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While there is optimism that 2021 will eventually bring a return to business operations more normal than what we experienced in 2020, addressing the COVID-19 pandemic remains a top priority for employers as we begin the New Year. Among those pressing concerns are: (1) how to handle the expiration of paid leave benefits under the Families First Coronavirus Response Act (“FFCRA”) and (2) whether to impose a vaccination requirement to combat the virus. The Department of Labor and the Equal Employment Opportunity Commission have recently provided guidance on these respective issues that can help companies navigate such decisions.

The FFCRA has expired. What to do now? 

The FFCRA, which was signed into law in March of last year, expired on December 31, 2020. As explained in a previous post, the FFCRA mandated that certain employers provide eligible employees with two types of COVID-19-related leave: Emergency Paid Sick Leave and Emergency Family and Medical Leave. 

The Consolidated Appropriations Act recently passed by Congress and signed into law by the President did not extend FFCRA leave past December 31, 2020. Covered employers are therefore no longer obligated to provide FFCRA leave to employees. The DOL has made clear in its new guidance, however, that mandatory FFCRA leave taken prior to December 31 must still be paid, even after the law’s expiration, and the DOL will continue to enforce such compliance.

The new legislation did make FFCRA leave optional for covered employers. Until March 31, 2021, covered employers who voluntarily provide FFCRA leave to eligible employees who have not utilized their allotment are still able to claim refundable tax credits for providing that leave. The law did not alter other provisions of the FFCRA.

With the country still in the grips of the pandemic, companies should remain flexible in granting leave due to circumstances related to COVID-19, and the new legislation provides continued financial incentive for providing paid leave at least through March 31.

Can (and should) companies adopt mandatory COVID-19 vaccination policies?

As healthcare providers around the country begin to roll out doses of the newly-approved COVID-19 vaccines, many employers are wondering if they can require employees to obtain the vaccine as a condition of employment and whether they should administer the vaccine at the workplace. Thankfully, the EEOC recently issued new guidance on mandatory vaccination and the applicability of certain employment laws to any vaccination scheme. 

The EEOC’s updated guidance -- What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws -- addresses some common questions about vaccination and the Americans with Disabilities Act (ADA), Title VII (including the Pregnancy Discrimination Act) and Genetic Information Nondisclosure Act (GINA). Below are some important takeaways: 

  • Employers may mandate vaccination, but should be aware of potential issues with pre-screening questions.

The EEOC guidance explains that employers may require vaccination without violating the ADA if failure to have a vaccination would “pose a direct threat to the health or safety of individuals in the workplace.” Whether this standard is met requires careful evaluation of the particular facts presented. Employers may either administer the vaccination themselves or require that employees obtain a vaccination elsewhere and provide proof of vaccination. 

The EEOC guidance provides that administering the vaccine itself is not a “medical examination” under the ADA and requiring or asking for proof of vaccination is not a disability-related inquiry.

However, some of the pre-screening questions to obtain the vaccine may implicate the ADA and GINA provisions related to disability and genetic related inquiries. Employers should only ask pre-screening questions that are “job-related and consistent with business necessity,” or should make the vaccination and the associated questions voluntary. If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA.  

Employers may ask or require employees show proof of vaccination without violating the ADA. Employers should avoid any subsequent questions about vaccination, including why an individual has not received the vaccine, because such an inquiry may be a disability-related inquiry. Employers should only ask follow-up questions that are “job-related and consistent with business necessity.”

All employee responses to pre-screening questions should be kept strictly confidential. 

  • If an employer chooses to require vaccinations (when they become available), employers must consider and accommodate employees with disabilities and sincerely held religious beliefs who may be unable to obtain the vaccine. 

If an employee is unable to receive the vaccine due to a disability or sincerely held religious belief, before barring the employee from the workplace, the employer must show that the unvaccinated employee would pose a “direct threat” due to “significant risk of substantial harm” to health or safety that cannot be eliminated or reduced by a reasonable accommodation.  

Thus, if an employee is unable to receive the vaccine due to a disability or religious belief, and that employee would pose a significant health risk in the workplace, that employee cannot be excluded from the workplace unless and until the employer engages in the interactive reasonable accommodation process.  

Employers should also note that the EEOC definition of religion is broad, so should assume that a request for religious accommodation is based on a “sincerely held religious belief” absent an objective basis for questioning the sincerity or religious nature of a belief or observance.  

In sum, while the EEOC guidance reinforces that companies can impose mandatory vaccination policies, given the often difficult and fact-intensive inquiries necessary to make sure that such mandates do not run afoul of employment laws, businesses should also consider whether encouraging voluntary vaccinations is a less-risky but still-effective alternative. Given the complexity of such decisions, companies should seek out experienced employment counsel for guidance.  

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Luis F. Ruiz

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