Article by Amber Stockham
While schools have been saying goodbye to graduates and retirees — and closing out an unusual year that tested their mettle and crisis management capabilities — the larger landscape for employers has been changing as well. In response to lower case numbers and vigorous vaccination efforts, the Centers for Disease Control (CDC) has released updated guidance for gatherings and mask-wearing, prompting many states and localities to relax their COVID-19 health and safety requirements. Meanwhile, newly appointed federal and state representatives have been addressing issues of importance to their constituents, and some new laws that were passed by voters in November are beginning to take effect. Below is a roundup of some important employment issues that schools should be aware of.
Mask Guidelines
On Sunday, May 16th, the CDC issued new guidance, stating fully vaccinated people can resume most activities without wearing a mask or physically distancing except where required by law or by business or workplace management. As of June 3, only 22 U.S. states and territories have mask mandates in place, leaving the decision to require masks on campus to independent school administrations in much of the country. Schools that wish to continue mask requirements may do so unless expressly forbidden by state or local law.
At this time, it appears that schools that wish to allow fully vaccinated individuals to shed their masks can do so while requiring those who are unvaccinated to remain masked.
Schools should keep in mind that the Occupational Safety and Health Administration (OSHA) requires employers to provide a workplace which is free of known hazards. OSHA has yet to update its guidance and has referred employers to the CDC guidance on appropriate measures. At this time, it appears that schools that wish to allow fully vaccinated individuals to shed their masks can do so while requiring those who are unvaccinated to remain masked. This policy change will require schools to ascertain employees’ vaccination status if they are not already doing so.
Vaccination Requirements
On Friday, May 28th, the U.S. Equal Employment Opportunity Commission (EEOC) posted updated guidance regarding workplace vaccination requirements and incentives for employees. The guidance confirmed that federal EEO laws do not prevent employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19 so long as they comply with the reasonable accommodation provisions of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act which require an accommodations process for religious or medical concerns. Federal EEO law also does not prevent or limit employers from requesting documentation or other confirmation of vaccination from employees, though this information must be kept confidential and stored as medical information pursuant to the ADA and inquiries should be limited to vaccination status. Schools which wish to require proof of vaccination should ensure employees understand they are not being asked for any information beyond their vaccination status, and they do not need to provide any other medical information or a reason for their vaccination status.
The guidance also states employers may offer incentives for employees to be vaccinated “as long as the incentives are not coercive.” Large incentives such as significant cash payments or dramatically expanded benefits can violate EEO laws because vaccines require individuals to answer pre-vaccination disability-related screening questions. However, employers may offer small incentives and may provide employees and their family members with information to educate themselves about the benefits of vaccination.
Schools which require employees to be vaccinated against COVID-19 do not need to report adverse reactions to the vaccine in an OSHA 300 log. In April, OSHA announced that employers which are requiring COVID-19 vaccination for employees must record adverse effects of the vaccine in the Form 300 recordkeeping log. OSHA has since clarified that this requirement will not be enforced prior to May of 2022 because the agency does not wish to disincentivize employers’ vaccination efforts.
As schools are hiring and onboarding new employees, they may be tempted to ask new employees about their vaccination status or COVID-19 history. Guidance from employment attorneys indicates that determining the vaccination status of an applicant after a job has been offered does not pose a problem if it is relevant to the workplace and all employees are being asked about their vaccination status. However, asking about vaccination status or any history of COVID-19 infection during the hiring process may provide the employer with medical information which it cannot legally consider when making employment decisions. Schools that are requiring new employees to be vaccinated should be transparent and let candidates know about the requirement as soon as possible, stating in the job posting that vaccination is required and the school “will consider accommodations for disability- and religious-based reasons.”
Many employees’ lives have changed in the last 18 months, and the stress of the pandemic will not recede as quickly as the case numbers.
Leave Laws and Attendance Policies
Schools may also be re-considering health and safety policies for the coming school year. Many employees’ lives have changed in the last 18 months, and the stress of the pandemic will not recede as quickly as the case numbers. Schools should consider the mental health of their employees when setting health and safety requirements for the workplace, aligning their policies with their mission and the needs of their community members. Schools may also consider purchasing an Employee Assistance Program to support employees’ mental wellness, and many schools are considering more flexible working conditions for their administrative staff.
Schools may wish to re-think paid time off and attendance policies to accommodate the ongoing potential for COVID-19 infections among employees. For instance, some schools that have historically rewarded perfect attendence suspended those policies this past school year. Going forward, schools should consider potential negative consequences from attendance and time off policies and ensure that, regardless of the school’s decision, attendance policies comply with the ADA’s medical privacy requirements. Likewise, schools must make reasonable accommodation for employees who may be experiencing a disability. Please note: Some lingering symptoms or ongoing medical conditions related to a COVID-19 infection qualify as a disability under the ADA.
Voluntary extension of leave under the Families First Coronavirus Response Act (FFCRA) will expire fully on September 30th, but schools have the option to discontinue it sooner if they have voluntarily extended it beyond December 31, 2020. Schools may wish to expire the leave at the end of their fiscal year or prior to the beginning of the new school year in order to provide a fresh start in the 2021-2022 school year, and those wishing to make changes should provide clear and timely notice to employees of the change in benefits.
The U.S. House of Representatives passed the Pregnant Workers Fairness Act (PWFA) on May 14th, and it has been sent to the U.S. Senate for consideration. The PWFA would expand protections for pregnant employees and require more extensive accommodation of pregnancy-related medical conditions which are not considered to be disabilities. A vote on the bill has not been scheduled in the Senate.
Immigration and I-9 Enforcement
On May 26th, U.S. Immigration and Customs Enforcement (ICE) announced an extension of flexibility related to identification verification. On March 20, 2020, employers were temporarily exempted from the physical inspection requirements which are associated with the Form I-9 verification of identity and employment eligibility, allowing employers to remotely hire new employees and to inspect the documents provided with the I-9 electronically. This exemption has been extended through August 31, 2021.
On the Horizon
Many school administrators are concerned that their sense of community has suffered as a result of the pandemic and of social and political movements over the last year.
Schools may also be reconsidering employment policies that regulate conduct in the workplace for the upcoming school year. Many school administrators are concerned that their sense of community has suffered as a result of the pandemic and of social and political movements over the last year. School administrators may wish to review their employee conduct policies, particularly those related to polarizing comments or disruptive conduct. Schools that are considering limitations on workplace speech should do so in consultation with an employment attorney to ensure compliance with the National Labor Relations Act’s concerted activities protections.
Schools should be cognizant of new state and local laws which may be in effect for the new school year. A majority of initiatives that were on the ballot in 2020 were passed by voters, and newly constituted state and federal legislative bodies have spent the spring passing regulations in response to constituent requests. From an increased minimum wage in Florida and paid family and medical leave in Colorado to legalized recreational marijuana in New York, Arizona, New Jersey, Montana, South Dakota and Virginia, laws which affect the workplace have shifted and policies relating to wage and hour and employee conduct will need to be adjusted in most states. Some of these changes went into effect immediately, and many more will be in effect before school resumes. School administrators should work with their regional associations and employment attorneys to ensure any legal changes are reflected in school policy in anticipation of the new year.
As you consider these changes and what they mean for your school communities, NBOA is here to support the business office with legal alerts and guidance on best practices. Information on core issues and sample policies can be found in the NBOA library as well as our webinars, which are available for free to members and are recorded for your convenience. You can also network with peers to crowdsource solutions in the NBOA communities. If we do not have adequate resources on a topic of interest to you, please email us or reach out directly to a member of our staff, because our work is informed by the needs of our members.
Find all COVID-19 Resources for the Independent School Business office here.
