Governor Murphy Signs Executive Order Lifting Routine COVID-19 Testing Requirements for School Districts, Child Care Settings, and State Contractors consistent with new CDC guidance. More here.
The Centers for Disease and Prevention (CDC) has issued new COVID-19 guidance that includes recommending:
- Those exposed to COVID, regardless of vaccine status, need not quarantine. Instead – wear a high-quality mask for 10 days and get tested on day 5;
- If a person tests positive for COVID-19, the person should stay home for at least 5 days and isolate from others;
- Regardless of vaccination status, isolation when sick and suspect COVID-19 infection but do not yet have test results;
- No longer recommending testing of asymptomatic people, without known exposures, in most community settings.
Previous Update: EEOC Updates COVID Testing Standards
The Equal Employment Opportunity Commission has revised its technical assistance questions and answers related to the COVID-19 pandemic and the application of the Americans with Disabilities Act (ADA) and other federal equal employment opportunity laws. The EEOC’s assessment at the outset of the pandemic was that the ADA standard for conducting medical examinations was always met for employers to conduct worksite COVID-19 viral screening testing. The results of viral test show if a person is infected with SARS-CoV-2 the virus that causes COVID-19, using samples that come from your nose or mouth. There are two types of viral tests: rapid tests and laboratory tests.
Now, the guidance offers considerations in making the “business necessity” assessment, including: the level of community transmission; the vaccination status of employees; the ease of transmissibility of the current variant(s); and the types of contacts employees may have with others in the workplace or elsewhere that they are required to work.
In addition, with respect to antibody testing, a blood test that's done to find out if you've had a past infection with SARS-CoV-2, the guidance makes clear that requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. This is because, under CDC guidance, antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection, and therefore the test does not meet the ADA’s “business necessity” standard.
The updated guidance also addresses testing of applicants for COVID-19. Employers may conduct such testing, provided that it is done pursuant to a uniform testing policy. According to the guidance, job offers may be rescinded after a positive COVID-19 test only if it is absolutely necessary that the prospective employee start immediately and in-person.
Previous Update: U.S. Department of Health and Human Services issues One-Stop COVID Resource
The U.S. Department of Health and Human Services has published a One-Stop COVID Resource connecting employers and employees with more information about COVID-19 spread, prevention, and treatment in their communities. https://www.covid.gov/
The Centers for Disease Control and Prevention (CDC) issued a new strategy to help communities across the country live with the coronavirus and get back to some version of normal life.
The new guidelines suggest that 70 percent of Americans can now stop wearing masks, and no longer need to social distance or avoid crowded indoor spaces.
The recommendations no longer rely only on the number of cases in a community to determine the need for restrictions such as mask wearing. Instead, they direct counties to consider three measures to assess risk of the virus: new Covid-related hospital admissions over the previous week and the percentage of hospital beds occupied by Covid patients, as well as new coronavirus cases per 100,000 people over the previous week.
Based on these three factors, counties can calculate whether the risk to their residents is low, medium or high, according to the agency, and only areas of high risk should require everyone to wear a mask. Those who aren't up to date on their vaccines "should continue taking steps to prevent getting sick." Read here.
State Public Health Emergency Due to Expire What Should Employers Do Now (recorded March 4, 2022)
OSHA Issues Emergency Vaccine Mandate (recorded December 1, 2021)
The COVID Vaccine at Work: The Bottom Line (recorded September 14, 2021)
The Post Pandemic Workplace Legal Considerations for Employers (recorded June 21, 2021)
Occupational Safety and Health Administration Updates COVID-19 Guidance (recorded April 16, 2021)
The COVID Vaccine: Considerations for Employers (recorded February 23, 2021)
COVID-19 and the ADA: New Guidance from the EEOC (recorded December 22, 2020)
Getting Ready for the COVID Vaccine: What Employers Should Know (recorded November 12, 2020)
Avoiding Workers' Compensation Liability During COVID-19 (recorded September 29, 2020)
Employer Considerations for the Upcoming School Year (recorded August 13, 2020)
Mental Health at Work (Session 1 - recorded July 21, 2020)
Mental Health at Work (Session 2 - recorded July 23, 2020)
Return to Work - COVID-19 (recorded June 2, 2020)
EEOC Pandemic Guidance on Return to Work and Accommodating Disabilities in the Workplace (recorded May 21, 2020)
NJ Family Leave Expansion, FFCRA & Other Leave Considerations (recorded April 30, 2020)
Avoiding Wrongful Termination Liability for COVID-19 Issues (recorded April 21, 2020)
Discussion of the FFCRA Regulations (recorded April 14, 2020)
Health and Safety Laws in General
NJ employees have the right to workplace safety and health protection under federal and state laws:
- OSHA's General Duty Clause: https://www.osha.gov/laws-regs/oshact/section5-duties; and
- NJ’s Worker Safety and Health Protections https://www.nj.gov/labor/worker-protections/myworkrights/covidprotections.shtml
How to Ensure a Safe Workplace
Create a Safety and Health Policy: Employers will have to figure out policies for onsite workers, starting with the available health and safety guidance from the CDC, OSHA, NJDOH.
Policy Should Be Tailored to Workplace’s Risks: An employer's policy will need to be tailored to address the risks unique to its workplace (industry, physical facility and layout, worker's tasks and schedules, etc.).
Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace https://www.osha.gov/coronavirus/safework/
OSHA offers guidance on classifying the risk of worker exposure to COVID-19: https://www.osha.gov/coronavirus/hazards
- Lower Exposure Risk: Jobs that do not require close contact (within 6 feet for a total of 15 minutes or more over a 24-hour period) with other people. Workers in this category have minimal occupational contact with the public and other coworkers. (E.g., remote workers.)
- Medium Exposure Risk: Jobs that require either frequent close contact (within 6 feet for a total of 15 minutes or more over a 24-hour period) or sustained close contact with other people in areas with community transmission. (E.g., Those who have frequent or sustained contact with coworkers outdoors or in well ventilated spaces.)
- High Exposure Risk: Jobs with a high potential for exposure to known or suspected sources of SARS-CoV-2. (E.g., Those who have frequent indoor or poorly ventilated contact with the general public, including workers in retail stores.)
- Very High Exposure Risk: Jobs with a very high potential for exposure to known or suspected sources of SARS-CoV-2 during specific medical, postmortem, or laboratory procedures. (E.g., Healthcare workers; those handling COVID-19 specimens.):
Policies should follow appropriate public health guidance on COVID Prevention: CDC offers continuing recommendations to "Prevent Getting Sick": https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/index.html.
The recommendations focus on Masking, Vaccination, Testing, Disinfection, and Ventilation. [OSHA's and NJ's guidelines are similar to the CDC's (see, https://www.osha.gov/coronavirus/control-prevention and https://covid19.nj.gov/faqs/nj-information/reopening-guidance-and-restrictions/are-there-safety-guidelines-for-businesses-are-any-businesses-closed).
OSHA and NJ also provide some industry-specific standards (see, https://www.osha.gov/coronavirus/guidance/industry and https://covid19.nj.gov/faqs/nj-information/reopening-guidance-and-restrictions/are-there-safety-guidelines-for-businesses-are-any-businesses-closed).
Vaccination: per CDC, COVID-19 vaccines are effective at preventing COVID-19 symptoms, especially severe illness and death. It is important for employers to know which vaccine employees take to know when employees are "fully vaccinated" or "up to date," per CDC's definitions. https://www.cdc.gov/coronavirus/2019-ncov/vaccines/your-vaccination.html
An employer can mandate the vaccine (with certain exemptions): per the EEOC, federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#K
An employer can also mandate testing: per the EEOC, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#A.6
- Disinfection: the CDC and OSHA provide helpful guidance on how to disinfect various locations and surfaces (why may differ by industry) to prevent the spread of COVID-19 and after someone in the location has contracted COVID-19. https://www.cdc.gov/coronavirus/2019-ncov/community/clean-disinfect/index.html; https://www.osha.gov/coronavirus/control-prevention
- Ventilation: the CDC and OSHA provide helpful guidance on ensuring proper ventilation in the workplace: https://www.cdc.gov/coronavirus/2019-ncov/community/ventilation.html; https://www.cdc.gov/coronavirus/2019-ncov/community/ventilation.html
- Other Best Practices: CDC also recommends that individuals continue to follow best practices on social distancing and hand/respiratory hygiene. https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
Risks if Employer's Policies Do Not Comply with Public Health Guidance or Employer Does Not Follow Its Policies
Whistleblower Protections: Both federal and state law protects employees from retaliation if they cite health and safety violations that they reasonably believe render the workplace unsafe. See, https://www.osha.gov/sites/default/files/publications/OSHA4151.pdf and https://www.nj.gov/oag/cepa/pdfs/nj-cepa-poster.pdf. Cf. Loeb v. Vantage Custom Classics, Inc., ESX-L-4762-20, in which the New Jersey Superior Court, Law Division, Essex County denied employer's motion to dismiss employee's CEPA claim that employer failed to follow its own safety and health policies. https://images.law.com/contrib/content/uploads/documents/399/55778/leath.pdf
Disability Involved? Employer May Engage in the Interactive Process to Determine if the Person is Eligible for an Accommodation Under the ADA:
- Per the EEOC, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a "disability" as defined by the ADA and, if so, whether the employee's disability necessitates an accommodation, either the one the employee requested or any other. Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the "essential functions" of the employee’s position (that is, the fundamental job duties). https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#D.5 and https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#D.6.
- Fear May Be a Disability: Per the EEOC, the ADA may be implicated if the employee's fear of returning to work is a symptoms of a preexisting mental health condition (such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder), in which case, it may trigger the employer's obligation to engage in the interactive process. (See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#D.2.)
Even Without a Disability, Employee May Be Eligible for NJ Sick leave: employee doesn't think workplace is safe: NJ Earned Sick Leave allows employees to take leave "to care for their own, or a loved one's, physical or mental health or injury, including COVID-19." It may be read broadly to apply to an employee who is fearful to return to work. (See: https://www.nj.gov/labor/worker-protections/earnedsick/law.shtml.)
COVID-19 Related Leave or Other Benefits
Protected Leave: Employees may be entitled to job-protected leave under the:
- New Jersey Family Leave Act (NJFLA) if caring for a family member seriously ill with COVID-19 or for a child whose school/place of care is closed because of COVID-19 or another public health emergency. See, https://www.nj.gov/oag/dcr/downloads/fact-FLA.pdf
- Federal Family and Medical Leave Act (FMLA) if employee himself or a family member is seriously ill with COVID-19. https://www.dol.gov/agencies/whd/fmla and https://www.dol.gov/agencies/whd/fmla/pandemic#3
Benefits: New Jersey has among the most comprehensive Temporary Disability, Family Leave Insurance, and Earned Sick Leave laws in the country, which cover all types of workers – full-time, part-time, temporary and seasonal. https://www.nj.gov/labor/worker-protections/earnedsick/covid.shtml
- TDI: Employee may be eligible if he has to stop working due to a physical or mental health condition or other disability unrelated to his work. https://www.myleavebenefits.nj.gov/help/faq/tdi.shtml. Employee with a health condition that puts him at risk for contracting COVID-19 may be eligible for TDI. https://www.myleavebenefits.nj.gov/labor/myleavebenefits/worker/tdi/ and
- FLI: Employee may be eligible for leave if caring for a family member seriously ill with, isolated or quarantine because of COVID-19 or for a child whose school is closed because COVID-19 or other public health emergency. Assembly bill 2304, https://www.myleavebenefits.nj.gov/labor/myleavebenefits/assets/pdfs/PR-147%20(9-21)%20TDI%20FLI%20%20What%20HR%20%26%20Employers%20Need%20To%20Know.pdf and https://www.myleavebenefits.nj.gov/labor/myleavebenefits/worker/fli/index.shtml?open=caregiver
- Workers Compensation: Employee may be eligible if he contracted COVID-19 at work. https://www.nj.gov/labor/wc/wc_index.html
- Unemployment Insurance: Employee may be eligible for benefits, under certain circumstances, if he is quarantining for COVID-19 exposure; however, he is unlikely to be eligible of he refuses to be vaccinated. https://www.myunemployment.nj.gov/labor/myunemployment/help/faqs/eligibility.shtml
For Government Contractors
The Federal Acquisition Regulation (FAR) Council has issued a Deviation Clause that will implement President Biden’s Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors (FAR Clause).