Navigating federal, state, and local COVID-19-related requirements for masking, vaccination, and testing is challenging to say the least. Employers, particularly in the healthcare industry, have to pay close attention to the latest developments to avoid issues and penalties related to noncompliance. Private employers in other industries have to consider legal matters as well. However, for the moment, these employers are afforded more freedom to develop their own policies and should consider what’s best for their employees, business, and circumstances.
Federal-Level Mask Mandates
All Americans are required to wear face coverings on all forms of public transportation until at least March 18, 2022; however, the Biden Administration could extend the mandate before it expires. The CDC also issues masking guidelines to local communities, which are based on the area’s hospitalizations, ICU bed occupancy rate, and new COVID cases. However, outside of the federal regulations, ultimately, whether, for whom, and how long face coverings will be mandatory is decided at the state and local level.
State-Level Mask Mandates in New England
Massachusetts – On February 15, 2022, Massachusetts public health officials issued updated guidance that encourages unvaccinated individuals and vaccinated persons with specific medical conditions, rather than everyone, to wear masks indoors. Excluding the situations outlined below, Massachusetts employers can create their own masking policies. In Massachusetts, masks are required for:
- riders and workers on public transportation
- patients, residents, staff, vendors, and visitors in
- health care facilities
- congregate care facilities, including
- nursing homes
- assisted living residences
- group homes
- residential treatment programs
- home health care workers
- guests, staff, vendors, and visitors of emergency shelter programs
- incarcerated persons, staff, vendors, and visitors of correctional facilities
- staff, visitors, vendors, and consumers of healthcare and day services programs operated, licensed, certified, regulated, or funded by the Commonwealth
Maine – Maine employers can create their own masking policies. The State of Maine adheres to CDC guidance and states that masks are required in all forms of public transportation, such as planes, buses, and trains.
Rhode Island – Rhode Island employers can create their own masking policies. On February 11, 2022, the State of Rhode Island announced an immediate end to the mask mandate for indoor spaces. The Executive Order requiring indoor masking in public K-12 schools remains in place through March 4, 2022.
Connecticut – Excluding the situations outlined below, Connecticut employers are permitted to create their own masking policies. All individuals who live, work, or attend school in the State of Connecticut are required to wear masks indoors, regardless of vaccination status, when inside of:
- public or non-public pre and K-12 schools
- homeless shelters and other temporary shelter operations
- healthcare settings, including
- outpatient clinics
- nursing homes
- assisted living services agencies
- doctors’ offices
- urgent care centers
- dental offices
- physical/occupational therapy offices
- chiropractic offices
- medical spas and blood-collection facilities
- clinical laboratories
- congregate living settings, including
- residential care homes
- group homes
New Hampshire – New Hampshire employers are permitted to create their own masking policies. On February 24, 2022, the New Hampshire Division of Public Health Services lifted its recommendation for universal face mask use. The State of New Hampshire encourages employers to follow CDC guidance.
Vermont – Excluding the situations outlined below, Vermont employers are permitted to create their own masking policies. In the State of Vermont, even if fully-vaccinated, everyone is required to wear a mask in:
- health care settings
- long-term care facilities
- on public transportation
Federal-Level Vaccine & Testing Requirements
Effective January 26, 2022, the Occupational and Safety Health Administration’s (OSHA) withdrew its Emergency Temporary Standard (ETS) that would require all private employers with more than 100 employees to implement policies requiring all unvaccinated workers to either get vaccinated or be tested on a weekly basis.
After OSHA issued the ETS, it went through a number of appeals. While the Fifth Circuit Court of Appeals in New Orleans put a stay on the ETS, the Sixth Circuit in Cincinnati reversed it. The Supreme Court stepped in and ruled 6-3 in favor of reinstating the stay, which means employers are no longer subject, for now, to comply with the ETS. OSHA is maintaining the ETS as a proposed rule, so it may resurface in the near future.
The Centers for Medicare and Medicaid Services (CMS) issued a vaccination mandate for all healthcare facilities receiving any federal Medicare or Medicaid funding, which also went through the appeals process. However, on January 7, 2022, the Supreme Court ruled in favor of keeping the CMS mandate in place. According to Phase I of the CMS mandate, as of February 14, 2022, all employees, practitioners, contractors, volunteers, and students of these healthcare employers should have either:
- received the first dose of the Pfizer vaccine,
- received the first dose of the Moderna vaccine,
- received the single dose of the Johnson & Johnson vaccine, OR
- sought medical or religious exemption, as appropriate.
We are now in Phase II of the CMS mandate. No later than March 15, 2022, unless exempt, all employees, practitioners, contractors, volunteers, and students of these healthcare employers should have completed a full round of the COVID-19 vaccine.
State-Level Vaccine & Testing Requirements for Healthcare Workers in New England
Massachusetts – Healthcare workers at long-term care facilities in Massachusetts were required to be fully vaccinated or regularly tested by October 10, 2021. As of February 28, 2022, the mandate also requires these workers to receive a booster. Healthcare workers affected by these mandates includes workers in:
- hospice programs
- long-term care facilities
- home care services
- assisted living residences
- certain agency facilities, such as Soldiers’ Homes
The MA Department of Public Health can take action against the license of any facility listed above in violation of the order. As of October 10, 2021, the Department may order those with fewer than 75% of personnel vaccinated against COVID-19 to stop accepting new admissions until the issue is corrected.
Maine – Healthcare workers in the State of Maine were required to be fully vaccinated by October 1, 2021. The State has adopted a “vaccination or termination” approach, so employers may terminate employees who do not comply. As a condition of their licensure, the following facilities must ensure all employees are vaccinated:
- multi-level health care facilities
- home health agencies
- nursing facilities
- residential care facilities
- intermediate care facilities for individuals with intellectual disabilities
- emergency medical service organizations
- dental practices
Rhode Island – Healthcare workers in the State of Rhode Island were required to be fully vaccinated by October 1, 2021. As of that date, healthcare facilities are not permitted to allow entrance to an unvaccinated worker unless the worker received a valid medical exemption. Exempt workers must wear a procedure mask or higher-grade mask while inside the facility and are required to be tested at least two times per week. Employees are responsible for getting tested; however, employers are responsible for tracking testing compliance. The RI Department of Health may take action against your license in the event of a violation.
Connecticut – For private employers in Connecticut, there is no vaccine mandate or ban; however, effective November 4, 2021, through April 15, 2022, state employees and contract workers in the healthcare industry, including state hospitals, state nursing homes, and other health care occupations are still required to be fully vaccinated, including a booster. State hospital staff and long-term care home employees must be vaccinated without exception; however, exempt employees of other healthcare facilities can be tested on a weekly basis.
Connecticut’s state employees in the healthcare industry must report their vaccination status or weekly testing using the State Employee COVID Navigator App. State contractors in the healthcare industry must ensure contract workers meet the requirements and are required to submit a monthly attestation through CTsource.
New Hampshire – There is no vaccine ban for private employers in New Hampshire, but the State has limitations on mandates. According to House Bill 220, effective as of July 23, 2021, the government may not compel any person to accept an immunization. New Hampshire has proposed House Bill 1604, which would strike down COVID-19 vaccine mandates for their county nursing homes and the state hospital. The bill passed the House on February 18, 2022, and is headed to the House Finance Committee.
Vermont – For private employers in Vermont, there is no vaccine mandate or ban. Effective September 15, 2021, all state employees in Vermont are required to be vaccinated or undergo weekly testing.
Vaccine Refusal & Unemployment Eligibility in New England
Massachusetts – According to the Commonwealth’s FAQ for Jobseekers, “Although the Department of Unemployment Assistance decides all unemployment claims on a case-by-case basis, as a general matter, employees who are separated from employment for failing or refusing to comply with an employer’s requirement that employees maintain COVID-19 vaccination will not be eligible to collect unemployment benefits.”
Maine – According to The Maine Department of Labor, in general, “refusing to comply with an employer’s policies, including a health or safety policy, typically disqualifies a person from being eligible to receive unemployment benefits.”
Connecticut – The Connecticut Department of Labor has not addressed the issue specifically. In general, to determine that a worker is ineligible based on a vaccine refusal, the CT DOL would have to determine the refusal caused the worker to: (1) leave voluntarily without good cause; (2) be discharged for misconduct; (3) refuse suitable work; or (4) lose employment due to a labor dispute.
Rhode Island – According to the State of Rhode Island’s FAQ on Vaccine Policy for Healthcare Workers, Providers and Facilities, “Employees likely are not due any unemployment checks, although each claim is evaluated on a case-by-case basis. Failing to comply with a clearly and timely articulated vaccine requirement would likely, in most cases, be considered a knowing violation of a reasonable employer policy, which could disqualify an individual from receiving unemployment insurance.”
Vermont – According to the Vermont Department of Labor, “If an employer follows the [State’s additional guidance] […], the Department is likely to find that an employee’s failure to follow a vaccine mandate is a willful decision made in disregard of the employer’s business interest. As such, […] an employee that is terminated for failure to comply with a vaccine mandate will not be eligible for UI benefits based on that separation.” In terms of “additional guidance,” Vermont employers are encouraged to include, in writing to employees, the vaccine requirement as a condition to perform work, as part of an employer’s required policies, and in the Employee Handbook, and to provide alternatives to employees who refuse or cannot get vaccinated.
New Hampshire – The New Hampshire Employment Security’s Employer Vaccine Mandate FAQs states the department “looks at whether the employer’s policy is reasonable and whether the mandate is intended to serve a legitimate business interest of the employer” and that “generally, employees that quit or are fired for refusing to comply with reasonable alternatives to a vaccination mandate, such as a facemask requirement, would not be eligible for unemployment benefits.” However, in their review, the department will “ensure the employer’s policy was applied reasonably, and considered requests for medical or religious accommodations.” And depending on the industry, the department may find an employee eligible for unemployment benefits if their employer required vaccination without offering any alternatives.
In addition, the House has proposed legislation that would grant a worker who was discharged, placed on leave, or given zero hours of billable time for refusing to comply with their employer’s vaccine mandate the right to:
- an additional six months of standard UI benefits (beyond the maximum duration or benefit amount), payable by the employer or NHES
- an expedited court hearing, which would occur within 14 days of filing a claim
- to recover court costs and legal fees incurred
Considerations for Private Employers in the Healthcare Industry
Employers in the healthcare industry have to pay close attention to developments in federal, state, and local laws and regulations. Changes in masking, vaccination, and testing requirements are occuring at a rapid-fire pace.
CMS estimates a per-employee cost of $125 associated with compliance to the federal mandate, including developing and implementing a vaccination policy, maintaining records, related compliance reporting, and vaccines. But the cost for healthcare providers will be less in actuality, as the vaccines themselves are paid for by the Federal Government. States and local municipalities may, at their discretion, allot available funds under the CARES Act and the American Rescue Plan Act of 2021 to help providers comply; however, CMS believes it will be unlikely, as they anticipate the financial strain on providers “to be negligible.”
State surveyors will oversee compliance based on guidance that CMS will issue in the near future. Employers that are cited for noncompliance may be subject to enforcement remedies imposed by CMS, such as civil money penalties, denial of payment for new admissions, or termination of the Medicare/Medicaid provider agreement.
Considerations for Private Employers in Other Industries
On the legal side of the matter, employers’ masking, vaccination, and testing policies must comply, first and foremost, with federal, state, and local laws. While OSHA’s ETS is on hold for the time being, any policies you implement still have to comply with other applicable federal laws. For example, you have to accommodate medical and religious exemptions as outlined in the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.
On the ethical side of the matter, employer’s need to consider how their masking, vaccination, and testing policies will affect each of their employees and even their customers, if applicable. You should make decisions based on what is best for your employees and your business’s specific circumstances. For example, strict policies may lead to a negative reaction from your employees or cause some of your workforce to separate voluntarily. Employees may be quicker to adopt policies that include alternative options, such as additional PPE, separate workspaces, or remote-working arrangements. And providing your employees with educational resources on how the vaccine works and its safety can help you encourage employees to get vaccinated.
Contact Commonwealth Payroll & HR
The professionals at Commonwealth Payroll & HR are here to help. We understand that navigating disparate federal, state, and local masking, vaccination, and testing requirements can be challenging. Our goal is to ensure you have the information you need to create and implement policies and procedures that are not only compliant but also best suited for your industry, business, employees, and patrons. If you have any questions, contact Commonwealth today.
*The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information is for general informational purposes only. Information in this article may not constitute the most up-to-date legal or other information. This article contains links to other third-party websites provided only for the convenience of the reader.