Month: May 2021

The question is whether an employee is entitled to hourly compensation or over time for the periods in which he goes to his/her workers’ compensation doctor for consultation or treatment. This is laid out federally through the Code of Federal Regulations as follows:

§ 785.43 Medical attention.

Time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee‘s normal working hours on days when he is working constitutes hours worked.

In many cases, we can rule out medical attention at the premises, as most employees gos off-site for treatment.

But is the off-site treatment at the direction of the employer? The employer is typically aware of the workers compensation claim and the need for treatment. In fact, the employer may encourage employees to receive workers compensation benefits for job-related activities. This does not mean the employer is directing the employee to make the appointments on specific days or specific hours. They are simply allowing or acknowledging it.

In fact, the appointments are by and between the employee and the doctor who does the scheduling. If anything, it is at the direction of the doctor.

As such, the employee must clock in and out and cannot be paid for these visits under those circumstances. That employee would be entitled to use PTO for those hours.

Notice the difference if the employer directs the employee to seek medical attention. An example would be an annual medical examination for fitness. Another example is if there has been an accident and a reasonable suspicion of intoxication, requiring the employee to go to the company clinic for a blood test–that would be compensable.

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Thanks again for joining us and good luck.

Effective May 13, 2021, CDC has issued new recommendations as to “fully vaccinated” persons. These are defined as individuals who have received the Pfizer, Moderna or Johnson & Johnson vaccines and who have waited at least 14 days after the first or second administration. For a chart on this subject, go to: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/pdfs/choosingSaferAct.pdf

These new recommendations apply to inside venues of public accommodation.  For example: barbershops/hair salons, shopping centers, museums, movie theaters, churches, hotels, restaurants, bars and exercise gyms. They do not apply to private businesses.

The CDC now recommends fully vaccinated patrons may safely frequent these venues without social distancing or a mask.

As to unvaccinated persons, although not technically prohibited, not wearing a mask or distancing is considered a “least safe” practice. Question: Does that mean after a company warns of a possible unsafe practice, it is then up to a person to make a decision of what to wear? This is not answered by the CDC.

As of this date, cities and counties are evaluating the new CDC guidance and will shortly be issuing their own recommendations. Because of the great respect given to the CDC by the states, it is predicted local laws will follow suit and also dispense with masks and social distancing or trends. The CDC has stated that it honors local requirements. So, it would be a good idea to continue abiding by those local rules.

This places a company in a dilemma. Should vaccinated and unvaccinated persons be treated differently? And how do we know their status if we cannot inquire about their vaccinations? There is no bright line answer.

Bottom line suggestion: Although the company cannot ask a person if they have been fully vaccinated, if someone voluntarily discloses such and decides not to wear a mask, honor his or her wishes.

Comment–Employees. At this point, the CDC is only issuing guidance for individuals as patrons of a places of public accommodation, but does not mention private businesses or their employees. Can the employees of such businesses disregard masks and social distancing if they have been fully vaccinated? These new recommendations are silent on that subject.

But some analogies can be drawn. For example, as to non-employee individuals, if they are fully vaccinated, they are free to frequent without distancing and masks at public places. The CDC also allows them to dispense with masks to “attend a small, indoor gathering of fully vaccinated and unvaccinated people from multiple households.” Assuming the business premises are not overcrowded, why wouldn’t this apply equally to employees? For example, there is no fundamental difference between employees working within an office, warehouse or manufacturing plant and those same persons going to a movie or shopping center.

State and Local Health Laws and Federal Preemption:

What if there is a conflict between these new CDC guidelines and local state law? Specifically, what if a state still requires distancing and masks? Who controls?

Under the doctrine of federal preemption, if Washington DC passes a law that applies to the entire nation and the express congressional intent is to be controlling on the states, individual states cannot pass contrary laws. Examples of federal preemption are laws as to: immigration, bankruptcy, National Labor Relations, minimum-wage, FDA regulations and the like.

However, CDC guidelines do not constitute federal preemption of healthcare. They are not statutes and therefore do not have the force of law. In fact, under the new guidelines, the CDC states there must still be compliance with local law. Also, the CDC has a history of honoring conflicting state laws (for example, more stringent local ordinances prohibiting smoking in confined public spaces). And, after these new CDC recommendations, states have gone both ways in response–for example Ohio deciding to abide by the new guidelines and New Jersey not doing so.

So, businesses should continue abiding by local law. After all, if there is a violation, it will be enforced by fines in the local courts.

Now for the gray area. Even though the CDC does not technically have the force of law, states give it great credence. And in the author’s opinion, it is just a matter of time when all states will abide by their recommendations (especially when they do not want to jeopardize federal funding for their local health departments).

With this in mind, assume local law requires masks and distancing, but the CDC does not. If your business is risk adverse, you should follow local law. The only good news is that the Governor apparently will be lifting these restrictions as of June 15, 2021.

If your business is less risk adverse or otherwise needs for business necessity to eliminate masks, abide by the CDC recommendations and ignore conflicting state law. After all from a practical standpoint, there would be less incentive from a local police officer to enforce stringent state laws when the CDC has recommended more leniency.

Finally, in the author’s opinion with more vaccinations available, in the short foreseeable future, masks and social distancing will be a thing of the past.

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