Frequently Asked Questions
General
The Centers for Disease Control and Prevention (CDC), the U.S. Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, and the World Health Organization have created dedicated webpages with information on COVID-19 for employers.
In addition, state and local health officials are developing guidelines and resources on the illness. Check your state and local Department of Health and Department of Labor websites for additional information.
Employers should continue to do everything they can to limit exposure, such as:
- Facilitate working remotely where possible.
- Conduct virtual meetings instead of in-person meetings.
- Limit or prohibit visitors to the workplace.
- Practice social distancing in the workplace (staying at least 6 feet away from others).
- Encourage employees to avoid gathering in breakrooms and larger groups.
If your employees are required to report to work, employers can help employees practice healthy habits by providing tissues, no-touch trash cans, hand soap and sanitizer, and disposable towels. Routinely clean all frequently touched surfaces, such as workstations, countertops, and doorknobs.
Health officials recommend reminding employees of the importance of:
- Washing hands often with soap and warm water for at least 20 seconds.
- Avoiding touching your eyes, nose, and mouth.
- Cleaning things that are frequently touched (like doorknobs and countertops) with household cleaning spray or wipes.
- Covering coughs and sneezes with a tissue or the inside of the elbow.
- Staying home when feeling sick.
Yes. Employers may ask employees to notify them if they've been in contact with someone who has COVID-19. Also, at this time, the CDC is recommending that people who are close to someone with COVID-19, and develop symptoms of the virus, call their healthcare provider for guidance and self-quarantine for 14 days. Employees should be advising their employer of that as well.
Several states and local jurisdictions have ordered businesses to close except for essential businesses and/or personnel. Employers should comply with such orders. In addition, numerous companies have ordered employees to work from home as long as they are able. Even in the absence of an order to close, employees who refuse to report to work may have protections from adverse action. For example, under the Occupational Safety and Health Act, employees may have the right to refuse to work if all of the following conditions are met:
- Where possible, they have asked the employer to eliminate the danger, and the employer failed to do so;
- They genuinely believe that an imminent danger exists;
- A reasonable person would agree that there is a real danger of death or serious injury; and
- There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.
Section 7 of the National Labor Relations Act (NLRA), which grants employees the right to act together to improve wages and working conditions, may also come into play in this situation.
Note: If an employee has an underlying condition that would qualify as a disability, they may be entitled to a reasonable accommodation under the Americans with Disabilities Act and/or similar state laws. Paid or unpaid leave may be considered a reasonable accommodation.
The CDC advises against employers requiring fitness-for-duty certifications for employees to return to work. Most people with COVID-19 have mild illness and can recover at home without medical care and can follow CDC recommendations to determine when to discontinue home isolation and return to work. Under the CDC's guidelines, employees with COVID-19 who have stayed home can stop home isolation and return to work when they have met one of the sets of criteria found here.
Nevertheless, federal law currently does allow employers to require fitness-for-duty certifications for employees to return to work, provided they are announced in advance and applied consistently. As a practical matter, though, doctors and other healthcare professionals may be too busy to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual can return to work.
However, some states and local jurisdictions have issued restrictions on seeking fitness-for-duty certification from healthcare providers or issued similar guidance to the CDC's.
If an employee is confirmed to have COVID-19, employers should inform other employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality (that is, don't reveal who has the illness). As a precautionary measure, employers should consider asking all employees who worked closely with that employee to self-quarantine for a 14-day period of time to better ensure that the infection does not spread. In addition, have a cleaning company complete a deep cleaning of your workspace. Employers should also immediately contact local health officials for further guidance.
Note: Employers should treat all information about an employee's illness as a confidential medical record and keep it separate from the employee's personnel file.
Typically, employers wouldn't be required to allow employees to work from home, but some state and local COVID-19 orders may require it. For example, in July, Michigan's governor issued an executive order that requires that any work that is capable of being performed remotely be performed remotely. Even if allowing telework isn't required, it's something employers should consider implementing to help prevent the spread of the illness.
Note: Telecommuting may be considered a reasonable accommodation if a worker's condition qualifies as a disability under the Americans with Disabilities Act and/or similar state laws.
Some state and local sick leave laws have limitations on when employers can ask for documentation. For example, several laws require that an employee be absent for more than three consecutive days before an employer can ask for documentation. However, in its interim guidance, the CDC has advised that employers should not require a healthcare provider's note for employees who are sick with acute respiratory illness to validate their illness or to return to work. Healthcare provider offices and medical facilities may be extremely busy and unable to provide documentation in a timely fashion.
Federal, state and local laws prohibit employers from discriminating against individuals because of disability (and certain other characteristics). Under these laws, employers must take steps to prevent discrimination and harassment against individuals who are disabled or perceived as disabled, including those who are exhibiting symptoms that suggest that they have contracted COVID-19. An employee who contracts COVID-19 may be entitled to reasonable accommodation and protection under the ADA if the employee's reaction to COVID-19 is severe or if it complicates or exacerbates one or more of an employee's other health condition(s)/disabilities. Employers should remind employees of their anti-harassment and discrimination policies and be sure to take all complaints seriously.
Note: Information about an employee's medical history and leave details must be kept confidential.
Federal, state and local laws prohibit employers from harassing and discriminating against individuals because of race, national origin, and certain other protected characteristics. Instances of harassment and discrimination tend to increase around situations like COVID-19. Therefore, employers should remind employees of their anti-harassment and discrimination policies. Take all complaints seriously and launch a prompt, thorough, and impartial investigation into any complaint.
Travel
Yes, as long as employers act consistently based on travel activities and do not say or do anything to violate the ADA or other federal, state or local nondiscrimination laws.
Given the numerous travel bans in place due to COVID-19, employers should first advise employees to check the CDC's Traveler's Health Notices for the latest guidance and on where travel is restricted.
If an employee has traveled or intends to travel, absent a claim that the employee has a recognized privacy interest in their travel, you may ask about their travel plans and take steps to reduce workplace exposure. If you learn that an employee has traveled, remain alert for fever, cough, or difficulty breathing and remind employees to avoid the workplace if they do develop any of these symptoms.
Keep in mind as well that, generally, some states prohibit employers from taking adverse action against an employee for engaging in lawful off-duty conduct, such as travelling to another country or state where travel is allowed. The time off may also be protected under federal, state, and local laws entitling employees to job-protected leave. For instance, an employee taking time off to take care of a family member with a serious health condition may be protected under the federal Family and Medical Leave Act, similar state laws, and/or state and local paid sick leave laws.
Yes, absent a claim that an employee has a recognized privacy interest in their travel activities. Employers should take steps to reduce any reasonable expectation of privacy that employees might have in those activities.
Employers should review state and local orders, actions, and guidelines regarding employees who travel to high-risk locations. These typically can be found on the webpages of state or local governments and/or health agencies. Some of these jurisdictions even have hotlines employers can call with questions. Employers should determine their rights and obligations as well as consider the risks of allowing employees into the workplace without self-quarantining, consulting legal counsel if applicable.
Pay
The determination of whether pay is required for time spent undergoing COVID-19 testing can hinge on a variety of factors, including federal, state, and local laws, regulations, and guidance, as well as the industry or type of work performed.
For example, the U.S. Department of Labor has issued guidance that under federal law, employers are required to pay nonexempt employees for time spent waiting for and receiving COVID-19 testing at the employer’s direction or on their premises during normal working hours.
In addition, under federal law, employers are required to pay nonexempt employees for all hours that they work, including for time on their vacation day if the task they are required to perform is necessary for the work they are paid to do. For some employees, undergoing COVID-19 testing may be compensable because the testing is necessary for them to perform their jobs safely and effectively during the pandemic. For example, if a grocery store cashier who has significant interaction with the general public is required by their employer to undergo a COVID-19 test on their day off, such time is likely compensable because it is integral and indispensable to her work during the pandemic, according to the guidance. Employers should consult legal counsel to determine whether testing is integral and whether pay is required.
States and local jurisdictions may have requirements about paying for testing time as well. For example, California has a regulation that requires employers to offer testing at no cost and during paid time to:
- Symptomatic unvaccinated employees, regardless of whether there is a known exposure.
- Employees who aren’t fully vaccinated or who are vaccinated with symptoms in the event of a close contact at work, with an exception for certain symptom-free employees who recently recovered from COVID-19. Employers are also required to make COVID-19 testing available at no cost and during paid time to employees who were fully vaccinated before the close contact with a COVID-19 case occurred, even if they are asymptomatic.
- Employees within an exposed group (as defined in the regulation) during an outbreak at work.
Under the regulation, the employee must be compensated for their time and travel expenses, regardless of whether the testing occurs during work hours.
California has also issued guidance indicating that under state law, employer-required COVID-19 testing is generally considered hours worked and therefore must be paid. If the employer requires an employee to obtain a COVID-19 test, then the employer must pay for the time it takes for the testing, including any time traveling and waiting for the test to be performed, according to the state’s guidance. An employer cannot require the worker to utilize paid leave if the time is considered “hours worked,” according to the guidance.
Employers should check applicable rules and guidance and consult legal counsel if necessary.
Some states and local jurisdictions have adopted rules for excluding workers with COVID-19 from the workplace and require employers to maintain the employee’s pay during the exclusion period.
Some states and local jurisdictions require employers to provide paid leave to employees if they are unable to work due to COVID-19. These requirements may be part of paid sick leave laws, paid family and medical leave laws, and/or separate paid leave requirements for COVID-19 and similar health emergencies.
Check your state and local rules for details.
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.
Some states expressly require employers to reimburse employees for any reasonable business expenses they incur, such as Internet access from a home office. Absent such a requirement, expense reimbursement may be necessary to satisfy the FLSA minimum wage and overtime requirements for non-exempt employees. In most cases, under the FLSA, any work-related expense incurred by an employee that would bring their pay below the minimum wage (or cut into overtime pay) must be reimbursed.
Regardless of your requirements, it's a best practice to reimburse all employees for any reasonable business expenses. Where the expense may be used for work and personal use (such as having an Internet connection), consider a system to help employees monitor and record how much of the cost is related to conducting business activities, and reimburse employees at least that amount.
Make sure you also have policies and controls in place to ensure that employees use a secure connection to the Internet, protect company and client data, and comply with privacy laws when working remotely.
Implement an effective process for recording work hours of all employees, such as an electronic timekeeping system that workers can access via a computer or mobile device. Also, develop policies that require employees to record all hours worked and expressly prohibit off-the-clock work. To help prevent unauthorized overtime, consider a policy that requires employees to obtain permission before working overtime. While employers may discipline employees for violating such a policy, they may never withhold overtime pay.
You can encourage employees to sign up for direct deposit by noting its convenience and benefits and that workplace distribution isn't available due to social distancing guidelines and/or federal, state, or local orders. For employees who don't sign up for direct deposit, many employers are mailing their paycheck to them. Before doing so, verify you have the employee's correct address.
In a majority of states, direct deposit is generally permitted only if the employee voluntarily authorizes it. Typically, the employee's consent must be in writing. In the absence of a restriction, employers should evaluate the pros and cons of requiring direct deposit. Additionally, consider whether a mandatory direct deposit policy would disproportionately exclude members of a protected class, and if so, offer other options for the receipt of wages.
Most states require employers to provide a wage statement to employees each pay period, regardless of whether wages are paid by paper check or electronically. States that permit electronic wage statements may have certain rules that employers must follow, such as obtaining the employee's consent. Check your state law for details.
Note: Run Powered by ADP® clients with Paperless Payroll can give employees who sign up for direct deposit access to their pay statements electronically using Employee Access or the ADP Mobile Solutions application.
Direct deposit is included in all RUN Powered by ADP® payroll bundles. Pricing is the same regardless of whether the employee elects a paper check or direct deposit.
Business Closures
Several state and local paid sick leave laws require employers to allow employees to use their leave when a business is closed by a public health official due to a health emergency. Since the pandemic began, some of these jurisdictions have provided guidance clarifying these rules as they apply to COVID-19. Check your state and local laws for details. Even if your jurisdiction doesn't currently require paid leave in the event of a temporary closure, some states and local jurisdictions are enacting emergency rules that require it, so monitor the situation closely. In the absence of a state or local requirement, many employers are allowing employees to use paid leave. Make sure your policy complies with applicable laws and is clearly communicated to employees.
Unless certain conditions are met (including the President declaring a "major disaster"), donated leave for a temporary closure would be taxable to both the donor and the recipient. President Trump has declared the coronavirus a major disaster in certain states. In these jurisdictions, any leave-donation program must meet the requirements outlined in IRS Notice 2006-59 for the donor to avoid taxes on the donated leave. Additional states may be declared in the future, so check the Federal Emergency Management Agency (FEMA) website before applying voluntary donations.
Beyond the tax implications, if the paid leave in question is required under state and/or local law, employers should ensure that the law allows employees to donate their leave to fellow employees.
Note: Leave-donation programs for medical emergencies are subject to different IRS rules. See IRS Rev. Rul. 90-29, 1990-1 C.B. 11 for details.
Final pay rules differ from state to state, so check the law in the state where your employees work. Generally, though, short-term furloughs with a definite return date (that is clearly communicated to employees) wouldn't trigger final pay requirements. Thus, any pay owed to the employee would be due on their next regular payday. However, some states may have stricter rules. For example, in California, a furlough longer than a pay period should be considered a layoff, barring any guidance from the state indicating otherwise. If it is a layoff (i.e. no work for longer than a pay period) all wages due and any accrued but unused vacation and PTO must be paid out immediately.
The federal WARN Act generally requires employers to provide advance notice of mass layoffs. The DOL advises that employers in this situation review the "unforeseeable business circumstances" exception to the 60-day notice requirement (see § 3(b)(2)(A), and the WARN regulations at 20 CFR 639.9). The "unforeseeable business circumstances" exception applies to plant closings and mass layoffs caused by business circumstances that were not reasonably foreseeable at the time that 60-day notice would have been required. Employers should also check applicable state WARN laws.
Unemployment Benefits
Though individual state law dictates an employee's eligibility for unemployment insurance benefits, the federal government, through guidance (Unemployment Insurance Program Letter 10-20) and legislation (Emergency Unemployment Insurance Stabilization and Access Act 0f 2020), is making an effort to provide states with greater flexibility to make as many individuals affected by COVID-19 as eligible as possible.
Depending on the state, the length of the closure, and the employee's work history, employees who are prevented from coming to work because their employer temporarily ceases operations due to COVID-19 may be eligible for unemployment benefits. States have issued guidance addressing this issue and many are suspending waiting periods for such benefits. Check your state law, communicate with employees regarding their eligibility for unemployment benefits, and provide any required notice and information accordingly.
In general, the more employees use unemployment benefits, the higher the employer's rate will be. However, several states have suspended rules that would require an employer's account to be charged if employees are filing unemployment claims for certain reasons related to COVID-19. In such cases, an employer's unemployment insurance rate wouldn't increase. Check your state unemployment agency for details.
Some states are allowing employees to collect unemployment benefits in such situations. Check your state unemployment agency for details.
Generally, an employee who is receiving paid sick leave or paid family leave would be receiving pay and therefore ineligible for unemployment benefits while being paid.
Generally, if there's a reduction in available work hours for employees, the employees may be eligible for partial unemployment benefits.
Some states require employers to provide a separation notice, though specific requirements vary by state. For example, California requires employers that are laying off employees to furnish a specific notice (Pamphlet DE 2320) along with the employer's name, employee's name and social security number, the type of employment action (layoff, discharge, leave, etc.), and the date of such action.
Check your state law for its requirements.
At least one state—Georgia—is requiring employers to file unemployment benefits on employees' behalf as a result of COVID-19. Some other states are encouraging employers to do so. Employers should check with their unemployment agency to determine whether they can/should/must file unemployment benefits on their employees' behalf.
Under the recently enacted Coronavirus Aid, Relief, and Economic Security (CARES) Act, business owners, self-employed individuals, part-time workers, and those with limited work histories may be eligible for temporary unemployment benefits assistance during their period of unemployment ending on or before December 31, 2020, if certain conditions are met.
To receive unemployment benefits under this program, individuals must certify that they are otherwise able and available to work (as defined by their applicable state law), but they are unemployed, partially unemployed, or unable to work because:
- The individual has been diagnosed with COVID–19 or is experiencing symptoms of COVID–19 and seeking a medical diagnosis;
- A member of the individual's household has been diagnosed with COVID–19;
- The individual is providing care for a family member or a member of the individual's household who has been diagnosed with COVID–19;
- A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of COVID–19 and school or facility care is required for the individual to work;
- The individual is unable to reach the place of employment because of a quarantine, or a health care provider advising the individual to self-quarantine;
- The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of the COVID–19 public health emergency;
- The individual has become the main source of financial support for a household because the head of the household has died as a direct result of COVID–19;
- The individual has to quit his or her job as a direct result of COVID–19;
- The individual's place of employment is closed as a direct result of the COVID–19 public health emergency;
- The individual meets any additional criteria established by the Department of Labor for unemployment assistance; or
- The individual is self-employed, is seeking part-time employment, does not have sufficient work history, or otherwise would not qualify for regular unemployment or extended benefits under state or federal law.
The individual must also certify that they don't have the ability to telework with pay and they aren't receiving paid sick leave or other paid leave benefits. Benefits are limited to 39 weeks. Check with your state unemployment agency for details.
Insurance
Generally speaking, pandemics and viruses are not covered in a workers' compensation policy. Some carriers and plans do have a rider that allows for a pandemic to qualify as a specific call out for business interruption insurance. However, this would need to be looked at on a case-by-case basis. Where it may be covered under a general plan is if there is an actual loss of property, such as if a business had vacated a building due to COVID-19 and a fire were to destroy the property.
Maybe. Most states have mandated that a policyholder can request a payroll audit from the carrier at any time, which could potentially reduce premium payments due to fluctuations in payroll. Carriers must comply with this request and they don't have to wait for the end-of-term audit to make premium adjustments. This may allow for increased cash flow for the business owner. Additionally, most workers' compensation carriers are working with clients on payment options, so it's important to check with your specific carrier or broker to see how this could impact you.
The CARES Act requires health insurance companies to cover certain COVID-19 related expenses and treatments. While we're still studying the full extent of what is required, many insurance companies have made special provisions for COVID -19. For example, some carriers are:
- Adding off-cycle open enrollments to allow previously uncovered employees to obtain health coverage.
- Retaining eligibility for employees that have been furloughed or had reduction in hours.
- Waiving co-pay or costs associated with COVID-19 testing and treatments as well as waiving certain administrative requirements for providers/members to help make treatment easier.
- Waiving fees for prescription delivery and are allowing for adjustments to prescription refills. For example, 30-day prescriptions can be refilled for 90 days.
- Deploying physicians and nurses to areas that need assistance.
It is important to note that there are changes and updates to COVID-19 relief and carrier activities every day. Business owners should carefully monitor the situation and developments. Also, it's important to consult your insurance company, financial advisors and accountants to understand which relief options are best for you and your business circumstance.
Garnishments
Yes, Section 3513 of the CARES Act has provided temporary suspension of federal student loan garnishments. Other garnishment agencies are also offering relief, such as suspensions and refunds. ADP has created a comprehensive list of changes to wage garnishment agencies, courts, attorneys and creditors. You can see the list here.
Update: On August 8, 2020, the President signed a Memorandum on Continued Student Loan Payment Relief During the COVID-19 Pandemic, which provides for an extension of the relief provided under the CARES Act for debtors of student loans held by the Department of Education.
Specifically, under the Memorandum, payments and accrual of interest for student loans held by the Department of Education are temporarily suspended until September 30, 2021. The suspension of loan repayment, interest, collections has since been extended through May 1, 2022.
Log into RUN, and stop the garnishment on the employee profile. Make sure you retain the garnishment information, as you will need to reenter the garnishment when the suspension period ends. If you need further assistance, contact your ADP representative.
As agencies continue to issue guidance, ADP will update the list found here. You may also receive updates from agencies directly, typically through the mail. Alternatively, you may contact the agency for further instruction.
Contact your ADP representative for further assistance.
Vaccinations
The U.S. Equal Employment Opportunity Commission (EEOC) has made clear that federal laws don't prevent an employer from requiring all employees physically entering the workplace to be vaccinated and boosted against COVID-19, subject to the reasonable accommodation provisions discussed below.
Reasonable Accommodations:
Federal law requires an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, don't get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the employer's business.
Additionally, some employees may seek job adjustments or may request exemptions from a COVID-19 vaccination requirement due to pregnancy. If an employee seeks an exemption from a vaccine requirement due to pregnancy, you must treat them the same as you would other employees similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other similarly-situated employees. Some states require pregnancy accommodations in additional circumstances.
Ensure that supervisors, managers, and human resources personnel know how to handle such requests.
State Laws:
Several states have recently adopted rules that prohibit or further restrict employers from enforcing COVID-19 vaccine mandates. For example, Florida enacted legislation in November 2021 that prohibits private employers from imposing a COVID-19 vaccination mandate without providing exemptions for medical reasons (including pregnancy and anticipated pregnancy), religious reasons, COVID-19 immunity, periodic testing, and the use of employer-provided personal protective equipment (PPE). Many of these laws, including Florida’s, have specific requirements for handling exemption requests.
In late 2021, the federal government issued three separate rules that require employers with 100 or more employees, federal contractors, and healthcare facilities that participate in Medicare and Medicaid programs to ensure that their workers are vaccinated against COVID-19. These rules have been subject to legal challenges. Most recently, on January 13, 2022, the U.S. Supreme Court temporarily blocked the rule that applies to employers with 100 or more employees pending future court proceedings, but the court allowed the rule that applies to facilities that participate in Medicare and Medicaid programs to stand. Employers should watch for developments closely.
Numerous states have also adopted COVID-19 vaccination requirements through regulations, executive orders, and emergency health orders. These requirements have generally targeted certain types of employees, such as healthcare workers and state employees. In some cases, employees may be able to submit to regular testing (and follow other safety protocols) instead of receiving the COVID-19 vaccine. In others, there is no alternative to vaccination and covered employees must generally be vaccinated by a certain deadline.
Meanwhile, some local jurisdictions are also requiring employers to ensure employees are vaccinated. For example, all private-sector employers in New York City must verify that their employees are vaccinated against COVID-19. In Chicago, all indoor dining facilities, indoor fitness, and indoor entertainment and recreation venues where food or beverages are served must verify employees are fully vaccinated against COVID-19.
Other jurisdictions are likely to consider similar requirements.
An employee who does not get vaccinated due to a disability (or a sincerely held religious belief, practice, or observance) may be entitled to a reasonable accommodation that does not pose an undue hardship on the employer. For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.
Employees who are not vaccinated because of pregnancy may be entitled to adjustments to keep working, if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion.
Note: Several states have recently adopted rules that prohibit or further restrict employers from enforcing COVID-19 vaccine mandates and require certain exemptions. For example, Florida enacted legislation in November 2021 that prohibits private employers from imposing a COVID-19 vaccination mandate without providing exemptions for medical reasons (including pregnancy and anticipated pregnancy), religious reasons, COVID-19 immunity, periodic testing, and the use of employer-provided personal protective equipment (PPE). Many of these laws, including Florida’s, have specific requirements for handling exemption requests.
If an employee requests an accommodation from a vaccination requirement because of a disability, you should engage in a discussion with the employee to identify workplace accommodation options that don't result in an undue hardship (significant difficulty or expense) to the business. This process should include determining whether it's necessary to obtain supporting documentation about the employee's disability and a consideration of the possible options for accommodation given the nature of the workforce and the employee's position. Keep in mind 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. When determining whether providing an accommodation would pose an undue hardship, consult legal counsel.
If an employee requests an exemption from the requirement for religious reasons, employers ordinarily should assume that the request is based on a sincerely held religious belief. However, if you have objective factors that might call into question the nature or sincerity of the request (such as inconsistent behavior), you would be justified in requesting additional supporting information, according to the EEOC guidance.
Note: Several states have recently adopted rules that prohibit or further restrict employers from enforcing COVID-19 vaccine mandates and require certain exemptions. For example, Florida enacted legislation in November 2021 that prohibits private employers from imposing a COVID-19 vaccination mandate without providing exemptions for medical reasons (including pregnancy and anticipated pregnancy), religious reasons, COVID-19 immunity, periodic testing, and the use of employer-provided personal protective equipment (PPE). Many of these laws, including Florida’s, have specific requirements for handling exemption requests.
The determination of whether pay is required for time spent undergoing COVID-19 vaccination can hinge on a variety of factors, including federal, state, and local laws, regulations, and guidance, as well as the industry or type of work performed.
For example, California has issued guidance indicating that under state law, employer-required COVID-19 vaccination is generally considered hours worked and therefore must be paid. An employer cannot require the worker to utilize paid leave if the time is considered “hours worked,” according to the guidance.
Employers should check applicable rules and guidance and consult legal counsel if necessary.
Some states and local jurisdictions have enacted specific requirements for providing leave for COVID-19 vaccination. For example, in March 2021, the state of New York enacted a law that entitles employees to up to four hours of paid leave per injection. States and local jurisdictions may have paid sick leave laws or other leave laws that would cover time off to obtain the COVID-19 vaccination. Check your state and local laws to ensure compliance.
Check the applicable quarantine orders and guidance and contact your local health department to determine the return-to-work requirements in such cases. Many jurisdictions have updated their quarantine guidance and rules in light of the availability of the COVID-19 vaccine and booster. These rules and guidelines may differ depending on the length of time that has passed since they have been vaccinated, whether they have been boosted, and whether they're experiencing any symptoms.
Note: State and local rules and guidance may require or recommend that vaccinated individuals continue to follow safety protocols, such as wearing a mask, staying at least six feet away from others, avoiding crowds, and avoiding poorly ventilated spaces.
Federal, state, and local laws prohibit employers from treating employees differently or less favorably because of their age. Therefore, this type of policy would likely violate these laws.
Generally, where employers are allowed to establish a vaccine mandate, they may establish different rules for new hires and current employees, as long they don’t otherwise violate nondiscrimination laws.
In the guidance published on December 16, 2020, the EEOC states if that standard 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." If an employer determines that a direct threat exists, the employer cannot 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 so there is no longer a direct threat.
Note: State and local nondiscrimination laws may offer additional protections.
The federal Americans with Disabilities Act (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.
The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance that when an employer asks employees whether they obtained a COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic, the employer isn't asking a question that is likely to disclose the existence of a disability. Therefore, requesting documentation or other confirmation of vaccination by a third party in the community isn't a disability-related inquiry under the ADA, and the ADA's rules about such inquiries don't apply.
However, documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential. Some state and local jurisdictions may restrict or prohibit employers from seeking proof of COVID-19 vaccination. Check your state and local law as well as guidance from local health officials to determine whether you can ask for proof. Watch for developments in this area because several state and local jurisdictions are contemplating restrictions.
Note: In May 2021, Santa Clara County (CA) issued an order that requires employers to determine the vaccination status of all employees and contractors and to take certain other safety measures.
While the EEOC has taken the position that federal law doesn't prohibit employers from requiring the COVID-19 vaccination, or proof of it, employers may be required to provide exceptions for employees who are unable to obtain the vaccination because of a disability or sincerely held religious beliefs, unless it would impose an undue hardship on the employer. State and local laws may also require an exception to such requirements in additional situations, such as with pregnant employees.
When receiving the vaccine, individuals are typically provided a card that documents their vaccination progress. If an employee has lost or otherwise doesn't have documentation, you can ask them to request a copy from the medical provider. If they scheduled their appointment via the Vaccine Administration Management System, they may also be able to obtain their Vaccination Certificate there. If employees are unable to obtain documentation in a timely manner, employers may want to consider having the employee sign an attestation indicating that they've received the vaccine.
On May 13, 2021, the CDC updated its guidance to state that fully vaccinated people no longer need to wear a mask or physically distance in any setting except where required by federal, state, local, laws and regulations, including local business and workplace guidance. To be clear, some state and local rules still require fully vaccinated individuals to wear masks and follow other safety protocols.
Yes, employers generally may still require employees to wear face masks, practice social distancing, and follow other safety protocols. In fact, given the thorny issues around vaccine mandates and documentation, some employers may choose to continue to require mask wearing and social distancing regardless of vaccination status.
If an employee has concerns about the safety and efficacy of the vaccine, recommend that they contact their doctor and point them to the CDC's website. Senior leadership at your company can also demonstrate support for the vaccine by receiving the vaccine themselves. If employees have concerns about 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 policy holder. For uninsured individuals, there may be assistance available to cover the administration fee.
Note: If employers are permitted to require vaccination and do so, they may be required to pay for the cost of it. Under federal law, employers would be required to cover the cost if it would reduce the employee's pay below the minimum wage. Under some state laws, employers would be required to cover the cost even if it doesn't reduce the employee's pay below the minimum wage.
If a customer asks how many employees are vaccinated and the employer knows the answer, the employer can generally say that "x percentage of our employees have reported that they are vaccinated" and should follow up by discussing the other safety protocols they are following to protect customers and employees. Never reveal to a customer whether a specific employee(s) is/are vaccinated. If you anticipate or experience a customer requesting/demanding service from only a vaccinated employee, consult legal counsel to discuss applicable laws and your particular situation. For instance, Montana generally prohibits employers from discriminating against an employee based on their vaccination status or whether they have an immunity passport. Assigning employees based on their vaccination status could violate this law. Employees in other jurisdictions may also have similar protections.
Under federal law, an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community, according to the EEOC. However, employers must keep vaccination information confidential.