Tag: covid-19 pandemic

Can Employers Make the COVID-19 Vaccine Mandatory for Employees Under the Americans with Disabilities Act?

Setnor Byer Insurance & Risk

The COVID-19 vaccines provide a glimmer of hope as new cases surge nationwide. It also raises some interesting questions for employers. How, for example, will the vaccine’s increasing availability be viewed in the context of the Americans with Disabilities Act (ADA)? Can employees be required to provide proof of vaccination? Can employers make COVID-19 vaccines mandatory for employees? Fortunately, the Equal Employment Opportunity Commission issued updated guidance to help employers answer some COVID-19 vaccine-related questions that are likely to arise in the near future.

Is asking or requiring an employee to show proof of COVID-19 vaccination a disability-related inquiry under the ADA? According to the EEOC, no. Simply requesting proof of vaccination is not likely to elicit disability-related information, so it’s not a disability-related inquiry. However, the EEOC cautions that subsequent questions (Why didn’t you get vaccinated?) may elicit information about a disability and would need to be job-related and consistent with business necessity. The EEOC recommends warning employees not to provide any medical information as part of the proof in order to avoid implicating the ADA.

How should employers respond to employees who are unable to get vaccinated because of a disability? The ADA allows employers to protect against direct threats to workplace health or safety. However, if a COVID-19 vaccination requirement screens out or tends to screen out individuals with disabilities, the employer must show that an unvaccinated employee would pose a direct threat due to a significant risk of substantial harm that cannot be eliminated or reduced to an acceptable level by reasonable accommodation. Managers and supervisors responsible for communicating an employer’s COVID-19 vaccination requirement should know how to recognize and respond to accommodation requests. The EEOC urges employers and employees to engage in a flexible, interactive process to identify accommodations that do not constitute an undue hardship (significant difficulty or expense).

Though employers may rely on CDC recommendations when evaluating reasonable accommodations, the EEOC concedes that an accommodation may not be possible in some situations. If that’s the case, the employer may exclude the employee from physically entering the workplace, but the employee should not be automatically terminated. According to the EEOC, employers must first determine whether the employee is protected under any other provision of the ADA or other any other applicable federal, state or local law before taking any adverse action.

Determining if a direct threat exists and whether it can be eliminated or reduced with a reasonable accommodation generally requires an individualized assessment. Some situations may be black or white, but most will be different shades of gray. Employers may need to consult with counsel throughout the process to avoid unintentional, yet costly mistakes.

Please contact us for additional information about protecting your business during the COVID-19 pandemic.

OSHA Inspections and Penalties for Coronavirus-Related Violations on the Rise

Setnor Byer Insurance & Risk

Did you know that the Occupational Safety and Health Act’s health and safety standards apply to COVID-19? Since the coronavirus pandemic began, the Occupational Safety and Health Administration (OSHA) has received approximately 12,000 complaints and conducted nearly 300 inspections related to COVID-19. These inspections have resulted in proposed penalties against employers totaling more than $3.5 million.

The most common violations cited by OSHA include failures to:

While covered employers are responsible for complying with all applicable health and safety standards, those relating to personal protective equipment (PPE), respiratory protection and sanitation may be especially relevant for preventing the workplace spread of COVID-19. Employers that are not subject to a specific OSHA standard must still comply with the OSH Act’s General Duty Clause, which requires each employer to provide a workplace that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.

OSHA’s emphasis on preventing the spread of COVID-19 in the workplace should provide more than enough motivation for employers to do the same. Employers wanting to protect their business and avoid severe OSHA penalties must do their part to protect workers from COVID-19, including the implementation of appropriate preventative measures as required by applicable law or recommended by relevant public health authorities, like the Centers for Disease Control and Prevention (CDC).

Please contact us for more information about protecting your business and your workers during the COVID-19 pandemic.

Experts Are Predicting a Surge in Employment-Related COVID-19 Lawsuits

Employers have endured a parade of challenges since the coronavirus disease 2019 (COVID-19) pandemic began. The parade, it seems, is far from over.  According to a recent white paper co-sponsored by Liberty Mutual Insurance Company, there is early evidence that employment-related COVID-19 claims are on the rise. The white paper identifies various types of COVID-19-related employment claims that employers can expect to see in the near future.

Denial of Paid Leave. The Families First Coronavirus Response Act’s new paid sick leave and expanded family and medical leave requirements are expected to be the source of many COVID-19 cases. Claims may be based on various aspects of the law, including the denial of leave, the calculation of leave, requests for substantiating documentation and retaliation.

Discrimination. COVID-19-related characteristics have become yet another way to separate us from them (COVID positive or negative, real or hoax, facemask or freedom). The polarization of COVID-19 provides fertile ground for claims of discrimination.

Breach of Employment Contracts. Extreme measures are being taken to survive COVID-19’s unprecedented impact on the global economy, including layoffs, furloughs, reduced hours and reduced pay. Employers can expect breach of contract claims if any such remedial measures violate the terms of any employment agreements.

WARN Act. The federal Worker Adjustment and Retraining Notification Act generally requires employers with 100 or more full-time employees (not counting those on the job for fewer than six months) to provide at least 60 calendar days advance written notice of worksite closings or mass layoffs affecting 50 or more employees. COVID-19’s sudden and devastating impact made this impossible in many cases. Lawsuits are nevertheless expected. They will likely focus on the Act’s “unforeseeable business circumstances” exception to the 60-day notice requirements.

Wage & Hour Violations. Employers may see wage and hour claims from employees working remotely during the pandemic. Claims are likely to include allegations that employers failed to properly monitor, track or pay remote employees for all hours worked and that employers failed to reimburse employees for work-related expenses incurred while working remotely.

These are but a few examples of COVID-19-related claims that employers can expect to see. To reduce the likelihood of claims, employers should proceed cautiously when presented with any COVID-19-related matter. This may include seeking counsel from a licensed professional. Please contact us for additional information about protecting your business during the COVID-19 pandemic.

How COVID-19 might change the Insurance Market

COVID-19 will change our world in many ways, some good and some bad. The same holds true for the insurance marketplace. While in the midst of the crisis, it is hard to predict, but the following considerations should be noted.

Property policy and the corresponding business interruption coverage terms will be more restrictive, with insurers making certain to exclude (or make clear) that certain triggers to loss will not be covered. These excluded triggers will be viruses, contagious diseases, pandemics, epidemics, bacteria, pollution and as many more terms as needed to make it terribly clear that the policies will not cover biological damages. While many policies have these exclusions now, there are efforts on the part of a few states and attorneys to void the terms of the current contract. While any action to void contract language on a wholesale basis will be met with challenges, the states that have taken this position might find that insurers retreat from those states and offer limited property protections.

Specialty markets are already launching virus insurance in the form of indemnity and parametrics protections. This type of insurance was offered years ago, but the price tag caused the failure of these insurers. They will certainly try to find a market. Premiums will be 1 to 5 percent of the limit sought. So, metropolitan areas would possibly pay $50,000 for a $1 million limit in coverage.

Workers compensation insurance, if certain COVID-19 cases are determined to be occupational in nature, could modify pricing for certain industries, such as healthcare and assisted living facilities.

Commercial general liability, directors and officers and employment practices may see pricing increases due to the possibility of increased litigation—employers now have additional laws to comply with and errors will certainly occur. Even in the absence of errors, certain segments of the workforce will seek to recover their economic losses by finding a soft target.

Health insurance should increase due to the COVID claims.

Certain classes of products liability will see additional scrutiny in the underwriting process, as many products that are being rushed to market may cause damages. While there is a new federal law that ‘holds harmless’ the organizations that are building these products, this law may not have the impact it needs, as these products will age in the system and insurers may be faced with future claims. Perhaps we will see insurance exclusions for such products.

America was heading into a hard market with most insurance lines were increasing in cost. With the new financial/investment troubles, combined with underwriting losses, and possible future decreases in demand for insurance, the market may become soft again, despite performance. In the longer term—two years plus—the market should significantly harden.

Mandatory Paid Coronavirus-Related Sick Leave Starts April 1, 2020

In a bipartisan effort, Congress passed the Families First Coronavirus Response Act to address the health and economic impacts of the coronavirus disease 2019 (COVID-19) pandemic. This federal law includes a new paid sick leave requirement to help employees who miss work due to COVID-19. It’s called the Emergency Paid Sick Leave Act (the Act).

When can employees start taking paid sick leave under the Act? April 2, 2020*, regardless of how long they have been employed.

*EFFECTIVE DATE UPDATE: Pursuant to the Act, the paid sick leave requirements “shall take effect not later than 15 days after the date of enactment.” On March 24, 2020, the Department of Labor announced that the Act will become effective April 1, 2020, which is only 14 days after the date of enactment.

Which employers are required to provide paid sick leave? The Act applies to employers with fewer than 500 employees. However, the Secretary of Labor has the authority to exempt businesses with fewer than 50 employees if paying sick leave would jeopardize the viability of the business as a going concern.

Which employees are eligible for paid sick leave? Employees who are unable to work or telework because they:

  • are subject to a Federal, State or local quarantine or isolation order related to COVID–19;
  • have been advised by a health care provider to self-quarantine due to concerns related to COVID–19;
  • are experiencing symptoms of COVID–19 and seeking a medical diagnosis;
  • are caring for an individual who has been ordered to quarantine or advised to self-quarantine;
  • are caring for a son or daughter whose school or child care provider is closed or unavailable due to COVID–19 precautions; or
  • are experiencing any other substantially similar condition specified by the Departments of Health and Human Services, Treasury and Labor.

How many hours of paid sick time does the Act provide? Full-time employees are entitled to 80 hours of paid sick time. Part-time employees are generally entitled to the average number of hours worked over a 2-week period, though special rules are used for part-time employees who work irregular hours.

How much must employees be paid while out on sick leave? Employees must be paid no less than their regular rate of pay or the applicable minimum wage, whichever is greater. Those taking leave for reasons 4, 5 or 6 above are entitled to two-thirds of such amount. Employees taking leave for reasons 1, 2 or 3 above cannot be paid more than $511 per day ($5,110 in the aggregate). Those taking leave for reasons 4, 5 or 6 cannot be paid more than $200 per day ($2,000 in the aggregate).

What are some other significant provisions in the Act?

  • Employers cannot require employees to use other types of paid leave before using the paid leave provided by the Act.
  • Employers may not retaliate or discriminate against employees who take leave pursuant to the Act.
  • Violations of the Act will be enforced like violations of the Fair Labor Standards Act’s minimum wage requirement.
  • The Secretary of Labor is required to create a model notice about the Act’s requirements that employers will be required to post in a conspicuous place.
  • The Act automatically expires December 31, 2020.

Employers and employees alike are awaiting the Secretary of Labor’s regulations, particularly those pertaining to potential exemptions from the Act’s paid sick leave requirements for employers with fewer than 50 employees. Until then, employers are encouraged to get familiar with the Act’s requirements and consult with legal counsel if necessary.