What’s Happening in HR
EEOC issues Guidance to Employers for Covid-19 vaccination policies
On December 16, 2020, the EEOC updated its “What You Should Know About Covid-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to include the EEOC’s current position on employers mandating or requesting that its employees be vaccinated for Covid-19. The EEOC’s question and answer format guidance on vaccinations is located at Section K.
While not explicitly stating that employers can require that its employee’s get vaccinated, it appears the EEOC believes employers can require vaccination if the employer has a reasonable belief, based on objective evidence, that an employee who does not receive a vaccination will pose a direct threat to the health or safety of her or himself or others. I believe whether an employer can satisfy this test will depend on the employer’s business and the role the employee has in that business. Employers should also consider CDC and State guidelines on who should be vaccinated and when to determine whether it can establish a direct threat and mandate vaccinations. According to the Guidance, if the employer cannot establish a direct threat, the employer cannot require the employee to answer the per-administering questions required for receiving the vaccine without violating the ADA.
If the employer can and does mandate vaccinations, the employer still must consider exceptions to its policy on the grounds that being vaccinated would violate an employee’s sincerely held religious belief requiring an accommodation under Title VII or that exempting an employee from the policy would be a reasonable accommodation required by the ADA. As with all requests for religious exemptions, please be mindful that absent clear evidence to the contrary, it is generally difficult to challenge whether an employee has a sincerely held belief and the religious accommodation covers beliefs outside of traditional religions. With respect to the ADA, the traditional fact based interactive process would still apply.
As is usually the case with Covid-19 issues, there is not always a clear-cut answer in every case, and each employer will have to determine whether mandating the vaccine is necessary or it would be sufficient to suggest or recommend that employees be vaccinated. If employees choose not to get vaccinated, I believe the employer can require the employee to wear a mask at work, but likely only if the employer is requiring such efforts before the vaccine becomes available.
It is very early in the vaccination process and it will be some time before vaccinations are available to the general public. It is likely that by that time there will be more guidance from the EEOC or other agencies on the issue. Because of the unprecedented nature of the pandemic and legal ramifications associated with vaccination policies, please discuss this issue with your legal counsel before making a decision.
The Families First Coronavirus Response Act (“FFCRA”) Emergency Sick Leave and Paid Family Leave Expired on December 31, 2020
The mandatory paid sick leave and paid family leave under the FFCRA expired by their own terms on December 31, 2020. Accordingly, employers are no longer required to provide that leave.
However, the $900 Billion Covid-19 stimulus bill that was signed into law by President Trump on December 27, 2020, extends the FFCRA’s refundable tax credits to March 31, 2021.
Accordingly, employers do not have to, but may continue to provide the FFCRA’s leave to employees who have not previously used all of their leave in 2020 and seek the tax credits for providing that leave. The amount of leave for which employers can seek tax credits does not renew in 2021, so an employer would only be able to seek credits for the remainder of the 2020 leave that was not taken in 2020, but was instead taken in 2021 before March 31, 2020.
President-elect Biden has indicated that he will seek to extend Covid-19 related leave after he takes office, but whether he will be successful in his efforts remains to be seen.
By Michael F. Weiner, JD, SHRM-SCP
NSHRM Legislative Director