COVID-19 Employer Resources

In January, the US Supreme Court issued an order temporarily blocking Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard requiring businesses with at least 100 employees to ensure workers are vaccinated against the coronavirus or wear masks and undergo weekly COVID-19 testing. The 6-3 opinion stays the vaccine mandate pending review by the 6th Circuit Court of Appeals.

Employers are not required to meet the deadlines for vaccination and testing previously outlined in the ETS. We will provide additional updates as they become available.

If you have any questions about employer COVID-19 vaccination and testing, please reach out to us at humanresources@helpside.com

Additional Resources
OSHA ETS Website
OSHA ETS Frequently Asked Questions

On November 16, 2021, Governor Cox signed S.B. 2004, into law. The law, which went into effect immediately upon signing, includes several new state-specific restrictions on Utah employers, some of which conflict with the emergency temporary standard (ETS) for employers with over 100 employees that was enacted by OSHA.

Under the law, Utah employers with 15 or more employees (excluding federal contractors and persons subject to Medicare or Medicaid regulations regarding COVID-19 vaccinations) may not require employees to be vaccinated for COVID-19 or show proof of vaccination for COVID-19 if receiving a COVID-19 vaccine would:

• be injurious to the health and well-being of the employee or prospective employee;
• conflict with a sincerely held religious belief, practice, or observance of the employee or prospective employee; or
• conflict with a sincerely held personal belief of the employee or prospective employee.

While the first two are similar to rights that employees may currently exercise under religious and disability discriminations rules at the federal and state level, the third is broad and undefined at this point. It appears that any employee or prospective employee could refuse to obtain a vaccine or show proof of vaccination by simply providing a statement that he or she has a sincerely held personal belief against it.

The new law also prohibits Utah employers of any size (again, excluding federal contractors and employers subject to Medicare or Medicaid regulations regarding COVID-19 vaccinations) from keeping or maintaining a record or copy of an employee’s proof of vaccination unless maintaining such records is required by law, an established business practice or industry standard requires otherwise, or a contract for goods or services entered into before November 5, 2021 required the employer to keep or maintain proof of vaccination status (excluding contracts between the employer and its employees).

Here is what Utah employers (excluding federal contractors and persons subject to Medicare or Medicaid regulations regarding COVID-19 vaccinations) need to know:

• Employers with existing mandatory COVID-19 vaccination policies who wish to continue encouraging vaccination through their policies should revise them to include the three exemptions under the new Utah law.
• Employers who have begun collecting vaccination records from employees should stop collecting those as of 11/16/2021. If any records were collected after that date, they should immediately be destroyed unless required by one of the reasons listed above. Employers can still ask employees if they are vaccinated and maintain a database of that information, without requiring proof of vaccination.
• Employers can still require employees to be tested for COVID-19 but must pay for all testing.
• Right now, because OSHA has paused enforcement of the ETS for large employers, this law doesn’t conflict with any current federal requirements. Even if the ETS ends up being enforced as it is currently written, employers would be able to comply with both laws by requiring that unvaccinated employees wear a face covering and submit to testing that is paid for by the employer. The vaccination record retention is the piece that would have some conflict.
• Employers with fewer than 15 employees can still require COVID-19 vaccination and proof of vaccination if the employer “establishes a nexus between the requirement and the employee’s assigned duties and responsibilities.” This has yet to be defined, but presumably could be if an employee’s duties require him or her to physically interact with others, including both members of the public and coworkers

The employment laws surrounding COVID-19 continue to evolve, but for now, it is in the best interest of employers in Utah to comply with this Utah COVID-19 law until further guidance becomes available, knowing that things might change again in the future.

On October 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued new answers to frequently asked questions (FAQs) about how employers should handle employee requests for religious exemptions from their COVID-19 vaccine mandates. The new FAQs address rules that apply to this type of request under Title VII of the Civil Rights Act (Title VII), which is a federal law that prohibits employment discrimination based on religion.

Requests for Religious Accommodation
The new FAQs clarify that while no “magic words” are necessary, Title VII requires employees to inform their employer that they are requesting an exception to a COVID-19 vaccination requirement because that requirement conflicts with their sincerely held religious beliefs, practices or observances.

Responding to a Religious Accommodation Request
Employers that receive a request for a religious exemption should generally avoid questioning the nature or sincerity of the religious belief unless they have an objective basis for it. These employers should also thoroughly consider all possible reasonable accommodations, including telework and reassignment. If an employer can demonstrate that no reasonable accommodation can be made without “undue hardship” on its operations, then Title VII does not require the employer to provide the accommodation.

Limits of “Religious Beliefs” Under Title VII
The new FAQs emphasize that Title VII does not protect social, political, or economic views or personal preferences. Therefore, requests made for those reasons, including requests based on nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under the law.

On Friday January 29, 2021 OSHA released guidelines on COVID-19 safety. These guidelines cover several different areas of potential risk and advise business leaders and employees on how to reduce those risks. Here are some of the guidelines covered by OSHA:

Implementing a COVID-19 Prevention Program

A COVID-19 prevention program can allow your company to reduce and manage the risk of infection in a more efficient way. OSHA shares some tips for making your COVID-19 prevention program run smoothly. This advice includes appointing a workplace coordinator, identifying hazards, establishing helpful communication, providing guidance to workers, minimizing impact of quarantine, and increasing cleaning and preventative actions.

Physical Distancing

Maintaining physical distancing in an on-site workplace can be difficult. OSHA recommends decreasing the number of employees in the building at a time as well as increasing the amount of available distance between employees. If physical distancing is impossible in any part of your workplace, OSHA suggests putting in solid barriers to protect employees.

Face Coverings

Wearing face coverings can greatly decrease the risk of infection in any workplace. All workers should be provided with face masks, or be allowed to wear their own as long as it meets CDC guidelines. Face coverings should be worn to cover both the mouth and the nose. Additionally, face coverings should be used with physical distancing not instead of physical distancing. Wearing a mask does not mean workers don’t need to physically distance and vice versa.

Sanitize

Keeping a sanitized workplace will help decrease the likelihood of infection. OSHA encourages employers to provide necessary cleaning supplies, such as soap, tissues, hand sanitizer, and no-touch appliances. In addition, employers should routinely clean and disinfect frequently used surfaces to prevent the spread of germs. A thorough disinfecting should take place in any areas an infected or exposed employee frequented.

Keeping your employees safe from COVID-19 may involve changes to your current policies and practices. If you have any questions about the guidelines or how to implement them, contact Helpside at jhancey@helpside.com.

Keeping your employees safe while at work is an essential part of running a successful business. Amidst the many negative impacts COVID-19 has had on our world is the threat of employees coming to work and spreading the virus throughout your facility. We often receive the question, “Am I allowed to test my employees for COVID-19?”

The Americans with Disabilities Act (the “ADA”) requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, 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. Therefore, an employer may choose to administer COVID-19 testing to employees before permitting them to enter the workplace and/or periodically to determine if their continued presence in the workplace poses a direct threat to others. According to the EEOC, testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard.

While testing your employees to determine if they currently have the virus is allowed, testing your employees to determine if they have had the virus previously is not. According to the CDC’s Interim Guidelines, antibody test results “should not be used to make decisions about returning persons to the workplace.” Thus, requiring antibody testing before allowing employees to re-enter the workplace is not currently allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test), which is allowed.

If your employee has COVID-19, we recommend following the CDC’s guidance and temporarily not allowing this individual to continue to work within your facility. Employees may return to work once they have met the criteria to discontinue home isolation and have consulted with a healthcare provider. Other factors such as whether or not they may be eligible for paid leave under the FFCRA should be considered.

Testing for COVID-19
There has been much talk lately about testing for COVID-19. But what does it all mean? There are two categories of tests for COVID-19: viral tests and antibody tests.

What is a viral test?
Viral tests check samples from your respiratory system, such as swabs on the inside of the nose, to tell you if you are currently infected with the virus that causes COVID-19. A positive test means you have the virus. A negative test means you probably were not infected at the time your sample was collected. However, it is possible that you were very early in your infection and that you could test positive later.

Who should get a viral test?
The CDC, health departments, and healthcare providers have guidance for who should be tested. If you have symptoms of COVID-19 or if you have been in close contact with someone who has been diagnosed with COVID-19, call your healthcare provider to determine if you should be tested.

Does my health plan cover viral testing?
EMI Health will cover viral tests without member cost share (no deductible, copayment, or coinsurance) up to the plan’s maximum allowable charge. To be covered, the test must be requested by a physician and performed by an accredited laboratory or medical facility.

What is an antibody test?
These tests look for the presence of antibodies, which are proteins made in response to infections. They show the body’s efforts to fight off a specific infection. A positive antibody test is presumed to mean a person has been infected with the virus that causes COVID-19 at some point in the past. It does not mean the person is currently infected.

Who should get an antibody test?
There isn’t enough information yet to say whether someone will definitely be immune and protected from reinfection in they have antibodies to the virus. In addition, these tests are not 100-percent accurate, and false positive or negative results may occur. It is too early to make recommendations on the use of antibody tests to determine protective immunity and infectiousness.

Does my health plan cover antibody testing?
EMI Health will cover one antibody test without member cost share (no deductible, copayment, or coinsurance) up to the plan’s maximum allowable charge. To be covered, the test must be requested by a physician and performed by an accredited laboratory or medical facility.

Both the Helpside and EMI Health customer service teams are full staffed and available to answer your questions.

• You can reach Helpside at (801) 443-1090, service@helpside.com, or via chat on our website at helpside.com
• You can reach EMI Health at (800) 662-5851

Please encourage employees to use TeleMed services:

As a participant on the Helpside Medical Plan, access to WellVia telemedicine services is available 24 hours a day, 7 day as a week, at no additional cost to you. Although the actual testing for the COVID-19 virus requires a physical visit to a health care provider’s office, WellVia’s staff of board-certified physicians may be able to help assess your symptoms and possibly treat some symptoms via known remedies, without you having to leave the safety and comfort of your home.

Using this service can save lives as it keeps people out of doctors’ offices, urgent care clinics, and emergency rooms during COVID-19, and helps to reduce the pressure on the health care system.

To contact WellVia telemedicine:

• Download the app at wellviasolutions.com
• Call 1-877-872-0370

Employee Assistance Program (EAP) Resources for COVID-19

If you have employees who are feeling stressed by the COVID-19 outbreak, they may find the Employee Assistance Program (EAP) resources helpful. All clients who participate in the basic life insurance through Helpside have access to the EAP for their employees.

Employee Assistance Program (EAP)-COVID-19

Using the EAP Mobile App

Having a healthy workforce has been on the top of every business owner’s mind right now. While there are many things out of your control, there are some actions you can take to help keep your employees safe and healthy during the COVID-19 outbreak and beyond. As we will soon have employees who are working from home returning to work, here are a few things businesses can do to help protect their employees from illness:

Encourage Sick Employees to Stay Home
Communicate often about the company’s commitment to keeping employees healthy. Simply having a policy in your company policy guide isn’t enough. Make sure managers talk to employees about staying home if they are ill. Keep the lines of communication open so employees feel comfortable asking questions about their specific situation.

Review Your PTO Policy
Review your paid time off policy to ensure it supports employees taking time off when they are ill. Also, make sure you understand the paid leave laws in your state. Consider that employees sometimes feel pressure to come into the office even when they are unwell. Some reasons for this might include not wanting to disappoint co-workers or clients, not wanting to use PTO saved for a planned upcoming event, etc. Talk to employees about this and work with them to understand their specific situation.

Respond Appropriately to Sick Employees
If an employee comes to you and tells you they are ill, respond empathetically. Help them come up with a plan for managing their work while taking time off to get well. Consider remote work options if the employee is still possibly contagious, but well enough to do some work from home.

Encourage Frequent Handwashing
Make sure you have handwashing supplies like soap and paper towels stocked in the restrooms and break room. Post signs reminding employees to wash their hands. Keep hand sanitizer in conference rooms and other frequently used areas where handwashing is not available.

Provide Employees with Cleaning Supplies
Keep your office space clean. In addition to your regular cleaning protocol, have cleaning supplies on hand for employees to use their own workspace and encourage them to keep their area clean.

Taking the precautions year-round can help you keep your workforce as healthy as possible.

During the COVID-19 outbreak, recognize that there may be a number of individuals who have reduced hours or have been laid off due to lack of work. Employee benefits coverage typically ends on the last day of the month that the employee last worked full-time (at least 30 hours per week). We have two options for clients to consider if they have employees who have reduced hours of have been laid off due to lack of work:

No extension of coverage- Typically, if an employee is terminated, laid off, or has no or low hours for more than 30 days they will lose benefits coverage. Employees potentially have the option to elect COBRA (if eligible) to maintain coverage. Once the employee returns to work full-time, they would have to reestablish eligibility for the benefits and could re-enroll after the standard benefits waiting period.  If an employee out for less than 30 days, we can reinstate benefits with no lapse in coverage, if the company notifies Helpside.

If you would like to provide some support to employees in this situation, you could choose to provide some pay to employees to help cover the cost of the COBRA premiums. We always advise clients to pay the employee any of these amounts directly and leave the responsibility of electing and paying COBRA premiums with the employee due to the strict timing rules associated with COBRA. If you want to provide some pay to employees in this situation, notify your Helpside Payroll Specialist.

Non-Medical Leave of Absence- Helpside is accepting applications from all clients to utilize the non-medical leave of absence due to the COVID-19 outbreak. Applications are subject to approval and should completed and sent to Helpside prior to the beginning of the employee leave. There are a few things to understand before selecting this option:

• Benefits are protected for 90 days, as long as the employee is anticipated be full-time upon their return.
• The client company must pay whatever portion of the premium the employee is unable to pay through their payroll deductions. If an employee receives no pay, the employer would be responsible for 100% of the premium. If the employee doesn’t return to work after 90 days, we have no way to help recoup the cost through payroll.
• If an employee voluntarily quits during the leave, benefits will terminate the end of the month in which leave is given, and then any applicable COBRA will be offered.
• If an employee does not return at the end of 90 days, benefits will terminate the last day of the month in which they should have returned, and any applicable COBRA will be offered.
• When an employee returns to work, back benefits premiums will be deducted from all paychecks and returned to the client company until paid in full.

Please consider the pros and cons to both options and come to a decision that works best for your company. Please note, that none of these apply if an employee is simply on paid leave due to the Families First Coronavirus Response Act (FFCRA). For questions about FFCRA, please contact us at (801) 443-1090 or humanresources@helpside.com.

If you have questions about your options, we encourage you to speak with our Client Success team at (801) 443-1090 or service@helpside.com.