The Response to COVID-19 is Changing Employer Obligations Again
NOTHING IN THIS ARTICLE SHOULD BE CONSTRUED AS LEGAL ADVICE AND THE READER SHOULD NOT RELY ON THE STATEMENTS CONTAINED HEREIN.
As employers’ obligations to employees during the COVID-19 pandemic continue to evolve, The Rabb Law Firm is striving to keep you apprised of these changes:
Montana Liability Shield Law and the Governor’s February 12th Directive
Montana has received national attention due to Senate Bill 65 signed into law on February 10th and the Governor’s February 12th Directive.
First, Senate Bill 65, an Act Revising Civil Liability Laws, raises the threshold for individuals (including employees), bringing civil lawsuits claiming damages for exposure or potential exposure to COVID-19. Under this Act, individuals, businesses, nonprofits and churches are protected from liability against COVID-19 damages except in cases of “gross negligence,” “willful and wanton misconduct,” or “intentional tort.” The Act also identifies affirmative defenses entities or individuals may assert, such as, “taking reasonable measures consistent with a federal or state statute, regulation, order, or public health guidance related to Covid-19…” It also provides that a “government order, regulation or public health guidance relating to Covid-19” will not create a new cause of action. https://leg.mt.gov/bills/2021/billhtml/SB0065.htm
Also, on Friday, February 12, 2021, the Governor lifted the state’s mask mandate through a Directive Implementing Executive Order 2-2021. The Directive states in part: “Individual responsibility remains Montana’s best tool to combat the spread of COVID-19. Montanans are encouraged to wear masks and should follow the best industry practices adopted by any business they visit to slow the spread of the virus.” Businesses, during the pandemic, should make reasonable efforts to implement COVID-19 related policies based on industry best practices and if there are none, develop policies in accordance with federal, state and local regulations and guidance. https://governor.mt.gov/_docs/Directives/Directive-2-12-2021-EO.pdf
The Directive also permits local governments to modify vacation and sick leave policies in response to the COVID-19 pandemic to “minimize the economic impact on their employees.” It identifies policies which permit “impacted employees who have exhausted their leave to accrue negative balances of sick or vacation time for the duration of the emergency.” It also permits local governments to modify additional employment policies such as making modifications to the “minimum work-week hours requirements.”
Federal Requirements and Guidance
Per Executive Order of President Biden dated January 20, 2021, mask wearing is still required for on-duty or on-site federal employees, on-site federal contractors and other individuals who are present within federal buildings or lands.
Further, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) published a guidance on January 29, 2021 entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” This guidance outlines the roles of employers and employees when responding to workplace issues relating to the COVID-19 pandemic. OSHA encourages employers to implement a COVID-19 Prevention Program. https://www.osha.gov/coronavirus/safework.
OSHA’s guidance also warns that employers may not, under the Occupational Safety and Health Act, discriminate against an employee for speaking out about unsafe working conditions or reporting an infection or exposure to COVID-19. Such actions would also likely violate Montana law.
Employer Mandated Vaccinations
One heavily publicized COVID-19 topic is whether an employer may require employees to be vaccinated against COVID-19. Although current guidance from the Equal Employment Opportunity Commission (EEOC) suggests this may be permissible in the private sector, employers should first consult with legal counsel. Many factors impact this decision such as the availability of vaccinations, accommodations based upon religion and disability, the existence and application of any collective bargaining agreement, wage and hour issues associated with time taken to obtain the vaccine, data protection issues associated with employee vaccination status and of course, employee morale.
Even a policy that “encourages” vaccinations may raise legal issues under HIPAA if related to a wellness plan, EEOC regulations on awards associated with medical examinations, and wage and hour issues if the vaccine is administered during working time.
Paid Leave
The Families First Coronavirus Response Act (FFCRA) previously required employers with fewer than 500 employees to grant paid leave to their employees for a variety of COVID-related reasons. Effective, December 31, 2020, paying such leave is no longer required but employers may still provide paid leave through March 31, 2021 and qualify for a tax credit/refund. However, an employee who has already taken such leave in 2020, even if it was with a different employer, does not qualify for such leave in 2021. Further an employer who decides to voluntarily provide such leave, should, as a best practice, apply this rule uniformly to all employees.
The number of federal and state legislation and guidance addressing COVID-19 and impacting the workplace are numerous and rapidly developing. The Rabb Law Firm is closely monitoring these changes and is available to assist and guide its employer clients.