Tag: covid19

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.

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.

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.

Families First Coronavirus Response Act UPDATE: DOL Announces Effective Date of Paid Leave Laws and Releases Employee Notice Poster

The Families First Coronavirus Response Act was enacted March 18, 2020. Since then, employers have been anxiously preparing for the FFCRA’s two new paid sick leave laws—the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. Many had questions, but few had answers. Fortunately, the Department of Labor has released much-needed guidance to help employers comply with these new paid leave laws.

Effective Date. The DOL announced that the FFCRA’s paid leave requirements will go into effect April 1, 2020, one day sooner than many expected. The FFCRA’s paid sick leave provisions had to become effective no later than 15 days after the law was enacted, so many assumed they wouldn’t begin until April 2nd. This is significant because employees may start taking paid sick time under the Emergency Paid Sick Leave Act immediately upon becoming effective.

Model Notice to Employees. Covered employers are required to notify employees of the FFCRA’s paid sick leave requirements. The DOL released a model notice (poster) that employers can use to satisfy this requirement. Click here to download the DOL’s Model Employee Rights Poster. The DOL also provided additional guidance to help employers better understand and comply with the FFCRA’s notice requirement.

  • Covered employers must post the required FFCRA notice in a conspicuous place on its premises and keep it posted. Employers may also provide this notice by email, direct mail or by posting it on an internal or external website that is used to provide information to employees.
  • Employers are not required to post this notice in multiple languages, but the DOL is working on translated versions.
  • The FFCRA’s notice requirement applies only to current employees, including new hires. Notice is not required for recently laid-off individuals or new job applicants.
  • All covered employers must post the required FFCRA notice, regardless of any state notice requirements. Employers must comply with both federal and state laws.
  • All private sector employers with fewer than 500 employees are required to post this notice.

Legislative efforts to curb the impact of COVID-19 are proceeding at an astonishing pace. FFCRA regulations are “expected April 2020,” and may not be available until after the law goes into effect. Consequently, employers have little time to understand these new laws and adapt their operations accordingly. Confusion and anxiety are to be expected, but will hopefully diminish in time. Until then, employers should continue efforts to control the spread of COVID-19 in the workplace and remain informed. Please contact us for additional information about protecting your business.