sandy andre patrick edsenga

© 2021 Miller Johnson. All rights reserved. 1

Sandy Andre

Patrick Edsenga

The materials and information have been prepared for informational purposes only. This is not legal advice, nor intended to create or constitute a lawyer-client relationship. Before acting on the basis of any information or material, readers who have specific questions or problems should consult their lawyer.

2


Review current federal requirements

Review current state and local requirements

Practical considerations

Provide a framework on how to analyze compliance obligations

Questions

3

4


Offer and provide vaccine to LTC residents and staff

COVID-19 disease and vaccine education

Facility reporting: On a weekly basis, report the COVID-19 vaccination status and related data elements of all residents and staff

5

Announced: June 10, 2021

Effective: June 21, 2021

Compliance dates:Most provisions: July 6, 2021

Remaining provisions: June 21, 2021

Applies to all settings where any employee provides healthcare services or healthcare support services

6


Healthcare services: Services that are provided to individuals by professional healthcare

practitioners (e.g., doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health.

Delivered through various means, including: hospitalization, long-term care, ambulatory care, home health and hospice care, emergency medical response, and patient transport.

7

Healthcare support services Services that facilitate the provision of healthcare services

Includes patient intake/admission, patient food service, equipment and facility maintenance, housekeeping services, healthcare laundry services, medical waste handling services, and medical equipment cleaning/reprocessing services

8


Some provisions do not apply at all in certain settings

Some provisions apply only on a limited basis in certain settings

Some provisions do not apply to employees who are fully vaccinated

9

16 Requirements:COVID-19 Plan

Patient Screening and Management

Standard and Transmission-based Precautions

Personal Protective Equipment

Aerosol-Generating Procedure On a Person with suspected/confirmed COVID-19

Physical Distancing

Physical Barriers

Cleaning and Disinfection

Ventilation

Health Screening and Medical Management

Vaccination

Training

Anti-Retaliation

No-Cost Provisions

Recordkeeping

Reporting10


Federal Employees

Federal Contractors

Health care workers at Medicare and Medicaid Participating health care settings

Private Employers

11

Federal employees must be fully vaccinated by November 22, 2021; last dose November 8, 2021

Regardless of work location or work arrangement (e.g., telework, remote work, etc.)

Accommodation:Disability

Sincerely held religious belief, practice, or observance

Failure to comply: Education and counseling (5 days)

Short suspension (14 days or less)

Propose removal via required procedural rights to the employee

12


Executive Order 14042 Ensuring Adequate COVID Safety Protocols for Federal Contractors

September 24, 2021 Safer Federal Workforce Task Force guidance

1. Vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation, by December 8, 2021

13

2. Requirements related to masking and physical distancing while covered contractor workplaces.

Wear appropriate masks consistently and correctly

Wear appropriate masks in any common areas or shared workspaces

For individuals who are not fully vaccinated, wear a mask in crowded outdoor settings or during outdoor activities that involve sustained close with other people who are not fully vaccinated, consistent with CDC guidance.

3. Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

14


Require vaccination of staff within all Medicare and Medicaid-certified facilities

Expanding emergency regulations requiring vaccinations for nursing home workers to be applicable to hospitals, dialysis facilities, ambulatory surgical settings, home health agencies, among others

CMS developing an Interim Final Rule with Comment Period that will be issued in October 2021.

15

16


Two provisions:1. Rule that requires all employers 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.

2. Rule that requires employers with more than 100 employees to provide paid time off for the time it takes workers to get vaccinated or recover from post-vaccination effects

17

ETS Process 2 determinations made in order to issue ETS:

Employees are exposed to a grave danger from exposure to substances or agents determined to be toxic of physically harmful or from new hazards, and

Such an emergency standard is necessary to protect employees from such danger

Paid Time Off Outside Agency Authority?

Conflict with Congressional intent?

18


19

Personal Protective Equipment Standard

Sanitation Standard

Respiratory Protection Standard

Hazard Communication Standard

Access to Employee Exposure & Medical Records

Recording and Reporting Occupational Injuries and Illnesses

20


General Duty Clause Employers have an obligation to “furnish to each employee,

employment and a place of employment that is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to the employees.”

MIOSHA says

Enforcement Guidance: When determining if there is sufficient evidence for a general duty clause violation, the employer’s COVID-19 program in its entirety will be evaluated. If after considering all the measures the employer has implemented, there still exists a recognized hazard, a general duty clause citation will be warranted.

21

General Duty Clause Point: Your organization has to determine what it needs to do to, in

good faith, keep COVID-19 out of and prevent the spread in the workplace

How?

Review recommendations based on

CDC guidance

Review OSHA guidance

22


Employee obligation not to report to work

Employer duty to not discharge, discipline, or otherwise retaliate against an employee

Three circumstances: Tests Positive: Follow CDC isolation period

Displays principal symptoms of COVID-19

Tests negative for COVID-19, or

Follow CDC isolation period

Close contact with individual who tests positive for COVID-19

Follow CDC quarantine period

Adopts differentiation between unvaccinated and fully vaccinated employees

23

Nursing facilities, Homes for the Aged, and Adult Foster care Facilities

Residential Care Facilities

Prisons

24


Testing Protocols Initial testing of all new or returning residents and newly hired staff when the

individual is unvaccinated and has not been tested in the 72 hours prior to intake or start date

Testing any resident/staff member with symptoms or suspected exposure to COVID-19, regardless of that individual’s vaccination status

Weekly testing of all residents/staff in facilities experiencing an outbreak, until 14 days after the last new positive case, regardless of vaccination status

Weekly testing of all unvaccinated staff

Request, obtain, maintain a record of vaccination status for all residents/employees

25

Comply with CMS guidance, QSO-20-39-NHDining and group activities: physical distancing, masks, hand hygiene

Notifications:

Within 12 hours: Inform employees and residents of presence of a confirmed COVID-19 positive employee/resident

Within 24 hours:

Inform legal guardians/healthcare proxies of all residents of confirmed COVID-19 positive employee/resident

Post a notice indicating presence of confirmed COVID-19 employee/resident

Adopt protocol to inform prospective residents/staff or presence of a confirmed COVID-19 employee/resident

Support/comply with contact tracing efforts

26


Recordkeeping requirements

Report presumed positive COVID-19 cases in the facility to MDHHS and local health departments

27

Testing of staff members

and inmates

All persons regardless of vaccination status if: Were recently exposed to someone with

suspected / confirmed COVID-19

Exhibit principal symptoms of COVID-19

Are newly hired and scheduled to begin work within 72 hours

Otherwise required to test

Transmission prevention protocols

Exclude staff members or inmates who: Do not comply with testing requirements

Tests positive for COVID-19

Exhibits principal symptoms of COVID-19

Not fully vaccinated and was exposed to someone with suspected/confirmed COVID-19

Otherwise prohibited from reporting to work under COVID-19 Employment Rights Act

28


Identify those with a known or suspected exposure throughout the facility

Each such person must be tested daily for 14 days following outbreak notification

29

Examples: School/education setting Mask Orders

School/educational setting Quarantine Orders

Childcare facilities

30


31

CDC: Effective July 27, 2021

Added recommendation for fully vaccinated people to wear a mask in public indoor settings in areas of substantial or high transmission

MIOSHA General Duty Clause Point: Your organization has to determine

what it needs to do, in good faith, to keep

COVID-19 out of and prevent the spread

in your workplace.

32


The EEOC says: The federal EEO laws

do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19 (subject to accommodation provisions).

OSHA says: 2009 Standard

Interpretation: Flu vaccine

Although OSHA does not require employees to take the vaccines, an employer may do so.

NLRA says: Protected, concerted

activity

Current CBA permit mandatory vaccination policy?

33

Pros

Disruption to our business if we don’t Stability:

Return to in-person work

Lessened quarantine requirements

FDA status: Pfizer approved in Sept.

MIOSHA General Duty Clause

Cons

Disruption to our business if we do Stability:

Recruitment and retention challenges

FDA status: Currently EUA

34


Employees with an ADA-covered disability may be entitled to exemption if disability prevents them from complying with employer’s COVID-19 safety requirement

Establish an interactive reasonable accommodation process Can require medical documentation

Employers can select alterative accommodations Work alone/physical distancing

COVID testing

PPE

Reassignment

Remote work

Not required to accommodate if undue hardship Current public health and economic

circumstances are relevant to this analysis

35

Title VII requires employers to reasonably accommodate an employee’s sincerely held religious beliefs Unless it would be an undue hardship on business operations

Undue hardship is “more than de minimis cost,” which is a much lower standard than under the ADA

Religion: Very broad definition, but more than personal preferences, medical beliefs, or political philosophies

Moral or ethical beliefs as to right or wrong that are sincerely held with the strength of traditional religious views

Does not have to be widely practiced

Can require additional supporting documentation if there is an objective basis for questioning the religious nature or the sincerely held religious belief.

36


Example: Pending legislation in Idaho “HB 443 would prohibit any employer or company that has entered

into a contract with the State, from discharging, refusing to hire, or taking any action directly or indirectly related to employment on the basis of an employee’s refusal to be vaccinated due to medical contraindications or reasons of conscience. Such reasons of conscience include religious or philosophical beliefs.”

37

Likely to be the exclusive remedyCases considering different vaccines have determined that adverse

reactions to mandatory vaccinations may result in workers’ compensation claims

Exclusive remedy: Provides that recovery of workers’ compensation benefits will be the employee’s exclusive remedy against an employer for a personal injury or occupational disease.

If not exclusive remedy: Plaintiff must still prove causation

38


“The DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination and also does not wish to disincentive employers’ vaccination efforts.”

As a result: No requirement to record adverse reactions until May 2022

39

40


Who is the employee? (job responsibilities)

Who is the employer?

Where is the work being performed?

What federal requirements apply?

What state requirements apply?

What local requirements apply?

Do any of our organization’s policies apply?

What employee relations concerns should we be considering?

41

Federal State

• May 2021: CMS Vaccination Education and Reporting

• Existing MIOSHA obligations

• June 2021: OSHA Healthcare ETS • COVID-19 Employment Rights Act

• September 2021: Federal Employee COVID-19 vaccination mandate

• MDHHS Orders:

• September 2021: Federal Contractor COVID-19 vaccine mandate

• Skilled Nursing Facilities/Homes for theAged/Adult Foster Care, Residential Care Facilities, Prisons

• Local Health Orders

Coming Soon? Coming Soon?

• CMS Medicare/Medicaid Participant COVID-19 vaccine mandate

• Restrictions on mandatory vaccination, vaccine passports, vaccination as a protected class

• OSHA 100+ Employee ETS • MIOSHA adoption of OSHA 100+ Employee ETS 42


43

Click icon andpick photo in

S:\Marketing Materials\2017

Attorney Photos for PowerPoint

Click icon andpick photo in

S:\Marketing Materials\2017

Attorney Photos for PowerPoint

45 Ottawa Ave SWSuite 1100Grand Rapids, MI 49503

100 W Michigan AveSuite 200Kalamazoo, MI 49007

millerjohnson.com

409 E. Jefferson AveFifth FloorDetroit, MI 48226 44

616.831.1731

[email protected]

616.831.1713

[email protected]

Sandy Andre Patrick Edsenga

sandy andre patrick edsenga

Documents