Category: Higher Ed News

  • OSHA Emergency Temporary Standard and CMS Interim Final Rule on Vaccination Requirements Released – CUPA-HR

    OSHA Emergency Temporary Standard and CMS Interim Final Rule on Vaccination Requirements Released – CUPA-HR

    by CUPA-HR | November 4, 2021

    On November 4, the Department of Labor’s Occupational Safety and Health Administration (OSHA) and the Department of Health and Human Services’ Centers for Medicare & Medicaid Services (CMS) issued their highly anticipated Emergency Temporary Standard (ETS) and interim final rule (IFR) setting vaccination requirements for employers with 100 or more employees and healthcare workers, respectively. Under the new policies, covered employers with 100 or more employees, healthcare workers at facilities participating in Medicare or Medicaid, AND federal contractors requiring vaccinations under Executive Order 14042 (EO) will be required to be fully vaccinated — either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson — by January 4, 2022.

    A Fact Sheet announcing the new vaccinations rules provides the following information on the OSHA ETS, CMS IFR and federal contractor vaccination requirements:

    OSHA Emergency Temporary Standard

    In lieu of full vaccination, the OSHA ETS for employers with 100 or more employees (covered employers) also offers the option for unvaccinated employees to produce a verified negative COVID-19 test to employers on at least a weekly basis. OSHA does clarify, however, that the ETS does NOT require employers to provide or pay for tests, but notes that employers may be required to pay for testing due to other laws or collective bargaining agreements.

    The ETS also establishes policies that require covered employers to provide paid time off (PTO) for their employees to get vaccinated and, if needed, sick leave to recover from side effects that keep them from working. Additionally, all covered employers will be required to ensure that unvaccinated employees wear a face mask in the workplace. While the testing and vaccination requirements will begin after January 4, the ETS states that covered employers must be in compliance with the PTO for vaccination and masking for unvaccinated workers requirements by December 5, 2021.

    Importantly, OSHA clarifies in the ETS that the rule will not apply to workplaces already covered by the CMS IFR, as well as the federal contractor vaccination requirement set forth by President Biden’s EO and the Safer Federal Workforce Task Force’s vaccination guidance.

    Healthcare Interim Final Rule

    According to CMS, the IFR requiring full vaccination of healthcare employees applies to employees regardless of whether their positions are clinical or non-clinical and includes employees, students, trainees and volunteers who work at a covered facility that receives federal funding from Medicare or Medicaid. It also includes individuals who provide treatment or other services for the facility under contract or other arrangements. Among the facility types covered by the IFR are hospitals, ambulatory surgery centers, dialysis facilities, home health agencies and long-term care facilities.

    Federal Contractor Vaccination Executive Order

    In an effort to streamline implementation of the vaccination requirements, the Biden administration is also announcing that the deadline for previously issued federal contractor vaccination requirements will be extended to January 4, 2022, setting one deadline across the three different vaccination policies. The vaccine requirement for federal contractor compliance was previously set for December 8, 2021.

    Additionally, as mentioned above, federal contractor employers who may otherwise fall under the OSHA ETS covered employer definition will not be required to follow the rules established under the ETS and must continue compliance with the vaccination guidance and requirements set forth by the EO and Safer Federal Workforce Task Force for federal contractors.

    State and Local Preemption

    Early reports of the rules also state that both the OSHA ETS and CMS IFR make it clear that their requirements “preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks or testing.” More information is likely to follow.

    Additional information is likely to arise as we learn more from the actual text of the ETS and IFR. CUPA-HR will keep members apprised of all new information.



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  • DHS Issues Request for Public Comment on Form I-9 Employment Verification – CUPA-HR

    DHS Issues Request for Public Comment on Form I-9 Employment Verification – CUPA-HR

    by CUPA-HR | October 27, 2021

    On October 26, 2021, the Department of Homeland Security (DHS) issued a Request for Public Input (RPI) “seeking comments from employers, employer organizations, employee groups, and other members of the public on document examination practices for Form I-9, Employment Eligibility Verification.” 

    The RPI is the agency’s next step in determining whether the remote document examination flexibilities that have been in place since the beginning of the COVID-19 pandemic should be continued on a permanent basis. Comments are due on or before December 27, 2021.

    Background

    On March 20, 2020, DHS announced employer flexibility guidance to defer the physical presence requirements associated with Form I-9 for 60 days. The guidance allows for remote inspection of Form I-9 documents in situations where employees work exclusively in a remote setting due to COVID-19-related precautions. For employees who physically report to work at a company location on any regular, consistent or predictable basis, employers are required to use standard I-9 procedures.

    The guidance has been extended continuously throughout the pandemic. Issued on August 31, the latest extension to the flexibility guidance was granted through December 31, 2021, following advocacy efforts from CUPA-HR and other stakeholders who expressed a dire need for DHS to maintain the flexibility in light of surging cases of the delta variant.

    Request for Public Input

    The RPI includes a list of questions grouped into two categories: “Experiences with Pandemic-Related Document Examination Flexibilities” and “Considerations for Future Remote Document Examination Procedures.” As DHS considers winding down the flexibility guidance, the RPI will provide the department with important feedback from employers who have conducted remote inspection and “inform and improve DHS policies and processes” regarding “alternative options to physical document examination that offer an equivalent or higher level of security for identity and employment eligibility verification purposes” moving forward.

    The flexibility guidance has been instrumental to institutions of higher education during the pandemic. As such, CUPA-HR intends to engage our members and submit robust comments in response to the RPI. ​Look for more details and your chance to contribute your feedback in the coming weeks.



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  • House Passes Bill to Increase Workplace Protections for Nursing Mothers – CUPA-HR

    House Passes Bill to Increase Workplace Protections for Nursing Mothers – CUPA-HR

    by CUPA-HR | October 26, 2021

    On October 22, 2021, the House of Representatives passed H.R.3110, the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act. The bill passed by a bipartisan vote of 276-149 and was supported by business groups such as the U.S. Chamber of Commerce and advocacy organizations, including the American Civil Liberties Union.

    As originally written, the PUMP for Nursing Mothers Act amends the Fair Labor Standards Act (FLSA) to expand access to breastfeeding accommodations in the workplace for lactating employees. The bill builds upon existing protections in the 2010 Breaktime for Nursing Mothers Act by broadening breastfeeding accommodations and workplace protections to include salaried employees exempt from overtime pay requirements under the FLSA as well as other categories of employees currently exempt from such protections, such as teachers, nurses and farmworkers. It also clarifies that break time provided under this bill is considered compensable hours worked so long as the worker is not completely relieved of duty during such breaks, and it ensures remedies for nursing mothers for employer violations of the bill.

    Before the final vote on the bill, the House also adopted two additional amendments to the PUMP for Nursing Mothers Act that would:

    • Direct the Government Accountability Office (GAO) to conduct a study on compliance among covered employers, including employee awareness of their rights and proposals to improve compliance; and
    • Direct the Comptroller General of GAO to conduct a study on what is known about the racial disparities that exist with respect to access to pumping breastmilk in the workplace and submit to Congress a report on the results of such study containing such recommendations as the Comptroller General determines appropriate to address those disparities.

    The House-passed bill now moves to the Senate where it is unknown whether or not the bill will garner enough support from Republicans to bypass the sixty-vote filibuster threshold needed to pass.

    CUPA-HR will keep members apprised of any actions or votes taken by the Senate on this bill.



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  • White House Reviews OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard – CUPA-HR

    White House Reviews OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard – CUPA-HR

    by CUPA-HR | October 25, 2021

    On October 12, the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) sent their COVID-19 Vaccination and Testing Emergency Temporary Standard Rulemaking (ETS) to the Office of Information and Regulatory Affairs (OIRA). OIRA is the White House office responsible for reviewing regulations and proposed regulations before they are publicly released.

    The ETS — which has not yet been made public — is expected to require private employers with 100 or more employees to “ensure their workforces are fully vaccinated or show a negative COVID-19 test twice a week” and provide paid time off for obtaining or recovering from the vaccination (additional details regarding what is known about the ETS can be found in this CUPA-HR blog).

    What is an ​Emergency Temporary Standard?

    While most federal agencies are required to provide public notice and seek comment prior to enacting new regulations, OSHA may bypass normal rulemaking and issue an ETS if doing so is necessary to protect workers from a “grave danger.” This allows OSHA to issue the ETS without any feedback from impacted stakeholders and require employers to immediately comply with the ETS upon its publication in the Federal Register.

    ​Office of Information and Regulatory Affairs Review

    OIRA is part of the executive office of the president and is required to review significant regulatory actions — those likely to have an annual effect on the economy of $100 million or more — before they are published in the Federal Register or otherwise issued to the public. As the ETS is determined to be “Economically Significant,” an OIRA review is triggered to ensure that it reflects the goals set forth in President Biden’s COVID-19 Plan and to ensure OSHA has carefully considered the benefits and costs of the ETS before it is issued.

    While draft documents under review are not available for public release, it is OIRA’s policy to meet with interested stakeholders to discuss issues on a rule under review. As of October 22, OIRA has convened 68 meetings with outside stakeholders on the ETS and has scheduled meetings through October 25. While CUPA-HR is aware many more additional pending meeting requests (including our own), OIRA has yet to schedule these, and may not. While OIRA review is limited to 90 days, there is no minimum period of review, and given the urgency associated with the ETS it could be issued as soon as this week.

    CUPA-HR will continue to monitor OIRA’s review process and be sure to inform our membership as soon as OIRA review concludes and OSHA issues the ETS.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | October 20, 2021

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Several States Consider Legislation Aimed at Softening Federal Workplace Vaccine Mandates

    The Arkansas legislature recently passed legislation which would soften the federal employer workplace vaccine mandate. The legislation would allow workers in Arkansas to opt out of the mandate if they show a negative COVID-19 test weekly or present a positive antibody test twice a year. The legislation would bar employers from terminating employees who followed the testing protocol. Ohio and Texas are considering similar legislation. Montana enacted a statute that prohibits employer mandates of shots that are under emergency use authorization and have not cleared final approval.

    State laws which directly conflict with federal statutes are arguably preempted and unenforceable under the U.S. Constitution’s Supremacy Clause. Depending on how the state statute is worded there are gray areas which will be subject to litigation. For example, a state could argue that an employer may well be able to adhere to the state statute and the final Occupational Safety and Health Administration rule depending on how that final rule is written.

    NLRB General Counsel States That Political and Social Justice Advocacy in Black Lives Matter Demonstrations and Demonstrations Opposing Crackdowns on Undocumented Workers are Protected Concerted Activity Under the National Labor Relations Act 

    National Labor Relations Board (NLRB) general counsel stated in a webinar hosted by Cornell University on Wednesday, October 7, that Black Lives Matter protests and demonstrations against crackdowns on undocumented workers are protected under the National Labor Relations Act (NLRA) as protected concerted activity. The general counsel referred to the case the NLRB brought against Home Depot in Minneapolis because it disciplined workers who refused to cease displaying political messages on their aprons at work,  including an employee who was terminated for displaying a “BLM” slogan. The NLRB in that case also accused Home Depot of unlawfully threatening employees with unspecified consequences if they engaged in group activities regarding racial harassment.

    Home Depot has denied any violation of the NLRA and in a statement said it does not tolerate workplace harassment, takes these matters seriously, and is committed to diversity and respect. Home Depot takes the position it has every right to refuse to allow its employees to engage in conduct which will spark conflict and possibly confuse customers. It added it has a right to refrain from allowing its employees to engage in speech in this way while serving customers.

    NLRB General Counsel Asserts That College Athletes are Employees Under the NLRA and Should be Accorded the Right to Unionize and Collectively Bargain

    The top lawyer and general counsel for the National Labor Relations Board (NLRB), Jennifer Abruzzo, asserted in a public memo issued on September 27 that college athletes are employees and should be afforded the right to engage in protected concerted activities, including the right to unionize and collectively bargain. Abruzzo has the authority to bring a test case before the five-member NLRB who have exclusive jurisdiction to decide whether or not college athletes are employees and whether they have a right to unionize and participate in concerted activities protected under the National Labor Relations Act (NLRA). The NLRB does not have jurisdiction of public colleges and universities, only private colleges and universities. However, Abruzzo may attempt to assert jurisdiction over public college athletes under the theory that the National Collegiate Athletic Association (NCAA), which is private, is a joint employer of public college athletes and can negotiate certain minimum guarantees under a collective bargaining agreement. This is an untested legal theory.

    The issue has been under increasing debate, most recently as a result of a Supreme Court decision criticizing the stance of the NCAA in limiting student compensation of athletes on antitrust grounds in NCAA v. Alston. The Supreme Court did not address the issue of whether student athletes are employees under the NLRA. Adding to the controversy is that it is not unusual for a college football coach to earn in excess of $1 million per year.

    CUPA-HR will continue to monitor developments in this area.

    Several Colleges File an Appeal of a Federal Court Decision to Allow Student-Athletes to Proceed to Trial Over Whether They are Employees Under the Fair Labor Standards Act and Therefore are Due Minimum Wage and Overtime Payments

    A federal district court trial judge recently ruled that student-athletes are employees under the federal Fair Labor Standards Act and are therefore entitled to minimum wages and overtime payments. The judge used the same multi-factor approach used in cases where unpaid interns have been successfully sued and were entitled to pursue a claim of minimum wages and overtime payments (Johnson v. NCAA (E.D. Pa. No. 19-cv-19350, 9/29/21)).

    A group of institutions including Cornell, Fordham, Villanova, Layfette College and Sacred Heart University has asked the eastern district of Pennsylvania judge to allow an immediate appeal to the U.S. court of appeals for the third circuit. They want to ask the third circuit to decide: (1) Are student-athletes ever employees of the schools for which they compete?; and (2) If so, under what circumstances are student-athletes considered employees of their schools?

    CUPA-HR will continue to monitor developments in this case.



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  • NLRB General Counsel Releases Memo on Employee Status for Student Athletes – CUPA-HR

    NLRB General Counsel Releases Memo on Employee Status for Student Athletes – CUPA-HR

    by CUPA-HR | September 29, 2021

    On September 29, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo released a memorandum stating her position that student athletes (or “Players at Academic Institutions,” as she refers to them in the memo) are employees under the National Labor Relations Act (NLRA) and are afforded all statutory protections as prescribed under the law. Abruzzo declares, “The broad language of Section 2(3) of the [NLRA], the policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment.”

    Abruzzo also states that misclassifying such individuals as non-employees and leading them to believe they are not afforded protections under the NLRA has a “chilling effect” on Section 7 activity. She said she would consider this misclassification an independent violation of Section 8(a)(1) of the NLRA. Abruzzo further stated that the intent of the memo is to “educate the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA” about her position in future appropriate cases.

    The memo revives issues surrounding employment status of student athletes that the NLRB has previously ruled on. In March 2014, the NLRB’s Regional Director in Chicago ruled that Northwestern players receiving football scholarships are employees and have a right to organize under the NLRA. In August 2015, the NLRB released a unanimous decision dismissing the representation petition filed by a group of Northwestern football players seeking to unionize. In doing so, however, the board’s decision did not definitively resolve the issue of whether college athletes are employees and have a protected right to unionize under the NLRA. After considering arguments of both parties in the case and various amici, including CUPA-HR, the board declined to assert jurisdiction on the issue, stating that “asserting jurisdiction would not promote labor stability [because the] Board does not have jurisdiction over state-run colleges and universities, which constitute” the vast majority of the teams. The board noted, however, its “decision is narrowly focused to apply only to the players in this case and does not preclude reconsideration of this issue in the future.” Another issue in the Northwestern decision was the board’s lack of jurisdiction over “walk-on” players who do not receive scholarships. It remains to be seen how Abruzzo will overcome in future cases the two jurisdictional obstacles identified in Northwestern.

    CUPA-HR will keep members apprised of NLRB actions and cases that may prompt the agency to rule on the issue regarding student athlete employment status.



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  • IRS Issues Employer Guidance on COVID-19 Paid Leave Tax Credits – CUPA-HR

    IRS Issues Employer Guidance on COVID-19 Paid Leave Tax Credits – CUPA-HR

    by CUPA-HR | September 22, 2021

    On September 7, the U.S. Treasury Department and Internal Revenue Service (IRS) issued Notice 2021-53, which includes guidance to employers on reporting the amount of qualified sick and family leave wages paid to employees for leave taken in 2021 as provided by the Families First Coronavirus Response Act (FFCRA) and as amended by the Consolidated Appropriations Act of 2021 and the American Rescue Plan Act of 2021.

    The FFCRA required private sector employers with 500 or fewer employees to provide emergency paid family and medical leave and emergency paid sick leave to employees who could not work or telework due to certain COVID-19 complications. The FFCRA also established fully refundable tax credits that employers may receive after providing the emergency paid family and sick leave. The tax credits under the FFCRA were set to expire on December 31, 2020, but they were extended to cover wages voluntarily paid through March 31, 2021 under the Consolidated Appropriations Act of 2021 and again through September 30, 2021 under the American Rescue Plan Act of 2021. Employers were no longer required to provide the paid sick and family and medical leave wages to employees after the enactment of the Consolidated Appropriations Act, but employers that voluntarily provided paid leave that would have satisfied the paid family leave and paid sick leave requirements under the FFCRA were eligible for the same fully refundable tax credits.

    The new IRS notice states that employers will be required to report the amount of qualified sick and family leave wages paid to employees between January 1 and September 30, 2021 either on the Form W-2, Box 14, or in a separate statement provided with the Form W-2. The notice also includes model language to help employers communicate information about the qualified sick leave and family and medical leave wages to employees, as well as the impact these wages may have on tax credits the employee may be entitled to with respect to self-employment income.

    CUPA-HR will keep members apprised of any additional tax-related guidance from the IRS as it relates to COVID-19 policies and guidance.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | September 21, 2021

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    EEOC Brings Its First COVID-19 Teleworking Denial Lawsuit Under the Americans With Disabilities Act  

    The Equal Employment Opportunity Commission (EEOC) recently brought its first denial of a disability accommodation lawsuit connected to the pandemic. The employer in question denied an employee’s request to continue teleworking. The employee claimed that her heart problems heightened her COVID-19 risk. The case was filed in federal district court in Georgia (EEOC v. ISS Facility Services Inc. (N.D. Ga., No. 1:21-CV-3708-SCJ-RDC, comp filed, 9/7/21)).

    The employee’s accommodation request was that she be allowed to work from home two days per week. The plant where she worked reopened following a multi-month period where all employees telecommuted, including the plaintiff. The employee also asked to be allowed to take frequent breaks when working on-site three days per week because her pulmonary condition caused her to have difficulty breathing. The EEOC alleged that while the employee’s accommodation request was rejected, other employees were allowed to work from home. Additionally, the EEOC alleged that the employee was terminated after her accommodation request was denied.

    The EEOC released the following statement about the case: “In light of the additional risks to health and safety created by COVID-19, it is particularly concerning that an employer would take this action several months into a global pandemic.” The EEOC is seeking back pay, compensation for past and future pecuniary and non-pecuniary losses, punitive damages and a permanent injunction.

    Union Decertification Elections and the Percentage of Actual Union Losses Rise in the First Half of 2021 Compared to 2020

    Union decertification elections in the first half of 2021 increased by 30 percent over the number of decertification elections supervised by the National Labor Relations Board (NLRB) during the same period in 2020. In contrast, NLRB-supervised certification elections increased by only 4 percent during the same period in 2021 as compared to 2020 according to NLRB reports published by the Bloomberg Daily Labor Report.

    Unions lost two-thirds of the decertification elections supervised by the NLRB in the first half of 2021. This is an increase of 64 percent over the number of losses unions incurred in the first half 2020.

    Community College Disability Plans Exempt From ERISA as a Governmental Plan — Federal Court Remands Plaintiff’s Case to State Court to Proceed Under Applicable State Law

    A former community college employee can seek relief from denial of disability benefits under state law as the federal court hearing the case ruled that community college plans are exempt from the Employee Retirement Income Security Act of 1974 (ERISA) as a governmental plan. The federal court ruled that relief may be available to the employee under state law, as there is no federal jurisdiction.

    The case involved a former employee of St. Louis Community College who had been receiving disability benefits under the plan for about five years. Disability benefits continuation was denied by the plan administrator. The plan was administered by American General Life insurance. The case was originally filed in state court but was removed to federal court alleging jurisdiction under ERISA. The federal district court judge dismissed the case, concluding that the plan was established by a governmental entity and as such there was no ERISA jurisdiction. The judge remanded the case to proceed in state court to determine whether the plaintiff is subject to relief under state law (Glover v. American General Life Insurance Company (2021 BL 297552, N.D. Ill., no. 3:21-cv-50205, 8/6/21)).

    Former Director of University Family Law Clinic Who Was Denied a Permanent Position to Head the Clinic and a Professorship Alleges Ageism

    A Pennsylvania attorney who was over 60 when he was recruited to run the University of Pittsburgh’s School of Law Family Law Clinic has filed an age discrimination lawsuit under the Age Discrimination in Employment Act of 1967 after he was passed over when the position became a full-time faculty position and the university allegedly chose an attorney who was under 40 with little experience in parental custody issues routinely handled by the clinic (Congelio v. University of Pittsburgh (W.D. Pa. No. 2:21-cv-902, complaint filed 7/13/21)).

    According to the age discrimination complaint, the plaintiff alleged that the person who was hired for the position and as a faculty member was not licensed to practice law in Pennsylvania where the university and the law clinic are located. The plaintiff was a visiting professor at the law school when he was not selected for the position to continue running the clinic with the accompanying full-time faculty appointment.



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  • OSHA Provides Details on Upcoming COVID-19 Emergency Temporary Standard – CUPA-HR

    OSHA Provides Details on Upcoming COVID-19 Emergency Temporary Standard – CUPA-HR

    by CUPA-HR | September 14, 2021

    On September 9, President Biden released his COVID-19 Action Plan, which includes a six-pronged plan to combat COVID-19 through increased vaccinations, testing and other strategies. The plan will require employers with 100 or more employees to test nonvaccinated employees on a weekly basis. The White House also announced it will require vaccinations for those working for the federal government, federal contractors and establishments providing healthcare services that accept Medicare and Medicaid.

    The Biden administration is using different agencies to implement and enforce the different requirements. The Occupational Safety and Health Administration (OSHA) will require employers with 100 or more employees to test nonvaccinated employees on a weekly basis through an Emergency Temporary Standard (ETS). While OSHA has yet to release many specifics about the timing and the content of the ETS, the agency did release some information late last week.

    General Timeline of the ETS

    In a call last week with stakeholders, OSHA said it plans to publish the ETS in the Federal Register in the next few weeks, at which time the ETS will become effective immediately in states where OSHA has direct jurisdiction. The 22 states with OSHA-approved State Occupational Safety and Health Plans must adopt the ETS or a standard at least as protective within 30 days of OSHA publishing the ETS in the Federal Register.

    Because the ETS will be effective immediately once published in the Federal Register, stakeholders will not have the opportunity to provide input on the standard prior to its implementation. Instead, stakeholders may comment on the ETS after it is published in the Federal Register. OSHA will use those comments to shape the subsequent final rule that will replace the ETS, which OSHA plans to issue six months after the initial release of the ETS.

    Content and Policies of the ETS

    OSHA also said on the call that it will be working with other federal agencies to ensure the language included in the ETS is consistent with the vaccination mandates imposed on federal contractors through President Biden’s Executive Order. Additionally, OSHA clarified that it will consider the employers’ workforce and not just a single worksite in evaluating employers that meet the 100-employee threshold for coverage. The ETS testing and vaccination requirements are also not likely to extend to remote employees who are physically isolated from coworkers or customers.

    Consistent with the COVID-19 Action Plan, the ETS will also require employers to provide employees with paid time off (PTO) or allow employees to use existing PTO to obtain vaccinations and recover from post-vaccination side effects.

    Finally, OSHA reviewed several issues where it does not currently have an answer, but it intends to address in the ETS. These questions include who pays for the required employee testing and what level of vaccination is required under the ETS (i.e. one shot, two shots or even a booster shot). In addition to these questions, information on the procedures of how employers will verify vaccinations, tests and procedures for handling employees who refuse to get vaccinated or undergo routine testing will likely be addressed in the ETS.

    CUPA-HR will continue to monitor for any information on the upcoming ETS and keep members apprised of any additional policies or requirements likely to be included as OSHA continues to work towards implementation.



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  • Biden Announces New COVID-19 Mitigation Plan – CUPA-HR

    Biden Announces New COVID-19 Mitigation Plan – CUPA-HR

    by CUPA-HR | September 9, 2021

    On September 9, President Biden released a new COVID-19 mitigation plan, which includes several new requirements and recommendations for employers, employees, schools and others across the country. The six-part plan includes new policies and strategies to vaccinate more unvaccinated individuals, administer booster shots, keep schools safely open, increase testing facilities and products, protect economic recovery, and improve treatments for COVID-19.

    New Vaccine Requirements for Many Employers and Employees

    In the new plan, the Biden administration announced that the Occupational Safety and Health Administration (OSHA) is developing a rule to require all employers under OSHA’s jurisdiction with 100 or more employees “to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.” Additionally, OSHA is developing a rule that will require these same employers to provide paid time off to their employees to allow them to get vaccinated and recover from post-vaccination symptoms. According to the plan, both of these rules will be implemented by OSHA through an Emergency Temporary Standard (ETS), though when the ETS will be issued is still unknown. Importantly, while OSHA’s direct jurisdiction is limited to private sector employers, the ETS requirements could extend to many state and local government employers as detailed in the February 2021 CRS report.

    In addition to the requirements for employers with 100 or more employees, the plan also announced that healthcare workers at Medicare and Medicaid participating healthcare settings will be required to be vaccinated. Unlike the requirements for employers with 100 or more employees, these requirements do not allow for a testing option in lieu of getting vaccinated. According to the announcement, this requirement will apply to over 17 million healthcare workers across the country.

    Lastly, the plan states that President Biden signed two Executive Orders that will require all federal executive branch workers and federal contractors to be vaccinated. Unlike previous Biden administration policies on vaccine mandates for federal employees and contractors, the new requirements will no longer provide the option for unvaccinated employees to undergo regular testing instead of getting vaccinated, “with exceptions only as required by law.”

    COVID-19 Testing and Booster Shots

    In addition to these new vaccine requirements, the plan lays out the Biden administration’s plans to expand and improve testing and to provide booster shots to eligible Americans. According to the plan, booster shots will begin during the week of September 20 after the Food and Drug Administration authorizes their use.

    President Calls on Entertainment Venues to Require Vaccination or Negative Tests

    While not directly mandating, the president’s plan also calls on entertainment venues such as sports arenas, large concert halls and other venues where large groups of people gather — many of which are common to campuses — to require that their patrons be vaccinated or show a negative test for entry.

    As the Biden administration moves forward with implementing this new plan, CUPA-HR will continue to keep members apprised of any new guidance or requirements that come from this announcement.



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