In This Issue
- Stimulus 2.0: What Employers Need to Know
- The Future of Workplace Law Under the Biden Administration
- Guidance on COVID-19 Vaccination Policies
- COVID-19 Resources for Multi-State Employers
- Important COVID-19 Requirements for California Employers
- OSHA Standards Related to COVID-19 – Employers Beware
- What if the FFCRA Expires on 12/31?
- Changes to New York’s Wage and Hour Laws in 2021
- California’s Pay Data Report Requirements in 2021
Stimulus 2.0: What Employers Need to Know
By: Patrick Dennison, Benjamin, Todd Logsdon, Ron Pierce, and Samantha Saltzman (Fisher Phillips)
Federal lawmakers agreed to a second round of stimulus legislation late last night [on December 21, 2020], sending a nearly 6,000-page bill to President Trump for his expected signature [the bill was signed by President Trump on December 27, 2020]. The [enacted] 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.
Continuation Of The Paycheck Protection Program
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:
- Payment for any software, cloud computing, and other human resources and accounting needs;
- Covered property damage costs, including costs for property damage due to public disturbances that occurred during 2020 that are not covered by insurance;
- Covered supplier costs for expenditures supplier according to a contract, purchase order, or order for goods in effect before taking out the loan that are essential to the recipient’s operations when the expenditure was made (supplier costs of perishable goods can be made before or during the life of the loan); and
- Covered worker protection expenditures for personal protective equipment (PPE) and help for compliance with federal health and safety guidelines or any equivalent State and local guidance related to COVID-19 during the period between March 1, 2020, and the end of the national emergency declaration.
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. For further information or assistance in preparing a PPP loan application, contact your Fisher Phillips attorney or and SBA Loan Taskforce Attorney.
Continued Assistance For Unemployed Workers
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.
Rail Workers Assistance
Stimulus 2.0 restores the federal supplement benefit for unemployed railroad workers at $600 per registration period between December 26 through March 14, 2021. This stimulus package also provides up to 11 additional weeks of unemployment benefits under the Railroad Unemployment Insurance Act (RUIA) for qualifying railroad workers, as well as extending the availability of the 13 weeks of additional unemployment benefits provided under the CARES Act until April 5, 2021 for those who have benefit periods start before March 14, 2021.
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.
No Extension Of FFCRA Paid Leave (Yet) – But Tax Credit Period Extended Through March
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.
Tax And Benefit-Related Provisions
The bill also contains the following tax and benefit related provisions:
- PPP Forgiven Loan Amounts – The IRS had argued that expenses incurred using forgiven PPP funds were not deductible. For example, wages paid with those funds could not be deducted. With Stimulus 2.0, Congress overruled the IRS and decreed that expenses incurred using forgiven PPP funds are deductible.
- 2019 income may be used for the earned income tax credit – If 2020 earned income is less than 2019 earned income, 2019 income can be used when calculating the earned income tax credit. A lower 2020 income (for example, due to loss of employment during the year) may reduce the amount of credit available. Using a higher 2019 income amount may mean a higher credit for those who otherwise qualify.
- Deductibility of business meals – Derided by some as the “three martini lunch” deduction, business meals after December 31 and before January 1, 2023 will be fully tax deductible. The current administration believes this provision will aid in reviving the ailing restaurant industry.
- The Employee Retention Tax Credit – The employee retention tax credit is a credit for wages paid to certain employees during: i) a full or partial suspension of operations; or ii) a significant decline in gross receipts. The stimulus package enacts several technical clarifications but more importantly extends the credit’s availability from January 1, 2021 until June 30, 2021.
- Flexible Spending Accounts – The law has several provisions which increase employer flexibility in administering health and dependent care flexible spending accounts. Usually subject to the “use it or lose it rule” (unused amounts at the end of the year are forfeited) the act makes available expanded carryover, grace period, and election change rules.
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.
No Federal Liability Shield In Stimulus 2.0
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 our 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.
We will continue to monitor further developments and provide updates, so make sure you are subscribed to Fisher Phillips’ alert system to gather the most up-to-date information. If you have questions, please contact your Fisher Phillips attorney or visit our COVID-19 Resource Center For Employers.
By: Francis P. Alvarez, Jeffrey W. Brecher, Laura A. Mitchell, Joy M. Napier-Joyce, Michael H. Neifach, Amy L. Peck, Jonathan J. Spitz, Leslie A. Stout-Tabackman, Richard F. Vitarelli, Howard M. Bloom, Tara K. Burke, Bonnie B. Edwards, Lisa A. Milam, Abraham N. Saiger and David T. Wiley (Jackson Lewis)
As President-elect Joe Biden selects members of his Cabinet and prepares for his transition into the presidency, he and a Democratic majority in the House of Representatives may pursue a number of significant pieces of federal workplace legislation. Many of these employment law measures successfully passed the House in 2019 and 2020.
Moreover, as with any transition from the President of one party to the President of another party, presidential appointments to the administrative agencies such as the Equal Employment Opportunity Commission and the National Labor Relations Board are likely to have further effect for employers.
Changes may come to the following areas:
Affordable Care Act (ACA)
President-elect Biden will likely fight to strengthen the ACA and its underlying policies. Whether a Biden Administration or Congress will have to start from scratch will depend on the outcome of the U.S. Supreme Court’s highly anticipated decision in California v. Texas. It is widely thought that a Biden Administration will robustly support efforts to enhance coverage options for the uninsured and underinsured. Biden is expected to oppose recent deregulation of short-term, limited duration insurance plans on the grounds they do not comply with consumer protections, frequently omit basic healthcare benefits, and provide too little coverage for too great a price.
President-elect Biden has indicated his support for the Forced Arbitration Injustice Repeal (FAIR) Act, legislation that would prohibit employers from requiring employees to sign pre-dispute arbitration agreements as a condition of employment. The FAIR Act was introduced in 2019 with little chance of passage, given a Republican majority in the Senate and President Donald Trump’s vow to veto the measure. If the Republicans maintain their Senate majority, a reintroduced bill is unlikely to fare any better. President-elect Biden is almost certain to sign such a bill if it comes to his desk.
President-elect Joe Biden probably will revoke President Trump’s “Executive Order on Combating Race and Sex Stereotyping” that restricts the federal government, federal contractors, and certain federal grant recipients from conducting specific types of diversity and unconscious bias training. The executive order affects government agencies and any organizations that have or plan to enter into federal contracts or that receive federal grants.
President-elect Biden will likely restore the Deferred Action for Childhood Arrivals program protections modified by the previous administration and keep protections for Temporary Protected Status and Deferred Enforcement Departure beneficiaries in place. Expect a call for making E-Verify mandatory for all employers and a de-emphasis on non-criminal immigration enforcement by U.S. Immigration and Customs Enforcement.
The Biden Administration is expected to make it easier for businesses to use immigration to strengthen their businesses. Biden will likely fortify programs for entrepreneurs and innovators and allow county or municipal executives to petition for additional immigrant visas to support economic development. Exemption of science, technology, engineering, and math (STEM) graduates from caps on employment-based visas is expected. In addition, a move toward a potential points-based immigration system, including expanding the number of high-skilled visas available and eliminating the per-country visa caps, can be expected.
The Biden Department of Labor (DOL) will likely withdraw the DOL’s proposed independent contractor rule, which has not been finalized yet. If the rule is finalized before the end of the Trump Administration, a Biden DOL may initiate new rulemaking to then rescind it. The proposed rule clarifies who qualifies as an “independent contractor” under the Fair Labor Standards Act (FLSA). Moreover, the Biden DOL may take steps to further expand the definition of who qualifies as an “employee” under federal law, making it harder for businesses to contract with independent contractors without fear of misclassification.
President-elect Biden previously called for a $15 federal minimum wage. The Biden Administration also will seek to eliminate the reduced minimum wage for tipped employees (i.e., the tip credit) and likely will seek an increase in the minimum salary to qualify as an exempt employee under the FLSA.
National Labor Relations Board (NLRB)
President-elect Biden ran on a platform of strengthening worker organizing, collective bargaining, and unions. He has expressed strong support for the Protecting the Right to Organize (PRO) Act, which would significantly strengthen unions by: banning employer mandatory “captive audience” group meetings; requiring mandatory immediate collective bargaining days after a union becomes employees’ representative for 90 days and, if no agreement is reached, binding interest arbitration of contract terms; preempting states’ “right to work” laws; allowing “unfair labor practice” claims to be brought as civil actions in court; adding fines and liquidated damages (possibly six figures) as remedies for unfair labor practices; and adding personal liability for unfair labor practices for corporate directors and officers. President Biden will be able to appoint a majority of NLRB members, giving him an opportunity to appoint individuals who share his views on unions and collective bargaining, and who are likely to overrule many of the precedents issued during the past few years.
President-elect Biden is expected to support paid leave benefits for employees. For instance, Biden previously voiced support for universal paid sick days and the leave provisions of the Families First Coronavirus Response Act (which requires certain employers to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19). It is likely that existing COVID-19 coverage expansions, most of which are set to expire on December 31, 2020, will be extended. Additionally, President-elect Biden supports 12 weeks of paid leave for all workers to care for their newborns, newly adopted or fostered children, for their own or a family member’s serious health condition, or to care for injured service members or deal with “qualifying exigencies arising from the deployment” of a family member in the Armed Services.
Jackson Lewis attorneys will continue to track the latest developments on the legislative and regulatory fronts and provide updates. If you have any questions, please contact the Jackson Lewis attorney with whom you regularly work.
©2020 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.
Focused on labor and employment law since 1958, Jackson Lewis P.C.'s 950+ attorneys located in major cities nationwide consistently identify and respond to new ways workplace law intersects business. We help employers develop proactive strategies, strong policies and business-oriented solutions to cultivate high-functioning workforces that are engaged, stable and diverse, and share our clients' goals to emphasize inclusivity and respect for the contribution of every employee. For more information, visit https://www.jacksonlewis.com.
By: Jim Paretti, Barry Hartstein, Nancy Delogu, and Devjani Mishra (Littler)
On December 16, 2020, the U.S. Equal Employment Opportunity Commission issued much-anticipated guidance to employers considering COVID-19 vaccination programs for their employees as to their obligations under federal civil rights laws, particularly if the employer plans to require its employees to be vaccinated. While it will likely be months before a vaccine is available to the vast majority of Americans, the guidance does shed some light on how the EEOC views questions relating to vaccination under the laws within its jurisdiction. Equally important, as we obtain new information about vaccine efficacy and longevity, distribution, and vaccination plans, it is likely the EEOC and other federal agencies will issue additional guidance, or revise guidance to reflect the most current information available.
Given this uncertainty and extended timeline, it may be premature for many private-sector employers to commit to any particular “vaccination/return-to-work” policy immediately. Employers may also wish to consider whether encouraging or recommending employees be vaccinated, rather than mandating vaccination, is a viable and/or preferable alternative.
EEO Laws at Issue
Vaccination requirements implicate a number of federal civil rights laws, including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the religious protections of Title VII of the Civil Rights Act of 1964 (Title VII). While the EEOC guidance does not directly state that mandatory vaccination policies are lawful, it does answer a series of questions predicated on the assumption that an employer has adopted such a policy, focusing on how an employer should respond to requests from employees who cannot or do not wish to obtain a vaccination. This suggests, at a minimum, that requiring a vaccination as a condition of returning to the workplace is not per se unlawful, provided certain conditions are met.
The EEOC’s guidance makes clear that employers that wish to adopt mandatory vaccination policies may be obligated to provide exemptions or accommodations to employees with religious objections to vaccines, pregnant workers, and employees with disabilities that may prevent them from obtaining a vaccination. Employers should also be mindful of what questions they can ask employees about their health and vaccination status, and how they use the information obtained in response to those questions.
Disability Law Implications
By way of background, the ADA generally prohibits an employer from requiring a medical examination or making inquiries of an employee as to whether that employee is an individual with a disability, or as to the nature or severity of a disability, unless such examination or inquiries are both “job-related and consistent with business necessity.” EEOC’s guidance makes clear that neither the administration of a vaccination nor the requirement that an employee show proof of vaccination are in and of themselves a “medical examination” or “disability-related inquiry,” and thus do not implicate the ADA. This general rule is subject to several important caveats, discussed below.
For example, the guidance provides that “[s]imply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a [generally prohibited] disability-related inquiry. However, subsequent employer 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 they be ‘job-related and consistent with business necessity’” (emphasis added). As a practical matter, this means that while requiring vaccination, or proof of vaccination, does not implicate the ADA, follow-up questions, such as why an employee has not been vaccinated, may trigger employer obligations under the ADA.
Pre-vaccination screenings may also face ADA scrutiny. Under current U.S. Centers for Disease Control and Prevention (CDC) guidance, health care providers who administer vaccinations are advised to ask certain questions before administering a vaccination, to ensure that there are no medical reasons that would prevent an individual from receiving one. When the employer is administering the vaccine, or contracting with a third party to administer the vaccine, these pre-vaccination medical screening questions are likely to elicit information about a disability, and thus must be job-related and consistent with business necessity. To meet this standard, the EEOC explains, an employer would need “to have a reasonable belief, based on objective evidence, that an employee who does not answer the [pre-vaccination screening] questions, and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of themselves or others” in the workplace.1 Pre-vaccination questions should also be careful to avoid questions about an individual’s family medical or genetic history that implicate GINA, the EEOC guidance cautions.
Many have asked whether an employer may require vaccination as a condition of returning to the workplace. As noted, the EEOC’s guidance suggests that such policies may be lawful. Before excluding an employee from the workplace, however, the agency notes, “the employer must show that an unvaccinated employee 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.’” Employers are further advised that they should conduct an “individualized assessment” of four factors in determining whether a direct threat exists: the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. “A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.” If an employer determines that an unvaccinated worker poses a direct threat, the EEOC cautions that it cannot then exclude that employee from the workplace “unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.”
The ADA also requires employers to provide reasonable accommodation to any employee whose disability prevents them from being vaccinated, unless doing so is an “undue hardship,” defined as “significant difficulty or expense.” The EEOC’s guidance explains that an employer must consider possible options for accommodation in light of the nature of its workforce and the employee’s particular position. Further, the agency advises that prevalence in the workplace of workers who have already obtained a vaccination, as well as the potential contact of an unvaccinated worker with others whose vaccination status is unknown, may also impact this analysis.
An employer is similarly required to accommodate employees who have a sincere religious belief that prevents them from being vaccinated, unless doing so is an “undue hardship.” With respect to requests for religious accommodations under Title VII, the “undue hardship” standard differs from, and is less stringent than, the ADA concept, requiring only that the employer show that providing an accommodation imposes “more than a de minimis cost or burden on the employer.” Under both the ADA and Title VII, “reasonable accommodation” is intended to be an individualized, fact-based, and interactive process between the employer and the employee. Employers that adopt vaccination policies and then face requests from individuals for accommodation or exemption are strongly advised to consult with counsel.
Finally, the EEOC’s guidance explains that if an employee’s failure to be vaccinated poses a direct threat that cannot be reduced to an acceptable level, the employer can exclude that unvaccinated employee from the workplace, but cautions that a decision to exclude does not mean that an employer can automatically terminate the employment of that employee. For example, if an unvaccinated employee cannot be brought back into the workplace, the employer may be obligated to offer the option to work remotely as an accommodation (as many have done during the pandemic), or to offer leave under other laws or the employer’s existing leave policy. Employers should also evaluate whether allowing unvaccinated workers to work under existing COVID protocols (masking, social distancing, etc.) is a viable option. As with general questions of reasonable accommodation, employers that conclude that an unvaccinated employee poses a direct threat, and that no reasonable accommodation is possible to mitigate the threat or otherwise allow the employee to continue working, are advised to consult with counsel.
By: Cressinda D. Schlag (Jackson Lewis)
By Joseph Flanagan and Eli Freedberg (Littler)