New legislation and guidance from the Equal Employment Opportunity Commission (the “EEOC”) have reset employer obligations regarding COVID-19 and vaccination leaves of absence.

COVID-19 Leaves of Absence

On December 27, 2020 President Trump signed into law The Coronavirus Response and Relief Supplemental Appropriations Act, 2021 (the “Act”).  The Act does not require employers to continue to provide paid COVID-19 leaves of absence after December 31, 2020 mandated by The Families First Coronavirus Response Act (the “FFCRA”).  But the Act does extend the tax credit through March 31, 2021, for qualified private employers that continue to offer paid sick and family leave to their employees.  (The Act does not offer the tax credit to public employers.)  As summarized in our April 1, 2020 alert, Covid-19 Employment Legislation, an FFCRA leave is available to private employers with less than 500 employees if their employees are unable to work or telework for any of the following reasons (“Qualifying Reasons”):

1. 1. Employee is subject to a federal, state or local or isolation order related to COVID-19; 2. Employee has been directed by a health care provider to self-quarantine due to COVID-19;
   2. Employee has symptoms of COVID-19 and is seeking a medical diagnosis;
   3. Employee is caring for someone subject to a federal, state or local quarantine or isolation order or for someone who has been directed by a health care provider to self-quarantine due to COVID-19;
   4. Employee is caring for a child if the child’s school or place of care is closed or otherwise unavailable due to COVID-19;
   5. Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretary of Treasury and the Secretary of Labor.

For Qualifying Reasons 1-3, the tax credit would remain the employee’s regular rate of pay, up to $511 a day, for a maximum of $5,110 in the aggregate, and for Qualifying Reasons 4-6 the tax credit would remain to two-thirds of the employee’s regular pay, up to $200 per day, for a maximum of $2,000 in the aggregate.

Covered employers should consider the advantages to both their employees and themselves of utilizing the tax credit so long as it is available.  To employees, the benefits of a paid leave for a qualifying reason is paid leave without having to draw down on other forms of paid time off (“PTO”) leave, if any.

Indeed, the Centers for Disease Control (“CDC”) explain that “[e]mployers that do not currently offer sick leave to some or all of their employees may want to draft non-punitive ‘emergency sick leave’ policies.”  Reducing Spread Of Covid-19 In Workplaces.  Still, future tax credits may seem far away to businesses struggling to survive through the current pandemic.

New York employers will want to remain alert to their continuing leave obligations under New York State law, summarized in the chart below:

EEOC’S COVID-19 Vaccine Guidance

On December 16, 2020, the EEOC updated its COVID-19 guidance to provide FAQs regarding vaccines.  The guidance can be divided into 3 broad categories: guidance under the ADA; guidance for employees with religious objections to receiving the vaccine; and guidance under Title II of the Genetic Information and Non-disclosure Act (“GINA”):[1]

ADA/Disability Accommodation Guidance

• • The vaccination itself is not a medical examination for purposes of the ADA because “the employer is not seeking information about an individual’s impairments or current health status” solely by providing the vaccine. FAQ K-1.
  • But “pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries.” Thus, employers who choose to administer the vaccine themselves “must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”  Employers must keep medical information obtained in the course of a vaccination program confidential.  FAQs K-1and FAQ K-2.
  • Because pre-screening questions– whether asked by the employer or by a contractor on the employer’s behalf, are likely to elicit disability-related information– “the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.” To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”  FAQ K-2.
  • This raises the question: when does an employer have a reasonable belief that employees who declines to answer pre-screening questions, because they claim to have a disability, pose a direct threat?  According to the EEOC: “Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.”  FAQ K-5.
  • If the employer concludes that an individual who cannot be vaccinated due to disability does pose a direct threat, the employer must determine whether it can “provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.” Even if an employee with a disability does pose a direct threat “that cannot be reduced to an acceptable level,” it does not necessarily follow that the employer can bar the employee from the workplace.  The employer must first determine its obligations under applicable law.  “For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely.”   FAQ K-5.
  • An employer likely does not implicate the ADA merely by requesting proof of receipt of a COVID-19 vaccination because such a request, by itself, “is not likely to elicit information about a disability.” Employers, however, will need to consider follow up questions carefully, as inquiries “such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’”  FAQ K-3.

Religious Accommodation Guidance

• • “Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.” FAQ K-6.
  • If there is no reasonable accommodation possible, “then it would be lawful for the employer to exclude the employee from the workplace.” The employer would then need to consider its obligations under applicable anti-discrimination law.   FAQ K-7.

GINA Guidance

• • Similar to the ADA, merely administering a vaccine does not implicate GINA because “it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute.” Pre-screening questionnaires, however, that ask about genetic information (including family members’ medical histories) may implicate GINA.  Among other things, GINA prohibits employers from acquiring or disclosing genetic information “except in six narrow circumstances.”  FAQ K-8.
  • GINA defines genetic information to be: “Information about an individual’s genetic tests; Information about the genetic tests of a family member; Information about the manifestation of disease or disorder in a family member (i.e., family medical history); Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.” FAQ K-9.
  • Based on the above definition, “[i]f the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA. However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.”  FAQ K-9.
  • Even if the employer asks the employee to obtain proof of vaccination from the employee’s doctor, “the employer may want to warn the employee not to provide genetic information as part of the proof. As long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.”  The EEOC then refers the reader to a federal regulation containing a sample warning.  FAQ K-9.

Implications for Employers

Without question, the New Year brings with it changes to employment law related to COVID-19, and employers will want to update their policies and procedures accordingly. 

Footnotes:

[1] The EEOC’s guidance is available at What You Should Know About Covid19, ADA Rehabilitation Act, and Other EEOC Laws.   The vaccine FAQs are located in Section K.  Thus, references to the FAQs are cited below as FAQ K-1, FAQ K-2, etc.