As we turn the calendar to 2021, employers continue to face a wide array of issues related to the COVID-19 global pandemic. Below are some of the recent topics and questions that have come to our attention and some basic guidance on each. Members of our Division are available if you need additional assistance on any of these issues.
1. COVID VACCINATION
Now that the COVID-19 vaccination is more readily available, employers are grappling with whether to require their employees to be vaccinated once it is feasible for them to do so. As a matter of law, employers generally can require employees to receive a COVID-19 vaccination, but must accommodate employees whose sincerely held religious beliefs or medical conditions/disabilities prevent them from being vaccinated. Employers who establish a mandatory vaccination policy must ensure that they have a mechanism in place for employees to request accommodations and to evaluate such accommodation requests.
If an employer intends to require employees to be vaccinated, the employer should adopt a vaccination policy that is facially neutral and that does not apply only to some groups and not others. This will avoid claims of discrimination by certain categories of employees.
Additionally, union contracts may impact an employer’s ability to unilaterally mandate vaccination. Employers with unionized employees must exercise care to ensure that any vaccination policy conforms to their collective bargaining agreements. Specifically, employers should determine whether the language of the existing agreement or applicable binding past practice could prohibit the employer from unilaterally adopting a vaccination policy without negotiating said policy.
2. UPDATED RETURN-TO-WORK GUIDANCE
On December 2, 2020, the CDC updated its guidance for determining when individuals who have had close contact with persons with COVID-19 may discontinue isolation. Though the CDC still recommends a quarantine period of 14 days, it has established alternative options using symptom-monitoring or diagnostic testing. The guidance provides that persons who have had close contact with persons with COVID-19 may discontinue isolation after following one of the following protocols:
|Option 1 (Symptom Monitoring)||Option 2 (Diagnostic Testing)|
If an employer adopts Option 1, an employee may return to work after ten (10) days of absence, provided daily monitoring continues until the 14th day and mask use continues. If an employer adopts Option 2, the employee may return to work after seven (7) days of absence, provided daily monitoring continues until the 14th day and mask use continues. The determination on the suitable option lies at the discretion of the employer and should be guided by local circumstances and conditions.
3. DESPITE THESE OPTIONS, CAN EMPLOYERS STILL REQUIRE A 14-DAY ABSENCE/QUARANTINE?
Yes, the CDC continues to recommend that individuals with known exposure to COVID-19 via close contact undergo fourteen (14) days of quarantine, but an employer may adopt one of the alternatives based on local circumstances and conditions.
4. WHAT IS CONSIDERED “CLOSE CONTACT” WITH SOMEONE WITH COVID-19 FOR THE PURPOSES OF QUARANTINING?
“Close contact” means being within 6 feet for a cumulative total of 15 minutes or more over a 24-hour period with someone with COVID-19. It is immaterial whether both parties wore masks or personal protective equipment (PPE).
5. IMPACT OF THE EXTENSION OF THE FFCRA
The Families First Coronavirus Response Act (FFCRA) mandates that certain employers provide to their employees Emergency Paid Sick Leave (up to 80 hours for full-time employees) and Emergency FMLA (up to 10 weeks of partial wages to care for a child due to COVID-19 related school or place of care closures). Private sector employers with fewer than 500 employees and public employers have been mandated to provide these benefits to qualified employees since April 1, 2020. Private sector employers were granted dollar-for-dollar refundable tax credits to subsidize the costs though public employers who were subject to the same mandate were not entitled to the tax credits.
The FFCRA was set to expire on December 31, 2020, but Congress recently passed the Consolidated Appropriations Act allowing employers to voluntarily decide if they want to extend the FFCRA benefits through March 31, 2021. In other words, employees’ entitlement to FFCRA benefits has not been extended; therefore, no obligation exists on employers to continue to provide the benefits. Instead, employers may extend the FFCRA benefits until March 31, 2021 and, if they do, the refundable tax credits associated with the provision of the benefits will be extended. As noted, public employers are not entitled to the tax credits. As of January 1, 2021, an employer’s options are as follows:
- Voluntarily extend FFCRA benefits through March 31, 2021. For eligible private sector employers, claim the refundable tax credits.
- Establish FFCRA-type benefits (see #6)
- Grant COVID-19 related leave requests in accordance with existing leave policies (see #7)
Irrespective of the decision of employers, employees are no longer entitled under the FFCRA to such leave benefits. The Biden administration has expressed interest in extending the FFCRA entitlement, but that is only one of several eventualities. Therefore, employers are strongly encouraged to advise employees as to their leave options as of January 1, 2021 as soon as is feasible.
6. CAN AN EMPLOYER ADOPT FFCRA-TYPE BENEFITS
Leaving the FFCRA extension legislation aside, employers may adopt employee benefits that mirror or are similar to those provided under the FFCRA. However, for unionized workplaces, the adoption of such benefits may prompt a request for collective bargaining or, at a minimum, may require union consent, because paid leave is a mandatory subject of bargaining. In non-union workplaces, the decision to voluntarily extend benefits is strictly a business decision, and employers will have to balance the need to keep sick employees away from the workplace with the need to maintain operations and function within their financial parameters.
7. HANDLING COVID-19 RELATED LEAVE REQUESTS IN 2021
If an employer does not extend the FFCRA benefits or adopt FFCRA-type benefits, its existing personnel policies and procedures should dictate the prospective handling of COVID-19 related leave requests. For example, if an employer has a discretionary unpaid leave policy, employees that want to remain home to care for a child due to a school closure should request unpaid leave. Employees who have had close contact with persons with COVID-19 must remain absent from the workplace in accordance with the quarantine procedure adopted by the employer (e.g., 14 days, 10 days, 7 days and test, etc.), and may be paid if they are permitted to use accrued leave or may work remotely in accordance with applicable personnel policies and procedures.