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Florida Governor Ron DeSantis signed a new law — the most aggressive of its kind compared to others passed across the country — that protects businesses, educational and religious institutions, governmental entities, and healthcare providers from COVID-19 lawsuits. The new law, which became effective on March 29, shields those covered under it if they can essentially demonstrate a good effort to follow guidelines to prevent the spread of COVID-19. The law is designed to reduce potential liability for COVID-19 claims by imposing high evidentiary burdens and will provide a powerful deterrent to suits filed arising from or related to COVID-19. What do employers need to know about this new law?
Florida’s COVID-19 Shield Law, Explained In A Nutshell
To ensure plaintiffs think twice before filing a lawsuit alleging injuries due to COVID-19, the new law requires that plaintiffs meet the standard for gross negligence and plead any allegations claiming a COVID-19 legal violation “with particularity.” This heightened requirement imposes a higher standard on an individual than if they were merely filing a general negligence or intentional tort claim.
This means that a plaintiff cannot generally point the finger and claim they experienced some COVID-19 injury while working, visiting, or performing some task at or with a covered establishment. From now on, a plaintiff will have to allege facts that identify the who, what, when, where, and how the injury happened in specific detail or their case will be bounced from court.
Before a plaintiff can even access the doors of the courthouse, the law requires that a plaintiff show on the face of the complaint that the defendant deliberately ignored COVID-19 prevention guidelines. Further, they will need to submit into evidence a signed affidavit from a doctor stating with reasonable medical certainty that an injury or death caused by COVID-19 was a result of the defendant’s actions. If a court determines that the plaintiff has not met their duty, the case will be dismissed and can only to refiled if the plaintiff complies with this provision.
As a result of the new law, if a plaintiff is able to survive the statutory immunity, they must still show by clear and convincing evidence that the defendant was at least grossly negligent and that the defendant’s gross negligence was the proximate cause of their alleged COVID-19 related injury, which is not an easy showing. Prior to the new law, proof of liability for COVID-19 claims could have already been challenging largely due to the difficulty of proving causation.
Key Takeaways for Employers
Entities covered by the law should be aware that it is retroactive – but does not apply to cases that have already been filed. The new law provides a one-year statute of limitations from the date that the alleged injury accrues.
You should first make sure that you fall under the definition of the entities that are protected by the new law if you wish to be protected by this litigation shield. Additionally, you will need to be able to objectively demonstrate that you complied with federal, state, and local COVID-19 prevention guidelines. Critically, you will not just be expected to comply with the guidelines but should also focus on the ability to demonstrate compliance in the event compliance is disputed.
You can demonstrate your compliance by publishing written policies and procedures designed to implement the latest CDC guidance to reduce the potential for the spread of COVID-19, providing training to all employees regarding effective COVID-19 mitigation efforts, and designing your workplaces to allow for appropriate social distancing.
Federal and state anti-discrimination agencies have issued guidance for employers that want to require workers to get a COVID-19 vaccine—but at least one lawsuit has claimed that employers can’t mandate a vaccine that is approved only for emergency use. While this argument might not hold up in court, employers should be aware of the risks associated with a vaccine mandate.
When employees refuse a vaccine, the employer should address their concerns and explain the reasons why the company has adopted a mandatory vaccination policy. An open dialogue and education will be key, as will following FDA updates in this regard and consulting with legal counsel.
There are many reasons why an employee may be unwilling to receive a COVID-19 vaccine, and employers may need to explore reasonable accommodations, particularly with employees who have disability-related and religious objections to being vaccinated.
Distribution of COVID-19 vaccines has been issued under the Food and Drug Administration’s (FDA’s) Emergency Use Authorization (EUA) rather than the FDA’s usual processes. But the FDA has said that the vaccine has met its “rigorous, scientific standards for safety, effectiveness and manufacturing quality” and that “its known and potential benefits clearly outweigh its known and potential risks.”
An employee who recently filed a lawsuit challenging an employer’s vaccine mandate argued that the EUA states that people must have “the option to accept or refuse administration of the [vaccine]” and be informed “of the consequence, if any, of refusing administration of the [vaccine] and of the alternatives to the [vaccine] that are available and of their benefits and risks.”
Although the employee in the case works in the public sector, many employment relationships in the private sector are at-will, which means either the employer or the worker can terminate the employment for any lawful reason. An employer that mandates a vaccine may argue the consequence of refusing a vaccine is being fired.
“Consensus in the legal community has been that, at least in the private sector, employers may require at-will employees to be vaccinated, subject to accommodations that may be required for medical or religious reasons,” said Kevin Troutman, an attorney with Fisher Phillips in Houston, and Richard Meneghello, an attorney with Fisher Phillips in Portland, Ore.
The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance indicating that employers generally can mandate COVID-19 vaccinations. “The EEOC specifically addressed vaccinations that are authorized or approved by the FDA,” noted Anne-Marie Vercruysse Welch, an attorney with Clark Hill in Birmingham, Mich.
The California Department of Fair Employment and Housing (DFEH) also recently said that the Fair Employment and Housing Act (FEHA) generally allows employers to mandate vaccines that have been approved by the FDA. The DFEH specially noted that the FDA has authorized and recommended three COVID-19 vaccines—all of which have been authorized under an EUA.
But vaccine mandates may still be risky for employers. It is possible that employees who are terminated for refusing to receive a vaccine authorized by the FDA under an EUA could try to pursue claims for wrongful termination in violation of public policy. The viability of such claims will depend on applicable state law regarding a potential public policy exception to at-will employment and how courts—state and federal—construe the EUA wording.
The regulatory framework is still unclear and a number of states are considering legislation that would prohibit employers from requiring employees to receive a COVID-19 vaccine. If these bills become law, the uncertainty regarding the EUA issue will become moot in those states, at least as of the time the laws go into effect.
The EEOC issued guidance stating that employees may be exempt from employer vaccination mandates under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws.
California’s guidance noted that the FEHA prohibits employers from discriminating against employees or job applicants based on a protected characteristic—such as age, race or sex—and requires employers to explore reasonable accommodations related to a worker’s disability or sincerely held religious beliefs.
“If an employee has a medical condition or sincerely held religious belief that would prevent them from being able to be vaccinated, their employer must go through the interactive process to determine if a reasonable accommodation is available,” Welch said. She recommended that employers have accommodation forms available to employees to begin the interactive process and document the steps the employer took to attempt to arrive at a reasonable accommodation.
Accommodations could take various forms, depending upon the employee’s job and setting. Employers may offer remote work, change the physical workspace, revise practices or provide a leave of absence. In each situation, the employer must determine whether an accommodation would enable the employee to safely perform the essential functions of their job.
Some employees might refuse to receive a vaccine for reasons that aren’t legally protected, such as a general distrust of vaccines. Employers need to be very thoughtful as they consider whether to mandate vaccines because employers may have to fire a material portion of their workforce who refuse to be vaccinated or allow some employees to ignore a company policy–which can lead to discrimination risks and employee morale issues.
“Most employers are encouraging vaccination rather than requiring it,” Welch observed.
Coburn recommended that employers focus on the following measures to encourage employees to receive a vaccination:
Employers that want to offer incentives should be mindful of wellness program limitations and offer alternative ways for employees who cannot get vaccinated to receive the incentives, Coburn noted.
President Biden’s latest COVID-19 stimulus package – the American Rescue Plan – has been passed by Congress and will become law once the president signs it into effect this Friday (3/12/21). The measure provides $1.9 trillion in economic relief, with many of the specific items directly affecting employers. What do businesses need to know about this finalized legislation?
What Is Not Included In The American Rescue Plan?
Before examining the areas of law that changed, it is just as important to review portions of the initial proposal which were not included in the final version signed by the president. The three most critical pieces NOT included:
What You Should Do: While these provisions did not make it into the final American Rescue Plan, the White House and Democratic leaders have stated their intent to introduce new legislation in the future to fulfill these campaign promises.
Extension Of FFCRA Tax Credits
The federal Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020 – and with it, covered employers’ obligation to provide emergency paid sick leave and emergency family and medical leave. Shortly before the end of the year, Congress extended the tax credit for employers who voluntarily continued to provide such paid leave through March 31, 2021.
President Biden’s original vision for the American Rescue Plan proposed to extend and expand emergency paid leave obligations in several key areas. However, the House version of the current COVID-19 relief bill does not extend the employer obligation to provide paid leave. Instead, the legislation merely extends the tax credit for voluntary provision of leave through September 30, 2021 and makes related changes. These provisions of the relief bill include the following:
Even though the current legislation does not extend the employer mandate to provide paid FFCRA leave, this is likely not the last conversation on this topic. There are indications that the Biden administration may attempt to resurrect pieces of the American Rescue Plan that did not make it into this bill into subsequent legislation in the near future.
What You Should Do: Determine which, if any, state and local paid sick leave laws may apply to you as many have been extended beyond the December 31, 2020 expiration of the FFCRA paid leave mandate. In addition, you should continue to monitor developments at the federal level. Although an extension of paid leave was not included in this stimulus package, it is still on the Biden administration’s and many members of Congress’s “to do” list. We could see new leave mandate proposals in the immediate future, so this will be one area to watch closely.
Boost For Vaccine Efforts
The American Rescue Plan provides over $15 billion aimed toward enhancing, expanding and improving the nationwide distribution and administration of vaccines, including the support of efforts to increase access, especially in underserved communities, to increase vaccine confidence and to fund more research, development, manufacturing, and procurement of vaccines and related supplies as needed. The upshot? We may see the widespread proliferation of vaccine availability even earlier than expected.
What You Should Do: Despite developments indicating that vaccines are likely to become much more widely available in the short term, many employers remain unprepared to deal with related issues. Those issues include not only the initial administration process, but also the extent to which the greater prevalence of vaccinated employees may (or may not) affect your safety protocols in terms of mask mandates, physical distancing, and related rules.
Relief For Small Businesses
The American Rescue Plan Act provides additional funding for small businesses, with a focused effort on those in hard-hit industries like restaurants and bars. The new bill provides $25 billion for a new Small Business Administration program focused on supporting restaurants and other food and drinking establishments. These grants are available for up to $10 million for those eligible and can be used to pay expenses like payroll, mortgage, rent, utilities, and food and beverages.
The bill provides an additional $7 billion for the Paycheck Protection Program, which provides small businesses with the potential for 100% forgivable loans. The additional PPP funding brings the total for the current round of the program to over $813 billion. Likewise, both bills expand PPP eligibility for certain nonprofit organizations.
The new law also provides $15 billion to the Economic Injury Disaster Loan (EIDL) Advance program designed to provide economic relief to businesses currently experiencing a temporary loss of revenue due to COVID-19. Like the PPP, the EIDL program is administered through the SBA to help qualifying businesses meet financial obligations and operating expenses that could have been met had the disaster not occurred. Priority funding is also allocated to businesses with less than 10 employees that the pandemic has severely impacted.
Finally, the law includes funding under the Shuttered Venue Operators Grant (SVOG) program, which had previously appropriated $15 billion in the December 2020 stimulus package. Eligible entities for the SVOG include live venue operators or promoters, theatrical producers, live performing arts organization operators, museum operators, motion picture theatre operators, and talent representatives. Eligible entities for the SVOG program can also qualify for loans under the PPP.
What You Should Do: If you’re a small business operating in a hard-hit industry such as the hospitality sector, you should quickly determine eligibility for funding. Even if you’re not a bar or a restaurant, you might still be eligible for economic assistance through the various grants or loan programs detailed in the plan if the COVID-19 pandemic has severely impacted your business.
Unemployment Benefits
President Biden considers it imperative that workers impacted by the pandemic not lose out on emergency enhanced unemployment benefits, but the expanded unemployment assistance under the CARES Act and Stimulus 2.0 are set to expire soon in mid-March. Without an extension, millions of unemployed Americans impacted by the COVID-19 pandemic would be impacted. Luckily, both the House’s and Senate’s versions of the American Rescue Plan increase and further extend these unemployment benefits. However, there were some key differences between the two versions of the proposal, and the finalized version differs from the initial proposal.
The finalized legislation retains the $300 per week unemployment benefits, however, the version signed into law extends these benefits until September 6, which is more in alignment with Biden’s proposed outline for the American Rescue Plan.
Another major change related to the unemployment benefits in the finalized version is the addition of a provision making the first $10,200 in unemployment received in 2020 non-taxable for households with incomes under $150,000. This provision will go a long way to address the looming concerns for the millions of Americans currently on unemployment insurance.
What You Should Do: There is not much for employers to do in response to this provision of the bill, as it is primarily geared toward workers. However, it is important to understand the lay of the land in terms of unemployment insurance, as certain industries may face obstacles in hiring for certain positions for the time being. You should be aware that the benefits will expire on September 6 and adjust your hiring plans accordingly.
Stimulus Payments
The American Rescue Plan means that the federal government will send $1,400 stimulus checks on top of the $600 payments issued through the December stimulus bill. Under the structure agreed to during lawmaking negotiations, the payments will phase out at a quicker rate for those at higher income levels compared with the initial proposal floated by President Biden. Those earning $75,000 per year and couples earning $150,000 will still receive the full $1,400-per-person benefit but those earning more than $80,000 and couples earning more than $160,000 will not be eligible.
Tax Credits And Benefits
The bill expands three important tax credits: the child tax credit, the earned income credit, and the employee retention credit. The bill also increases certain health and pension benefits.
The bill also provides for a 100% COBRA premium subsidy effective April 1 through September 2021 for those who are involuntarily terminated and want to remain on their employer’s health insurance. The employer would pass along the subsidy so that qualifying individuals would pay nothing for their COBRA coverage during this period.
Finally, the bill expands the class of those who are entitled to help with the cost of their insurance under the Affordable Care Act. Consumers would be able to receive assistance if their premiums exceed 8.5% of their incomes rather than the current income cutoff of $51,000. The bill provides over $24 billion to shore up childcare facilities which have been hit particularly hard by the pandemic. It provides help to childcare workers making less than $12 per hour.
Conclusion
We will keep a close eye on further legislative proposals and provide updates as warranted.
The COVID-19 extensions that the DOL and IRS had issued last year as part of their “Joint Notice” were set to expire at midnight on February 28th. For weeks, many have been asking the DOL and IRS for guidance on how to handle the statutorily-mandated expiration, and as a result of the lack of guidance, most plans, TPAs, insurers, and COBRA administrators had to make a judgment call as to how to proceed.
But – with 2 days to spare – DOL finally issued Disaster Relief Notice 2021-01 on February 26th.
Notice 2021-01 sets forth the DOL and IRS’ position that the COVID-19 extensions will continue past February 28th, and that all such extensions must be measured on a person-by-person basis – which was not clear from the prior guidance. Plans, TPAs, insurers, and COBRA administrators may have to reconsider their administrative practices in light of this new direction.
The original Joint Notice (85 Fed. Reg. 26351 (May 4, 2020) required that health and retirement plans toll a number of deadlines for individuals during the COVID-19 National Emergency, plus a 60-day period (the “Outbreak Period”) starting March 1, 2020.
But, as described in Footnote 4 of the Joint Notice, ERISA and the Code limit DOL and Treasury’s ability to toll deadlines to one year (“Tolling Period”).
The deadlines impacted in the Joint Notice are:
When there has been disaster relief guidance in the past, these periods have not bumped up against the statutorily-imposed one-year limit, so this COVID-19 extension is new territory – hence all the requests for the agencies to issue guidance regarding the expiration date.
In this late-breaking Notice 2021-01, DOL says it coordinated with HHS and IRS, and the agencies are interpreting the Tolling Period to be read on a person-by-person basis.
Specifically, DOL says that the Tolling Period ends the earlier of:
This means that each individual has his or her own Tolling Period!
For example, a COBRA Qualified Beneficiary (QB) has 60 days to elect COBRA, counted from the later of their loss of coverage or the date their COBRA election notice is provided. Under the Joint Notice, a QB’s 60-day deadline was tolled as of March 1, 2020, until the end of the Outbreak Period (that is, until the end of the National Emergency + 60 days).
At the end of the Outbreak Period, the deadlines would start running again, and the QB would have their normal 60-day COBRA election period (or the balance of their election period if it started before March 1, 2020).
BUT – with the 1-year expiration, DOL’s new Notice 2021-01 says that the one-year period does not end on February 28, 2021 for all individuals, but rather each individual has his/her own one-year Tolling Period.
Examples:
For all of these examples, the tolling would end earlier if the National Emergency ends. In that case, the election period would end 60 days after the end of the National Emergency.
Notice 2021-01 also says that DOL recognizes that enrollees may continue to encounter COVID issues, even after the one-year Tolling Period expiration. DOL says that the “guiding principle” is for plans to act reasonably, prudently, and in the interest of the workers and their families. DOL says that plan fiduciaries should make “reasonable accommodations to prevent the loss of or undue delay in payment of benefits . . . and should take steps to minimize the possibility of individuals losing benefits because of a failure to comply with pre-established time frames.”
Notice 2021-01 does not provide any direction regarding what would constitute a “reasonable accommodation.” It sounds like plans may need a process to consider whether to continue to waive deadlines on a case-by-case basis, but without any guidance as to what parameters to apply. And DOL suggests that failure to do so could be a fiduciary issue.
Regarding communicating these changes to enrollees, DOL says:
DOL seems to be saying that plans may need to notify each individual when his or her one-year extension is about to be up and should include information about the Health Insurance Marketplace. In addition, plans may need to update prior communications that did not anticipate this new DOL interpretation.
DOL says it acknowledges that there may be instances when plans or service providers themselves may not be able to fully and timely comply with pre-established timeframes and disclosure requirements. DOL says that where fiduciaries have acted in “good faith and with reasonable diligence under the circumstances,” DOL’s approach to enforcement will be “marked by an emphasis on compliance assistance,” including grace periods or other relief.
Employers wanting to require workers to get a COVID-19 vaccination should be prepared to respond to workers’ concerns and make reasonable accommodations under federal and state law.
Mandating vaccinations could have benefits for employers and employees alike. Vaccinations will likely decrease the risk of spreading the virus in the workplace, reduce absenteeism, increase productivity and decrease employee health care costs. On the other hand, employees may react poorly to mandatory vaccination policies.
“Most employers are choosing to inform, educate and encourage their employees to consider the vaccine,” observed Katherine Dudley Helms, an attorney with Ogletree Deakins in Columbia, S.C. However, she noted, there may be industries where vaccination is critical and a mandatory approach makes sense.
“Even then, employees should be informed and educated as to why the business felt that approach was necessary,” she said. “If the employer has made the vaccine mandatory, it needs to be sure that it is ready to terminate or otherwise address employees who refuse and who are not entitled to a reasonable accommodation.”
Employers that require vaccinations may face discrimination claims if they deny accommodation requests based on medical or religious objections.
The Equal Employment Opportunity Commission (EEOC) issued guidance stating that employees may be exempt from employer vaccination mandates under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws.
Under the ADA, an employer can have a workplace policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”
If a vaccination requirement screens out a worker with a disability, however, the employer must show that unvaccinated employees would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.
Title VII requires an employer to accommodate an employee’s sincerely held religious belief, practice or observance, unless it would cause an undue hardship on the business. Courts have said that an “undue hardship” is created by an accommodation that has more than a “de minimis,” or very small, cost or burden on the employer.
The definition of religion is broad and protects religious beliefs and practices that may be unfamiliar to the employer. Therefore, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief,” according to the EEOC.
Helene Hechtkopf, an attorney with Hoguet Newman Regal & Kenney in New York City, said an employer will need to evaluate the employee’s job functions, whether there is an alternative job that the employee could do that would make vaccination less critical and how important it is to the employer’s operations that the employee be vaccinated.
Employers that mandate vaccines will have more issues to consider beyond providing reasonable accommodations. For instance, can an employer be held liable if a worker has an adverse reaction to the vaccine?
A severe allergic reaction to the vaccination is possible but rare, according to the U.S. Centers for Disease Control and Prevention (CDC).
“If an employer mandates vaccines, there is likely coverage for injury or illness under the employer’s workers’ compensation policy, but employers should check with their carriers,” Hechtkopf said. “If an employer merely encourages employees to obtain a vaccine, coverage under workers’ compensation policies may not be available.”
Employers must also be careful about collecting medical information. “If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own healthcare provider, the employer cannot mandate that the employee provide any medical information as part of the proof,” according to the CDC.
Additionally, Helms noted, a number of states are contemplating legislation that would prohibit businesses from making the COVID-19 vaccination mandatory. So employers will have to monitor the rules in each applicable location.
Employers that plan to require employees to get a vaccine should develop a written policy, Hechtkopf said.
If a significant portion of the workforce refuses to comply with a vaccine mandate, the employer will be put in the very difficult position of either adhering to the mandate and terminating the employees or deviating from the mandate for certain employees, noted Brett Coburn, an attorney with Alston & Bird in Atlanta. This can increase the risk of discrimination claims.
“Rather than implementing mandates that could lead to such difficult decisions, employers may wish to focus on steps they can take to encourage and incentivize employees to get vaccinated,” he said. For example, employers may want to:
Regardless of whether the policy is for mandatory or voluntary vaccinations, Helms said, employers should communicate clearly and often with the workforce as to why the company believes that vaccinations are important and let employees know that other COVID-19 precautions remain in place.
On January 29, 2021, the Occupational Safety and Health Administration (OSHA) published “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The Guidance incorporates much of the existing guidance from the Centers for Disease Control and Prevention (CDC), adds to guidance OSHA previously issued, and reflects strategies and practices familiar to many employers.
The Guidance, which is intended for non-healthcare employers, is not mandatory and does not have the same legal effect as an OSHA standard. Nevertheless, it provides insight into OSHA’s views and previews what the agency may include in an Emergency Temporary Standard (ETS), which the Biden administration has directed OSHA to consider and potentially implement by March 15, 2021.
OSHA’s Guidance provides all employers an important opportunity to review their COVID-19 prevention strategies. While most of the Guidance is not new, it provides a handful of new recommendations employers may want to consider adding to their current COVID-19 protocols. The new recommendations include:
1. Establish a system to communicate and provide training to all employees on the employer’s COVID-19 policies and establish an avenue for employees to report COVID-19-related concerns anonymously, without fear of retaliation. All such communications should be in languages employees understand and provided in a manner accessible to individuals with disabilities.
2. Make COVID-19 vaccines available at no cost to all eligible employees and provide information and training on the benefits and safety of vaccinations. While OSHA does not specify the information or training it suggests employers provide, the Guidance references CDC’s “Frequently Asked Questions About COVID-19 Vaccination.”
3. Don’t distinguish between workers who are vaccinated and those who are not. All vaccinated employees should continue to wear a mask, socially distance, and follow other COVID-19 protocols (e.g., exclusion from the workplace following COVID-19 exposure). This is necessary because, as OSHA explains, at this time, “there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.”
4. Provide all workers with face coverings (i.e., cloth face coverings and surgical masks), unless their work task requires a respirator, at no cost.
OSHA recommends that employers provide all workers with face coverings, which include cloth face coverings and surgical masks, for use in the workplace with limited exception and unless their work tasks require a respirator (such as an N95 filtering facepiece respirator) or would present a hazard. OSHA also recommends that employers consider acquiring masks with clear coverings over the mouth for all workers to facilitate lip-reading for employees who are deaf or have a hearing deficit. OSHA further recommends that employers require all other individuals at the workplace over the age of two, such as visitors or customers, to wear face coverings. Where employees with disabilities cannot wear a certain type of face covering, employers should discuss the possibility of providing a reasonable accommodation using an interactive process. OSHA’s Guidance on reasonable accommodations for face covering requirements dovetails with guidance on reasonable accommodations previously provided by the Equal Employment Opportunity Commission (EEOC).
OSHA has explained in previous guidance that cloth face coverings are not personal protective equipment (PPE), but can be used as recommended by CDC as a preventive measure in an employer’s COVID-19 exposure control plan. The new Guidance acknowledges that cloth face coverings can reduce exposure for the person wearing the covering in some instances.
The rest of the Guidance reviews additional practices and protocols that OSHA suggests are necessary for an effective COVID-19 prevention program. These are as follows:
1. Assign a coordinator. OSHA recommends assigning a workplace coordinator to be responsible for COVID-19 issues. The coordinator should administer the COVID-19 prevention program on the employer’s behalf.
2. Conduct a hazard assessment. It is important for employers to identify where and how workers may be exposed to COVID-19 and implement responsive COVID-19 hazard controls. As OSHA points out, it is important to consult with employees, especially those who are in the trenches, when conducting the assessment to understand the realities of the workplace.
3. Identify a combination of measures that will prevent and limit the spread of COVID-19. OSHA provides a hierarchy of controls, prioritizing engineering controls that eliminate the COVID-19 hazard entirely, followed by administrative policies and PPE to protect workers from COVID-19 hazards. OSHA lists several commonly recognized measures that employers should take and provides details to assist employers to implement these measures effectively:
a. Separate and send home infected or potentially infected people from the workplace.
The first step in any workplace safety hazard assessment is to eliminate the hazard. In the case of COVID-19, that means removing infected or potentially infected people from the workplace. We recommend that employers communicate clear expectations to employees and adopt employee and visitor screening practices consistent with state and local requirements and recommendations.
OSHA explains that most employers will follow a symptom-based strategy for identifying, separating, and sending workers home. OSHA also recognizes that there are some circumstances where “employers may consider a COVID-19 test-based strategy.”
b. Implement physical distancing in all communal work areas.
OSHA explains that the “best way to protect individuals is to stay far enough away so as not to breathe in particles produced by an infected person.” Keeping 6 feet of distance is generally recommended, but it is “not a guarantee of safety, especially in enclosed spaces or those with poor ventilation.” To increase physical distance, it is often important to limit the number of people in one place at any given time and increase physical space between people. OSHA recommends numerous strategies that many employers have adopted over the past 10 months, including telework, flexible work hours, staggered shifts, delivery of remote services, limiting the size of meetings, and using visible cues to encouraging distancing, to name a few.
c. Install barriers where physical distancing cannot be maintained. OSHA recommends installing transparent shields or other solid barriers at fixed workstations where workers cannot maintain 6 feet from other people.
f. Use applicable PPE to protect workers from exposure. When other measures cannot be implemented or do not protect workers fully, the Guidance concludes that current OSHA standards require that employers provide PPE as a supplement to other controls. (As discussed above, OSHA maintains that cloth face coverings are not PPE.) The standards referenced in the Guidance include OSHA’s PPE and respiratory protection standards, 29 CFR 1910, Subpart I, which require employers, at a minimum, complete a written hazard assessment to determine the need for PPE and PPE appropriate for the hazard and corresponding procedures and training. Therefore, employers are responsible for determining when and what PPE is necessary to protect workers while in the workplace. If an employer determines that an employee must wear PPE while at work and to perform a job safely, the PPE should be provided at no cost to workers and maintained in a safe condition. In application to COVID-19, CDC has addressed when PPE is necessary for job tasks that require interactions with individuals known or suspected of having COVID-19 and, depending on the task, recommends PPE consisting of surgical masks or respirators, such as the filtering facepiece respirators (e.g., N95) or personal air purifying respirators (PAPRs), with eye and face protection (i.e., face shields), protective gowns, and gloves.
4. Consider protections for workers at higher risk for severe illness. Workers with disabilities may be entitled to “reasonable accommodations” under state and federal law to protect them from the risk of contracting COVID-19. The EEOC discusses reasonable accommodations that could offer protection to an employee who is at higher personal risk from COVID-19 due to a pre-existing disability in D.1 of its “What You Should Know About COVID-19 and the ADA and Rehabilitation Act.” OSHA encourages employers to consider whether workers who have an increased personal risk of contracting a severe respiratory illness from COVID-19 (including older adults and anyone who has a serious medical condition) can do some or all of their work at home or in a less densely occupied, better ventilated workplace.
5. Establish a system for communicating effectively with workers. Employers should ask workers to report, without fear of reprisal, symptoms of COVID-19, possible COVID-19 exposures, and possible COVID-19 hazards at work. Similarly, employers should establish channels for communicating important information to employees and, of course, communicate with workers in a language they understand.
6. Educate and train workers on COVID-19 policies and procedures. OSHA recommends that, along with training workers on company policies, employers educate workers about the basic facts about COVID-19, including how it is spread. This can go a long way to helping workers understand why proper distancing, appropriate face coverings, and other measures are important to protect them. OSHA outlines a number of other topics that should be included in worker and supervisor training. OSHA recommends that the training be in plain language that workers understand (including non-English languages and American Sign Language or other accessible communication methods, if applicable).
7. Instruct workers who are infected or potentially infected to stay home and isolate or quarantine. OSHA recommends attendance policies that are non-punitive.
8. Minimize the negative impact of quarantine and isolation on workers. OSHA recommends that, “when possible,” employers allow workers to telework, use paid sick leave, if available, or consider implementing paid leave. Employers that were covered under the Families First Coronavirus Response Act (FFCRA), generally employers with less than 500 employees, can still take advantage of tax credits in connection with voluntarily providing paid leave for COVID-19 related reasons through March 31, 2021.
9. Isolate and send home workers who show symptoms at work.
10. Perform enhanced cleaning and disinfection after people suspected or confirmed to have COVID-19 have been in the workplace. Employers should follow CDC’s guidance, which includes increasing air circulation, cleaning, and disinfection using an EPA-registered disinfectant identified for use against SARS-CoV-2, the virus that causes COVID-19. Employers are required to comply with existing OSHA standards, including those related to hazard communication and PPE appropriate for exposure to cleaning chemicals.
11. Provide guidance on screening and testing. Employers should follow state and local guidance for screening and viral testing (as distinguished from antibody testing) in workplaces. Employers that adopt workplace testing programs should inform workers of testing requirements. We recommend employers review recent guidance from the CDC placing a new emphasis on informed consent prior to testing.
12. Record and report COVID-19 infections and deaths as required by existing OSHA regulations. Employers must record work-related cases of COVID-19 illness on their Form 300 Logs if certain criteria are met. An employer has an obligation to record an employee’s COVID-19 illness if: the exposure is work-related, it results in a fatality, lost workdays, job restrictions or transfers, or otherwise requires medical treatment beyond first aid. Employers must report to OSHA a COVID-19 illness if an employee is admitted to the in-patient service of a hospital within 24 hours of a workplace exposure to COVID-19 or if an employee dies within 30 days of a workplace exposure to COVID-19. In the case of a hospitalization, an employer has 24 hours to report to OSHA from when the in-patient hospitalization occurs or when the employer learns of the hospitalization if the latter occurs later. In the case of a fatality, the employer must report a work-related COVID-19 death within 8 hours of the death or within 8 hours of learning of the employee’s death, if the death occurred within 30 days of the workplace exposure. These are fact-driven, often complicated, analyses and not every employee who tests positive for COVID-19 needs to be recorded on an employer’s OSHA 300 Log or reported to OSHA, for that matter.
13. Implement protections from retaliation and set up an anonymous process for workers to report COVID-19-related hazards. OSHA explains that the Occupational Safety and Health Act prohibits employers from discriminating against an employee for raising “a reasonable concern about infection control related to COVID-19.”
14. Comply with existing OSHA standards. OSHA reminds employers that all OSHA standards that apply to protecting workers from infection, including requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and requirements for employees to access medical and exposure records, remain in place. As mentioned above, while there is no OSHA standard specific to COVID-19, employers still have an obligation under the General Duty Clause to “provide a safe and healthful workplace that is free from recognized hazards that can cause serious physical harm or death.”
Employers should consider the following next steps:
The year 2020 highlighted the need for all of us to be agile, adjusting and responding as our world shifted, science evolved, and best practices for responding to COVID-19 developed and changed. This year is shaping up in a similar manner.
Article courtesy of Jackson Lewis
Days before his inauguration, President-elect Joe Biden outlined an agenda for COVID-19 relief and economic recovery that includes federal aid for health care expenses, such as providing subsidized COBRA coverage.
The relief and stimulus proposals in Biden’s $1.9 trillion American Rescue Plan package range from asking Congress for additional $1,400 checks for low- and middle-income wage earners to reimbursing employers with 500 or fewer employees for providing paid leave. Other provisions focus on helping consumers with health care expenses.
According to a Jan. 14 fact sheet from the Biden-Harris transition team, the new administration will immediately ask Congress to:
“Roughly two to three million people lost employer-sponsored health insurance between March and September, and even families who have maintained coverage may struggle to pay premiums and afford care,” according to the transition team’s fact sheet. “Together, these policies would reduce premiums for more than 10 million people and reduce the ranks of the uninsured by millions more.”
Employers may require terminated workers who choose to continue coverage under the employer-sponsored health plan for up to 18 months to pay for COBRA coverage, with premiums limited to the full cost of the coverage plus a 2 percent administration charge. That cost, however, is not affordable for many newly unemployed workers.
During the pandemic, some employers are choosing to pay for the COBRA coverage of former employees who were laid off, or to do so for current employees who lost group health plan coverage when they were furloughed or had their hours reduced.
Last April, the Department of Labor and the IRS issued regulations extending the deadlines for COBRA notices, elections and premium payments from March 1, 2020, until 60 days after the end of the ongoing COVID-19 national emergency. “While the usual statutory penalties for COBRA violations should not apply [for now], failing to notify COBRA-qualified beneficiaries of their rights may increase the likelihood of a breach of fiduciary duty claim,” Emily Meyer, an attorney with Cohen & Buckman in New York City, wrote in November.
Among other health care-related agenda items, the new administration will ask Congress to:
The fate of the health care provisions is uncertain at this time. Congressional Democrats welcomed Biden’s proposals. Rep. Steven Horsford, D-Nev., for instance, issued a statement saying he was “glad to see that the plan provides critical subsidies [for COBRA and ACA plans] to help American families access health care during this critical time.”
Republicans have criticized the extent of the new proposals, estimated to cost an addition $1.9 trillion over existing relief. Efforts by Congress “should be strategic, focusing on families and small businesses in need,” said Sen. Rick Scott, R-Fla.
Federal lawmakers agreed to a second round of stimulus legislation late Monday night, sending a nearly 6,000-page bill to President Trump for his expected signature. The proposal allocates $900 billion in economic relief to businesses and workers across the country. Of the many provisions tucked within the mammoth bill are several key provisions of interest to employers. Specifically, the proposal continues the popular small business loan program, provides new options for unemployed workers, extends tax credits for continued paid sick leave, and offers a variety of other tax- and benefit-related provisions. It does not, however, create a liability shield for COVID-19 litigation. What do you need to know about the critical workplace-related portions of Stimulus 2.0? Here are summaries of the most significant employment-related provisions and recommendations for actions you should consider as a result of each.
Foremost in the eyes of many businesses, Stimulus 2.0 apportions approximately $284 billion to a revamped Paycheck Protection Program (PPP). It provides small businesses with much-needed financial support in the form of potentially forgivable loans equal to the total money spent on payroll and other specified costs during an eight or 24-week period after the disbursement of the loan. However, the Stimulus 2.0 program makes many critical changes from the previous PPP, including lowering the employee threshold for businesses to 300 employees or fewer (down from 500), and the loan maximum to $2 million (down from $10 million). What do potential borrowers need to know?
Tax Deductibility of Expenses
The first PPP iteration provided that the forgiven amount was tax-free, but the Internal Revenue Service (IRS) ruled that the expenses paid with forgiven PPP loan proceeds were not deductible. Thus, before Stimulus 2.0, the amount of loan proceeds used to cover payroll, if forgiven, would not be deductible.
Stimulus 2.0 changes that, clarifying that gross income does not include any amount that would otherwise arise from the forgiveness of the PPP loan. The bill states:
no deduction shall be denied or reduced, no tax attribute shall be reduced, and no basis increase shall be denied, by reason of the exclusion from gross income provided by [the loan forgiveness provision that says forgiven PPP loans will not count as income.
This means that deductions are allowed for deductible expenses paid with forgiven PPP loan proceeds. This provision is effective as of the date of enactment of the CARES Act and applies to second draw PPP loans.
New Allowable Expenses
Stimulus 2.0 expands qualifying expenses for new borrowers and those who have not yet applied for forgiveness, including the following:
The bill also allows loans made under PPP before, on, or after enacting Stimulus 2.0 to be eligible to utilize the expanded forgivable expenses except for borrowers who have already received loan forgiveness.
Second Draw PPP Loans
Section 311 of Stimulus 2.0 provides for second draws of PPP loans for smaller businesses, capping the loan amount at $2 million. Under this section, eligible borrowers must (1) employ not more than 300 employees; (2) have used or will use the full amount of their first PPP; and (3) demonstrate at least a 25% reduction in gross receipts in the first, second, or third quarter of 2020 relative to the same 2019 quarter. Borrower applications submitted on or after January 1, 2021, are eligible to utilize the gross receipts from the fourth quarter of 2020. Eligible second draw borrowers also include non-profit organizations, housing co-operatives, veterans’ organizations, tribal businesses, self-employed individuals, sole proprietors, independent contractors, and small agricultural co-operatives.
Second draw loan terms are reduced and calculated up to 2.5X the average monthly payroll costs in the 12 months before the loan application or the calendar year (2019), with maximum loan amounts capped at $2 million. However, Stimulus 2.0 maximizes benefits for borrowers in the restaurant and hospitality industries by calculating loans up to 3.5X average monthly payroll costs. Additionally, the bill reinstitutes the waiver of affiliation rules that applied during initial PPP loans for second loan borrowers with multiple locations employing not more than 300 employees per location.
Second draw loan recipients are eligible for loan forgiveness equal to the sum of their payroll costs and expanded allowable expenses, subject to the previous program’s 60%/40% allocation between payroll and non-payroll costs.
Streamlined Applications For Borrowers Under $150K
Stimulus 2.0 provides a streamlined process for loans under $150,000. In fact, such borrowers will not be subject to the required reductions in forgiveness amounts generally imposed by reductions in salaries or headcount by simply certifying that the borrower meets the revenue loss requirements described above on or before the date the entity submits the loan forgiveness application.
What You Should Do Next: If you are considering seeking financial assistance, regardless of whether or not you’ve previously received any, you should determine your eligibility for this second round of PPP loans. Additionally, you should continue to follow this rapidly developing situation, especially given the fluidity of the previous Paycheck Protection Program.
The CARES Act previously expanded unemployment assistance for countless Americans whose employment was impacted by the COVID-19 pandemic. Among other things, the CARES Act provided a $600 weekly supplement to state unemployment benefits until the end of July and expanded eligibility to cover COVID-19 related reasons as well as many workers not traditionally covered by unemployment benefits. However, many of the unemployment benefits provided by the CARES Act were set to expire December 31. In light of the ongoing COVID-19 pandemic, Stimulus 2.0 provides for further unemployment benefits in an attempt to bring cash flow to millions of Americans whose employment was adversely impacted.
Pandemic Unemployment Assistance
Stimulus 2.0 expands the Pandemic Unemployment Assistance (PUA) created by the CARES Act to March 17, 2021 and allows those who have not yet exhausted their rights under PUA to continue to receive such assistance until April 5, 2021. The stimulus package also expands the number of weeks for these PUA unemployment benefits from a 39-week period to a 50-week period.
While providing these additional benefits, Stimulus 2.0 adds a documentation requirement starting January 31, 2021 for both new applicants as well as those receiving PUA. Specifically, new applicants must submit documentation to substantiate employment or self-employment within 21 days although this deadline may be extended for good cause. Similarly, individuals receiving PUA as of January 31, 2021 must submit documentation to substantiate employment or self-employment within 90 days.
Federal Pandemic Unemployment Compensation
Stimulus 2.0 restores the Federal Pandemic Unemployment Compensation (FPUC) supplement to all state and federal unemployment benefits. While lower than its predecessor under the CARES Act, this stimulus package provides a $300 weekly boost from December 26, 2020 to March 14, 2021.
Pandemic Emergency Unemployment Compensation
Like the PUA, the Pandemic Emergency Unemployment Compensation (PEUC) permits individuals receiving benefits as of March 14, 2021 to continue to receive such assistance through April 5, 2021 as long as they have not reached the maximum number of weeks. The new stimulus also increases the number of benefit weeks under the PEUC from 13 weeks to 24 weeks.
Mixed Earner Unemployment Compensation
Stimulus 2.0 provides $100 per week additional benefit to individuals who have at least $5,000 a year in self-employment income but are disqualified from PUA because they are eligible for regular state unemployment benefits.
Federal Support To Governments And Non-Profit Organizations
To help make these expanded benefits possible, Stimulus 2.0 extends the unemployment relief for government entities and non-profits from December 31 to March 14, 2021. Similarly, this stimulus package extends several CARES Act provisions originally created to incentivize states to provide the unemployment benefits by aiding with the expense and burdens created by these unemployment programs.
Return-To-Work Reporting Requirement
Stimulus 2.0 requires states to implement methods within 30 days to address situations where claimants refuse to return to work or accept an offer of suitable work without good cause. This must include a reporting method for employers to notify the state when an individual refuses employment and a notice to claimants informing of return-to-work laws, their rights to refuse work, and what constitutes suitable work.
What You Should Do Next – You should ensure you provide information on the additional unemployment benefits to those employees impacted by your staffing decisions. In addition, you should continue to monitor your obligations to report when individuals refuse employment, as states will likely change these over the next 30 days.
The compromise agreement does not extend the paid sick leave and paid family and medical leave requirements of the Families First Coronavirus Response Act (FFCRA), which expires on December 31. Therefore, an employer’s obligation to provide paid leave under the FFCRA will cease at the end of the year.
However, the final legislation does extend the tax credit for both the Emergency Paid Sick Leave and the Emergency Family and Medical Leave under the FFCRA until March 31, 2021. This means that you are not required to provide paid leave under the FFCRA after December 31, 2020. If you choose to voluntarily do so (assuming the employee still has eligible leave remaining), you will be able to obtain a tax credit for those payments until the end of March under the compromise agreement contained in Stimulus 2.0.
In addition, depending on the circumstances of an employee’s leave, it is possible that the employee could be entitled to normal unpaid leave under the FMLA even after the FFCRA expires, if they still have weeks available under the FMLA. You should work with counsel to determine whether any employees out on FFCRA leave may be entitled to regular FMLA unpaid leave after the end of the year.
Moreover, you should pay close attention to developments in Congress after the new year. There is already talk about a larger stimulus package after Congress returns and President-elect Biden is inaugurated. Congress could very well pass legislation early in the new year that extends (or even expands) the paid leave requirements of the FFCRA, and they could make it retroactive to the expiration of the prior law.
In addition, you need to be aware of state and local laws passed in recent months that require the payment of sick leave to employees for a variety of COVID-19-related reasons. Some of these local laws expire at the end of the year, some are tied to the expiration of the FFCRA, and some do not expire. We could also see state and local lawmakers extend these paid sick leave requirements into the future. You should work closely with counsel to determine any applicable state and local mandates, and to continue to monitor developments on this front into 2021.
What You Should Do Next – Decide whether you will voluntarily extend paid leave benefits into the new year in order to gain a tax credit for those payments through March 2021. Work with counsel to determine whether any employees out on FFCRA leave may be entitled to regular FMLA unpaid leave, or some other form of leave under state law, after the end of the year.
The bill also contains the following tax and benefit related provisions:
What You Should Do Next – Work with your counsel and your tax preparers to ensure you understand the new tax and benefit provisions and work them into your planning for 2021 and beyond.
It is often said that the result of a good mediation leaves both sides a little bit unhappy. The negotiations for the stimulus bill could be said to have done that with the Democrats not getting aid to state and local governments, and Republicans not getting liability protection for business owners.
Republicans had sought through various bills, such as the Safe to Work Act, to offer a liability protection for business owners. These efforts were criticized by organized labor and safety advocates as potentially diminishing employee safety measures. The proposal also sought to pre-empt state laws that conflicted with it. While the liability shield did not survive the sausage making process of Congress, some states have already taken measures to implement similar shields.
Roughly a dozen states have instituted some form of liability shield through either legislation or executive order. The types of protection vary from broad to narrow. Some states provide immunity for businesses as long as the owner attempted in good faith to comply with guidance from public health agencies. This protection may be in the form of an affirmative defense where the burden is on the business to demonstrate that it made good faith efforts to at least attempt to comply with public health guidance. Other states provide broader protections: as long as the owner did not act with willful misconduct or gross negligence, the burden will be on plaintiffs to prove that the business acted with willful misconduct or gross negligence. At least one state, North Carolina, has limited these protections to “essential businesses.” While some of the states provide immunity from civil liability, others focus on limiting what types of damages can be recovered.
The majority of states have not implemented any COVID-19-specific protections – or at least not yet. This has led to a cottage industry of COVID-19 litigation springing up in workplaces across the country, as detailed in the Fisher Phillips COVID-19 Employment Litigation Tracker (with over 1,200 such lawsuits having been filed against employers through date of publication).
What You Should Do Next – You should determine whether the states in which you operate are providing any form of liability protections, and if so how is it limited. The best thing employers and businesses can do, even in state that are providing liability shields, is to make best efforts to comply with the ever-changing guidance from health departments, the CDC, and state and federal OSHA.
Employers now have clarification that they will be able mandate the COVID-19 vaccine among their workers in certain circumstances without running afoul of key federal anti-discrimination laws, according to updated guidance issued Wednesday by the Equal Employment Opportunity Commission. While there are numerous issues to consider before mandating that your employees get vaccinated, this guidance is the first official pronouncement on the subject from the employment law watchdog agency and provides an outline of various hurdles to overcome. Here are the top seven takeaways for employers from this critical development.
1. The EEOC indicates that employers can require their workers to get a COVID-19 vaccine in certain circumstances, even under the Emergency Use Authorization.
The agency’s updated FAQs do not unequivocally state that “employers can require the vaccine.” However, the Equal Employment Opportunity Commission (EEOC) repeatedly answers questions discussing what actions employers can take in response to various circumstances after an employer has mandated the vaccine. This approach plainly suggests there must be circumstances where employers are legally permitted to require vaccine immunization of their workers without violating the Americans with Disabilities Act (ADA), Title VII, and other federal anti-discrimination laws. According to the EEOC, this is true even though the COVID-19 vaccine is only authorized under the FDA’s Emergency Use Authorization (EUA), rather than approved under the full and comprehensive FDA vaccine licensure process, known as a Biologics License Application or “BLA.”
To be clear, the only scenario described by the EEOC as a permissible basis to mandate vaccination under the ADA is when a worker poses a “direct threat” to themselves or others by their physical presence in the workplace without being immunized. This means mandating vaccines is only permitted if workers would pose “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Therefore, if an employee is capable of fully performing their current job duties remotely without the potential spread of the virus to co-workers or work-related third parties, it does not appear that you can require that they get vaccinated.
2. Employers that require the COVID-19 vaccine must consider reasonable accommodations for employees with disabilities.
Notably, simply because your company chooses to mandate vaccine usage for those workers who may pose a direct threat to themselves or others does not mean you have complete freedom to require the vaccine for all such workers. If an individual cannot be vaccinated because of a disability, you need to determine whether you can provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the safety risk. You cannot automatically exclude them from the workplace or take any other negative action against them.
First and foremost, the EEOC recommends that those managers responsible for communicating with your employees about compliance with your vaccination requirement should know how to recognize an employee’s accommodation request. You should also train your managers about the process they should follow to refer accommodation requests through the proper channels for consideration. While the EEOC’s guidance does not mention this, you should strongly consider providing details about the accommodation request procedure in writing to all of your employees (whether in hard copy, electronically, or both).
Next, the EEOC indicates you should engage in a flexible, interactive process with any employee requesting an accommodation to identify options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. Some things you should consider include the prevalence in the workplace of employees who already have received a COVID-19 vaccination, the amount of involvement with customers, and the rate of vaccination in your community, as well as the amount of contact with others whose vaccination status could be unknown. You should consult your Fisher Phillips’ attorney in developing a medical inquiry for an employee’s doctor or a protocol for responding to requests for accommodation more generally.
Finally, the EEOC reminds employers that it is unlawful to disclose that an employee is receiving a reasonable accommodation, just as it is a violation of federal law to retaliate against an employee for requesting an accommodation. Likewise, you should not reveal which employees have or have not been vaccinated.
3. Similarly, employers need to consider reasonable accommodations for employees who are unable to receive the vaccine for religious reasons.
The EEOC says you must provide a reasonable accommodation if an employee’s sincerely held religious belief, practice, or observance prevents them from receiving the vaccination – unless it would pose an undue hardship under Title VII. The definition of “undue hardship” is slightly different in the religious context compared to the disability context, as courts have defined it as simply “having more than a de minimis cost or burden” on an employer.
While you should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, you would be justified in requesting additional supporting information if you have an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance. The key word here is “objective.” This is a delicate area of the law and you should not unilaterally contact the employee’s place or worship seeking proof about their level of belief, or engage in any conduct that could raise potential discrimination issues. We recommend consulting with an attorney before making such a request to any of your employees.
4. Employers can require employees to show proof that they received a COVID-19 vaccination.
Assuming you can demonstrate that a mandatory vaccine is appropriate and that no accommodation requirements are in play, the EEOC indicates you can require workers to prove they have received the COVID-19 vaccine. The EEOC says that simply requesting proof of receipt of the vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.
However, subsequent questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that disability-related inquiries be “job-related and consistent with business necessity.” For this reason, if you require employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own healthcare provider, you may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA. If you do receive medical information along with proof of vaccination, you should store the medical information in a confidential medical file consistent with ADA requirements.
5. The administration of a COVID-19 vaccine is not a “medical examination” for purposes of the ADA.
The EEOC confirmed that the act of administering the COVID-19 vaccine is not an ADA “medical examination.” Therefore, if you (or a third party with whom you contract to administer the vaccine) simply administer the vaccine to an employee, the EEOC does not consider you to be seeking information about an individual’s impairments or current health status – but see the next point about questionnaires relating to giving the vaccine.
6. Employers can pose pre-screening vaccination questions, so long as they comply with ADA requirements.
The EEOC’s FAQs offered some direction for employers who want to ask pre-screening vaccination questions as they administer the inoculation. The first thing employers need to know is that pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries (defined as any such inquiries likely to elicit information about a disability). Therefore, if you administer the vaccine, you must show that any pre-screening questions are job-related and consistent with business necessity. To meet this standard, the EEOC says, you need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of themselves or others.
The EEOC does explain that there are two circumstances in which these screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement. First, you can offer the vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), which means the employee’s decision to answer pre-screening, disability-related questions would also be voluntary. If an employee chooses not to answer these questions, you may decline to administer the vaccine to them but may not retaliate against, intimidate, or threaten them for refusing to answer the questions.
Second, if an employee receives an employer-required vaccination from a third party with whom your organization does not have a contract (such as a pharmacy or other healthcare provider), the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply.
Finally, regardless of whether you meet the “job-related and consistent with business necessity” standard, the ADA requires you to keep any employee medical information obtained in the course of the vaccination program confidential. On a related note, the agency reminds employers that any pre-screening questions that ask about genetic information, such as family members’ medical histories or immune systems of family members, may violate the Genetic Information Nondiscrimination Act (GINA). As the EEOC explicitly says that “it is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations,” this is an issue that employers should be aware of as we move closer to vaccines being provided to members of the general population.
To avoid these complications, the EEOC says that employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves. However, to steer clear of unintended GINA violations, you may still want to warn the employee not to provide genetic information as part of the proof. If this warning is provided, the EEOC says any genetic information you receive in response to your request for proof of vaccination will be considered inadvertent and, therefore, not a GINA violation.
7. Employees may be confused about their ability to “refuse” the vaccine as a result of the EUA.
We expect that some employees may believe they have the right the “refuse” the vaccine even if mandated by their employer. That’s because of language in the EEOC’s updated guidance about the EUA that may cause confusion.
The EEOC notes that, for any vaccine issued under an Emergency Use Authorization, the FDA (and the vaccination provider) has an obligation to inform vaccine recipients about its potential benefits and risks, the extent to which such benefits and risks are unknown, whether any alternative products are available, and “that they have the option to accept or refuse the vaccine.” This language comes from the federal statute governing the EUA.
The FDA’s website (cited by the EEOC) says that the option to refuse is typically included in a “fact sheet” provided to the individual receiving the vaccine (or, alternatively, the party administering the vaccine can direct the individual to the weblink to view the fact sheet online). That fact sheet for the Pfizer/BioNTech vaccine can be found here, and it explicitly says that “the recipient or their caregiver has the option to accept or refuse [the] Pfizer-BioNTech COVID-19 Vaccine.”
This directive seems to be targeted at whether an individual can be forced to take the vaccine by a government entity (as a New York lawmaker recently suggested), not whether an employer can condition an individual’s continued employment on taking the vaccine. After all, in at-will employment settings, an employee can always pursue alternative employment if they do not want to get vaccinated as a condition of their current job. Note that this analysis may be different in unionized settings governed by a collective bargaining agreement. If you are working with a union, you should consult with your Fisher Phillips counsel before proceeding with any mandatory vaccination plan.
Conclusion
Although the EEOC seems to permit mandating vaccinations of employees in certain circumstances, most employers should consider encouraging rather than mandating vaccinations due to potential related risks. Whether you simply encourage or mandate vaccinations, you should be prepared with at least a policy framework and a communications plan as wider availability of the vaccine draws closer.
Article courtesy of Fisher Phillips
Federal coronavirus-related paid-leave benefits are set to expire at the end of the year, and if those benefits aren’t extended, some workers may be left without coverage as the pandemic persists through the winter months.
The Families First Coronavirus Response Act (FFCRA), which took effect in April 2020, is a temporary measure that provides COVID-19-related paid-sick-leave and paid-family-leave benefits to certain eligible workers.
Will FFCRA’s emergency benefits be renewed as the coronavirus crisis continues? Will President-elect Joe Biden make expanding paid leave a priority? Here’s what employment attorneys had to say.
Coronavirus cases in the U.S. recently hit record highs with more than 150,000 new cases reported each day since Nov. 16, according to the U.S. Centers for Disease Control and Prevention. FFCRA benefits will end on Dec. 31 unless Congress renews them.
For now, many employers are required to provide up to 80 hours of paid-sick-leave benefits if employees need leave to care for their own or someone else’s coronavirus-related issues. The legislation also updated the Family and Medical Leave Act (FMLA) to provide workers with job-protected, paid leave when they can’t work—either onsite or remotely—because their son’s or daughter’s school or child care service is closed due to the public health emergency.
FFCRA’s emergency paid-leave provisions apply to certain public employers and businesses with fewer than 500 employees, and there are exceptions available for small businesses and companies that employ health care workers.
Will FFCRA leave be extended? With the upcoming change in the presidential administration, employment attorneys are divided in their predictions.
“It will be renewed,” predicted Philip Voluck, an attorney with Kaufman Dolowich & Voluck in Blue Bell, Pa. He said it may be renewed by the Trump administration, noting the Biden administration does not assume office until Jan. 20, 2021. Voluck said new legislation may expand the FFCRA’s reach and clarify employer’s paid-leave obligations.
Employers covered by FFCRA earn refundable tax credits that reimburse them for the cost of providing paid leave related to COVID-19. “These need to be carried over to any new legislation to ease the financial strain on covered employers,” he noted.
Senate Majority Leader Mitch McConnell, R-Ky., said he wants Congress to finalize a new coronavirus economic stimulus bill before the end of the year, but that might be difficult during a lame-duck session, according to Politico.
Sara Jodka, an attorney with Dickinson Wright in Columbus, Ohio, believes that there will be a FFCRA extension or supplemental legislation but not until Biden takes office. Biden’s current COVID-19-related leave plans would expand FFCRA to provide for 100 percent wage coverage up to $1,400 a week, provide for paid leave during a mandatory quarantine or isolation period, and expand coverage to domestic workers, caregivers, gig-economy workers and other independent contractors. Employers would also continue to receive tax deductions and reimbursement for COVID-19-related paid leave.
Charles Thompson, an attorney with Ogletree Deakins in San Francisco, noted that the Biden administration may focus on other coronavirus priorities, such as putting money directly in people’s pockets.
In addition to the FFCRA’s paid-leave provisions, there is the longer-term consideration of whether a lasting nationwide paid-leave law may garner bipartisan support.
In the 116th Congress, Democrats and Republicans put forward several proposals to provide paid leave to new parents. In December 2019, Congress passed paid parental leave for qualifying federal employees. Senate Minority Leader Chuck Schumer, D-N.Y., has said he “will not stop fighting until this benefit is provided to all workers nationwide.”
Biden supports the Family and Medical Insurance Leave Act, which is known as the FAMILY Act. The proposed legislation would provide workers with paid time off to care for a newborn or recently adopted child, take care of themselves or family members with serious health conditions, or care for military family members and help them prepare for deployments.
Jodka noted, however, that the Biden-Harris campaign platform focused on expanding other employee rights, such as making it easier for workers to organize and collectively bargain, increasing the federal minimum wage, and extending overtime pay to more workers.
She thinks any paid-leave law will likely stem from an amendment to the FMLA, like the FFCRA did. “Employers, especially smaller ones, struggled—and continue to struggle—to meet the paid-leave requirements of the FFCRA,” she said, “so it is likely that first attention will be to the COVID-19 response with a discussion of a federal paid-leave law well off into the future.”
Some states and cities already provide paid leave, and their laws operate independently of federal law, Voluck explained. “States will likely become even more generous with paid leave,” he predicted.
SHRM has long advocated for a voluntary federal framework for paid leave, rather than a fragmented patchwork of state and local leave laws, and recently outlined employers’ need for consistency and simplicity in a letter to the U.S. Department of Labor’s Women’s Bureau.
Thompson thinks that states and local jurisdictions “will continue to be at the forefront of requiring that employers provide COVID-related leave.”
Many jurisdictions—including Arizona, California, Colorado, Michigan, New Jersey, New York, Rhode Island, Washington and Washington, D.C.—have enacted their own emergency paid-leave laws in response to the pandemic. Many cities in California and elsewhere have also passed supplemental leave ordinances. Employers should note that state and local COVID-19-related paid-leave laws may have different expiration dates.
“I think state laws will continue to trend upward in favor of paid-leave law mandates,” Jodka said. “The most typical is a paid-sick-leave mandate, and with COVID-19 cases rising, the need to value proper medical care and time away from work without risking losing a paycheck is at an all-time high.”