President Biden Calls His Shot: The New Federal Vaccine Mandate — What Does It Mean?Yesterday, President Biden announced that he is entering two Executive Orders requiring COVID-19 vaccines for federal workers and contractors and that administrative agencies (the Centers for Medicare and Medicaid Services (CMS) and the Occupational Safety and Health Administration) will be issuing requirements establishing vaccine protocols for large employers and healthcare providers. President Biden expressed his frustration with the loss of momentum in citizens getting vaccinated and stated that “our patience is wearing thin.” The new mandates may affect around 100 million U.S. workers.

OSHA to Enforce Mandate Against Large Employers

The president has asked OSHA to put out an Emergency Temporary Standard (ETS) that will cover any business that has 100 or more employees. The ETS is expected to require those employers to verify that their workers are vaccinated before coming to work. Employees who do not get vaccinated would have to provide a weekly negative COVID-19 test to be allowed to remain in the workplace. The standard will also require the large employers to provide paid time off for workers to get vaccinated or to recover from any side effects from the vaccine. No deadline for this requirement has been released yet.

The new vaccination mandate does not negate employers’ obligation under both Title VII and the ADA to entertain employee objections to vaccinations based on religious belief or a medical condition. Employers should continue to follow the practice of an interactive process if an employee lodges such an objection.

Federal Contractors and Federal Workers

The new vaccination mandate builds upon the administration’s July announcement regarding federal workers. This new mandate requires that all federal executive branch workers be vaccinated (they do not have the weekly testing option). This would cover many agencies, including the Department of Defense, the Department of Veterans Affairs, and the USDA, just to name a few. If federal workers chooses not to be vaccinated and does not meet either the religious exemption under Title VII or the medical condition exemption under the ADA, they may be subject to progressive discipline, including termination. This requirement was also extended to federal contractors and may not simply apply to those contractor employees who appear on federal property. The president’s Executive Order requires further guidance about this prong to be issued in seven days.

Healthcare Workers

Following past requirements for nursing home facilities, CMS will require vaccinations for workers in most healthcare settings. If a hospital, clinic or other medical services provider receives reimbursements from Medicare or Medicaid, they are likely covered by this new vaccination requirement. Like the federal workers and contractors, there is no weekly testing alternative. Curiously, the CMS requirement for nursing home facilities was announced in mid-August but CMS has not yet issued a rule.

What Does This Mean and When Does It Start?

The White House plan did not include many hard deadlines. We will have to wait to see when OSHA issues its Emergency Temporary Standard on the rule for large employers. The guidance for federal workers and contractors is supposed to be issued within a week. For healthcare providers, it is unknown when CMS will issue its standard.

Despite the unclear deadlines, it is probably smart for covered employers to go ahead and start talking with your employees about this upcoming mandate. Many large national employers have already implemented some sort of mandatory vaccination program. As with everything these days, it is likely that there will be some sort of challenge to this mandate, but there will not be any legal decision soon.

Plaintiff’s “Paramour Preference” Plan Panned: 9th Circuit Finds Romantic Relationship Not Enough to Show Discrimination Against Non-Romantic Co-WorkerIn another chapter in litigation alliteration, in Maner v. Dignity Health, f/k/a Catholic Healthcare West, the Ninth Circuit held that a male employee’s theory that his supervisor’s long-term romantic relationship with a co-worker could not be the basis for his own Title VII claim that he was discriminated due to his sex. The Court noted that his supervisor’s “paramour preference” for a female subordinate was not enough to show that the employee had suffered discrimination based on his male gender.

Alleged Preferred Treatment

The Plaintiff, Mr. Maner, worked as a biomedical design engineer at Dr. Robert Garfield’s lab in Galveston, Texas. One of Mr. Maner’s co-workers was a researcher named Dr. Shi. Significantly, Dr. Shi was in long-term romantic relationship with Dr. Garfield.

In 2008, Dr. Garfield decided to move the lab to Phoenix, Arizona at an installation operated by Dignity Health. Due to some legal troubles, Mr. Maner could not leave the state of Texas and instead remained working remotely in Texas. Three years later, Dr. Garfield gave Mr. Maner a highly negative review and suggested that Mr. Maner either move to Arizona or get fired. The lab ultimately terminated Mr. Maner due to his performance and an overall decline in lab funding. Mr. Maner internally contested the termination claiming that Dr. Garfield engaged in unfair labor practices and appropriated lab funds “in a nepotistic manner.” Dignity Health investigated but denied his appeal.

Mr. Maner’s Suit and Theory

Mr. Maner filed a sex discrimination charge and later lawsuit against Dignity Health alleging that it protected the female employee, Dr. Shi, from the impacts of the reduced lab funding by terminating Mr. Maner. He also brought a retaliation claim stating that Dignity Health terminated him for protesting Dr. Garfield’s favoritism of Dr. Shi at the expense of other employees.

The district court granted Dignity Health’s motion for summary judgment, holding that Mr. Maner’s complaints were not based on his sex, but instead on Dr. Garfield’s preference for Dr. Shi as a romantic partner. The court noted that this “paramour preference” theory of Title VII liability (where a supervisor’s relationship with a romantic partner at work results in an adverse employment action against another employee) had not yet been recognized in the Ninth Circuit. The court acknowledged that  nearly every other circuit and the EEOC had already rejected that theory as inconsistent with Title VII.

The Ninth Shuts It Down

The Ninth Circuit narrowed the issue by pointing out that Mr. Maner conceded  he had no allegations that Dr. Garfield or anyone at the company had shown any animus against male employees or engaged in any sort of hostile work environment. Instead, his only evidence was Dr. Garfield’s romantic relationship with Dr. Shi and his theory that Mr. Maner’s termination was motivated by a “paramour preference.”

The court pointed out that Mr. Maner’s “paramour preference” theory would have Title VII’s use of the word “sex” to cover sexual activity between persons. However, every circuit to consider the question has rejected that theory. Those courts focused on the fact that Title VII uses “sex” in context along with “race,” “color,” “religion,” and “national origin.” Sex is seen as a characteristic and not an activity. Sex refers to membership in a class. This context is borne out by noting that under the “paramour preference” theory, male plaintiffs face the same predicament as any other woman employee – no one but the paramour would be considered to be protected by the supervisor.

The EEOC guidance agrees with the circuits, noting that “Title VII does not prohibit isolated instances of preferential treatment based upon consensual romantic relationships.” The EEOC went on to say that an instance of favoritism toward a paramour, spouse or friend may be unfair, but it does not discriminate against women or men in violation of Title VII.

The Ninth Circuit turned to the recent Bostock decision for further ammunition in shutting down Mr. Maner’s theory. In Bostock, the Supreme Court held that that the phrase “because of sex” in Title VII covers sexual orientation and gender identity. The Bostock Court posited this test: if changing the employee’s sex would have yielded a different choice, a statutory violation has occurred. According to the Ninth Circuit, this is where the “paramour preference” theory fails. If Mr. Maner changed his sex, it would have made no difference in how he had been treated – Dr.  Garfield only had eyes for Dr. Shi. The court concluded:

“Workplace favoritism toward a supervisor’s sexual or romantic partner is certainly unfair to similarly situated workers and more than likely harms morale. But Title VII is not a ‘general civility code,’ and employment practices are not unlawful simply because they are unwise. The Court upheld the summary judgment granted against Mr. Maner.”

Does This Endorse Dating In the Workplace?

Romantic relationships among co-workers, especially between supervisors and subordinates, are problematic. While things initially may be rosy, relationships turned bad may result in quid pro quo and hostile environment harassment allegations. However, as recognized by the Ninth Circuit, simply because an employment practice is unwise, does not mean that it is necessarily unlawful. While the fact pattern found here may not have supported a claim, employers need to be very careful about how they handle consensual workplace relationships. You should also remind everyone that non-consensual sexual or romantic gestures may not be welcome and can result in liability.

Yes, We’re Still Talking About COVID-19: OSHA Updates Guidance for WorkplacesRecently OSHA updated its guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace for employers who are not covered by the “COVID-19 Emergency Temporary Standard for Healthcare.” As we explained before, the ETS applied to healthcare services and healthcare support services. OSHA’s update reflects the CDC’s newest mask and testing recommendations for fully vaccinated people and provides links to guidance with the most up-to-date content.

OSHA makes clear that employers must remain vigilant and take appropriate steps to prevent exposure and infection regardless of vaccination status. This is not surprising in light of the preliminary evidence suggesting that vaccinated people who become infected with the Delta variant can be infectious and can spread the virus to others.

The CDC’s Mask Guidance

This evidence has led the CDC to update recommendations for fully vaccinated people to reduce their risk of becoming infected with the Delta variant and potentially spreading it to others. The CDC suggests that fully vaccinated people can stay safe by:

  • Wearing a mask in public indoor settings in areas of substantial or high transmission;
  • Choosing to wear a mask regardless of level of transmission, particularly if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated; and
  • Getting tested three to five days following a known exposure to someone with suspected or confirmed COVID-19 and wearing a mask in public indoor settings for 14 days after exposure or until a negative test result.

OSHA’s Latest Guidance

In its newest guidance, OSHA adopts recommendations consistent with the CDC’s. While the guidance is not a standard or regulation and does not create new legal obligations, it does telegraph what OSHA thinks you should do to keep your workplace safe and healthy, and previews what kinds of things OSHA might ask in a workplace investigation involving a COVID-19 death or outbreak. In short, following OSHA’s recommendations may mitigate or minimize your liability.

So, what does OSHA recommend now?

  1. Facilitate employees getting vaccinated. That may mean granting paid time off for employees to get vaccinated and to recover from any side effects. OSHA further suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.
  2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive, and all workers with have COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission. That means you should evaluate your absence policies to ensure they are not punitive and eliminate or revise policies that encourage workers to come to work sick.
  3. Implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers. In some circumstances depending on your specific workplace setup and quality of ventilation, that may mean limiting the number of unvaccinated or otherwise at-risk workers in one place at any given time, implementing flexible worksites, allowing for telework, or implementing flexible work hours and meeting options. This will look different at different worksites but think about how it might work at yours.
  4. Provide workers with face coverings. Especially, if you work in an area of substantial or high transmission, the CDC recommends that even fully vaccinated people wear masks in public indoor settings so OSHA will want to see that your workers are masked.
  5. Educate and train workers on your COVID-19 policies and procedures using accessible formats. Communicate your policies clearly, frequently and via multiple methods. Also, your policy should include basic facts about COVID-19 (including how it is spread and the importance of physical distancing, ventilation, vaccination, use of face coverings and hand hygiene) and workplace policies and procedures that you have implemented to protect workers from COVID-19 hazards. Finally, your policy should inform workers who to contact with questions or concerns about workplace safety and health, and their right to raise workplace safety and health concerns free from retaliation.
  6. Suggest or require that unvaccinated customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission. That means posting a notice or otherwise suggesting or requiring that people wear face coverings, even if no longer required in your jurisdiction.
  7. Maintain ventilation systems.
  8. Perform routine cleaning and disinfection.
  9. Record and report COVID-19 infections and deaths. Under mandatory OSHA rules, employers are required to record work-related cases of COVID-19 illness if the following conditions are met: (1) the case is a confirmed case of COVID-19; (2) the case is work related; and (3) the case involves one or more relevant recording criteria, e.g., medical treatment or days away from work. You must also follow mandatory OSHA rules when reporting COVID-19 fatalities and hospitalizations. When an employee reports a positive test, think about asking where the employee thinks he or she was exposed. If the employee reports a sick relative or a recent tailgate, write that down and know that you have evidence that it is not work related.

What can you expect if OSHA comes knocking after a COVID-19 death or outbreak?

If you do get notice of an OSHA inspection following the death of an employee due to COVID-19 (an OSHA investigation is possible whether or not its alleged the employee contracted the virus at work) or an outbreak at your facility or workplace, you can be sure the investigation will begin with a document request. Below are some examples of the specific information/documentation OSHA might request:

Regarding General Facility

  • Copies of any written plans, SOPs or procedures to address worker exposure
  • Documentation of training provided to employees regarding COVID-19 hazards
  • Documentation of cleaning operations and schedules
  • Detailed description, photos and/or videos of controls implemented to address exposure to COVID-19, e.g., modifications to workstations
  • Documentation showing what PPE (e.g., masks, gloves) is available, how its distributed, and how employees are trained on proper use

Regarding Employee Death

  • Incident reports
  • Job title and area of facility the decedent worked in
  • Work schedule for three weeks prior to death
  • Contact information for supervisor and coworkers who worked in the same area or performed the same work
  • Information regarding whether the facility had any employees who were suspected or confirmed to have COVID-19 in the prior month
  • Information regarding whether the decedent worked with or around any employees who were suspected or confirmed to have COVID-19, and if so, when
  • Information regarding whether the facility had any visitors, clients or customers who were suspected or confirmed to have COVID-19 in the prior month
  • Documentation that you performed a risk assessment regarding COVID-19 exposure of employees and whether it was shared with employees
  • Guidance you used or followed to protect employees
  • Documentation showing whether the decedent was provided with PPE and whether he/she used it while performing duties
  • Training materials and records for the decedent regarding PPE use and maintenance
  • Documentation of the sanitization schedule and description for the facility as it relates to COVID-19 (and Safety Data Sheets for any cleaning chemicals used)
  • Documentation of whether there have been any changes to workplace procedures, controls, PPE selection/use/maintenance or training since the incident and if so, a description of those changes

Takeaways

Keep in mind that if an employee dies because he or she contracted the virus, OSHA may open an investigation or issue a document request regardless of whether there has been an allegation the employee contracted the virus in the workplace. Thus, the lessons to be gleaned are (1) implement effective policies and written procedures to protect employees from infection, (2) train supervisors and employees on those policies, (3) enforce those policies, and (4) keep thorough records of everything your company is doing to prevent the spread of COVID-19.