Answering Questions About Face Masks, Vaccination Liability and More

Welcome to Workplace Version 2021: Cubicles stand emptied of their former occupants, who gather from home on laptop Zoom calls. The remaining office workers wouldn’t dream of leaving a communal birthday cake in the breakroom. Where did you get your latest mask? is standard water cooler banter (though everyone totes their own pre-filled water bottle these days). So much has changed in such a short amount of time; it can be tough for employers and employees alike to know what is admissible in the workplace.

Employers have questions:

• Can I require employees to elect the COVID-19 vaccine?
• What do I do if an employee refuses to wear a face mask?
• Are there privacy issues as we track employees who receive the vaccine?

Employees have questions:

• What if my child’s daycare or school closes or my child becomes quarantined? Can this affect my employment?
• If I have a disability, can my employer still require me to receive the COVID-19 vaccine?
• Is my employer required to let me work from home?

W3 Insurance and Janet McEnery, a labor and employment attorney with Stearns Weaver Miller, have answers. During a February 17 virtual webinar entitled Workplace COVID-19 Issues in 2021: Vaccinations, Face Mask Challenges, Extended Work from Home Orders and Incentives, Ms. McEnery, JD will address some of the frequent questions employers and employees are asking. These include (but are not limited to) the following queries:

Can I require my employees to receive the COVID-19 vaccine?

Total workplace vaccination seems like a reasonable request. Everyone vaccinated means everyone back to the office, right? According to the Society for Human Resource Management, many employers can reasonably require employees to be vaccinated. Loopholes exist for the disabled and for those who harbor sincere religious objection. Depending on the daily work situation, mandatory vaccination may make total sense – as it does with health care workers or others who come into contact with the public often – and less sense if all or the majority of employees work remotely.

Keep in mind that when the vaccine becomes widely available, employers could be liable if they do not require it. The employer must provide a safe and healthy work environment, as spelled out by the Occupational Health and Safety Act. If an employee does contract COVID-19 and believes it is due to their employer’s lax vaccination stance, the employer may face legal action.

Am I able to require proof of COVID-19 antibodies?

This is a ‘hard no.’ The Americans With Disabilities Act (ADA) prohibits employer-mandated antibody testing as a requirement for return to workplace activities.

What about a face mask mandate? Am I able to require them in the workplace?

Protective gear, social distancing and face masks: they’re the triumvirate of pandemic control. They’re also an employer’s right to require, but with caveats. For example, employers can require said gear and adherence to certain social distancing mandates. The OSHA recommendation is that employers encourage face coverings in the workplace, though in some situations they are not feasible (in an environment where chemicals may collect within the mask, for example).

If an employee states a religious reason or reports that disability prevents such an election, the employer must provide another option. This does not mean an employer has to drastically change workplace protocol, as any action that represents ‘an undue hardship’ is not required.

What do I do if an employee refuses to use a face mask?

Look to the root cause. Is it because the employee has a serious health condition that is covered under FMLA or a disability covered by the ADA? The employer can require the employee provide FMLA certification (this is completed by their health care provider) showing they are not able to perform the functions of their job with a mask as a result of their health condition. Reasonable accommodation under the ADA is also a feasible argument for anti-maskers. The employer may ask for reasonable documentation from the employee.

Florida follows the at-will employment doctrine; if an employee does not give sufficient proof that they are unable to wear a mask because of a valid reason, the employer is within their legal grounds to terminate.

Am I able to ask employees if a family member has COVID-19?

No. GINA (The Genetic Information Nondiscrimination Act) prohibits this.

If an employee misses work and I suspect it is because of COVID-19, can I ask them why they were absent?

If an employee misses work for any reason, you are within your rights as an employer to ask the cause.

What if an employee states a religious reason for their reluctance to vaccinate?

If the religious reason is sincere, the employee may not be required to vaccinate. An employer may ask for proof, but this will open them up to potential legal action from the employee. Keep in mind that an employee who states that they just do not believe in vaccines cannot submit this belief as a valid reason not to vaccinate.

Still have questions about COVID-19 and how to make the right decisions regarding work life? Register for the upcoming webinar here.

An Employer Guide to Handling Substance Abuse

Substance abuse numbers are staggering: According to the National Council on Alcoholism and Drug Dependence, more than 70 percent of those who abuse illicit drugs also work. That means substance abuse is widespread and affects people across all demographics. Perhaps it’s the person in the cubicle down the hall who has challenges with binge drinking; then again, it could be the C-Suite employee in the corner office who seems to be a tireless workhorse.

Without solid proof that an employee is abusing a substance, there’s no need to start pointing fingers. This isn’t a blog designed to teach you how to merely recognize and respond to an addicted person with penalties. Instead, we aim to share resources to help those caught in a trap of addiction break free. And if you do suspect that an employee has a problem with an illicit substance, there are certain steps you can take to legally protect your organization.

 

What’s the big deal?

Being high on the job doesn’t lead to high performance. The U.S. Drug Test Centers states that $81 Billion in lost productivity occurs every year due to drug abuse and addiction. That’s healthcare costs and productivity down the proverbial drain. It’s an even bigger deal if the person impaired operates heavy machinery or is similarly engaged.

Some substance abusers argue that they can function at an optimum level even while impaired. Perception in this case is not necessarily reality. They are likely incorrect – and they are likely not very healthy. It’s most definitely a big deal to abuse drugs or alcohol at work, but most people would likely agree that it’s at least not a benefit.

 

What should an employer do?

Take a look at your employee handbook. It should state in very clear terms that alcohol use is not permitted during work hours. Catch an employee sipping a lager while on the clock, and you very well could proceed with standard company disciplinary procedures. However, this situation demands common sense. If a salesperson is entertaining a client at lunch and happens to order a glass of chardonnay, that is obviously a different situation than that of the cubicle worker taking covert sips from a whiskey bottle hidden in their top desk drawer.

 

What if I think an employee has a problem but I’m not sure?

Don’t trust office gossip. Instead, if you believe someone has a problem but do not know for sure, share resources that could help that individual – but do it collectively. For example, all employees benefit knowing that their EAP may include therapy sessions and other such wellness tools. Help with alcohol or drug addiction is yet another highlight of an EAP, which will point those in need toward organizations such as Alcoholics Anonymous or Narcotics Anonymous.

Perhaps your workplace has offerings through the health insurance carrier for behavioral health. This assistance can be beneficial, and it is not as intense as rehabilitation center scenarios. Assistance comes through health coaching; some even have access to counselors via virtual visits. This is a solid start for those afraid to take the next step of in-person rehab.

Performance discussions are one way to proceed. Let’s assume an employee has been missing deadlines and coworkers describe them as scattered and confused while at work. Management could address these concerns and ask if there is anything they can do to alleviate the situation.

This discussion opens the door toward revealing the truth. Perhaps the person has a newly diagnosed health condition and is adjusting to new prescribed medication. The workplace has a duty to make reasonable accommodation for this situation. It could be that they are experiencing turmoil in their daily life that is hampering their work. Or the person could deny any issues, and thus the employer can proceed as they normally would if an employee is not achieving desired outcomes.

Expectations should be discussed going forward and any continuing conduct or work-related issues pertaining to the employee should be clearly documented. If the employee does admit to substance abuse, consideration of a few factors should occur. How has this situation been handled in the past at this workplace? Will the employee be given time off to attend a rehab center program? Will they simply be directed to the EAP?

Keep in mind that if a workplace has a ‘no tolerance’ policy for alcohol and/or drug use, they may immediately terminate the individual. Proper documentation of the work issues leading up to that moment should occur, however. Employers who are not sure of the right course of action should seek legal counsel.

 

What about offering help?

We mention the EAP multiple times because these programs are so comprehensive. However, other resources exist that can prove helpful to a person struggling with addiction. For example, addiction experts across the United States agree that a vast majority of people who need treatment for substance abuse disorders do not seek it. Though many barriers exist to discourage people from obtaining needed help, cost is a significant factor. Help.org created a guide that provides comprehensive information on topics like available care options, financial support, and free resources available in Florida.

These guides are available at no cost and are viewable at the links below. Share these with employees. Post them on the company Intranet. And know that someone who needs help with a dependence challenge may well change their course of living because of it.

https://www.help.org/drug-and-alcohol-rehab-centers-in-Florida/

https://www.help.org/drug-abuse-hotline/

We recognize Operation Par on the list; located in Clearwater, this facility is a W3 client that specializes in treatment for substance abuse and mental health.

Learn more about recognizing and reacting to drug and alcohol use in the workplace by reading this comprehensive article from SHRM.

This is a message to employers who look out upon a sea of empty cubicles and yearn for normalcy. We understand the temptation to welcome employees back in droves. Business is not as usual, and we all feel it: no sector is immune to the effects of COVID-19. As we grapple with our ‘new normal,’ it is imperative that employers handle the return of employees to the physical workplace with proverbial ‘kid gloves.’

Here are some safeguards to consider as you reopen your doors to the employee population:

• Constant vigilance is key. That employee who tested negative yesterday could arrive at the office this morning as a COVID-19-infected individual. Therefore, daily health checks are necessary, and the EEOC has ruled that employers may ask workers whether they are in fact suffering from COVID-similar symptoms. *Compliance with the ADA is still mandatory; any medical information gleaned from such daily checks becomes part of the individual’s confidential medical record.
• Thanks to human ingenuity, we already have multiple options for these checks, including:
  • COVID-19 and antibody testing – Antibody testing is not, at this moment, FDA approved. It demands a blood draw and can take days to reveal results. A person may test negative for COVID-19 one day and positive the next, making such testing an unlikely option for regular use.
  • Medical screenings conducted by medical personnel – In this scenario, employees stay in their vehicle while a medical professional takes their temperature and administers a brief questionnaire. Anyone with a temperature at or below 100.4 is cleared to enter the building.
  • Non-contact thermometer at building entrance. Not every person infected with COVID-19 has a fever. However, the thermometer check will identify some infected individuals.
  • App use requiring daily report of symptoms, exposure, and temperature – Responses are recorded. If suspected COVID-19 is identified, correct company personnel is notified.
• Remember that discriminatory practices are not admissible just because a pandemic is at large. However, individuals aged 65 or older may be given more flexibility than compared with your younger employee population. Those within the older age group are at higher risk to suffer complications from COVID-19. Treatment of demographic groups such as pregnant women and those with family responsibilities is discussed at length here.

Return to work symbolizes a return to normal, and that is what we as a society yearn for during this age of uncertainty. Still, don’t rush the Welcome Back celebration. Work with your HR department to outline clear and concise policies that protect the health of everyone in the organization. For assistance, contact W3 Benefits and Wellness Strategist Trish Blocker at tblocker@w3ins.com or 727-522-7777 x173.

Did you know that nicotine is considered to be as addictive a substance as heroin or cocaine? No wonder many smokers find it difficult to quit. It’s a battle worth fighting, though. According to the American Cancer Society, smoking leads the way as a main cause of lung cancer. And anecdotally, employers report lost productivity from smokers who take multiple breaks to light up throughout the workday.

New advancements in smoking cessation offer novel ways to quit. Read below as we examine some of them, and then share the information with your workforce. We hope you’ll have an entire roster of quitters as a result.

Smartphone Apps – These vary immensely. Some simply offer quitting tips, while others take on a journal approach. Woke up and had a cigarette? -Log it. Avoided buying a pack? -Log that too; give yourself a pat on the back. Not dissimilar to a diet app that requires the user to log meals, the journal apps keep a person accountable. Whether this approach works is very individualistic, and not a lot of research has been done to demonstrate efficacy. However, if a person responds to text reminders that tell him to ‘stay strong and put down the cigarette,’ that method may work. A few of these apps to consider include LiveStrong and Quit for Life.

Behavioral Techniques – Heard of mindfulness? It’s a buzz word in the cessation realm now. Different behavioral techniques like mindfulness are being purported by some as quit aids. The idea of “self-expansion” is also being considered; this couples quitting with other positive events. Joined the company softball team? -It’s a great time to quit! Purchased a new home? -Why not make sure it’s free from soot? This strategy packages the ‘quit’ into an appealing event, in essence making the cessation action part of the positive occurrence.

Extensive research has not yet proved how effective the different techniques discussed above are, but preliminary results are promising for some individuals. It’s always a good idea to share a multitude of options with smokers, as what works for one person may not work for another. It’s the same with weight loss: some wouldn’t respond to a diet journal, as they would forget to write down every morsel of food consumed; for others, all it would take is a visible reminder of that 3,500 calorie day to change their behavior.

The tools are widely available. And even though employees looking to quit smoking have likely heard of the tried-and-true methods, it doesn’t hurt to remind them that quit lines, nicotine replacement therapy, prescription drugs and support groups are all examples. For more information about these cessation aids, visit https://bit.ly/2kcjq6D.

It’s time to water those workers! Raise a glass of H20 (or two) with your employees, and you may well find that concentration levels increase. Lethargic workers find a sudden burst of energy. And Joe, who’s always calling out from his cubicle about that afternoon headache? He’s working away on a project, noggin feeling just fine.

Here’s why it’s so important to support good water intake:

• Air conditioning is virtually everywhere in Florida – and it’s a hydration negative. AC units are designed to lower the atmospheric water content, and that phenomenon leads to people experiencing water loss via the skin or lungs. Yes, indoor workers lose less water than those whose tasks take them outside – but they are not immune to dehydration just because they’re cooler.
• Outdoor workers face an ongoing risk – According to the Mayo Clinic, water intake requirements depend on the person. It’s a sure bet that a road crew working in August on the blacktop is going to need more water than the CPA in her fifth-floor office building. The much-touted recommendation ‘8 glasses a day’ is relatively sound, though some individuals definitely require more liquids. Some require less.  A good rule is for outdoor workers especially to stay ahead of thirst. Once one becomes thirsty, she is already mildly dehydrated.
• Indoors or out, the dehydrated worker is likely not as productive as his water-swilling coworker. Our bodies cannot make the water we need in order to function optimally. Instead, it doles out symptoms to remind us to fill up those bottles. Lack of concentration is a commonly touted one, as is lethargy and headaches. None are helpful for work progress. Additionally, severe dehydration carries possible severe consequences that are much worse than lack of productivity.

What’s an employer to do? Consider a company-wide giveaway of stainless steel water bottles. (If you do opt for classic plastic, make sure they are BPA free. That’s a topic for another blog). Educate your workforce regarding dehydration symptoms. Encourage them to reach for a glass of water when they experience a lull in their day. Remind them that total liquid intake takes their food choices into account – thus that 2pm apple counts toward the hydration whole.

It could be that a good deal of workers are arriving to work dehydrated and leaving at the end of the workday in the same state. Make sure there’s water, water everywhere at the office, and that may be all it takes for on the job refreshment.

Hillsborough Identified as a ‘measles prone’ area

What if educating your employees could halt the outbreak of an infectious disease? Would you share vaccination information to help not only your workforce but the greater good? In an age where inoculating has become merely optional for some people and travelers visit countries with measles outbreaks and bring the germs back across our borders, diseases that were all but eradicated in the United States due to vaccination protocols are attempting an American comeback. Hillsborough County has been pinpointed as one of 25 counties prone to a measles outbreak.*

This is a potential health emergency. In 2000, measles was all but eradicated in the United States. Come 2019, we now have the highest incidence of cases in our nation since 1994; more than 830 have been identified this year so far. Measles is highly contagious and can lead to serious complications or death. The good news? The disease is hugely preventable. Here’s how to fight back.

• Inform employees of their healthcare benefits – Vaccines fall under the umbrella of preventive services. That means they are covered at 100% through insurance, with no out of pocket costs associated to the employee or dependents if they go to a participating provider or pharmacy. There is an obvious reason for this. Vaccines are so important to society at large that it is dangerous for all individuals to not receive them. For more information about preventive services covered through insurance, visit: https://bit.ly/1OxO6qw

• Take this opportunity to open up a wider discussion about healthcare – Flu shots and many other vaccines are covered as well. As any employer knows, working in close quarters with others means that germs are transmitted easily. The flu shot in particular does not offer full immunity to all strains of influenza, but it at least lessons a person’s chance of contracting the strain included in that year’s vaccine. Flu shots will be available in September.

Remember to remind employees that the costs for some health services may change if they choose to visit a physician or facility that is out of network. And for more information and guidance regarding vaccination and other health and wellness questions, contact Trish Blocker, CWWS, at tblocker@w3ins.com.  

*To view a list of the 25 counties identified as measles-prone by researchers, visit: https://wb.md/2Q8hvOm.

Can your workplace contend for the title “Fittest Workplace on the Planet?” We’ve all heard of the benefits of physical activity on the individual: increased life span, whittled waistline and overall health improvement are just a few. When fit individuals are a collective employee force, you can expect productivity through the roof (and workers so strong they can nearly raise it).

While you don’t have to contend for Fittest Workplace on the Planet to reap the organizational benefits of physical fitness, a fitter workforce benefits everyone. Take the initiative and educate your employees. May is National Physical Fitness and Sports Month, so resources to help you on your quest are especially easy to find.

Start here: https://healthfinder.gov/nho/MayToolkit.aspx. Within this toolkit, you’ll discover the benefits of physical activity and how to motivate employees to jump on the ‘fitness bandwagon.’ Remind your employees that fitness isn’t relegated to the young; people can benefit from becoming fitter at any age.

Classic suggestions include educational snippets in your employee newsletter and information disseminated on organizational social media platforms. Bring speakers into the office who explain how to make exercise part of a busy lifestyle. And get creative – no two employee populations are the same, so what fits your employee roster may not fit another.

Here are some possibilities we’ve seen work. Take this list as an a la carte menu of fitness motivational options.

•  Make it a competition! Can’t afford a fancy fitness tracker for every employee? Consider a Bring Your Own Device (BYOD) event. Today’s cell phones have pedometers already programmed within. There are also downloadable pedometer apps available. Welcome employees to track their progress and give prizes for those who move the most. And no putting the device on the dog and letting him loose at a park (we’ve heard it happen).
• Inspire others by having employees share their fitness journeys. Think about your employees for a moment. Has someone been taking the New Year’s resolutions seriously? Have they been exercising and seeing results? Have them share with the rest of their colleagues how their path toward fitness is progressing.
• Sponsor a race for charity – or simply field a team and compete. Some businesses are full of runners and walkers who jump at the opportunity for a free race entry. Some go the proverbial ‘extra mile.’ We recently had a client hire a personal trainer to offer weekly training sessions to train employees for an upcoming 5K. This was well received and increased participation.  Go one step further and provide your athletes with shirts that advertise the business. It’s a win-win for fitness and advertising!
• Don’t forget the biometric screening fair. If you’ve already hosted one for your employees, great. Physical activity can help lower blood pressure, among other health benefits. Following a biometric screening event with a fitness education and motivation campaign makes sense.
• Ask your health insurance provider for more ideas. Trish Blocker from W3 Insurance has spent years counseling businesses to help improve employee activity levels. She has access to a host of resources and will be happy to provide an action plan that – while it may not land you the ‘World’s Fittest Workplace’ honors – will at least inch you closer to the title.

Be fit, friends.

Cutting through the confusion

With record low unemployment and record high drug use in the American workforce, many employers are confused by the new marijuana laws. According to the latest National Safety Council study, approximately 15 million employees are struggling with some sort of substance abuse problem, including alcohol, marijuana, pain medication and other drugs. Although some industries have a higher incidence of drug abuse – such as construction, retail and the hospitality industry – no profession is immune to the dangers of drug abuse.

Evidently, many employers are faced with the challenge of how to define a drug testing policy along with translating the new marijuana laws. While the federally mandated employers’ policies are very specific and do not permit marijuana use of any type, many employers are ambivalent with respect to marijuana use.

Quest Diagnostics’ recent Drug Testing Index (DTI) shows workforce drug positivity at its highest rate in a decade. States that have recently enacted recreational marijuana laws have seen double-digit increases in the number of employees who test positive for marijuana. And because of our healthy economy, the job market has tightened, making it more difficult for employers to find new hires. As a result, some companies have chosen to drop marijuana from their testing panel altogether – taking the position “don’t ask, don’t tell.” Not surprisingly, states like Nevada, California and Massachusetts that have recently enacted recreational marijuana laws have seen a big spike in the number of employees who test positive for marijuana.

Be Informed

Every employer should be well informed when it comes to drug testing rules and requirements – including the legislation in their state.

The Americans with Disability Act (ADA) excludes from protection “an individual who is currently engaging in the illegal use of drugs” from its definition of an “individual with a disability.” As a Schedule 1 drug under the Controlled Substance Act (CSA), taking marijuana excludes an employee from ADA protection.

When meeting with a prospective client, I always ask relevant questions in relation to their business. For instance, if they have safety sensitive employees, what type of work do they do? Are they a federal contractor? Do they employ DOT regulated drivers? This info is critical when determining what type of testing policy is recommended or required.

Many employers assume random drug testing is required in order to be compliant and to be eligible for the 5% workers’ comp premium discount. That is incorrect. Random testing is only required for those federal agencies like FAA, US Coast Guard, Federal Transit Administration (FTA) and the like and FMCSA regulated businesses that employ federally regulated employees or are under a federal contract. Examples include DOT regulated drivers, including tour bus operators, Hazmat regulated companies, transportation companies, etc.

Explain their exposure

The cost of substance abuse in our nation exceeds $400 billion annually. Much of this cost is attributed to lost productivity, health care costs, workers’ comp related injuries and workplace accidents, just to name a few. For a small business that sustains just one serious workers’ comp claim, that could impact their profit margin exponentially.

Did you know?

• Health care costs are 3 times higher for drug users.
• Workers’ comp claims occur 5 times more often among drug users.
• Drug users are absent from work 16 times more often with 8 or more days of sick leave annually
• Drug users steal 4 times more often from employers and coworkers.
• Workplace accidents occur 3.6 times more often among drug users.

The National Safety Council provides a free Substance Use Cost Calculator for employers on their website. By providing industry data, an employer gets a report outlining the potential financial impact substance abuse can have on their business. This report is a valuable tool for every business owner.

https://www.nsc.org/forms/substance-use-employer-calculator

Implement a prudent testing policy

For many employers, there can be some apprehension when writing and implementing a policy of any type. It can be confusing, time consuming and complicated. Many insurance companies partner with third-party administrators like ASAP Programs to structure a program for their clients. This is beneficial for both the agency and their clients because it provides a no-nonsense approach to creating a compliant drug testing program and removes much of the guesswork associated with internal administration.

A business that strives for a Drug Free Workplace will reap the benefits ofa healthier and more productive workforce while setting the tone for a positive company image.

For additional info on our drug testing and background check services, please contact me in the Orlando office.

This March, as we recognize Colorectal Cancer Awareness Month, take stock of how your organization is supporting those dealing with the disease and their families. Whether it’s the colorectal variety, which is expected to cause approximately 51,020 deaths in 2019, or another type of cancer, resources exist to ease the emotional and financial burden on the afflicted and their families.

What Employers Can Do

Share information with employees that can directly impact quality of life before, during and after cancer treatment. It’s often said that we are all ‘healthcare consumers;’ why not help employees become the most knowledgeable consumers possible? Knowledge, as the old adage goes, is power. Cancer takes away the power a person may have felt about the trajectory of their life; understanding costs of medications and insurance coverages reveals a modicum of control.

Understanding what treatments cost and which alternatives exist are important, but so too is knowing where to turn if money is tight. It’s no secret that financial struggle can negatively impact health even in those who are seemingly healthy. To a cancer sufferer, balancing financial stress and health worries can affect their ultimate prognosis.

Options do exist for assistance – and knowing these options are available can be priceless to cancer sufferers in terms of their overall quality of life. Planning is key. Therefore, share guides like the one below with your employees. Entitled Cancer Costs: How to Manage Housing Expenses During Treatment, it gives those with cancer the information they need to make a plan for financial security throughout this journey.

One can emerge from the fight with cancer victorious – both healthwise and financially. Give employees the best chance for this outcome; supply them with helpful information.

Access the guide here: https://bit.ly/2tLA9RM

Prevention – Specifically, Against Colorectal Cancer

The spotlight this month is on this cancer, which affects mostly those over the age of 50. Though genetics can play a part in one’s development of this type of cancer, many of its risk factors are controllable. According to the American Cancer Society, smokers have a higher incidence than those who never light up. Physical inactivity and poor diet can also raise one’s risk profile; those who drink heavily are also at increased risk. For a detailed list of risk factors, visit https://bit.ly/2l6jAKF.

For more information regarding how you can educate and support your employees throughout their wellness journey, contact W3 Benefits and Wellness Strategist Trish Blocker at tblocker@w3ins.com or 727-522-7777 x173.