Dear Clients and Friends,
As we start the New Year with hope for an end to the pandemic, we want to update you on two COVID-19 related legal developments:
The FFCRA is now voluntary, not mandatory: The Families First Coronavirus Response Act (FFCRA) was enacted for the period April 1 – December 31, 2020, meaning we all expected it to expire as scheduled on December 31. However, on December 27, the Consolidated Appropriations Act 2021 (CAA) changed that. The CAA gives covered employers (generally those with fewer than 500 employees) the option to continue to provide FFCRA leave (emergency paid family leave and emergency paid sick leave) between January 1 and March 31, 2021, and still take the tax credit for providing that paid leave. This means that employers are no longer required to provide FFCRA leave, but they can do so if they wish, and the CAA provides an incentive for doing so by extending the employer dollar-for-dollar tax credit for the cost of the leave through March 31, 2021. Some things to keep in mind:
- The CAA does not provide new or additional FFCRA time – it simply allows employers to choose to let employees use the FFCRA time they had left over from 2020. So, if an employee has already used up the 2 weeks of FFCRA paid sick time in 2020, the employee has nothing left to use in 2021 and the employer cannot take the tax credits for any paid sick time it provides to the employee in 2021, even if the reasons qualify for FFCRA leave. However, if the employee had used only 1 week of FFCRA paid sick time in 2020, and needs to take sick time again for an FFCRA-qualifying reason after December 31 (but before March 31), the employer can permit the employee to use that remaining week and the employer can take the tax credits for that week. The same is true for the FFCRA 12 weeks of extended family leave for time away from work due to COVID-19 related school and child care closures.
- Employees may not be discriminated against or retaliated against for taking FFCRA leave, and this is true regardless of whether the leave was taken in 2020, or taken between January 1 – March 31, 2021, when providing FFCRA is voluntary for employers.
- Under the CAA, the tax credits for voluntarily providing FFCRA leave will expire on March 31, 2021 (unless Congress takes further action before that date).
Next steps: Employers should:
- Decide whether to provide FFCRA paid leave through March 31, and then notify employees of the decision and apply that decision consistently.
- Employers choosing to continue FFCRA through March 31 who are also covered by the regular FMLA (generally employers with 50 or more employees), will want to look at their FMLA policies to learn whether they use a calendar year basis for determining leave availability, or a rolling year basis. Most employers identify the rolling year in their FMLA policies (and therefore don’t have to concern themselves with this issue), but any employers using the calendar year will want to consider the impact of that on continuing FFCRA extended family leave into 2021.
- If not offering FFCRA into 2021, when notifying employees of the decision, employers should also notify employees what, if any, paid leave benefits are available to employees who need time off for COVID-related reasons. Given the continuing surge of the virus, the need for leave and the need to mitigate exposure and spread of the virus will continue throughout the first quarter of 2021, especially in light of the phased roll-out of the COVID-19 vaccines. Speaking of the vaccines . . . .
New EEOC Guidance on COVID-19 Vaccines in the Workplace: With the roll-out of COVID-19 vaccines, employers are starting to ask whether they can or should require employees to get the vaccine. While the vaccines are not available yet to the general public, now is a good time for employers to prepare by determining what their approach will be. In December, the EEOC updated its guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (found here) to help employers understand the legal issues, including avoiding discrimination on the basis of disability or religion. Given the extraordinary circumstances of the pandemic, the EEOC does not prohibit employers from requiring the vaccine, so long as employees with disabilities and/or religious objections are reasonably accommodated. However, the EEOC cautions employers to be careful in how they implement a vaccination requirement or recommendation. Considerations include:
- Pre-screening medical questions an employee likely will need to answer before getting the vaccine could violate the ADA’s prohibition against disability-related inquiries unless the questions are job-related and consistent with business necessity. To avoid this, the EEOC suggests that employers should either make the vaccine voluntary or have a third-party administrator (such as a health clinic or pharmacy) provide the vaccine program and conduct the pre-screening without the employer being involved. The employer could require proof that the employee received the vaccine if provided by a third-party.
- Reasonable accommodations must be made for disabled employees unable to get the vaccine because of pre-existing medical conditions. The EEOC Guidance describes an individualized assessment employers should use to evaluate whether the unvaccinated employee would pose a direct threat to the health and safety of people in the workplace. If there is a direct threat, the employer must then determine if there is a reasonable accommodation that would eliminate or reduce the risk. If the direct threat cannot be eliminated or reduced to an acceptable level, then the employer can exclude the employee from physically entering the workplace, but, the EEOC cautions, that does not mean the employer can automatically terminate the worker’s employment. Termination decisions must be made on a case-by-case basis after careful consideration of any possible accommodation and determination of any other rights such as leave of absence.
- Employers must also reasonably accommodate employees with sincerely-held religious beliefs that prevent them from receiving the vaccine and conduct a similar direct threat assessment.
- The EEOC Guidance provides useful details regarding types of accommodations employers can consider and appropriate measures for vaccination programs.
Next steps: Employers should review the EEOC Guidance, as well as the latest CDC vaccine-related information, and determine the approach they will take – whether it be requiring, encouraging, or remaining neutral regarding the COVID-19 vaccine for employees.
We hope this information is helpful to you, and we hope that 2021 is off to a good start for you and your organizations. Please feel free to contact either of us with any questions.
Sincerely, Jen and Andrea
Jennifer Shea Moeckel, Esq. Andrea G. Chatfield, Esq.
Direct: 603.621.7112 Direct: 603.621.7118