Tag: covid

Can Employers Prevent Unvaccinated Employees from Entering the Workplace?

By Anita Byer, Setnor Byer Insurance & Risk

Many employers are struggling with how to deal with the shrinking, yet substantial number of employees who are not vaccinated for COVID-19. As infection rates increase, employers are once again forced to consider actions to maintain operations while protecting the health, safety and welfare of their employees. Some are considering policies that require all employees physically entering the workplace to be vaccinated for COVID-19. Is this legal?

According to the Equal Employment Opportunity Commission, federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19. However, the EEOC stresses that it must be done in a manner that does not violate the reasonable accommodation provisions of Title VII of the Civil Rights Act and the Americans with Disabilities Act.

These laws may require an employer to provide reasonable accommodations for employees who do not get vaccinated for COVID-19 because of a disability or a sincerely held religious belief, practice or observance. Reasonable accommodations may include requiring an unvaccinated employee entering the workplace to wear a face mask, maintain social distance from others, work a modified shift, get periodic COVID-19 tests or be given the opportunity to telework. A reasonable accommodation, however, is not required if would pose an undue hardship on business operations. Courts define “undue hardship” under Title VII as having more than minimal cost or burden on the employer. This is an easier standard for employers to meet than the ADA’s undue hardship standard, which generally requires significant difficulty or expense.

The EEOC cautions that as with any employment policy, employers must ensure that their vaccine requirement does not have a disparate impact on employees based on a protected characteristic (race, color, religion, disability, etc.). Policies that disproportionately impact or exclude employees because of these characteristics are discriminatory and unlawful. The EEOC urges employers to recognize that some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others. As a result, some employees may be more likely to be negatively impacted by a vaccination requirement.

Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety. Employers should also carry Employment Practices Liability Insurance to cover the high cost of defending against claims of unlawful conduct.

Please contact us if you would like to learn more about Employment Practices Liability Insurance.

What Does it Mean to be Fully Vaccinated Against COVID-19?

In the United States, nearly 2.5 million doses of the COVID-19 vaccine are being administered every day. More than 40 million Americans have been fully vaccinated against COVID-19. People are considered fully vaccinated two weeks after receiving a single-dose vaccine (Johnson & Johnson) or two weeks after their second dose in a 2-dose series (Pfizer or Moderna). According to the Centers for Disease Control and Prevention, fully vaccinated people can start doing some of the things they stopped doing because of COVID-19.

People who have been fully vaccinated:

  • can gather indoors with other fully vaccinated people without wearing a mask;
  • can gather indoors with unvaccinated people from one other household without masks, unless anyone has an increased risk of severe illness from COVID-19; and
  • do not need to quarantine or get tested if they are exposed to someone with COVID-19 yet remain symptom-free. (The CDC recommends that people living in a group setting should still isolate for 14 days and get tested, even those without symptoms.)

More must be learned about the COVID-19 vaccine, so for now, the CDC recommends that fully vaccinated people should still take precautions (masks, social distancing, etc.) when in public, when gathering with unvaccinated people from more than one other household or when visiting with an unvaccinated person who is at increased risk of severe illness or death from COVID-19 or who lives with someone else who is. According to the CDC, fully vaccinated people should also:

The CDC will continue to update its recommendations as more is learned about the COVID-19 vaccines. In the meantime, the CDC is urging everyone, including those who are fully vaccinated, to continue taking precautions when recommended.

COVID-19 Paid Leave: When Does the Small Business Exemption Apply?

The Families First Coronavirus Response Act (FFCRA) requires paid sick leave and expanded family and medical leave for employees who miss work for specific reasons related to coronavirus disease 2019 (COVID-19). These requirements generally apply to private employers with fewer than 500 employees, but there is an exemption for employers with fewer than 50 employees. As you will see, this exemption is narrow and limited to very specific circumstances.

An employer with fewer than 50 employees is exempt from the FFCRA’s mandated paid sick leave or expanded family and medical leave requirements ONLY IF:

If both conditions are satisfied, the employer may claim the exemption for the requested leave, but ONLY IF an authorized officer of the business has determined that:

1. The requested leave would cause the business’s expenses and financial obligations to exceed its business revenues and would cause the small business to cease operating at a minimal capacity;

2. The absence of the employee requesting such leave would entail a substantial risk to the financial health or operational capabilities of the business because of employee’s specialized skills, knowledge of the business or responsibilities; OR

3. There are not sufficient workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee who is requesting such leave, and such labor or services are needed for the small business to operate at a minimal capacity.

To elect the exemption, the employer must document the fact that the required determination has been properly made. This documentation must be retained in the employer’s files and should not be sent to the Department of Labor. Employers have relatively broad discretion to determine whether providing the required paid leave would jeopardize the viability of their business as a going concern. However, the Department of Labor encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.

To avoid costly violations of the FFCRA, employers should proceed cautiously when interpreting and applying the law’s exemptions. Employers should also consider Employment Practices Liability Insurance to protect against various employment-related claims. Please contact us to learn more about EPLI coverage.

When Can Employees with COVID-19 Return to Work?

The likelihood of an employee testing positive for coronavirus disease 2019 (COVID-19) increases with every new case. By now, employers know that employees suspected or confirmed to have COVID-19 must be kept away from the workplace. But, when should they be allowed back?

The Centers for Disease Control and Prevention (CDC) provides two strategies for determining when an employee can stop home isolation and return to work: a symptom-based strategy and a test-based strategy. The CDC stresses that the decision on which strategy to use should be made in consultation with healthcare providers and local public health authorities knowledgeable about locally available testing resources

Symptom-Based Strategy. If it is determined that employees will not be tested to determine if they are still contagious, an employee can leave home and return to work only if:

  • the employee has had no fever for at least 72 hours (without the use of fever-reducing medicine);
  • the employee’s respiratory symptoms, like cough or shortness of breath, have improved; AND
  • at least 10 days have passed since their symptoms first appeared.

Test-Based Strategy. If it is determined that employees will be tested to determine if they are still contagious, an employee can leave home and return to work only if:

  • the employee no longer has a fever (without the use of fever-reducing medicine);
  • respiratory symptoms, like cough or shortness of breath, have improved; AND
  • the employee tested negative for COVID-19 in two consecutive tests taken at least 24 hours apart.

Employers should utilize these strategies in conjunction with other preventative measures designed to limit the spread of COVID-19 in the workplace, such as actively encouraging sick employees to stay home, social distancing, hand hygiene, respiratory hygiene, cough etiquette and the use of facial coverings.

Even though guidance issued by the CDC and other public health agencies typically comes in the form of recommendations rather than requirements, employers are strongly encouraged to follow applicable recommendations when it is reasonable to do so. Remember, under OSHA’s General Duty Clause, employers are required to furnish workplaces that are free from recognized hazards that cause or are likely to cause death or serious physical harm.

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