Author: Scott Moore

Scott A. Moore, Esq. has been in the emergency medical services field for over 26 years. Scott has held various executive positions at several ambulance services in Massachusetts. Scott is a licensed attorney, specializing in Human Resource, employment and labor law, employee benefits, and corporate compliance matters. Scott has a certification as a Professional in Human Resources (PHR) and was the Co-Chair of the Education Committee for the American Ambulance Association (AAA) for several years. In addition, Scott is a Site Reviewer for the Commission on the Accreditation of Ambulance Services (CAAS). Scott earned his Bachelor’s Degree in Psychology from Salem State College and his Juris Doctor from Suffolk University Law School. Scott maintains his EMT and still works actively in the field as a call-firefighter/EMT in his hometown. Scott is a member of the American Bar Association, the Massachusetts Bar Association, the Society for Human Resource Management, and the Northeast Human Resource Association.

Requiring Vaccinations in EMS

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.

 Workplace Safety

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.

  Legal Considerations

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.

 Religious Accommodations

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.

 Political Protections

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.

 Funding Vaccinations

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.

COVID-19 employee Travel FAQ

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.

  1. Travel Orders

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.

  1. COVID-19 Parties

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.

Option 1

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.

Option 2

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.

HHS Non-discrimination During COVID-19 Guidelines

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:

  • Adopt policies to prevent and address harassment or unlawful discrimination;
  • Evaluate existing policies and procedures to ensure that their service delivery does not exclude or otherwise deny individuals based upon their belonging to a protected category;
  • Ensure that individuals are not subject to excessive wait times based upon their racial or ethnic minority group;
  • Provide services to all neighborhoods and individuals regardless of their race, color, or national origin;
  • Appoint individuals to planning or advisory bodies without regard to race, color, or national origin;
  • Provide culturally appropriate messaging to individuals with Limited English Proficiency (LEP)

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.

Updated Interim CDC Guidance for EMS Services

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.

1) Infection Prevention & Control (IPC) Practices

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.

2) Recommendations for EMS Personnel

The CDC identified numerous requirements for EMS Employers including:

  1. Development of IPC policies and procedures for safely donning and doffing PPE
  2. Job-specific education and training on preventing the transmission of infectious disease
  3. Employee training for the appropriate use of PPE, including OSHA required Fit testing
  4. EMS units must have adequate supplies of hand sanitizer, cleaning supplies, and disinfectants
  5. Require all employee to wear facial coverings when in the workplace, at all times. This includes breakrooms, day rooms, etc.
  6. Encourage employees not to change facial covers unless absolutely necessary to reduce exposure.

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:

  • An individual who is responsible identifying and notifying potentially exposed individuals.
  • How notifications will occur
  • The actions and follow-up required.

3) Recommend IPC practices when caring for a patient with suspected or confirmed COVID-19 infection

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:

  • Hand Hygiene
  • PPE Training
  • PPE Equipment, including:
    • Respirator or Facemask
    • Eye Protection
    • Gloves
    • Gowns

The guidance includes a warning regarding EMS personnel performing Aerosol-Generating Procedures.

4) EMS Transport of a Patient with Suspected or Confirmed COVID-19 Infection to a Healthcare Facility (Including Interfacility Transport)

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:

  • Document Patient Care

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.

  • Cleaning EMS Transport Vehicles after Transporting a Patient with Suspected or Confirmed COVID-19 Infection.

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.

COVID-19 Contact Tracing Card Template

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:

 

Final Rule for ACA Section 1557

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:

  • Establish a written Grievance Procedure.
  • Identify and maintain a Compliance Coordinator.
  • Publish non-discrimination notices in the top 15 languages spoken in the covered entity’s state.
  • Publish taglines informing individuals of the availability of aides and services in the top 15 languages spoken in the covered entity’s state.
  • Make available assistance for individuals with Limited English Proficiency (LEP) and those with disabilities, including communications related disabilities.
  • Include the mailing of non-discrimination notices and taglines in every “substantial communication” with individuals.
  • Included non-discrimination protections for individuals “on the basis sex” which was interpreted by OCR to include gender identity, sexual orientation, and termination of pregnancy.

2020 Section 1557 Final Rule

The Final Rule eliminated several key provisions of the 2016 Rule. The provisions that were eliminated included:

  • Discrimination protections for individuals “on the basis of sex”
  • Specific non-discrimination provisions “on the basis of sex”, including gender identity, sexual orientation, and termination of pregnancy.
  • Written Grievance Procedure.
  • Compliance Coordinator.
  • Publishing of non-discrimination notices in top 15 languages informing individuals of aides and services for individuals with Limited English Proficiency (LEP).
  • Publishing of taglines in top 15 languages informing individuals of aides and services for individuals with Limited English Proficiency (LEP).

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.

Compliance Assistance

OCR has numerous compliance assistance documents on their website.  Additionally, members can contact the AAA for assistance with these regulatory changes.

EEOC Guidance on COVID-19 Antibody Testing

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:

  1. Monitor their own temperature and COVID-19 symptoms.
  2. Wear a face covering and practice social distancing, even in the workplace to the extent it is possible.
  3. Frequently wash their hands
  4. Stay home if they are sick or display symptoms;
  5. Let their employer know if they have a family member or significant other who has COVID-19 or is displaying symptoms.
  6. Regularly clean and disinfect any equipment they utilize, before, during, and at the conclusion of their workday.

Employers should:

  1. Be sure to provide employees with COVID-19 education.
  2. Place signage in the workplace to remind employees and visitors to wear facial coverings and maintain social distancing.
  3. Provide disposable face coverings for anyone entering the building who does not have a mask.
  4. Maintain a log of all individuals, employees or visitors, who enter the building. The log should include their name, organization, and a method of contact.
  5. Provide all visitors with contact information should they become ill or exhibit symptoms in the 14 days following a visit to your workplace.
  6. Limit meetings or gatherings of employees.
  7. If administering employee temperatures
    1. Communicate the process to employees
    2. Establish what temperature will be considered too high for working (CDC considers a fever to be at least 100.4 F)
    3. Ensure all individuals are wearing face masks and social distancing, to the extent possible
    4. If employer requires temperature taking, be sure that the time employees spend associated with this procedure is tracked and compensated.
    5. As stated previously, maintain records confidentially

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.

USSC Upholds Equal Protection for Victims of Sex-Based Discrimination

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.

OSHA: Facial Coverings and Returning to Work

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.

OSHA | Revised Enforcement Guidance for COVID-19

OSHA Issues Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)

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:

  1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
  2.  The case is work-related as defined by 29 CFR § 1904.5; and
  3.  The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

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:

  1. The reasonableness of the employer’s investigation into work-relatedness
  2. The evidence available to the employer at the time of the work-relatedness determination
  3. The evidence that the illness was contracted at work

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.

Compliant Hazard Pay Practices

MEMBER ADVISORY

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.

COVID-19 Continuity of Operations Checklist

Download as PDF

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:

  •  Operations
  • Communications
  • Patient Billing Services
  • Education & Training
  • Fleet & Facilities Maintenance
  • Human Resources
  • Information Technology (IT/IS)
  • Safety & Risk (OSHA, compliance, HIPAA)
  •  Legal
  • Human Resources/Workforce

Position Analysis

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.

Sample considerations:

  • Productivity:
    • Has productivity for any position/employee increased or decreased while working off-site?
    • Is it possible to maintain on-site productivity with a staggered re-entry plan?
    • Is it possible to maintain on-site productivity and return employees to on campus workspaces with staggered shifts?
  • Cost:
    • Has the cost of any position/employee increased or decreased while working off-site? (IT support, supplies, lost productivity, time off, etc.)
    • Will the cost of maintaining a sanitary workspace for returning employees be cost prohibitive for our organization?
    • Are necessary cleaning products and equipment available?
  • Technology:
    • Do we have the necessary technology for employees to reasonably work off-site while
      maintaining information security, communication, etc.?
    • Do we have the IT support available to troubleshoot any issues?
  • Physical Space:
    • Have we reviewed the CDC’s Guidance on Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes
    • Is our office/building set up in a way that we can return people to work while practicing
      recommended social distancing measures?
    • Will we need to install any physical barriers, hands-free door systems, or other otherwise
      reconfigure our office layout as employees return to campus?
    • Do we need to install handwashing, physical distancing signs throughout our facility?
    • Have all physical spaces been disinfected, and is there a schedule to maintain a clean and
      sanitary environment?
  • Equipment:
    • Do we have enough equipment so that we can limit shared equipment use between staff, or
      are we able to limit equipment use to certain staff only? (i.e. copiers, fax machines, phones, etc.)
    • If implementing a staggered shift arrangement or office/work from home plan, is there sufficient equipment to ensure functionality and productivity?
    • Do we have possession of or access to all necessary PPE for employees returning to an on-campus workspace? (i.e. face coverings/masks)
    • Fleet & Facility Maintenance
    • Do we have the necessary supplies to keep our non-clinical fleet vehicles clean and disinfected?
    • Do we need to change air filters, etc. to reduce exposure and cross contamination in the building?
    • If we added new chemical disinfectants, are the MSDS sheets in present, up to date, and
      accessible for all employees?
    • Have all employees responsible for using chemical disinfectants been trained proper use to
      avoid injury?
  • Mental Health & Wellness
    • What is the cost of continuing a remote workforce? Are there mental health resources available to them through health insurance, employee assistance programs, or other wellness programs?
    • Is it feasible to have regular check-ins with employees to ensure they are coping with
      increased stress, lack of childcare, and change of workplace structure?
    • As employees return to on-campus workspaces, do we need to implement temperature screenings upon arrival?
    • Continue to work off-site requests
    • Some employees may request to continue working off-site. Is there a process in place to screen and evaluate those requests?

Resources

Guidance on Preparing Workplaces for COVID-19
CDC Guidance on Cleaning and Disinfecting Your Facility
World Health Organization Getting your workplace ready for COVID-19

FFCRA EMS Emergency Paid Leave Toolkit

FFCRA EMS Emergency Paid Leave Toolkit

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.

Individual Forms:

 

 

DOL: Paid Leave Under the FFCRA

The Department of Labor has issued its 124-page temporary rule on Paid Leave under Families First Coronavirus Response Act. View the full PDF.

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.

  • Please briefly summarize your question. Do not include any confidential patient or employee data in this form.
  • I authorize the American Ambulance Association (AAA) to share the inquiry above with their trusted human resources legal expert.
  • This field is for validation purposes and should be left unchanged.

FFCRA Summary of Temporary Final Regulations

Families First Coronavirus Response Act (FFCRA) Summary of Temporary Final Regulations

Emergency Paid Family and Medical Leave Act (EPFMLA)

  • Cannot Work or Telework
  • Up to 12 weeks of job-protected leave Care for child due to school closure, childcare unavailable due to coronavirus

Eligible Employees

  • All employees on payroll for 30 days or more

Amount of Pay

  • After first 10 days, receive no less than 2/3 employee regular rate of pay.
  • Not to exceed $200 per day, $10,000 in the aggregate

Reinstatement/Return to Work

  • Must reinstate to same or equivalent position
  • Unless position was eliminated

Emergency Paid Sick Leave Act (EPSLA)

  • Cannot Work or Telework due to:
      • Quarantine, advised to self-quarantine, seek diagnosis, preventative care or diagnosis for coronavirus (Quarantine order includes orders that advise citizens to shelter in place, stay at home, otherwise restrict their mobility)
      • Caring for an individual who subject to quarantine or isolation order or advised to self-quarantine

Eligible Employees

  • All Employees

Amount of Hours & Pay

  • Full-time employees entitled to 80 hours (14 days)
  • Part-Time entitled to average number of hours employee is scheduled per day over six-month period.
    • Full pay, not to exceed $511 per day, $5,110 in the aggregate for employee Quarantine, self-quarantine, or preventative care or diagnosis
    • 2/3 pay, not to exceed $200 per day, $2,000

Covered Employers             

Private Employers                                                                                   Under 500 Employees

Public Agency Employers (State Gov & Political Subdivision)                1 or more employees

Determination of Employer Size:

  • Made at the time of each leave request
  • May vary depending upon time of request

Employer Exemption                                                                                   Under 50 Employees

Permitted if imposition would jeopardize the viability of the business if:

  1. Leave would result in expense and financial obligation exceeding available revenues and cause business to cease operating at minimal capacity
  2. Absence of employee or employees requesting leave would entail “substantial risk to financial health or operational capabilities of business due to specialized kills, knowledge, or responsibilities; or
  3. Not enough workers available to keep labor sufficient to operate at minimal capacity

Employer Documentation for Exemption

Employer must document facts and circumstances that meet criteria of “ongoing business concern”

Exceptions to Providing Leave

  1. Employers of Health Care Providers
  2. Employers of Emergency Responders (Includes EMT, EMTP, Dispatchers, “those individuals whose work is necessary to maintain the operation of the facility”)

Intermittent Leave

  • Mutual Agreement of Employer and Employee
  • If for employee symptoms or diagnosis of COVID-19 must take all sick leave

Healthcare Benefits

  • Employer must maintain all health benefits during EPFMLA and EPSLA
  • Employer may make regular employee premium deductions from paid EPFMLA and EPSLA

Postings

Employee Notice of Need for Leave

  • Employer may require employee to follow notice procedures of need for leave as soon as practicable.
  • Notice may be oral, but employer must maintain documentation supporting need and eligible reason for leave.
  • May not be required in advance of first workday employee takes EPFMLA or EPSLA

Employee Documentation

Emergency Paid Family & Medical Leave (EPFMLA)

Employee need for leave must include:

  • Employee Name
  • Date Leave Requested
  • Type of Leave Requested
  • COVID-19 Qualifying Reason
  • Statement that employee is unable to work or telework
  • If for caring for child whose school or childcare is closed due to COVID-19 must provide:
    • Name of child
    • Name of school or childcare that is closed
    • Representation that no other suitable person will be caring for child during period of leave.

Emergency Paid Sick Leave Act (EPSLA)

Employee need for leave must include:

  • Employee Name
  • Date Leave Requested
  • Type of Leave Requested
  • COVID-19 Qualifying Reason
  • Statement that employee is unable to work or telework
  • If for quarantine or isolation order, name of government entity that issued order
  • If for COVID-19 qualifying reason, name of health care provider who advised to self-quarantine.
  • If for caring for child whose school or childcare is closed due to COVID-19 must provide:
    • Name of child
    • Name of school or childcare that is closed
    • Representation that no other suitable person will be caring for child during period of leave.

 

Recordkeeping

Employer must retain all documentation for a period of four (4) years following the request for leave.

Documentation for:

  1. Approved or denied leave
  2. Oral statements provided by employee to support leave
  3. Denial due to exemption for employers of under 50 employees
  4. To support tax credit for any leave taken under act, including employee eligibility and amount
  5. To support credit for qualified health plan expenses
  6. Copies of completed IRS Form 7200
  7. Copies of completed IRS Form 941

 

Interaction with Leave Under Traditional FMLA and Emergency Paid FMLA

  • Total of 12 Weeks of leave between both
  • Employee who has already exhausted 12 weeks of traditional FMLA is not entitled to additional EPFMLA
  • Amount of EPFMLA is offset by any leave previously taken in FMLA year.
  • Amount of traditional FMLA is offset by any leave previously taken under EPFMLA

 

Non-Retaliation/Non-Discrimination

Employers cannot retaliate or discrimination against an employee who has requested or taken leave under EPFMLA or EPSLA