DFEH Approves Mandatory Vaccination Policies
Guidance from government agencies continues to support the conclusion that employers may institute mandatory vaccination programs. However, it is still possible that an employee may challenge the legality of such a program on grounds such as privacy. It would be prudent for employers to consult legal counsel before instituting such a program. However, the arguments in favor of mandatory programs were strengthened last week when the California Department of Fair Employment and Housing (“DFEH”) released guidance approving the use of mandatory vaccination policies in the workplace. In issuing this guidance, the DFEH generally adopts the previous guidance issued by the EEOC. Before implementing such policies employers should be aware of the following precautions and pitfalls.
Exceptions and Accommodations. California’s Fair Employment and Housing Act (“FEHA”) requires employers to reasonably accommodate employees with known disabilities and known sincerely-held religious beliefs. If an employer decides to implement a mandatory vaccination policy and an employee objects to receiving the vaccine due to a disability or a religious belief, the employer must attempt to reasonably accommodate the employee. Employers must engage in an interactive process with the employee to determine whether a reasonable accommodation can be implemented without undue hardship to the employer. Reasonable accommodations may include working from home or reasonable procedures and safeguards in the workplace that would enable the employee to work without being vaccinated and without endangering themselves or others. What constitutes a reasonable accommodation depends on the nature of the employee’s position and their particular disability or religious belief. If a reasonable accommodation is not possible, the employer must determine what action to take, which would range from putting the employee on an unpaid leave of absence to termination of employment. We suggest reaching out to legal counsel to guide you through this process.
Where an employee objects to the vaccine because they don’t believe it is safe or have a political objection, but does not have a known disability or religious belief, an employer may take appropriate steps in response including terminating employment. This can still be a delicate exercise as employers should be careful to avoid claims of retaliation against an employee for engaging in protected activity such as the employee raising concerns about workplace safety or alleging that the employer’s vaccination policy intentionally discriminates on the basis of race, gender, sexual orientation, or another protected characteristic. If an employee simply opposes the policy because they don’t want to get the vaccine, then an employer may take appropriate action in response.
Be Careful Not To Ask For Medical Information. Employers may generally ask their employees to answer work-related questions pertaining to COVID-19 such as whether an employee is experiencing COVID-19 symptoms or has been exposed to a person who has tested positive. Additionally, if an employer is administering its own vaccination program at the worksite, the employer may ask necessary medical questions that would potentially elicit information about an employee disability, such as a pre-vaccination screening questionnaire. However, per guidance from the EEOC, employers administering the vaccination program should not request any information regarding employees’ genetic tests, family members, or family medical history. Asking these questions would run afoul of the Genetic Information Nondiscrimination Act (GINA). If the employer retains any medical records, they must be kept confidential and should be stored separately from their personnel records. Because of the many pitfalls, employers are encouraged to use a third party to vaccinate its employees.
Employers May Request Proof of Vaccination. As part of ensuring a safe workplace and protecting the health and safety if its employees, employers may ask employees whether they have been fully vaccinated. Even though reasons that an employee is not vaccinated may or may not be related to a disability or religious belief, simply asking the employee whether they have received the vaccine is not considered an improper inquiry or medical examination and does not automatically implicate GINA. Unless the employer has adopted a mandatory vaccination program, employees should not be asked why they chose not to get vaccinated. Additionally, if the employer is requesting the vaccination record from the employee’s medical provider, the employer should ask that the vaccination record not include any family medical history or genetic information. Any vaccination records must be kept confidential.
Other Concerns. In addition to the concerns discussed above, employers requiring employees to receive the vaccine will likely have to pay employees for their time spent getting vaccinated as courts will likely consider employees to be under the control of the employer during that time. Additionally, whether an employer can offer incentives to employees who receive the vaccine, such a gift cards or bonuses, without violating the ADA and other anti-discrimination laws, and whether such incentives must be included in determining the regular rate of pay, are still uncertain. As mentioned in previous Client Alerts, the U.S. Chamber of Commerce and a number of major companies have requested that the EEOC provide guidance on those issues, but thus far nothing has been provided. Finally, if an employee has an adverse reaction to the vaccine after following the employer’s mandatory vaccination policy, their injuries are likely to be covered by the employer’s workers’ compensation policy, and there is some question as to whether adverse reactions may be covered by workers’ comp in other scenarios, such as whenr voluntary vaccinations are given at the workplace or when an employer encourages vaccination.
You can access the full DFEH vaccination guidance here.
CDC Issues New Guidance For Fully Vaccinated Individuals
The CDC recently published a set of recommendations for individuals who have been fully vaccinated. Individuals are considered to be fully vaccinated two weeks after the receive the second dose of the Pfizer or Moderna vaccines or two weeks after they receive the single dose Johnson & Johnson vaccine. The guidance, considered overly conservative by some medical experts, covers how fully vaccinated people can visit with each other and with unvaccinated people in private settings as well as how fully vaccinated people should approach isolation, quarantine, and testing.
Of importance to employers outside of California, the guidance states that even if fully vaccinated, employees should continue to follow all applicable workplace safety procedures, with one exception. Fully vaccinated employees working in non-healthcare congregate settings and other high-density workplaces (e.g., meat and poultry processing and manufacturing plants) with no COVID-like symptoms do not need to quarantine following an exposure; however testing following an exposure and continued workplace screening practices, like a pre-shift symptoms questionnaire, are still recommended. For California employers, the CDC’s guidance has yet to be adopted by the California Department of Health or Cal/OSHA. So employers should not deviate from the standards imposed by the Cal/OSHA Emergency Temporary Standards (ETS) until Cal/OSHA revises the ETS to incorporate the new CDC guidance. In fact, the current CAL/OSHA ETS FAQs state that all safety and prevention measures must continue to be implemented regardless of whether the employee is fully vaccinated.
Tax Credits For FFCRA Leave Expanded and Extended Until September 30, 2021
The American Rescue Plan Act (ARP) has further extended the payroll tax credits available to employers with less than 500 employees who offer up to 80 hours of paid sick leave and 12 weeks of paid FMLA leave for COVID-19 related reasons that was first provided for under the Families First Coronavirus Response Act (FFCRA). The ARP further expands the available bases for paid sick leave and extends the tax credits available in connection with providing this paid leave through September 30, 2021. Importantly, whether an employer wishes to participate in this program, providing the paid sick leave or FMLA leave in return for received payroll tax credits, is purely voluntary. It is also important to note that the paid leave authorized under the ARP is in addition to the paid leave required under the Cal/OSHA Emergency Temporary Standards discussed in our prior Client Alert, Key Takeaways from Cal/OSHA’s COVID Related Emergency Temporary Standards, which can be assessed here.
The additional bases for employees to be eligible for FFCRA sick leave include (1) employees who are getting COVID-19 vaccines or recovering from any injury, disability, illness, or condition related to such immunization; or (2) seeking or awaiting the results of a COVID-19 test when the employee has been exposed to COVID-19 or the employer requested the test. Originally, under FFCRA, employees could only take sick leave for six reasons (1) self-isolation because of a COVID-19 diagnosis; (2) to obtain a medical diagnosis or care when experiencing COVID-19 symptoms; (3) because a health official or health care provider has recommended quarantine; (4) to care for a family member with COVID-19 or who is seeking diagnosis/care; (5) to care for a family member in quarantine; and (6) when a child’s school or childcare provider is unavailable because of COVID-19.
Under the ARP, employees allotment of 80 hours begins anew on April 1, 2021. So if an employer is offering FFCRA paid sick leave, employees who have already exhausted their FFCRA sick leave will become eligible for another 80 hours after April 1, 2021.
In addition to the 80 hours of paid sick leave, the ARP allows employers to take tax credits for emergency family leave under the FMLA arising from any of the eight reasons available for paid sick leave (including the newly added reasons discussed above). Previously, only absences for due to childcare needs resulting from COVID-19 related school or place of care closure or childcare provider unavailability, qualified for the additional weeks of FFCRA paid family leave.
The ARP also expands the amount of available paid leave to all 12 weeks of the emergency family leave, an increased from the previous limit of 10 weeks of paid leave. The amount of the related tax credit has similarly been increased from $10,000 to $12,000 to account for the two additional weeks of available paid leave. The emergency family leave is still paid at two thirds of the employee’s regular rate. Given the increase to 12 weeks of paid emergency family leave, an employee can add to the time off the 80 hours of paid sick leave, if available, entitling the employee to up to 14 weeks of paid leave if they meet one of the criteria listed above, with the employee receiving a corresponding payroll tax credit. However, the emergency family leave is still considered part of an employee’s FMLA leave entitlement, so if an employee has already used some of their FMLA during the 12 month measuring period for other reasons, their emergency family leave as provided under the ARP would be correspondingly reduced.
The ARP directs the Department of Labor to issue “regulations or other guidance” to implement these new provisions, and we will update you when that is done.
COBRA Premium Subsidy and Unemployment Benefits under the American Rescue Plan Act
The ARP also provides a subsidy for COBRA premiums for eligible laid-off workers and covered relatives through September 30, 2021. COBRA notices issued by employers are now required to provide a description of the premium subsidy, or provide that information in a separate notice. Federal agencies have been directed to provide a model of the require notice language. Tax credits for the cost of the subsides will be available for employers with self-insured plans and to insurers for insured plans.
The ARP requires the federal government to provide a $300 weekly supplement to employment benefits through September 6, 2021. It also provides that for individuals or households earning up to $150,000 the first $10,200 in unemployment benefits will be tax-free for individuals, while for married couples each spouse can exclude up to $10,200 of their unemployment benefits. However, the $150,000 cap remains in place even for married couples.
OSHA’s New National Emphasis Program
OSHA has launched a national emphasis program to protect high-risk workers from COVID-19 hazards. The program prioritizes OSHA inspections of private sector employers that retaliate against workers who complain about unsafe conditions.
The COVID-19 National Emphasis Program (NEP) is effective immediately, with OSHA foregoing the typical 90-day waiting period before initiating inspections under it. Per OSHA, the COVID-19 NEP will remain in effect for up to one year, though the agency may amend or cancel the program as the pandemic subsides.
OSHA identified the following industries to be targeted by the NEP:
- Healthcare, including hospitals, doctors’ and dentists’ offices, long-term care facilities, and home healthcare services;
- Grocery and big box stores;
- Temporary staffing services;
- Full-service and fast-food restaurants;
- Food and beverage manufacturing;
- Construction; and
- Critical manufacturing, including paper, chemicals, plastics, and metals
Employers outside of these industries are technically not subject to the NEP, however, the NEP signals a return to onsite OSHA inspections so all employers should evaluate their policies and practices for compliance with applicable guidelines. If you require assistance implementing or updating your COVID-19 prevention program, Stradling has developed comprehensive protocols and programs to ensure that employers remain complaint.
Stradling Has Resources To Help You Stay Compliant
To assist California employers in complying the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you are in the process of reopening or you have been conducting business and want to make sure you are in compliance with the applicable industry guidelines.