violated the Administrative Procedure Act in rescinding the Trump era independent contractor regulation under the Department of Labor. It's jurisdiction. This regulation that came out on January 6th, 2021, just before President Biden was inaugurated is portrayed as being very pro management in the sense that it gave management more leeway to contract to independent parties that would not be considered employees under the employment laws. The court determined that the actions of the Biden administration were arbitrary and capricious. They had limited their response period to the new regulation re sending the Trump regulation. They'd not given people enough time to comment.

James W. Wimberly (46:48):
They'd limited the type of comments that could be made. They didn't consider alternative and things of that nature. So as of this moment, the Trump era definition of an pick a tractor remains at least subject to a court of appeal that would undoubtedly be made by the Biden administration. This ruling came out roughly two weeks ago. It's kinda interesting that when the party out of power or groups out of power wish to set aside a government regulation, you almost know where they're gonna go. If they're a Republican group or a conservative group or a management group, they're gonna go to the Eastern District of Texas where there's some conservative judges that are known to take a close view of what the government can and can't do. If it's the democratic groups are the labor groups or what have you that are out of power, guess where they're gonna go? Of course they're gonna go to California to get a Republican rule. Trump had so many of his rules set aside and Biden is having the same experience. That's the current news. Thank you for putting up with that.

James L. Hughes (48:12):
Thank you for joining us. You guys have a good weekend and we'll see you next month at our next webinar.

Webinar Promo Graphic: What Employers Should Know if COVID-19 is Really Here to Stay
Webinar Date: Friday, April 01, 2022
Presenter(s): Larry Stine, James L. Hughes and James W. Wimberly, Jr.
Status: Available On-Demand
Venue: Zoom

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