Category Archives: Health and Wellness

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What Employers Need to Know About Federal COVID-19 Vaccine Mandates

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In an effort to combat the COVID-19 virus and its subsequent variants, the Biden administration has instituted three important mandates that employers should be aware of as they may impact their business. First, the Emergency Temporary Standard (ETS), issued by the Occupational Health and Safety Administration (OSHA), requires that all employers with 100+ employees mandate vaccination or weekly testing. The second mandate involves federal workers and contractors and requires them to obtain a vaccination without any option for weekly testing. The final mandate was issued by the Centers for Medicare and Medicaid Services (CMS), and requires vaccination of all healthcare workers at CMS-covered facilities.

OSHA’s Emergency Temporary Standard

The mandate that has the most wide-ranging impact is Occupational Health and Safety Administration’s (OSHA) Emergency Temporary Standard (ETS) that calls for employers with 100 or more employees to either require employees to obtain a COVID-19 vaccination or to prove compliance with a weekly-testing program. This ETS is expected to affect over 80 million employees. 

On December 17, the Sixth Circuit Court of Appeals lifted the stay placed on OSHA’s ETS issued by the Fifth Circuit in November. The court held that OSHA does have statutory authority to mandate national vaccines and/or testing for employers with more than 100 employees. Specifically, it outlined that because COVID-19 is a virus that causes bodily harm, OSHA was well within its administrative authority to regulate the health and safety of employees. 

Since the Sixth Circuit’s decision to dissolve the stay, OSHA announced that it will not be issuing citations for noncompliance with the ETS requirements until January 10 and the testing requirements will not be enforced until February 9 with the caveat that the employer must make good faith efforts to come into compliance as soon as possible.

After this ruling by the Sixth Circuit, eight groups challenged the OSHA vaccine mandate and filed emergency applications with the U.S. Supreme Court asking it to stay the mandate again until the case can be heard in the highest court. On December 20, the Supreme Court requested a response from the federal government by December 30. And, on December 22, in an almost unprecedented move, the Supreme Court ordered oral argument on these emergency applications, which will take place on January 7.

Despite the fact that the validity of the ETS is now squarely before the Supreme Court, employers should still operate as if the ETS will go into immediate effect. OSHA has implemented new deadlines to reflect the current status of the ETS.

By January 10, employers should:

  • Track employee vaccination status
  • Create a database detailing vaccination information for each employee
  • Require unvaccinated employees to wear a mask
  • Provide paid time off for employees to get vaccinated and recover

As of February 9, 2022, employers must also require unvaccinated employees must start testing for COVID weekly. Self-administered or self-read tests would not comply. Employers must observe or use a proctor and have employees tested on site, or at a recognized testing facility.

The Mandate for Federal Employees and Contractors

The second mandate stems from President Biden’s executive order that requires most federal employees or contractors to get vaccinated. This mandate does not have a testing option.

On December 7, the U.S. District Court for the Southern Section of Georgia granted a preliminary injunction to temporarily halt the enforcement of the Biden’s administration’s vaccine mandate for federal contractors.The court found that the administration had overstepped the bounds of it authority under the Federal Property and Administrative Services Act 40 U.S.C. 101 et. seq. The injunction effectively prohibits enforcement of the federal contractor vaccine mandate in all 50 states and any territory of the United States. However, on December 17, the Eleventh Circuit, denied the government’s motion to stay. This effectively upheld the injunction. The court found that the government had failed to show that it “would be irreparably harmed absent a stay.”

The CMS Mandate

The third mandate is an interim file rule of the Centers for Medicare and Medicaid Services (CMS), which requires vaccination of all healthcare workers at CMS-covered facilities throughout the United States. The CMS mandate is currently enjoined by court order in 25 states and continues in full effect in 25 other states. After the ruling by the Fifth Circuit in November, however, CMS suspended implementation and enforcement of the mandate pending resolution of the challenges before the Supreme Court.

Court Overturns Prop 22, California’s Gig Worker Classification Law

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On August 25, the Alameda County Superior Court in California declared that Proposition 22 (better known as Prop 22) violated the state’s constitution, overturning it and potentially putting a portion of the state’s gig work industry in peril. The controversial California ballot measure designated app-based gig workers like rideshare and food delivery drivers as independent contractors, meaning that the companies they ostensibly work for would not have to provide a minimum wage, health insurance, unemployment, sick leave or other benefits. Because the initiative was a ballot measure, the court found the law restricted the state legislature’s ability to regulate compensation rules, and said the measure also illegally prevented workers from collective bargaining and unionization. However, this ruling does not mean that gig workers will automatically be considered employees, as no previous law mandated that classification.

Before Prop 22’s passage in November 2020, California passed AB 5 in May 2019, which instituted a more rigorous test to determine whether workers were employees or independent contractors: if “the person is free from the control and direction of the hiring entity in connection with the performance of the work,” the work was outside the company’s usual business, and if the worker “customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed.”

Rideshare companies like Uber and Lyft essentially ignored AB 5 and poured $224 million into fighting for Prop 22, making it “the most expensive ballot measure in California history,” according to the Los Angeles Times. The measure passed with around 59% of the vote.

In a small concession for workers, Prop 22 did provide for a health insurance stipend, but an August 2021 UC Berkeley Labor Center survey of 500 drivers showed that only around 10% of workers were receiving it, and 40% had not heard about it at all. Since work hours are only defined by the time spent driving with a passenger, others do not work the required 15 hours per week on one app to qualify for the stipend. These and other factors prompted drivers and the Service Employees International Union (SEIU) to sue the state seeking to overturn the law.

For now, the Superior Court ruling will likely not change much for gig workers in California, as Uber and other companies have announced their intention to challenge it in higher courts and may ignore any of its other legal implications, leaving everyone involved with a shaky status quo: an overturned law that is effectively still being followed.

As Risk Management wrote in May, one danger of the continuing ambiguity surrounding gig worker classification is misclassifying workers, which can lead to heavy fines or lawsuits. For example, in January 2020, D.C.-based contractor Power Design Inc. agreed to pay $2.5 million for misclassifying 500 workers as independent contractors rather than employees. In August, food delivery app company Postmates settled with the city of Seattle for nearly $1 million for violating the city’s Gig Worker Paid Sick and Safe Time (PSST) ordinance. The payment will go to cover city fines and compensate more than 1,600 workers for back wages. Additionally, withholding benefits, overtime, and meal and rest breaks (whether a result of misclassification, or in general) can result in workers filing class action lawsuits against the company, potentially resulting in significant costs, impacting productivity and damaging the organization’s reputation.

Another risk for gig work companies is insufficient safety measures for workers. Unlike with formal employees, companies often do not provide gig workers with safety training and may not offer formal ways to report safety concerns. This creates an environment where workers who are often under pressure to complete as many rides or tasks as quickly as possible may get into accidents or leave dangers unreported, creating liabilities for themselves and the company.

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Other states have their own gig work regulations either on the books or in the works and President Joe Biden has expressed support for gig worker classification as employees, but there is currently no national legislation on this issue. However, in March, the House of Representatives passed the Protect the Right to Organize Act (or PRO Act), which would reclassify gig workers as employees, affording them all the benefits included in that status.

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The Senate has not yet taken up the measure.

Travel Risk Management for LGBTQ+ Employees

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LGBTQ+ travelers can face unique challenges when traveling abroad—many countries do not legally recognize same-sex marriage and more than 70 countries consider consensual LGBTQ+ relationships a crime. If an employee travels on business to a country where their sexual orientation or expression of gender identity is criminalized, an extra layer of complexity is added to duty of care responsibilities. Corporate risk managers need to consider how to best protect employees in a way that doesn’t make them feel singled out, working with them to stay safe and respect local laws without compromising their own values. 

This process begins by providing up-to-date guidance on laws and cultural variations as part of an organization’s duty of care. Attitudes towards the LGBTQ+ community vary considerably around the world, and employers therefore need to shape their duty of care policies around a wide range of considerations, both legal and cultural.

Understand the Law

Risk managers need to ensure they have relevant and up-to-date information at hand to fully understand the traveler’s destination. There are nuances within each country’s legislation, and acceptance can vary dramatically even within different regions of the same country, also evolving over time. Employees need to be informed of the laws to which they will be subject at their destination before they travel. Duty of care procedures should incorporate pre-travel advice and awareness, educating employees on what to expect when on business travel as well as how to respond and whom to contact in an emergency.

Legislation may impact an employee’s behavior in a given destination and travel managers can provide advice on best practices. In the United Arab Emirates for example, transgender, gay and gender nonconforming people have been arrested for violating a law against men “disguised” as women. To the extent possible, it is best for travelers in these countries to remain in resort areas and for same-sex couples to refrain from holding hands, hugging or kissing in public.

Understand the Culture

In addition to local laws, social norms are another factor to consider for deciding whether a destination is safe. While many countries officially recognize homosexuality and allow gender confirmation measures, some communities within these “safe” countries still harbor prejudice against the LGBTQ+ community. In such environments, LGBTQ+ travelers who engage in open displays of affection with each other or appear gender nonconforming may be at risk of harassment and assault, and may also feel intimidated when reporting the incident to local police. There may be few or no local venues that provide a safe space for members of the LGBTQ+ community and the risk of hate crimes and police raids at such establishments cannot be ruled out. Travelers are advised to maintain a low profile in countries that lack full protection for the LGBTQ+ community and exercise caution about where and with whom to discuss related topics in public spaces.

Social media can also put travelers at risk. For example, while dating apps can help people connect with local members of the LGBTQ+ community when traveling or relocating for work, employees should be advised to exercise caution if they plan to use these in communities that are not LGBTQ-friendly. In Russia, where prejudice is widespread and a law against “gay propaganda” has been in effect since 2013, far-right activists and gang members have used dating apps to lure gay men to assault and extort them. Prior to travel, risk managers should advise employees to review privacy settings on social media platforms and reconsider the use of dating applications while abroad.

With some countries still refusing to accept—let alone recognize—the LGBTQ+ community, LGBTQ+ employees often feel compelled to take additional precautions that others would not have to even consider. However, corporate risk managers can help employees to stay safe while on business travel by being aware of the local laws and social norms of the destination before departure.

For other guidance on how to support LGBTQ+ employees and advance diversity, equity and inclusion programs, check out these additional pieces from Risk Management Magazine and the Risk Management Monitor:
Beyond Pride: Building Strong Diversity and Inclusion Programs
The LGBT Travel Risk Dilemma
The Benefits of Diversity & Inclusion Initiatives
Engaging Employees in Their Own Duty of Care
Developing a Strategy for Transgender Workers
The Case for Effective DE&I Training

New York City’s New Biometric Information Law Governs Collection and Use of Consumer Health Data

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For risk professionals, the COVID-19 pandemic has increased the importance of ensuring customer and employee safety measures are incorporated into operations, processes and future strategies. As many businesses reopen from pandemic shutdowns or return from remote work arrangements, some enterprises are now exploring both the effectiveness and the risks associated with conducting health screenings that collect biometric information and other personal health data.

This month, New York City released the Biometric Information Law, a new measure that goes into effect on July 9 and imposes disclosure requirements on businesses that collect consumer biometric information.

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It also sets parameters on what they can do with that information, most importantly, prohibiting the exchange of biometric information for anything of value.

As detailed in recent client notice from the law firm Reed Smith, highlights from the law include:

  • The measure requires a business that “collects, retains, converts, stores or shares biometric identifier information of customers” to place a “clear and conspicuous sign” near all consumer entrances that, in plain language, discloses the collection, retention or sharing of biometric information.
  • It stipulates that it is unlawful to “sell, lease, trade, share in exchange for anything of value or otherwise profit from the transaction of biometric identifier information.”
  • It establishes “an ‘aggrieved’ consumer’s private right of action,” meaning that “[a]ny person who is aggrieved by a violation by this chapter is entitled to commence an action to enforce its protections.”

There are key exclusions, however, as “governmental agencies, employers, or agents” are expressly excluded from compliance with any provision.

New York is not the only state to enact a law attempting to govern how organizations can use biometric information. Arkansas, California, Illinois, Texas and Washington have also set guidelines for businesses.

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Indeed, the recent Risk Management Magazine article “Preparing for Biometric Litigation from COVID-19” addresses the imminent and critical questions businesses must answer when collecting and handling such data.

Sensitivities surrounding the confidentiality of biometric and other health information are not new in certain industries, such as healthcare. Further, even before COVID-19, risk professionals were already grappling with the risks associated with new biometric technologies and the data collected, especially with regard to facial recognition, wearables and even the rise in popularity of telehealth.

Now, with every organization on high alert about infectious diseases and how quickly they can interrupt business, health and safety have become top priorities for every risk professional in every sector.

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As risk professionals look to new technology for help with these concerns, monitoring the emerging regulation and security risks around health and biometric technology will become increasingly critical in balancing benefit and risk to their organizations.
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Data security will continue to remain a significant threat, but New York’s Biometric Information Law should serve as a reminder that what the organization does with that data can also have a lasting impact on the enterprise’s reputation and consumer trust.

For more information to help risk professionals manage new health technology and data, check out these articles from Risk Management Magazine: