Answers to the Most Common COVID-19 Coronavirus Questions

Not all, but many. On Nov. 5, 2021, CMS published an interim rule in the Federal Register establishing COVID-19 vaccination requirements that most Medicare- and Medicaid-certified providers and suppliers must meet to participate in the Medicare and Medicaid programs. After a stay on the rule was lifted, new guidance was issued on Dec. 28, 2021, with extended compliance dates. On Jan. 14, 2022, additional guidance was issued and FAQs were released on Jan. 20, 2022, with compliance dates by state.

CMS also stated that within 90 days of the issuance of its applicable updated guidance (on December 28, 2021 or January 14, 2022, respectively), employers that fail to maintain compliance may be subject to enforcement action.

Covered employers must establish a process or policy to meet the vaccination requirements over two phases:

• For Phase 1, employees must have received—at a minimum—the first dose of a primary series or a single dose COVID-19 vaccine.
• For Phase 2, employees must complete the primary vaccination series (except for those who have been granted exemptions from the COVID-19 vaccine or those staff for whom COVID-19 vaccination must be temporarily delayed, as recommended by the Centers for Disease Control and Prevention).

Full-time remote workers are excluded from the requirements.

Due to injunctions having been lifted on various dates for different states, there are now three groups subject to different compliance dates:

CMS has provided FAQs to help employers comply with the requirements. See CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule.

CMS also has a slide presentation on the rule that may be helpful to review. See Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule with Comment, and a webcast, Healthcare COVID-19 Health Care Staff Vaccination.

The CMS rule will be considered primary for covered employers and takes priority over the other rules.

As of Jan. 13, 2022, both the OSHA ETS and federal contractor executive order are now blocked, so the CMS rule is the only one in effect at this time.

Should either the ETS or executive order survive in the lower courts, which seems unlikely, these three vaccination-related rules are cascading; if the primary rule for an employer does not apply, compliance with the others would need to be considered.

No, the CMS rule does not allow for a weekly testing option. Additionally, employees who are granted a reasonable accommodation making them exempt from vaccination are not required to undergo weekly testing at this time, but an employer can make testing part of an accommodation.

The ETS is aimed at protecting workers facing the highest COVID-19 hazards—those working in health care settings where suspected or confirmed COVID-19 patients are treated. This includes employees in hospitals, nursing homes and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated. For more information, see Is your workplace covered by the COVID-19 Healthcare ETS?

Yes. The health care ETS does not apply to:

• First aid performed by an employee who is not a licensed health care provider.
• Dispensing of prescriptions by pharmacists in retail settings.
• Non-hospital ambulatory care settings where all nonemployees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter those settings.
• Well-defined hospital ambulatory care settings where all employees are fully vaccinated, all nonemployees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter those settings.
• Home health care settings where all employees are fully vaccinated, all nonemployees are screened prior to entry, and people with suspected or confirmed COVID-19 are not present.
• Health care support services not performed in a health care setting (e.g., off-site laundry, off-site medical billing).
• Telehealth services performed outside of a setting where direct patient care occurs.

Yes. While vaccination is not required under the health care ETS, covered employers must provide a reasonable amount of paid time off for employees to receive a COVID-19 vaccine and to recover from any side effects. OSHA is no longer enforcing the health care ETS; however, the agency strongly encourages employers to continue complying with the health care ETS requirements while a permanent standard is developed.

Unless an employee is legally entitled to an accommodation, the vaccination requirement will apply to all covered contractor employees—including contractor or subcontractor employees in covered contractor workplaces who are not working on a federal government contract or contract-like instrument. Remote workers are also covered. There is no testing option available.

If and when the executive order for federal contractors takes effect, it is considered primary for covered contractors and takes priority over the other rules. If a contractor has employees not covered under the executive order, then the ETS or CMS rule may apply to those employees.

Additionally, these rules are cascading; should the federal contractor rule remain blocked or ultimately be revoked, the OSHA ETS rule or CMS rules may apply, depending upon their effective status.

The executive order does not require paid leave; however, OSHA strongly encourages all employers to offer paid leave to employees receiving a COVID-19 vaccine or recovering from side effects of receiving a vaccine.

Covered contractors must require employees to show or provide one of the following documents:

• A copy of the record of immunization from a health care provider or pharmacy.
• A copy of the COVID-19 vaccination record card.
• A copy of medical records documenting the vaccination.
• A copy of immunization records from a public health or state immunization information system.
• A copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering the vaccine.

Covered contractors may allow employees to show or provide a digital copy of their vaccine records, including, for example, a digital photograph, scanned image or PDF of such a record.

An attestation of vaccination by an employee is not an acceptable substitute for documentation of proof of vaccination. Employees who do not have documentation of vaccination should be instructed to contact the vaccination provider or the employee’s state or local health department for assistance in obtaining the required documentation.

The Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees applies to employees of the executive branch of the federal government. Employees in the judicial and legislative branches are not covered by the order. The Safer Federal Workforce Taskforce has issued guidance on the vaccination requirement for federal agencies.

Federal employees must have been vaccinated as of Nov. 22, 2021.

Agencies can refer to the following templates to develop a form for employees who are seeking an exception based on a medical condition or based on religion. The information on the forms may be used by the agency to help determine whether the employee is entitled to an accommodation.

Per the Safer Federal Workforce FAQs, the following paid leave is required:

Primary Vaccination

Federal agencies must allow employees to use up to four hours of regular duty-time per dose to receive a primary COVID-19 vaccine. This time includes traveling to the vaccination site, receiving a vaccination dose and returning to work.

Agencies should require employees taking longer than four hours to document the reasons for the additional time (e.g., they may need to travel long distances to get the vaccine). If, due to unforeseen circumstances, the employee is unable to obtain the vaccine during regular duty hours, the normal overtime hours of work rules apply.

Post-Vaccination Recovery

An agency should grant up to two workdays of administrative leave if an employee has an adverse reaction to a COVID-19 vaccination dose that prevents the employee from working (i.e., no more than two workdays for reactions associated with a single dose).

Booster Shots/Additional Dose for Immunocompromised Employees

Agencies must give employees up to four hours of administrative leave to receive any authorized COVID-19 vaccine booster shot or additional dose for an immunocompromised employee. As booster shots are not required at this time, they cannot be charged to regular duty time. No leave is granted for booster shots received outside of regular duty time.

This paid leave may be applied retroactively to Aug. 12, 2021, for an immunocompromised employee, and to Sept. 22 for those who received a booster shot.

To Accompany a Family Member Receiving a COVID-19 Vaccination

An agency must grant administrative paid leave of up to four hours per dose (and per family member) to employees who accompany any family member who is receiving a COVID-19 vaccination. A family member is an individual who meets the definition of that term in the Office of Personnel Management’s leave regulations (see 5 CFR 630.201). Employees may not be credited with administrative leave or overtime work for time spent outside their tour of duty helping a family member get vaccinated.

There is no legal requirement under federal law for non-health care, private employers to pay workers who miss work due to having COVID-19 symptoms or to get a vaccine. If an employer directs an employee to get a vaccine during the work day, however, wage and hour laws would consider this time work that must be paid.

When an employee misses work due to a COVID-19-related illness, a company’s normal paid-time-off policies for absences due to illness would apply. Nonexempt employees who do not have paid leave available are not required to be paid for such absences, unless there is a collective bargaining agreement indicating otherwise. If an employer sends a nonexempt employee home because he or she has COVID-19 symptoms, some states’ wage and hour laws may require reporting time pay of a certain number of the employee’s scheduled hours.

Exempt employees who do not have paid leave available may only have their pay docked when full-day absences due to illness occur, and only where a bona fide sick-leave plan exists. See What is a “bona fide” sick leave plan under the FLSA Salary Basis Regulation?

Additionally, OSHA’s COVID-19 Healthcare Emergency Temporary Standard requires employers to provide reasonable time off and paid leave for vaccinations and vaccine side effects to employees working in health care settings. OSHA is no longer enforcing the health care ETS; however, the agency strongly encourages employers to continue complying with the health care ETS requirements while a permanent standard is developed.

The details of each employer's plan to return will look different, but SHRM has a checklist of 10 key issues for employers to address. See COVID-19 Back-to-Work Checklist.

No. The requirement for health plans to cover or reimburse costs for OTC at-home rapid tests does not apply to routine testing for employment purposes. Health plans may require individuals to attest that the OTC test is not for employment purposes when seeking payment or reimbursement. See Department of Labor FAQs.

According to OSHA’s guidance document Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, all employers should engage with workers and their representatives to determine how to implement multilayered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19, including:

1. Facilitate employees getting vaccinated. Employers should grant paid time off for employees to get vaccinated and recover from any side effects.
2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes COVID-19.
3. Implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers. Maintaining physical distancing at the workplace for such workers is an important control to limit the spread of COVID-19. Employers could also limit the number of unvaccinated or otherwise at-risk workers in one place at any given time by, for example, implementing flexible worksites (e.g., telework); implementing flexible work hours (e.g., rotate or stagger shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video, or Web); or implementing flexible meeting and travel options, for such workers.
4. Provide workers with face coverings or surgical masks, as appropriate, unless their work task requires a respirator or other PPE. In addition to unvaccinated and otherwise at-risk workers, the CDC recommends that even fully vaccinated people wear masks in public indoor settings in areas of substantial or high transmission and notes that fully vaccinated people may appropriately choose to wear masks in public indoor settings regardless of community level of transmission, particularly if they are at risk or have someone in their household who is at risk or not fully vaccinated.
5. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in languages they understand. Train managers on how to implement COVID-19 policies. Communicate supportive workplace policies clearly, frequently, and via multiple methods to promote a safe and healthy workplace.
6. Suggest or require that unvaccinated customers, visitors or guests wear face coverings in public-facing workplaces such as retail establishments and that all customers, visitors or guests wear face coverings in public, indoor settings in areas of substantial or high transmission. This could include posting a notice or otherwise suggesting or requiring that people wear face coverings, even if no longer required by your jurisdiction. Individuals who are under the age of 2 or are actively consuming food or beverages on site need not wear face coverings.
7. Maintain ventilation systems. The virus that causes COVID-19 spreads between people more readily indoors than outdoors. Improving ventilation is a key engineering control that can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air and the risk of virus transmission to unvaccinated and otherwise at-risk workers in particular.
8. Perform routine cleaning and disinfection. If someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations.
9. Record and report COVID-19 infections and deaths: Under mandatory OSHA rules in 29 CFR part 1904, employers are required to record work-related cases of COVID-19 illness on OSHA’s Form 300 logs if the following requirements are met: 1) The case is a confirmed case of COVID-19; 2) the case is work-related (as defined by 29 CFR 1904.5); and 3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7; e.g., medical treatment, days away from work).
10. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards: Section 11(c) of the OSH Act prohibits discharging or in any other way discriminating against an employee for engaging in various occupational safety and health activities.
11. Follow other applicable mandatory OSHA standards: All of OSHA's standards that apply to protecting workers from infection remain in place. These mandatory OSHA standards include: requirements for PPE (29 CFR part 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), and OSHA's requirements for employee access to medical and exposure records (29 CFR 1910.1020). Many healthcare workplaces will be covered by the mandatory OSHA COVID-19 ETS. More information on that standard is available on OSHA's website. Employers are also required by the General Duty Clause, Section 5(a)(1) of the OSH Act, to provide a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.

Pursuant to EEOC guidance released on July 12, 2022, an employer may utilize mandatory viral testing as a screening measure only when it can show testing is job-related and consistent with business necessity. Requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.

Employer use of a COVID-19 viral test to screen employees who are or will be in the workplace will meet the “business necessity” standard when it is consistent with guidance from the CDC, Food and Drug Administration (FDA), and/or state or local public health authorities that is current at the time of testing. Be aware that the CDC and other public health authorities periodically update and revise their recommendations about COVID-19 testing, and the FDA may revise its guidance or emergency use authorizations, based on new information and changing conditions.

If an employer seeks to implement screening testing for employees such testing must meet the “business necessity” standard based on relevant facts. Possible considerations in making the “business necessity” assessment may include the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of COVID-19 viral tests, the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, the ease of transmissibility of the current variant(s) and the possible severity of illness from the current variant, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19. In making these assessments, employers should check the latest CDC guidance (and any other relevant sources) to determine whether screening testing is appropriate for these employees.

An employer also may require an employee to take a viral test when it has a reasonable belief based on objective evidence that this person might have the disease, such as a display of COVID-19 symptoms.

The CDC’s guidance on this is updated as recommendations change. See Quarantine and Isolation.

Guidance is also available for individuals who test positive but do not have symptoms. See CDC Updates and Shortens Recommended Isolation and Quarantine Period for General Population.

According to guidance from the EEOC, “Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19.”

State and local laws may differ and should be reviewed.

No. The ADA privacy rules restrict employers from sharing personal health information about an employee. Employers should inform employees that possible exposure has occurred in the workplace without disclosing any identifying information about the individual who tested positive.

When an individual has been exposed to COVID-19, CDC guidance differs based on vaccination status. The most recent guidance can be found on the CDC website.

On Feb. 25, 2022, the CDC relaxed its mask-wearing guidance, now recommending that individuals (regardless of vaccination status) wear a mask in public indoor settings in areas of high community levels where there is strain on the healthcare system. Additionally, some states and localities continue to enforce mask requirements, and private businesses and workplaces may set their own policies.

Employers should also continue to follow OSHA’s guidance for all employers, updated Aug. 13, 2021, which recommends employers continue to protect unvaccinated workers by requiring them to wear masks and encourages employers to require masks for everyone in indoor settings in areas of substantial or high community transmission.

See What should we consider when relaxing or continuing mask-wearing policies?

Because the CDC and state/local health authorities have acknowledged community spread of COVID-19, employers may measure employees' body temperature. As with all medical information, employers must maintain the confidentiality of employee temperatures and other symptoms as required by the ADA. See A Guide to Employee Temperature Checks.

Employers must weigh an employee’s health concerns and legal rights under the OSH Act, the National Labor Relations Act (NLRA) and the ADA with the organization’s business needs. See What to Do When Scared Workers Don’t Report to Work Due to COVID-19.

Some employers have discovered during this crisis that remote work can be a successful arrangement and will consider allowing telework arrangements to continue. However, absent a need to work remotely as a reasonable accommodation under the ADA, employers are not obligated to allow telework. See Work at Home/Telework as a Reasonable Accommodation.

In most cases, no. If the employees were not separated from payroll, documenting the temporary layoff or furlough dates for the personnel file is sufficient. Significant changes, such as a new job title or pay rate, should be documented as well.

No. According to the CDC, “Antibody test results should not be used to determine if someone can return to work.” The EEOC has also released guidance stating, “the ADA at this time does not allow employers to require antibody testing before allowing employees to re-enter the workplace.”