We recently hosted a webcast on Compliance Trends to Watch in 2021. During the webcast, we received hundreds of questions about COVID-19 vaccinations, time off for reasons related to COVID-19, the Paycheck Protection Program (PPP), how exempt employees differ from non-exempt employees, minimum wage, and more. Here we provide answers to the most commonly asked questions about COVID-19. Next week, we'll cover wage and hour issues and more.
Q: Can I require employees to get vaccinated for COVID-19? What factors should we consider?
A: In the past, the U.S. Equal Employment Opportunity Commission (EEOC), which enforces federal nondiscrimination laws, has generally advised against requiring vaccines, such as the flu vaccine. On December 16, 2020, the EEOC published updated guidance that addresses COVID-19 vaccination specifically. While the guidance doesn't expressly endorse or prohibit mandatory vaccination, it does address various issues that may impact employers. The guidance is available in full here (section K covers vaccinations).
Additionally, keep in mind that some state and local jurisdictions may prohibit or limit employers from mandating employee vaccinations or have privacy laws that may impact employers. Even if an employer can mandate COVID-19 vaccination, before doing so consider factors, such as:
- The availability of a vaccine (the vaccine is limited to healthcare personnel, essential workers and higher-risk populations at first);
- The risk to others if employees don't get vaccinated;
- The effectiveness of masks, social distancing, and other safety measures in preventing the spread of COVID-19 in your particular workplace so far;
- The likelihood of employees seeking out the vaccine without a mandate;
- The risk of litigation or workers' compensation claims if employers do/don't require vaccination (such as, an employee experiencing side effects from the vaccination);
- Requirements for providing accommodations for disabilities and sincerely held religious beliefs and practices;
- Protections for employees under the National Labor Relations Act (NLRA) if they work together to oppose a vaccine mandate; and
- The potential impact on employee morale given the work environment and culture;
Rather than mandating COVID-19 vaccination, many employers plan to encourage employees to get it. Before implementing any such program, consult legal counsel.
Q: Do I have to pay employees for the time they spend getting vaccinated?
A: If you simply recommend vaccination, you're under no obligation to pay employees for the time they spend getting the shot. However, if you require vaccination, you would generally need to pay employees for the time they spend complying with the requirement.
Q: If I require vaccination, how much do I need to pay employees for this time?
A: Employers are permitted to pay non-exempt employees at a rate that differs from their normal rate of pay for nonproductive time, as long as the wage meets or exceeds the highest applicable minimum wage per hour. For example, if the employee's normal wage is $15.00 per hour and the highest applicable minimum wage where the employee works is $11.50 per hour, you may pay them $11.50 per hour (but not lower) for time spent getting vaccinated. It's a best practice, and a requirement in certain jurisdictions, to notify the employee in writing of the separate rate before they perform nonproductive work.
Q: Can I ask for proof of COVID-19 vaccination?
A: The Americans with Disabilities (ADA) has restrictions on when and how much medical information an employer may obtain from any applicant or employee. For example, prior to making a conditional job offer to an applicant, the ADA generally prohibits disability-related inquiries and medical exams. Once an employee begins work, any disability-related inquiries or medical exams must be job related and consistent with business necessity.
In the EEOC's recent guidance, the agency states that simply requesting proof of receipt of a COVID-19 vaccination isn't likely to elicit information about a disability. However, subsequent questions, such as asking why an individual didn't receive a vaccination, may elicit information about a disability and would be subject to the requirement that the inquiry be job related and consistent with business necessity. If you require employees to provide proof that they've received a vaccination, you may want to warn them not to provide any medical information as part of the proof in order to avoid implicating the ADA.
Note: Some state and local jurisdictions may restrict or prohibit employers from asking for proof of COVID-19 vaccination.
Q: If we determine we're allowed to require COVID-19 vaccination under federal and state law, what should we do if an employee refuses to be vaccinated?
A: If you require vaccination, and an employee indicates they can't receive it due to a disability or sincerely held religious belief, you must provide a reasonable accommodation, unless it would pose an undue hardship to the business. Depending on the nature of the employee's job and the type of business, a reasonable accommodation may be:
- Allowing the employee to work from home or to work an alternative schedule
- Providing appropriate personal protective equipment (PPE)
- Temporarily assigning job duties that wouldn't require that the employee be vaccinated
- Reassigning the employee to a vacant position or department that doesn't require vaccination
Managers and supervisors responsible for communicating with employees about compliance with the employer's vaccination requirement should know how to recognize an accommodation request. When an employee asks for an exception due to their disability or religious beliefs, you should have a dialogue with the employee to identify appropriate workplace accommodation options. It may be helpful to consult the Job Accommodation Network (JAN) as a resource for different types of accommodations.
Some employees may also have concerns about the safety and efficacy of the vaccine. If an employee expresses concern, recommend that they contact their doctor and point them to the CDC's website. If employees have concerns about the potential cost, you can let them know that vaccine doses purchased by the federal government will generally be provided at no cost. However, vaccination providers may be able to charge administration fees for giving the shot. In such cases, many health plans will cover the fee at no cost to the policyholder. For uninsured individuals, there may be assistance available to cover the administration fee.
Q: Can we exclude employees from the workplace if they refuse to be vaccinated?
A: Under the ADA, if a vaccination requirement screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation," according to the EEOC. This requires an individualized assessment that should be done in consultation with legal counsel. Even if you determine that an individual who can't be vaccinated due to disability poses a direct threat, you can't exclude the employee from the workplace—or take any other adverse action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk. The EEOC notes that the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.
Employers are also required to provide reasonable accommodations for sincerely held religious beliefs (and practices), unless it would impose an undue hardship on the business. If an employee can't get vaccinated because of a sincerely held religious belief, and there's no reasonable accommodation possible, consider consulting with legal counsel to determine your next steps, including whether you can exclude them from the workplace.
State and/or local laws may have additional protections for employees.
Q: My employees will be able to get the COVID-19 vaccine in the next phase of the rollout. Will they need to provide proof of their employment with us?
A: State and local authorities are managing the vaccination rollout and may set their own rules. In any phase that opens vaccination to individuals in certain roles, some states may require proof of employment. Check your state and local health authority websites for specific information. If you're unable to find details on proof-of-employment requirements, you may want to consider providing eligible employees with a note on company letterhead that lists the employee's name, employment status, and job title. You may also need to enroll in the state's Vaccine Administration Management System (VAMS) or through a healthcare provider.
FFCRA/COVID-19 Leave/Sick Leave
Q: Since the federal Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020, do we have to pay employees if they miss work due to COVID-19?
A: Effective April 1, 2020, the FFCRA required employers with fewer than 500 employees to provide emergency paid sick leave (up to 80 hours) and public health emergency leave (up to 12 weeks) to employees and established tax credits for employers that do so. The FFCRA's leave requirements expired on December 31, 2020. However, the tax credit portion of the law was extended through March 31, 2021 for employers that voluntarily offer either type of leave.
While the FFCRA's leave requirements ended, some states and local jurisdictions have stepped in with their own leave requirements. For instance, as of January 1, 2021, all Colorado employers must provide up to 80 hours of public health emergency leave to employees. A number of cities in California have also extended their COVID-19 related leave laws beyond December 31, 2020.
Separately, states and local jurisdictions may have paid leave laws that were enacted prior to the pandemic that may cover situations related to COVID-19. Check your state and local laws to ensure compliance with all applicable laws. Even in the absence a requirement to provide paid time off to employees for reasons related to COVID-19, many employers are offering paid leave to employees to encourage sick workers to stay home and prevent the spread of the illness.
Q: I'm a small employer with fewer than 50 employees. I heard that small employers aren't entitled to the tax credits for providing FFCRA leave? Is that true?
A: No, under the FFCRA, all employers with fewer than 500 employees are generally entitled to tax credits when they provide FFCRA leave to employees. Unless extended, the tax credits are available for FFCRA leave provided through March 31, 2021.
Q: Do I have to pay out unused COVID-19 leave or sick leave when an employee leaves the company?
A: To date, none of the laws that require COVID-19 leave or paid sick leave mandate that employers pay employees for unused leave when their employment ends. However, if you bundle such leave with vacation and other paid time off in a single policy (if allowed), payout of unused time may be required depending on the state. Absent a state requirement, employers are under no obligation to pay departing employee for unused COVID-19 or paid sick leave unless they've promised otherwise.
Q: What happens if an employee exhausts all their COVID-19 leave and sick leave and is still unable to return to work?
A: Determine whether the employee is entitled to additional leave under federal, state, or local law. For instance, if the employee has a serious health condition or is caring for someone with a serious health condition, they may be entitled to unpaid leave under the federal Family and Medical Leave Act and/or similar state laws. Even if the employee exhausts all of their leave, if they have a condition that qualifies as a disability, paid or unpaid leave may be considered a reasonable accommodation, absent undue hardship.
Paycheck Protection Program (PPP):
The PPP is a loan program for small businesses that is administered by the Small Business Administration (SBA). Forgiveness of these loans is available if the loan proceeds are spent on payroll costs and other eligible expenses, employee and compensation levels are maintained, and at least 60 percent of the proceeds are spent on payroll costs.
The SBA had stopped issuing PPP loans in August 2020. However, on December 27, 2020, President Trump signed the Consolidated Appropriations Act (CAA), which reopened the PPP to issue new loans, allows businesses to take out a second PPP loan, and makes other changes to the program.
Q: To get a second PPP loan, do we need to have submitted the loan forgiveness application for the first PPP loan?
A: Borrowers may obtain a second PPP loan, even if an application for forgiveness of an original PPP loan hasn't been filed. Initial loans are available to new borrowers with 500 or fewer employees, and subsequent ("Second Draw") PPP loans of up to $2 million are available to organizations with 300 or fewer employees that can document revenue declines of 25 percent or more in any quarter of 2020 compared to the same quarter of 2019. A borrower must have used (or will use) the full amount of the first PPP loan on or before disbursement of the Second Draw loan.
Q: How long will the PPP remain open?
A: PPP loan applications must be filed by May 31, 2021 (extended from March 31, 2021), but businesses should consider applying for PPP loans as soon as possible since appropriated funds are limited.
Q: How may PPP loans be spent? Did the new law change this?
A: Under the original PPP, forgivable expenses included:
- Payroll costs;
- Interest on mortgage obligations, in force before February 15, 2020;
- Rent, under lease agreements in force before February 15, 2020; and
- Utilities, for which service began before February 15, 2020.
The CAA expanded the list of forgivable expenses to also include supplier costs and investments in facility modifications and personal protective equipment to operate safely, including:
- Business software or cloud computing services, including payroll and human resources systems to facilitate processing and tracking and similar software and services for sales, billing, accounting and/or tracking of supplies, inventory, records and expenses;
- Certain property damage costs related to public disturbances that occurred during 2020 that weren't covered by insurance or other compensation;
- Certain supplier costs pursuant to a contract or order that was in effect before the date of disbursement of the covered loan for the supply of goods that are essential to operations at the time the expenditure is made; and
- Worker protection expenditures that were required to facilitate the adaptation of business activities to comply with government restrictions, such as drive-through window facilities, ventilation or filtration systems, physical barriers and health screening facilities.
Borrowers that received a PPP loan previously may be able to seek an increase in the original loan amount to pay for these new allowable expenses, and this wouldn't be considered a Second Draw loan. Borrowers still need to spend at least 60 percent of any PPP loan on payroll costs to qualify for forgiveness.
Q: We received a PPP loan but don't have enough work to maintain a 40-hour workweek for all our employees. Does reducing employees' hours affect PPP loan forgiveness?
A: Depending on the size of the reduction in hours and other factors, it could result in a lower forgiveness amount. For details on PPP loan forgiveness rules, visit our COVID-19 Resource Center.
Before implementing a vaccination policy, adopting a paid leave policy, or applying for a PPP loan, review all applicable laws, regulations, and guidance. Check back next week for additional FAQs from our recent webcast. We'll answer questions about minimum wage, exempt versus non-exempt employees, background checks, and nondiscrimination laws.