Can we require our employees to get an Influenza vaccination or a COVID-19 vaccination once one becomes available?
This question has been looming for EMS providers around the country as we enter the Flu season in the face of an existing global pandemic. While the COVID-19 vaccine is still being developed and approved, it is anticipated that one will be available later this year or early in 2021. Of course, the Flu vaccine is available now and the CDC suggests it is more important than ever that individuals get vaccinated than in prior years due to the pandemic.
The short answer to the mandatory vaccination requirement is likely, yes. However, the right of employers to require vaccinations is not unrestricted. Additionally, mandatory vaccination programs can be unpopular with employees and employers should be prepared for push-back from some of their workforce. We know that there is a segment of the population who are anti-vaxers or who, according to a recent Gallup survey, stated that they would not get a new COVID-19 vaccination.
As with many things in the employment law context, employers must develop a comprehensive approach to instituting a mandatory vaccination requirement for their workplace and workforce. EMS leaders should consult with the public health and legal professionals in their jurisdiction for guidance.
EMS employees, as healthcare providers, are at a greater risk of exposure than employees in other professions. As such, it is critical that EMS employers have a comprehensive workplace safety program, including vaccinating employees against illnesses such as the Flu and COVID-19. This is consistent with the recommendations of the Occupational Safety & Health Administration (OSHA) that all healthcare providers are vaccinated against illnesses such as influenza. As the availability of a COVID-19 vaccination nears, there are several criteria that EMS leaders should consider as they develop their workforce vaccination plan.
An important consideration is understanding and articulating the objective reasons that your organization is instituting a workplace vaccination plan. One important step is evaluating the various job positions at the company and documenting the position-based criteria that objectively justify requiring vaccination. The key is that the vaccination be job-related and consistent with business necessity.
Additionally, ensure that your occupational workplace safety policies establish the process and procedure for an employee to request an exception from mandatory vaccination and the process for evaluating the request. This information should be kept as confidential, consistent all other employee medical information. Lastly, the policy must include anti-retaliation protections, including a prospective plan for monitoring related workplace actions.
Under the law, employers can require all employees to be vaccinated against the Flu or COVID-19 but there are a few limitations. These limitations include employees who are protected under the Americans with Disabilities Act (ADA) or the religious protections afforded to employees under Title VII of the Civil Rights Act (Title VII). The Equal Employment Opportunity Commission, who enforces both Title VII and the ADA has issued guidance on this topic in 2009 which was recently updated to reflect the current guidance in light of the COVID-19 pandemic.
ADA Medical Conditions
First, employees who have an ADA protected disability may be able to decline vaccination as a reasonable accommodation provided that it doesn’t create an undue hardship or constitute a direct threat to others. Under the ADA, an undue hardship is one that involves great difficulty or expense. A direct threat is “a significant risk of substantial harm to the health and safety of the employee or others”. Upon learning that an employee is seeking an exclusion from the mandatory vaccination, the employer needs to engage the employee in the interactive process to determine if there is a reasonable accommodation that it can provide that meets the employer’s legal obligation to provide safe workplace.
The EEOC’s guidance, which was updated recently due to the COVID-19 pandemic, addresses the direct threat standard. In the guidance, the EEOC states that the assessments by both the CDC and other public health authorities determine that the COVID-19 pandemic meets the direct threat standard under both the ADA and Title VII. However, this does not eliminate or excuse the employer’s obligation to take each request on a case-by-case basis. It is important that your human resources professionals are involved in all employer activity related to instituting and applying a mandatory vaccination program.
Under Title VII, an employee may be able to decline a mandatory vaccination program on the basis that it is inconsistent with their protected religious principles. Similar to the ADA, an employer is obligated to engage employees, requesting exemptions from a mandatory vaccination program, in the interactive process to determine if there is a reasonable accommodation that can be afforded to the employee. Unlike the ADA, the undue hardship standard under Title VII is substantially lower and involves “more than a de minimis cost”, or would constitute a direct threat to others.
The important take-away for employers is recognizing that the organization must have a clearly defined policy, that is communicated meaningfully, and is consistently applied. The policy must clearly state the organizational reasons that the policy is being adopted and the harms the policy seeks to prevent. Also, that there is a clearly defined process for requesting an exemption and that all requests are handled in a consistent manner. Further employees must be engaged in the interactive process, and all related aspects documented sufficiently. This includes the final decision regarding any requested exemption from the vaccination program. It is strongly recommended that all aspects of this process are maintained in a log to ensure the consistent and comprehensive handling of these requests. Failure to maintain a log often leads to inconsistent results and opens the employers up to substantial liability.
In some states, like California and New York, employees may not be discriminated against due to their external lawful political activities. While this is unlikely to be the basis for an employee’s declination of participation in an occupational vaccination program, some anti-vaxers view this as a political position. Employers in these states should consult legal advice by a licensed attorney in their state who specializes in employment law.
Employers who are instituting a mandatory vaccination program should fund this program and provide the vaccination at no cost to the employee. Many employers often look to their employer sponsored health plan to cover the costs of vaccination. Employers should be aware of any cost sharing or deductible amounts that the employee may be responsible for and offer to cover that cost.
Additionally, many employers have contracted with outside vendors, or have worked with their healthcare partners, to provide employee vaccinations on-site. This will ensure that all barriers to employees receiving vaccinations are removed.
Summing It Up
Employers have been wrestling with occupational vaccination programs for years as the various global pandemics, such as SARS and H1N1. In past years, many employers have taken a passive role regarding vaccinations by merely recommending employee vaccinations. While sounding quite cliché, we are in an unprecedented time and employers can no longer take a passive role regarding employee vaccination programs. This is not our typical Flu season and the impacts of this year’s Flu will likely be accentuated due to the COVID-19 pandemic. We can expect a COVID-19 vaccine in the coming months and EMS employers should be prepared for the issues that will most certainly arise.
As always, be sure to contact us for assistance with this and any other challenge your organization encounters.
Over the last week, we have received several questions from AAA members about various COVID-19 impacts on EMS organizations. As the infection numbers around the country are on the rise, many new issues have arisen that are posing issues with many EMS employers.
What can I do when our employee voluntarily chooses to travel out of state and, due to state level travel orders which require mandatory quarantine for 14 days upon their return, the employee cannot work and is seeking to be paid emergency leave under the Families First Coronavirus Act (FFCRA) or take additional unpaid leave during the quarantine period?
As an employer, you have several options. One of the most important things to know is that your employee does have to abide by any federal, state, or local quarantine order. However, this does not mean that the employer is helpless in addressing this the issue of employee voluntary travel. The last few months have been incredibly trying on all of us, particularly those who are on the front lines battling the COVID-19 pandemic, it is understandable that employees are looking to take vacations out of state. While this is understandable, the employee is still making a decision that can impact their health and their employment, as well as, the health of their coworkers and patients.
Employer Option 1
As an EMS employer, the FFCRA specifically permitted EMS agencies the right to exclude emergency responders from the group of employees who are eligible to take emergency leave under the FFCRA. Despite this, many EMS employers have decided to provide their employees with emergency paid leave under the FFCRA. The employer can choose to pay the employee emergency leave under the FFCRA during the mandatory travel quarantine.
Employer Option 2
As stated in Option 1, the FFCRA specifically permitted EMS agencies the right to exclude emergency responders from the group of employees who are eligible to take emergency leave under the FFCRA. Most of those employers who have decided to provide emergency leave under the FFCRA, their intent was to provide the emergency leave to employees who, through no fault of their own, were exposed to COVID-19 and required to quarantine. However, an employer has the right to exclude some employees, such as those who decide to voluntarily travel outside state, and as a result, required to quarantine upon return. The key is to ensure that you have an established policy, it is applied consistently, and has been meaningfully communicated to your employees. This is the best practice for mitigating any discrimination or disparate treatment claims.
Employer Option 3
The employer can choose to discipline the employee for choosing to leave the state, despite the travel order. If an employee knowingly travels out of state, despite the existence of a mandatory travel quarantine order, the employer can discipline that employee for any quarantine related attendance issues. The employer cannot let that employee return to work unless they have abided by any travel orders. Several of the states who have issued orders, include an option to avoid a 14-day quarantine order if they have a negative COVID-19 test within three days of returning to their home state. Alternatively, they can end the 14-day quarantine period if they receive a negative test after returning to their home state.
Employer Best Practice
The best bet for employers is to contemplate the possible issues that could arise with your employees as a result of the local travel orders. Employers should draft a policy that delineates the work-related implications of employee travel. This policy should be communicated through multiple channels, and ideally, be acknowledged in writing by your employees. This will provide your employees with a clear understanding of the implications of deciding to travel out of state during the pandemic.
Several member organizations have asked what actions they can or should take when they learn that an employee has attended a COVID-19 party. These events, which defy logic, particularly for those of us who consider EMS, healthcare and EMS personnel, healthcare workers, are parties where uninfected people go to a party with known infected people to mingle and see who becomes infected.
Under the General Duty clause of the Occupational Health and Safety Act (OSHA), an employer has an obligation to provide a workplace which is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees”. This includes if an employer is aware that there are employees who are engaging in behavior that may create a workplace hazard, like attending events such as a COVID-19 party.
If an employer discovers that an employee has attended an event like a COVID-19 party or a large scale event where protective measures were not taken, such as mandatory mask wearing and social/physical distancing, the employer has a duty to investigate and take action. This would include requiring that the employee remain out of work for the recommended quarantine time or upon a negative COVID-19 test. The employer could pay for this test but is not required to. If the employee voluntarily took part in this event and the exposure was not work-related, they would not be obligated to pay for the COVID-19 test.
For the many reasons stated above, the employer has an obligation to the rest of its workforce to ensure that this potentially infected employee does not expose the rest of the workforce. The employer would be justified in addressing this issue through their disciplinary process. As is always recommended, I recommend that employers communicate with their employees to let them know that the choices they make outside of the workplace have implications inside the workplace. While this should be obvious to our employees, not all operate by the same playbook.
Employers should be aware that there are state laws that limit the level at which an employer can dictate an employee’s “off duty” time. For example, an employer in New York cannot take work action against an employee for their personnel time political activities. However, an employer may address the employee if that off duty conduct involves their employee’s failure to be safe by wearing a mask and maintaining social/physical distancing while attending a political event or political-based protest. As previously mentioned, employers have obligation to provide a workplace that is free from “recognized hazards”.
Employer Best Practice
I recommend that employers consult with their local attorneys if they faced with taking work-related action for an employee’s off duty conduct if they are in a state with off duty conduct laws. The best way to ensure you protect your workforce is to ensure that the organization has a comprehensive policy and procedure manual that is updated every year. Additionally, all employees, including supervisory personnel, should sign an acknowledgement annually. Lastly, it is recommended that the organization highlight a few policies throughout the year. Specifically, I recommend that organizations log all incidents, complaints, and discipline to permit trending of workplace activity which suggest which policies and procedures need to be highlighted.
The Department of Health and Human Services (HHS) released guidance today intended to ensure that any healthcare provider who has received financial assistance, especially during the COVID-19 pandemic, are compliant with the non-discrimination provisions of Title VI of the Civil Rights Act of 1964. Consistent with the Affordable Care Act Section 1557’s non-discrimination provisions, Title VI ensures that no individual is denied access to benefits or otherwise discriminated against on the basis of race, color, national origin, disability, age, or sex.
HHS’ Office of Civil Rights (OCR) released this guidance to remind healthcare providers that Title VI prohibits both intentional and disproportionate or adverse impact discrimination. Additionally, HHS is collecting nationwide data to identify the social, behavioral, and economic impacts on health disparities and vulnerable populations specific to the COVID-19 pandemic response. The guidance specifically mentions ambulance service providers and suggests that they should:
Most EMS agencies already maintain an ACA Section 1557 Compliance Coordinator and have a Grievance Procedure for those who believe that they have been discriminated against in the provision of EMS mobile healthcare services. It is recommended that EMS agencies review their current practices, as well as, their response coverage, times, and care provided in all the areas that they serve. Further, I recommend that these efforts are documented and, if disparities are identified, a plan of correction is drafted, executed, and monitored, to ensure compliance.
The Centers for Disease Control (CDC) released updated Interim Guidance for Emergency Medical Services (EMS) Systems and 911 Public Safety Answer Points/Emergency Communication Center (PSAP/ECCs) in the United States During the Coronavirus Disease (COVID-19) Pandemic. The new twelve (12) page guidance is geared specifically for EMS and first responding agencies in response to the COVID-19 pandemic. This is a summary of the highlights from the Interim Guidance and services are encouraged to review the document with your leadership team as this guidance impacts multiple aspects within an EMS organization.
The CDC recommends that EMS agencies use additional infection prevention and control practices during the pandemic. These practices are intended to augment your organization’s standard infection control practices with COVID-19 specific protective measures. The recommendations include:
911 PSAPs Modified Call Queries
CDC recommends the development of modified caller queries to be developed in collaboration with your local state public health officials and your medical director. The modified caller queries are geared towards identifying if the call concerns an individual who may have COVID-19 symptoms. Additionally, the recommendations include pre-arrival instructions to include facial coverings, if patient condition permits, and communications with responding units to take the appropriate precautions.
The CDC identified numerous requirements for EMS Employers including:
Screen all EMS Personnel for Signs or Symptoms of COVID-19 at the Start of Each Shift
The Interim Guidance calls for screening of all EMS personnel and visitors for symptoms consistent with COVID-19. This screening should include active temperature screening and inquiring if they have been advised to quarantine due to exposure. The guidance suggests restricting workplace access.
Assess all patients for COVID-19 Infection
EMS personnel should don the appropriate PPE when encountering patients, specifically those suspected of being infected with the virus. The guidance suggests social distancing when possible and limiting how many providers make contact with the patient. When appropriate, all patients should have the appropriate facial covering, this includes any family members or other persons accompanying the patient at the scene.
Encourage Physical Distancing
The CDC recommends limiting the number of EMS providers that accompany the patient in the ambulance patient compartment and suggests closing any walkthrough access to the driver’s compartment. The guidance also suggests limiting or prohibiting family members from accompanying the patient in the ambulance. The guidance also suggests that physical distancing be enforced in all workspaces, including break or eating areas where employees are going to be unmasked.
Implement Universal Use of Personal Protective Equipment
The CDC recommends that EMS personnel working in areas with moderate to substantial community transmission wear an N95 or equivalent or greater level respirator and eye protection. For EMS personnel working in low transmission areas, the CDC recommends that N95 and eye protection are optional but that personnel should continue to follow the Standard and Transmission-Based Precautions based on any anticipated or suspected exposures.
Create a Process to Address to COVID-19 Exposures Among EMS Personnel & Others
The CDC recommends EMS agencies develop a process for notifying the health department about suspected or confirmed cases of COVID-19 and that each should develop a plan for investigating exposures. This includes identifying:
The CDC guidance also includes recommendations for the Personal Protective Equipment (PPE) that EMS personnel caring for suspected or confirmed COVID-19 infection should adhere to. This includes:
The guidance includes a warning regarding EMS personnel performing Aerosol-Generating Procedures.
Lastly, the CDC Interim Guidance included recommended actions when EMS personnel are transporting a patient who is suspected or confirmed to be infected with COVID-19. It is recommended that the EMS crew notify the receiving healthcare facility prior to arrival to permit them to take the necessary precautions. Additionally, the guidance suggests the following:
The patient care record should include documentation of a listing of all EMS personnel and public safety provided involved in the response, the level of contact with the patient, and if PPE was worn.
The guidance includes additional information which includes guidelines for cleaning and maintaining EMS vehicles and equipment following the transport.
The updated CDC Interim Guidance included practices that most EMS organizations and personnel are practicing currently and have been since the outset of this pandemic. However, it serves are an important reminder that the risks are very real and that EMS personnel must remain vigilant in their practices to ensure the safety of all individuals.
The American Ambulance Association recommends that you begin closely tracking all visitors to your facilities in order to facilitate COVID-19 contact tracing in the future, if needed. In addition to a sign-in log, you may wish to present all visitors with a business card listing contact information for your infection control officer. These cards make it easy for visitors to get in touch if they develop symptoms soon after entering your building. Moore EMS Consulting kindly developed these templates for your use:
On June 12, 2020, the Office of Civil Rights (OCR) of the Department of Health and Human Services (HHS) published the long-awaited final rule which significantly changes several of the anti-discrimination provisions of Section 1557 of the Affordable Care Act. The final rule, which is a departure from the agency’s previous interpretation of the rules which were enacted 2016 during the Obama administration. Since, the enactment of the 2016 rules, there have been numerous legal challenges to these provisions in federal court. HHS believes that these final rules will reduce or eliminate provisions that they state were ineffective, unnecessary, and confusing and will save roughly covered entities roughly $2.9 billion in costs.
2016 Section 1557 Requirements
Section 1557 of the ACA were the anti-discrimination provisions geared at ensuring all individuals had access to essential benefits. When originally released in 2016, the Section 1557 rules prohibited discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities, including discrimination on the basis of pregnancy, gender identity, and sex stereotyping. The 2016 Rule also required that covered entities:
2020 Section 1557 Final Rule
The Final Rule eliminated several key provisions of the 2016 Rule. The provisions that were eliminated included:
In addition to eliminating certain provisions, the final rule also relaxed the requirements relative to providing meaningful access to interpreter services for individuals with Limited English Proficiency (LEP). Under the 2016 rule, the agency assessed compliance with the meaningful access requirement by whether a covered entity established and implemented a Language Access Plan. This included providing access to interpreter services to individuals with LEP. The 2020 final rule requires covered entities only make “reasonable efforts” to ensure meaningful access to aides and services for individuals with LEP. However, the final rule does not change the requirements for meaningful access for individuals with disabilities or communication related disabilities.
The Bottom Line for EMS Providers
When the 2016 Section 1557 rule was enacted, the AAA sought guidance from OCR due to what we perceived to be compliance challenges for mobile-based healthcare providers. Our concerns were related to how mobile-based healthcare providers can ensure that the public and the patients we serve receive adequate notice of the protections afforded under Section 1557. As is often the case, when new regulations are enacted, they are enacted for standard “brick and mortar” healthcare providers, not ambulance services. At the time, our guidance was to post the required notices and taglines on your organization’s website and in the patient signature areas of your patient care report.
From a practical perspective, the enactment of this final rule will have limited impact for ambulance providers. Presuming an ambulance service’s compliance with the provisions of the 2016 rule, member companies can decide if they wish to eliminate their existing Compliance Coordinator position and Grievance Procedure. However, OCR still requires a covered entity to have written process for handling discrimination complaints. Therefore, it may be beneficial to simply maintain the 2016 requirements to ensure you can demonstrate compliance.
One welcome change is the elimination of the need to include the Section 1557 non-discrimination notices and taglines in every “substantial communication” with individuals. Many members voiced that they incurred a significant expense mailing the nondiscrimination notice and tagline requirements in every invoice or patient communication. This often added several additional pages to all patient communications which increased printing and postage costs substantially. Our recommendation is for ambulance providers to continue to make the non-discrimination notices and taglines available on your organizational website and in any electronic communications as these mediums do not significantly increase costs.
OCR has numerous compliance assistance documents on their website. Additionally, members can contact the AAA for assistance with these regulatory changes.
The Equal Employment Opportunity Commission (EEOC) issued updated guidance yesterday titled, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws yesterday. The updated guidance addresses employers who wish to require employees to have a COVID-19 antibody tests prior to re-entering the workplace. The guidance consists of seventeen pages of Frequently Asked Questions (FAQ) to assist employers as they navigate this truly unprecedented time for employers and employees during a pandemic.
The updated guidance alerts employers that they may not require employees to undergo COVID-19 antibody testing as this would constitute an unlawful “medical examination” under the Americans with Disabilities Act (ADA). Under the ADA, employers are limited in the medical related inquiries that they can make of employees. Medical related inquiries can be considered a Medical Examination and are strictly regulated under the ADA and the Rehabilitation Act. Under the ADA, an employer “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 29 CFR § 1630.14. The reason certain medical examinations are prohibited is due to the likelihood that the examination may identify medical conditions that constitute a protected disability under the ADA.
The EEOC has issued previous guidance that permits COVID-19 viral testing in the employment setting. The distinction between the antibody test and the viral test is the presence of active virus and the obligation of employers to provide a workplace that is free from known hazards. The viral tests are generally administered prior to the employee entering the workplace and are considered “job related and consistent with business necessity.” Additionally, employers may take the body temperatures of employees as they enter the workplace and at intervals during their shift. However, employers must be aware that some individuals with COVID-19 are asymptomatic and may not have an elevated body temperature. Additionally, the records related to taking employee temperatures are confidential and should be maintained with other employee medical records.
The best practice for employers, have a documented plan. Ensure that all employees understand their role in controlling the spread of the virus.
Be sure employees:
If you have questions or your organization needs assistance in determining if you have the appropriate safeguards in place, be sure to reach out to the AAA for help.
Yesterday, the U.S. Supreme Court issued a decision that settles the greatly contested issue of whether Title VII of the Civil Rights Act’s protection against discrimination on the basis of sex, includes sexual orientation and gender identity. The ruling stems from three cases, Altitude Express Inc. v. Zarda, Barstock v. Clayton County, Georgia, in which the plaintiffs were terminated following their employer learning that each were gay, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, where the plaintiff was terminated after she informed her employer that she was going to undergo gender reassignment surgery.
The decision, which was written by Judge Gorsuch essentially states that one cannot discriminate against an individual on the basis of their being gay or transgender and not offend Title VII’s prohibition on sex-based discrimination. This ruling settles years of contradictory administrative interpretations and enforcement of sex-based discrimination under Title VII. While most states have settled this issue by enacting state-level prohibitions on discrimination on the basis of sexual orientation or gender identity, this definitively ensures the protections of entire classes of individuals who were previously unprotected by the law.
Employer are encouraged to revisit all policies, procedures, and practices to ensure that they are compliant with the U.S. Supreme Court ruling. As always, members are encouraged to contact the American Ambulance Association to obtain compliance assistance.
The Occupational Health and Safety Administration (OSHA) released an update to their COVID-19 Frequently Asked Questions (FAQs) regarding facial coverings as many work place begin to return workers to the office. For most of our member companies, they are well aware of the guidelines issued by OSHA regarding the use of Respirators such as the N95. However, as many EMS agencies begin to return employers to the office, OSHA has released guidance regarding the use of cloth face coverings, surgical masks, and respirators. Under OSHA, employers are required to provide a safe workplace under the General Duty Clause. This includes ensuring that employees are wearing facial coverings and maintaining social distancing when in the office environment. The newly updated FAQs provides the latest recommendations for employers regarding the best practices with regard to facial coverings.
As always, member companies can reach out to the AAA and its consultants for assistance with any human resources or compliance questions.
This week, OSHA published revised guidance for employers on when they need to record the illness, of an employee who has contracted the Coronavirus, as a work-related illness for the purposes of OSHA’s work illness and injury recordkeeping requirements. Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness if:
Given the rate of infection and the ease with which the virus is transmitted, employers have found it particularly challenging to determine if an employee, who is diagnosed with COVID-19, contracted the virus at work. In making that determination, employers must make a “reasonable determination” of work-relatedness. In this guidance, OSHA outlines the criteria that Compliance Safety and Health Officers (CSHOs) will utilize to evaluate if the employer met the “reasonable determination”, as required by the Regulations. Those criteria include:
The guidance highlights that employers can make limited inquires to employees about their exposure provided they respect the employee’s privacy and keep the medical inquiries limited to the COVID-19 transmission factors. Additionally, the guidance provides some examples of the types of evidence an employer may consider in making a work-relatedness determination. These include if the employee has come in contact or worked in close proximity with an individual who has a confirmed diagnosis of COVID-19 or employees who have frequent contact with the public. However, employers can also consider if an employee has or had close contact outside of work with a family member or close friend who has a confirmed cased. In that instance, it may suggest that the illness is not work-related.
After conducting a reasonable investigation about work-relatedness, if the employer cannot make the determination that the employee’s illness is work-related, then they are not required to record the illness under OSHA’s recordkeeping requirements.
If you require assistance with this guidance or any other human resources or compliance matters, be sure to contact the AAA for assistance.
Recently there have been several states where legislative efforts have been filed or legislation passed related to the provision of Hazard Pay for front line healthcare and public safety workers. In addition, there are suggestions that the next federal stimulus package may include provisions for hazard pay for those responding to this pandemic. While this financial relief would be incredibly helpful to those working on front lines, there are important considerations for employers to understand as they implement these pay measures.
Hazard Pay or premium pay is broadly defined as compensation paid to an employee for performing hazardous duty or work involving physical hardship. This can include work duty that causes extreme physical discomfort and distress which is not adequately alleviated by protective devices. The Fair Labor Standards Act (FLSA) does not directly address Hazard Pay. However, it is important for employers to know that the payment of Hazard Pay will impact the calculation of an employee’s regular rate of pay and the corresponding overtime compensation. As many EMS employers are already aware, the payments of differentials, incentive pay, or other premium compensation require a special “weighted” average overtime calculation. The United States Department of Labor provides a Fact Sheet which details how an employer must calculate an employee’s overtime when certain additional compensation, including Hazard Pay, is included.
We recognize that many EMS agencies are already aware of the impact different premium pays, such as shift differentials or bonuses have on an employee’s wage calculation. It is important that EMS employers know that amounts paid as Hazard Pay must be handled similarly. If your organization utilizes a payroll service, often they can provide assistance to ensure the calculation is accurate. I suggest strongly that you perform a random audit to ensure that the payroll software platform is calculating the wages correctly.
Please be sure to contact the American Ambulance Association if you have questions or need further clarification regarding compliant Hazard Pay practices.
As you begin the process of returning employees to their usual on-campus workspace, be sure to consider all angles and implications of a returning workforce. It can be helpful to create a Re-Entry Task Force as part of this process. Including representatives from all areas of your business ensures needs, concerns, and challenges are identified and considered as decisions are made and re-entry processes begin. A suggested list of departments/partners to include:
As you work with your task force to determine who, when, and how to return employees to their usual on-campus workspace, it may be helpful to work through an analyze of each position. We suggest using the SWOT analysis tool as you determine which positions should return, when or how the position might change to better meet the needs of your organization. Below is a sample table with some example considerations.
This toolkit is intended for use by EMS organizations to facilitate the implementation and management of
the emergency paid leave provided under the Families First Coronavirus Response Act (FFCRA). The individual forms included in the toolkit are templated, and members are encouraged to add their own logo.
If you are a member of the Association and have a question regarding Human Resources or Operations, please use the form below to contact Scott Moore, Esq.
Families First Coronavirus Response Act (FFCRA) Summary of Temporary Final Regulations
Amount of Pay
Reinstatement/Return to Work
Amount of Hours & Pay
Private Employers Under 500 Employees
Public Agency Employers (State Gov & Political Subdivision) 1 or more employees
Determination of Employer Size:
Employer Exemption Under 50 Employees
Permitted if imposition would jeopardize the viability of the business if:
Employer Documentation for Exemption
Employer must document facts and circumstances that meet criteria of “ongoing business concern”
Exceptions to Providing Leave
Employee need for leave must include:
Employee need for leave must include:
Employer must retain all documentation for a period of four (4) years following the request for leave.
Interaction with Leave Under Traditional FMLA and Emergency Paid FMLA
Employers cannot retaliate or discrimination against an employee who has requested or taken leave under EPFMLA or EPSLA