David I. Rosen, Jill Turner Lever
Employment and Labor
December 29, 2020
Employment law developments related
to the COVID-19 pandemic continue to evolve.
On December 16, the Equal Employment Opportunity Commission (“EEOC”) issued
guidance on the parameters of employers mandating employee COVID vaccinations
as a condition of their employment. Separately,
on December 23, Congress passed a new COVID relief bill, which was signed by
President Trump on December 27, addressing, among other matters, the
availability of employee leave rights under the Families First Coronavirus
Response Act (“FFCRA”) once
that statute expires on December 31.
To Mandate Vaccinations or Not?
Guidance answered the critical question whether an employer legally can require
its employees to receive a COVID vaccination. The EEOC responded YES, but subject to several
The EEOC updated
its Technical Assistance guide, “What You Should Know About COVID-19 and the
Rehabilitation Act, and Other EEO Laws,” on the subject of vaccines.
The primary legal
restriction on vaccines arises under the Americans with Disabilities Act (“ADA”), which limits a
covered employer’s ability to require employees to undergo medical examinations
and make disability-related inquiries. Helpfully, the EEOC’s latest guidance
confirmed that a vaccination is not a “medical examination” and that asking
employees about whether they have been vaccinated is not a “medical inquiry.” However, the inquiry does not end there and
there are other legal issues to consider before mandating COVID vaccines.
According to the
EEOC, pre-screening questions related to the vaccines, which are asked by an
employer or a contractor at the employer’s request, may implicate the ADA’s
prohibition on disability-related inquiries, as they are likely to elicit
information about an employee’s disability. Such questions generally must be
job-related and consistent with business necessity so as not to violate the ADA,
unless (1) the vaccination is offered by the employer on a voluntary basis and
the pre-screening questions are voluntary; or (2) if the vaccination is
mandatory, the vaccine is provided by a third party that does not have a
contract with the employer.
In addition, employers
contemplating a mandatory vaccine program are required, upon an employee’s request,
to provide, pursuant to federal, state, or local laws, “reasonable
accommodations” to employees based on their disabilities or sincerely-held
religious beliefs. Employers will be required
to engage in the interactive process (in New York City, called a “cooperative
dialogue”) if they are asked, as an accommodation, to waive a vaccination
requirement, and employers must provide an accommodation unless it creates an
“undue hardship” on the employer, a term which is narrowly construed.
the employee’s refusal to be vaccinated is based on medical grounds, the
employer must consider whether the unvaccinated employee poses a “direct
threat” to the safety of others based on a number of factors. Even if the employer determines that such an
employee poses a direct threat and thus may not physically enter the workplace,
employers must still assess each case individually and should not automatically
terminate an employee on direct threat grounds.
What Is the Status of the Scheduled December 31, 2020 Expiration of
Paid Leave Rights?
By now, most
employers have learned that the latest COVID-19 relief bill, passed by Congress
on December 23, 2020 and ultimately signed into law by President Trump on
December 27, 2020, provides a weekly unemployment insurance enhancement of $300
(down from the previous $600 supplement) as well as $600 direct payment checks to
every child and adult earning up to $75,000, with a lesser amount paid to those
earning between $75,000 and $99,000.
What is not as
well-known is that the new legislation does not
extend mandatory paid sick leave or
paid expanded family and medical leave for specified reasons related to
COVID-19, which the FFCRA had made available.
Those rights will still expire on December 31, 2020.
Instead, the new
legislation allows employers to continue to offer such paid leave rights, but
on a voluntary basis. If private employers elect to do so, they may
apply for tax credits, to the extent such paid leave rights are provided during
the period January 1, 2021 through March 31, 2021. Any paid leave rights previously available
under FFCRA that
employers voluntarily offer after March 31 are ineligible for those tax credits.
on Both Developments:
employers can mandate that employees receive a COVID-19 vaccine, based on the
recent EEOC guidance, there are several issues to consider before doing so. First, the vaccine will not be readily available
to most individuals until next spring or summer, at the earliest. Second, it is clear that a substantial
portion of the population has misgivings about the safety and efficacy of the
vaccine. Third, is it more effective and
preferable from an employee relations standpoint to encourage the vaccine
rather than require it? Fourth,
requiring the vaccine will inevitably result in an influx of employee requests
for an exception based on religious or medical grounds; if that happens, and
depending on the specifics of the situation (including consideration of the
employee’s job duties), then the employer may be required to provide a
reasonable accommodation, such as telework. Fifth, despite the EEOC’s guidance, future
restrictions imposed by state or local authorities on mandating vaccines as a
condition of employment may need to be evaluated. Ironically, employers may find that they have
fewer employees working on site if they require the vaccine than if they simply
encourage it. The bottom line is that mandating
the vaccine may raise many complicated logistical issues, as well as practical
and legal concerns.
As for paid leave rights
previously mandated under FFCRA, employers will need to decide if they wish to
continue offering them on a voluntary basis starting January 1, 2021. It would be prudent to make those decisions
on an individualized basis. In doing so,
employers should take into account any COVID-related medical issues the
employees requesting such leave or their dependent family members may have, the
status of local remote learning requirements where those employees live, and
the advantages offering such leave may provide to the employer from the
standpoint of retaining staff and boosting their morale while the pandemic
continues to rage. A blanket denial of a
request for paid leave (or, for that matter, selective approval of such leave) starting
January 1 may lead, depending on the circumstances for which the leave is
sought, to potential discrimination liability.
As always, employers will be well-served to make decisions based on
legitimate non-discriminatory business reasons and to be as consistent as
This Client Alert has been prepared by Sills Cummis & Gross P.C. for informational purposes only and does not constitute advertising or solicitation and should not be used or taken as legal advice. Those seeking legal advice should contact a member of the Firm or legal counsel licensed in their state. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. Confidential information should not be sent to Sills Cummis & Gross without first communicating directly with a member of the Firm about establishing an attorney-client relationship.