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Coronavirus Considerations and Hot Topics Heading into 2021
By Carrie H. Grundmann
When much of the country locked down in March 2020, very few expected us to still be dealing with this pandemic in December 2020. And yet, here we are. In fact, coronavirus cases are rising sharply throughout much of the country, and the prospect of additional shutdowns is growing more probable by the day. Not all news is bad. Pfizer, Moderna and AstraZeneca have produced what appear to be viable vaccines that could be available as early as this month. As we look to 2021, here are a few issues that employers should have on their radar.
Expiration of Paid Leave Under FFCRA
Since April 2020, many employers have been providing up to two weeks of paid sick leave and 10 weeks of paid family medical leave to employees impacted by the coronavirus pursuant to the Families First Coronavirus Response Act ("FFCRA"). Barring an agreement being reached in Congress to extend these leave laws (which seems unlikely between now and the inauguration), these paid leave provisions -- and the employer tax credits associated with providing the leave -- expire on December 31, 2020.
Employers should take steps now to determine how they will handle absences related to COVID-19 after December 31, 2020. Even where an employer chooses to discontinue paid leave, they should still provide flexibility, including considering telework, to employees who must be absent because of COVID-19.
Once you have determined how you will handle COVID-19 absences, communicate with your workforce. All employees should be provided advance notice that the FFCRA expires at the end of December as well as how COVID-19-related leave will be handled after that. If there are employees who will be out on FFCRA-related leave as of December 31, 2020, you should clearly communicate with them how their paid leave will be impacted, if at all.
Mandatory Coronavirus Vaccinations for the Workplace
With viable vaccines on the horizon, many employers want to know: Can they require employees to get vaccinated?
The answer is yes, but with exceptions.
In 2009, the EEOC issued guidance on this very issue, but in the context of the flu shot vis-à-vis H1N1. As part of its 2020 guidance to employers, the EEOC reissued its 2009 guidance, thus, it is clear the EEOC would recognize certain exceptions to any mandatory vaccination requirement. According to the EEOC, employees may be exempt from an employer's mandatory vaccination requirement under one of the following circumstances:
The Americans with Disabilities Act may exempt an individual who has a disability that prevents them from getting the vaccination; or
Title VII of the Civil Rights Act requires employers to grant an accommodation to an employee where his/her sincerely held religious belief prevents them from receiving a vaccination.
Employers faced with either a disability or a religious exemption should engage in an interactive discussion with the employee to determine what accommodation might be granted. In many cases, the appropriate accommodation will be an exemption from the vaccination, perhaps coupled with other safeguards, such as mandatory mask usage even when other employees are no longer required to wear theirs. Regardless, employers remain free to encourage (rather than require) and/or facilitate employees receiving the vaccination. While there is no requirement that employers pay for these vaccines, employers may find the convenience of providing vaccinations to its workforce to be worth the cost in light of increased productivity, much like some employers have long provided free flu vaccinations.
The situation with the coronavirus remains in flux and likely will remain so for the near future. Employers who have questions about handling coronavirus issues should contact their legal counsel, or the Spilman COVID-19 Task Force.