Member Article

“On the other side of a storm is the strength that comes from having navigated through it. Raise your sail and begin.”

Gregory S. Williams

Your business and employees have just experienced an extraordinary year. We have learned new ways of working, embraced new technology, and incorporated many new legal requirements, but most importantly, we have persevered. Moving out of this pandemic experience, the most successful businesses will stay ahead on the new laws and requirements that arose out of the past year. This article will discuss three employment topics to consider as you vault your business out of the pandemic.

1.  Ask your employees to vaccinate.

The good news is that at least two vaccines will be in use by the time that vaccines are made available to businesses, many of whom might employ essential workers. The Pfizer-BioNTech COVID-19 vaccine has passed FDA approval. The Moderna vaccine was approved on Friday, December 18, 2020. The bad news is that it still may be some time until vaccines are available to employees.

But the availability of the vaccines is half the battle. The other challenge is to ensure that your employees actually become vaccinated. There is some fear around new vaccines, and employers must do their best to educate employees about the science. The Centers for Disease Control and Prevention (“CDC”) has helpful information about vaccines and how they work that employers can make available to employees. The Food and Drug Administration (“FDA”) has already prepared a fact sheet for use by long-term care facilities as the vaccine is rolled out to residents and employees in the coming weeks. Updates to this sheet can be found at www.cvdvaccine.com. Just as with a normal flu vaccine, the COVID-19 vaccine may cause some employees to feel unwell for a few days. Further, the CDC warns that most of the vaccines that will be used in the United States require two shots: one to start building protection, and the second a few weeks later to boost the protection. Therefore, employers must also ask their employees to complete the entire vaccination process to ensure success.

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance entitled “What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The section that discusses vaccines is at the bottom of the guidance, entitled “K. Vaccinations.” The guidance answers the following questions:

• Q: Can we require our employees to be vaccinated?
• A: Generally yes, unless the employee has a medical or religious reason for not getting vaccinated.  
         

Employers can require that employees be vaccinated in order to enter the workplace, unless the employee has a disability that prevents vaccination, or the employee has a sincerely held religious objection to vaccination.

If an employee cannot be vaccinated because of a disability, then in order to prevent the employee from entering the workplace, the employer must work through the direct threat standard of the Americans with Disabilities Act (“ADA”), which evaluates whether the unvaccinated employee will pose a significant risk of substantial harm to the health or safety of the individual or others. The direct threat standard is cumbersome to say the least. It requires employers to analyze the following four factors on a case by case basis: (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. The guidance states that “[a] conclusion that there is a direct threat would include a determination that the unvaccinated individual will expose others to the virus at the worksite.” (EEOC guidance, K.5).

If the employer reaches this conclusion, it must then evaluate whether there are any accommodations that would nevertheless allow an unvaccinated individual to remain at the workplace. Since unvaccinated individuals have been working up until now with masks and face shields, a query is whether allowing an individual to continue working with protective safety equipment is a reasonable accommodation. This process will require an employer to enter into an interactive process conversation with employees who cannot be vaccinated because of a disability to determine whether a reasonable accommodation exists. A good resource for the interactive process can be found on our website. The bottom line is that this remains a difficult issue and employers are well advised to contact their legal counsel before taking steps to exclude an unvaccinated individual with a disability from the workplace.

If an employee raises a religious objection to vaccination, then this poses an entirely different analysis. Title VII, the main federal civil rights law that protects employees who are in protected classes from discrimination, includes religious discrimination based upon the employee’s “sincerely held religious belief.” Employees can object to a vaccination based upon their religious beliefs. Federal courts interpret a “religious belief” to be more than just a lifestyle choice not to be vaccinated; rather, federal courts require the employee to establish that their religious beliefs compel them to oppose vaccination. If an employee raises a religious objection to vaccination, then the employer must make a reasonable accommodation for the employee, unless doing so would impose an undue hardship on the employer. A determination of undue hardship is based on an evaluation of several factors and generally involves an analysis of the cost of the accommodation and the resources of the employer.

State laws can vary from federal law regarding the standard for establishing religious objections or, in some cases, sincerely held personal beliefs. This is a complicated area and employers who are faced with this issue are advised to contact their legal counsel to work through the issue.

• Q:  Is a vaccination a medical examination?
• A: No, the vaccination is not a medical examination, but the prescreening questions, if asked by the employer, may implicate the ADA’s provision on disability-related medical 
           

The EEOC was clear that asking employees to obtain a vaccination was not a prohibited post-employment medical examination. But it cautioned that if the employer conducted the vaccination itself and asked the prescreening vaccination questions, then this could elicit information regarding a disability, which can be accomplished only if the inquiry is “job-related and consistent with business necessity,” which the EEOC stated would also involve a direct threat analysis. The EEOC hinted that that prescreening questions could be asked without the above inquiry if the vaccination was offered on a voluntary basis, or if a third party, such as a pharmacy or other health care provider, provided the vaccination.

• Q: Is requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?
• A: No, simply requiring proof that an employee is vaccinated is not a disability-related inquiry.
  
  

While simply requiring proof of a vaccination is not a disability-related inquiry, employers should be careful about asking follow-up questions if an employee does not provide proof of vaccination. This inquiry may elicit medical information and would require that the inquiry be “job-related and consistent with business necessity.” The EEOC cautioned that the employer may want to warn employees not to provide medical information as part of the proof of vaccination in order to prevent ADA implication.

After this long-awaited guidance from the EEOC, the clear message is that employers can require their employees to be vaccinated. It may be best to work with a pharmacy or other medical provider to conduct the vaccinations, or to ask your employees to provide proof of vaccination. You may generally exclude employees from the workforce who refuse to be vaccinated unless their refusals are based on disability or religious reasons. Then you must complete a more detailed direct threat analysis and engage in the interactive process to determine whether there is a reasonable accommodation that you can offer the employee.

2.  Keep your eye on an FFCRA extension.

Even before the change of administrations, Congress was trying to pass a bill to extend the December 31, 2020 deadline for the sick leave and family leave provisions of the Families First Coronavirus Response Act (“FFCRA”). The FFCRA has helped to curb the economic effects of the coronavirus on employees and their families by giving employees the financial ability to stay home when sick and to care for children who are out of school. On Sunday, December 20, 2020, Congress passed a new stimulus relief bill. Although the language of the bill is not currently available, a press release issued by Nancy Pelosi and Chuck Schumer indicates that “the agreement provides a tax credit to support employers offering paid sick leave, based on the Families First framework.” The press release did not indicate that the agreement supported continued paid leave for child care due to school closures. Rather, it indicates that the agreement:

provides billions in urgently need funds to accelerate the free and equitable distribution of safe vaccines to as many Americans as possible as soon as possible, to implement a strong national testing and tracing strategy with billions reserved specifically for combating the disparities facing communities of color, and to support our heroic health care workers and providers.

Therefore, from the information currently available, it appears that the tax credit to support paid sick leave will continue, but the tax credit will not include paid family leave. Employers should be mindful, however, that some state laws may still allow employees to take protected unpaid leave to stay home when children are unable to attend school because of a mandatory closure. The Bureau of Labor and Industries revised a Permanent Administrative Order that was effective on September 14, 2020, that clarified that sick child care leave under the Oregon Family Leave Act, which applies to employers with 25 or more employees, includes “absence to care for an employee’s child whose school or child care provider has been closed in conjunction with a statewide public health emergency declared by a public health official."

3.  Keep up with OR OSHA requirements.

For employers with employees in Oregon, the news is that Oregon OSHA is going to increase its investigation of whether employers are complying with the new OR OSHA rules. OR OSHA Administrator Michael Wood has been in touch with Oregon industry representatives, including Oregon Business and Industry and Food Northwest, to state that the agency would reach out to businesses to request copies of the companies’ Infection Control Plan and Exposure Risk Assessment Form, which are now required under the new OSHA Temporary Rules. You can find a template for an Infection Control Plan here. The Exposure Risk Assessment Form can be found here. If you are unfamiliar with the new OR OSHA rules, you can watch an earlier recorded webinar on the topic here.

This pandemic has challenged every industry. But we are nearing the end, and while employers must still keep up with the many changes in employment laws, this is a good time to look ahead to see how you can vault your business out of the pandemic.