Category Archives: employers

EEO-1 Report Portal Opening Soon – Deadline is Set

hand with pen over form

Contributed by Beverly Alfon, April 16, 2021

The Equal Employment Opportunity Commission’s (EEOC’s) EEO-1 Component 1 Online Filing System is set to open on Monday, April 26, 2021. Private employers with at least 100 employees, and federal contractors with at least 50 employees and a contract worth $50,000 or more, must file their EEO-1 data for years 2019 (previously postponed due to the COVID-19 pandemic) and 2020, by Monday, July 19, 2021. Employers will be required to first file for 2019, then file for 2020 – after the 2019 report is submitted and certified.

As a reminder, EEO-1 reports require data from a “workforce snapshot period,” which is any single pay period during the last quarter of the year (October through December), as selected by the employer.  Employers may select different workforce snapshot pay periods for 2019 and 2020. 

Employees who telework must also be included in the EEO-1 report for the establishment to which they report. Practical tip: Do not include home addresses for these remote employees as a company location.

The 2019 and 2020 reports will only include “Component 1” data, which is comprised of the same workforce demographic information that has long been required on the EEO-1. As of right now, the controversial “Component 2” pay data information does not need to be reported to the EEOC. Last year, the EEOC did not renew its authority to collect the pay data information and is still evaluating the Component 2 data that it received for FY 2017 and 2018 to determine whether or not the information is useful, and whether or not the data collection form needs to be revised. 

It should also be noted that the U.S. Congress also could act on legislation pending in the form of the Paycheck Fairness Act, which would require the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) to initiate pay data collection.

In the meantime, some states have implemented their own pay data collections. California has completed its first round of collection under the state’s pay data collection law, and Illinois has enacted a law that requires employers in the state to submit pay data starting in 2023 (and obtain an equal pay registration certificate by March 24, 2024). Notably, Illinois employers who are required to file a federal EEO-1 report, will also be required to file similar information with the Secretary of State, making the data publicly available.    

Bottom line: Employers should be prepared to begin submissions of their EEO-1 reports for 2019 and 2020 as soon as possible. Don’t stop there. Evaluate your EEO-1 data and strongly consider pay equity analysis, with the goal of identifying and correcting any potential issues, sooner rather than later.

Save the Date! Complimentary Webcast April 29: NEW Illinois Law Prohibiting Use of Criminal Convictions: An Employer’s Guide

Effective March 23, 2021, new Illinois law generally prohibits the use of criminal convictions in employment decisions and creates additional new hurdles for employers who decide to rely on any conviction for employment purposes-unless otherwise authorized by law. Join Jeff Risch and Allison Sues on Thursday, April 29 @ noon CT for a timely discussion surrounding the new law. During this webcast attendees will learn:

  • How to navigate new hiring mandates
  • What to include in the mandated written notices to a denied applicant or terminated employee because of a conviction record
  • How to reconcile the new IL law with existing local, state and federal mandates (i.e. FFCRA, Ban the Box, etc…)
  • How to analyze whether a specific conviction history has a substantial relationship to a certain job position or poses a unreasonable risk to property or safety
  • What does “unless otherwise authorized by law” really mean for employers

US DOL Publishes Model Notices for American Rescue Plan COBRA Subsidy

Contributed By Rebecca Dobbs Bush, April 8, 2021

close up of the hands of a businessman in a suit signing or writing a document

The American Rescue Plan Act (ARPA), signed by President Joe Biden on March 11, 2021, included a COBRA Subsidy covering 100% of COBRA premiums for “Assistance Eligible Individuals” during the period of April 1, 2021 through September 30, 2021.  The 100% premium subsidy will be reimbursed to employers through their quarterly payroll tax returns. 

Pursuant to ARPA, employers are required to notify certain individuals about potential eligibility and details of the subsidy by May 31, 2021. Individuals then have 60-days to elect.  And although Notice 2021-01 described extensions of various plan deadlines for potentially up to 1-year or 60-days after the expiration of the “Outbreak Period,” the US Department of Labor (DOL) now makes clear in its FAQ on COBRA premium assistance under the American Rescue Plan Act of 2021, that this extension of timeframes for employee benefit plans does not apply to notice periods related to the COBRA premium assistance.  Also noted within the published FAQ, a penalty of $100 per qualified beneficiary, not to exceed more than $200 per family, may be assessed on employers for each day they are in violation of the COBRA rules.

Model Notices Available:

The above model notices cannot be used without modification that customizes each with specific information about the relevant individual and the employer’s group health plan. As potential fines for noncompliance can be steep, employers should carefully set procedures for timely distribution of all requisite notices. 

The American Rescue Plan Act of 2021: What’s in it for Employers?

*Save the Date! Complimentary webcast on March 23rd at noon CST: American Rescue Plan: What Employers Must Know Now

Contributed by Rebecca Bush and Kelly Haab-Tallitsch, March 11, 2021

Almost one year after the enactment of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), and with the second extension of pandemic unemployment assistance about to expire for millions of workers on March 14, 2021, the American Rescue Plan Act of 2021 (the “Act”) was signed into law by President Biden on Thursday afternoon, March 11, 2021. 

The estimated cost of the Act is $1.9 Trillion, with $1,400 Recovery Rebate checks for each qualifying individual, the extension of supplemental unemployment benefits through September 6, 2021, as well as billions in new or additional relief for various industries, such as education, transportation and infrastructure, aviation/airlines, health care, shuttered venues, restaurants, and state and local governments.

Several provisions of the Act are potentially available for employers of various sizes across all industries. Some key non-industry specific provisions are set forth below.

Premium Assistance for Cobra Continuation Coverage for Individuals and Their Families

Remember the COBRA Subsidy implemented years ago where individuals had 85% of their premiums covered? The Act invokes similar assistance for individuals. However, this time the amount covered for individuals is set at 100%. It generally applies to premiums due related to coverage periods from April 1, 2021 through September 30, 2021. Employers will be required to notify employees about the availability of the premium assistance and the expiration date. The Secretary of Labor is required to produce model notices, with the initial model notice of availability to be provided within 30 days of the Act’s enactment. The 100% premium subsidy will be reimbursed to employers through their quarterly payroll tax returns.

Extension of Employee Retention Credit

The Employee Retention Credit was recently extended and amended as part of the Consolidated Appropriations Act of 2021 (enacted during the last week of December 2020). The Act further extends the availability of the credit for wages paid through December 31, 2021.  As a reminder, we explained the prior expansion to the Employee Retention Credit previously.

Extension of Tax Credits ONLY for Paid Leave under the FFCRA

In the last round of stimulus legislation, the tax credit for paid leave under the Families First Coronavirus and Response Act (“FFCRA”) was extended through March 30, 2021.  However, the extension was not mandatory and maximum leave allowances were not reset, meaning an individual that had already exhausted available amounts in 2020 was not entitled to further time off regardless of whether an employer continued to make the leave available on a voluntary basis. We previously explained the extension in a recent blog post.

Employers that are contemplating, or already, providing paid time off for employees to obtain the vaccine, now potentially have assistance funding that leave. The American Rescue Plan extends the availability of the tax credits for paid sick or family leave through September 30, 2021, and the maximum amount of tax credits that an employer can claim for each employee will reset on April 1, 2021.  This reset allows an employee who exhausts the maximum leave through March 31, 2021 to be able to utilize additional FFCRA leave on April 1, 2021 through September 30, 2021, provided the employer continues to voluntarily allow the use of FFRCA leave. In addition, two new permitted reasons for paid sick leave are added where: (1) an “…employee is seeking or awaiting the results of a diagnostic test, for, or a medical diagnosis of, COVID 19 and such employee has been exposed to COVID-19 or the employee’s employer has requested such test or diagnosis;” and (2) “the employee is obtaining immunization related to COVID-19 or recovery from any injury, disability, illness, or condition related to such immunization…”  

Optional Expansion of Limits under Dependent Care Flexible Spending Account Plans

Employers that offer dependent care flexible spending account plans may increase the maximum deferrals under the plan to slightly more than double the normal deferral limit. This is for the 2021 plan year only. This translates to a maximum deferral for a married couple in the amount of $10,500 and $5,250 for an individual.

For further information, register to attend SmithAmundsen’s complimentary webcast on March 23rd at noon CST: American Rescue Plan: What Employers Must Know Now

So Your Employee Wants to Work Remotely Out of State

Contributed by John R. Hayes, March 8, 2021

Work Remotely memo stick. Laptop for remote job.

Given the “new normal” of remote work for many employees throughout the country, the question as to whether to allow an employee to work in another state – either permanently or temporarily – has become something employers are now scrambling to answer.  However, it is not as simple as determining whether the employee can do the work remotely, there are numerous considerations and implications employers should be aware of if they have employees working in a different state than the location of their main operations. 

First, employers should have clear guidelines and policies regarding what is expected of the employee in terms of hours, availability, and work product. That is true wherever they are remotely located. Some general areas to consider include:

  • Detailing their normal work duties and responsibilities;
  • Making clear the hours of work the employee is expected to put in along with strict adherence to any timekeeping policies;
  • Setting the hours of availability to communicate regarding company business and job duties;
  • Determining how to handle communication of work assignments and personal needs, including reporting absences of work due to injury, illness, or caring for a family member;
  • Discussing the use of company equipment and materials;
  • Ensuring the employee protects company information by following the company’s policies and practices regarding information security and data protection; ensure that unauthorized individuals do not access company data, either in print or electronically; and not accessing restricted-level information in print or electronically unless approved by the supervisor; and
  • Maintaining a safe environment in which to work.

Next, for employees wanting to work out of state either all the time or for a period of time, there are potential tax and payroll issues for both the employee and the employer. Unfortunately, there is no one size fits all answer. It will depend on the state the individual is performing work in, how long they are there, and a host of other factors.  When an employee is working outside of the state where the employer operates the employer may be responsible for the other state’s taxes, including income taxes. Each state’s income tax and withholding requirements vary significantly, and may be based on both personal residence and/or work location. Making it even more complicated, states have differing thresholds for when an individual working remotely in that state triggers tax implications, for example in Illinois it is 30 days and in New York it is 14 days.

COVID-19 related remote work has dramatically impacted this area of the law, as it has exponentially increased the numbers of employees working in a different state than where the employer is located or where they reside, and many states have been slow to adjust to this. However, several states have implemented “COVID-19 Rules” regarding the tax implications for remote workers. Again, this is a state-by-state analysis that needs to be done by the employer for each employee wishing to work remotely out of state. 

In addition to state and local taxes, the labor and employment laws of the state where a remote employee is working may apply to the employment relationship.  An employer needs to examine the state’s (and possibly the county’s and/or the city’s) employment laws to see whether there are specific laws that would affect the employee, such as posting requirements and paid family or sick leave, amongst others.

Employers should also be aware of state laws regarding workers’ compensation insurance and unemployment insurance. Employers usually must obtain workers’ compensation insurance in the state where the employee is actually working. It may be the case that the workers’ compensation laws in the employer’s state would not apply to the employee working remotely in another state. The same also applies to unemployment insurance, where the out of state employee would likely trigger the state’s requirements that the employer register for and pay the unemployment insurance premiums through that state’s particular unemployment insurance program.

Ultimately, the decision to allow remote location work is up to the employer and depends on the particular facts and circumstances of each employment situation.  Given the complexity of having to figure out other states’ employment, tax, and other state-specific laws, employers may be justified in saying no to such arrangements.  The answer really depends on the employer’s desire to hire/retain the individual, and whether remote work is a means to that end.  And once such a remote work arrangement is granted to one employee, employers must be mindful in granting/denying it to others, as allowing it for one employee but denying it to another could potentially be considered discriminatory, depending on the facts of each situation.

Any remote work arrangement should be carefully considered in advance, a written policy and understanding between the employer and employee should be put in place, and the particular laws of the remote work location should be examined and understood, ideally by experienced counsel.

Employers with Employees in California, Are You Ready to Report Your EEO Pay Data?

Contributed by Sara Zorich, February 19, 2021

State of California

In follow up to our previous blog, the March 31, 2021 deadline is quickly approaching for employers to provide their California Pay Data Report to the California Department of Fair Employment and Housing (DFEH). Required reporting applies to private employers who meet the following three (3) requirements: (1) 100 or more total employees, (2) required to file a federal EEO-1 report and (3) at least 1 employee in California. 

DFEH recently updated its FAQ’s related to the California EEO reporting requirements.  The FAQ’s, along with DFEH’s User Guide, make it clear that employers must carefully review their reporting requirements and data for submission. The DFEH User Guide notes that the California requirements are NOT the same as the previous EEOC proposed rules or the current Federal EEO-1 reporting requirements. The California Pay Data Report requirements have a number of significant differences employers must be aware of, for example:

  • Non-binary employees must be reported in California in the same manner as male and female employees.
  • An employee’s pay is reported from W-2 Box 5.
  • An employee’s hours worked in 2020 includes any hours the employee was on any form of paid time off for which the employee was paid by the employer (such as vacation time, sick time, or holiday time) during 2020.
  • Multiple-establishment employers must report all establishments, including those with fewer than 50 employees, in the same manner by providing the number of employees and total hours worked for each employee group assigned to the establishment. For example, for multiple-establishment employers with establishments inside and outside of California, the employer: (A) must report to DFEH on its California establishments, all of its employees assigned to those establishments (including any employees outside of California) whether or not teleworking, and any other California employee (including those teleworking from California but assigned to an establishment outside of California); and (B) may report to DFEH on its establishments and employees not covered by (A).
  • If an employee’s W-2 is corrected after the employer submits its California Pay Data Report to DFEH, and the correction would put the employee in a different pay band than originally reported or would otherwise require a correction on the employer’s report, the employer should promptly submit a corrected pay data report, identifying the corrected cells and explaining the correction in the remarks field(s).

As stated, the California Pay Data Report must be submitted by March 31, 2021.  In light of COVID-19, DFEH is allowing an employer to request a deferral of enforcement and if approved DFEH is providing the employer until April 30, 2021 to file its Pay Data Report. All requests for such deferral of enforcement must be filed with DFEH) no later than March 31, 2021.

In light of these new California reporting requirements and the similar currently pending legislation in Illinois, employers should proactively review and understand how their pay data would appear should they be investigated for pay disparity claims.

What Will the Biden Administration Bring for Employers?

Contributed by Beverly Alfon, January 12, 2021

They say that the only constant in life is change.  Here is a quick overview of the shift that we expect to see in the realm of labor and employment after President-elect Joe Biden takes office.  

National Labor Relations Board (NLRB)

The NLRB is expected to have a Democratic majority as early as August 2021.  The five-member Board currently has three Republican members, one Democrat, and one vacancy.  The expectation is that the Biden administration will move quickly to fill the vacancy.  In addition, the term of William Emmanuel, a Trump appointee, will expire in August 2021 – opening the door to a third Democrat.

The current NLRB General Counsel, Peter Robb – who has pushed a strong pro-employer stance in his role as prosecutor of unfair labor practice charges – will see his term expire in November 2021.  There is some speculation that due to pressures from organized labor, President-elect Biden will find a way to terminate Robb’s terms prior to that.

As with prior administration changes, the expectation is that a Democratic Board majority and new General Counsel will lead the Board’s policy and enforcement priorities will go back to a pro-labor agenda. With this expected change will likely come easier roads to organizing, broadening of joint-employer liability, a return to post-contract continuation of union dues, and stricter restrictions on an employer’s ability to exercise discretion even when contract language provides for it. Not all changes will be immediate, of course, as case precedents established by President Trump’s appointees are not subject to reversal until cases presenting the relevant issues come before the Board.

We will be keeping an eye out for components of (or the entirety of) the Protecting the Right to Organize Act (PRO Act), which passed in the House in early 2020 with a vote of 224 to 194, largely along party lines.  The legislation went nowhere in the Senate in 2020, but it is 2021. The results of the Georgia runoff elections have changed the political landscape.  Among other things, the PRO Act was aimed at giving workers more equal footing during disputes at work, prohibiting employers from permanently replacing economic strikers, creating a private cause of action for unfair labor practices, authorizing the NLRB to add penalties for employers who retaliate against workers who organize, and allowing for secondary boycotts.  President-elect Biden is a strong supporter of the PRO Act provisions, making clear that significant, pro-labor changes will be made through and within the NLRB.

Equal Employment Opportunity Commission (EEOC)

The EEOC enforces federal laws that prohibit employment discrimination, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964.  The EEOC will have a Republican majority until July 2022.  The EEOC’s current Strategic Enforcement Plan, which establishes the EEOC’s enforcement priorities, will also be in place until 2022.  Therefore, changes to the agency initiatives will be even less immediate than at the NLRB, but the expectation is that the EEOC will return to its aggressive enforcement of these federal employment laws against employers, likely focused on workplace harassment, equal pay, and LGBT discrimination/harassment claims (especially in light of the June 2020 U.S. Supreme Court decision in Bostock, which holds that an employer who fires an individual merely for being gay or transgender violates Title VII).

U.S. Department of Labor

President-Elect Joe Biden has formally nominated Boston Mayor, Marty Walsh for Secretary of Labor.  In response to the announcement of his nomination, Walsh tweeted, “Working people, labor unions, and those fighting every day for their shot at the middle class are the backbone of our economy and of this country. As Secretary of Labor, I’ll work just as hard for you as you do for your families and livelihoods.”  Some media outlets are reporting that Walsh, like Biden, is more moderate than meets the eye, willing to reach across the aisle in order to make things happen.  However, there is no question that unions expect robust support from Walsh due to his strong ties to organized labor, including a role as head of the Boston Building and Construction Trades Council.   If confirmed by the Senate (which is very likely in light of the results of the Georgia runoff elections), Walsh would be the first union member to serve in this role in almost 50 years.

With Walsh at the helm, we expect that federal minimum wage and paid sick leave benefits will be top priorities.  Walsh was a strong supporter of the state-wide Massachusetts law requiring paid family and medical leave benefits, and the forthcoming state minimum wage requirement of $15 an hour.  We also anticipate that the DOL will revisit overtime standards, rules dealing with pay entitlement for off-the-clock work (especially in this time of widespread remote work), and the joint employer standard. It is also very likely that the DOL’s recently issued independent contractor classification regulations will be rescinded or superseded by new regulations that would be more worker-friendly.  Enforcement will likely be aggressive, especially in industries like food manufacturing, fast food, and construction, which are priorities for organized labor, especially in terms of wages and workplace safety (especially, COVID-19-related complaints). Indeed, there is some expectation that this DOL will be even more aggressive and progressive than that of the Obama administration.

Bottom line:  Employers must be focused on compliance.  While we cannot specifically predict what will come over the next few months and years, it is imperative for employers to anticipate the pendulum swing and assume stricter enforcement of rules and regulations against employers, sooner rather than later. 

Update: EEOC Issues Guidance Regarding COVID-19 Vaccines in the Workplace

Contributed by Suzannah Wilson Overholt, December 16, 2020

Doctor hand wears medical glove holding syringe and vial bottle with covid 19 vaccine drug multiple dose for injections.

In follow-up to our previous blog regarding mandating the COVID-19 vaccine in the workplace, the U.S. Equal Employment Opportunity Commission (EEOC) has now issued guidance addressing that very issue. According to the guidance, employers may ask employees if they have had the COVID-19 vaccine and require the vaccine pursuant to U.S. Centers for Disease Control (CDC) or other federal or state guidelines. However, any mandates must allow exemptions for employees who are unable to receive the vaccine due to disability or a sincerely held religious belief or practice.

The key takeaways from the EEOC’s guidance are as follows:

  • In order for an employer to require the COVID-19 vaccine, it 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.” Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists:
    • the duration of the risk;
    • the nature and severity of the potential harm;
    • the likelihood that the potential harm will occur; and
    • the imminence of the potential harm. 
  • An employer must provide reasonable accommodations to a vaccine requirement for employees who seek accommodation based on disability or a sincerely held religious belief, practice, or observance. The EEOC has consistently required such accommodations, which we described in an earlier blog.   
  • The administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) is NOT a “medical examination” for purposes of the Americans with Disabilities Act (ADA). 
  • Pre-screening questions associated with administering the vaccine may implicate the ADA’s prohibition on disability-related inquiries if the employer requires the vaccine and answering the questions is mandatory. If the employer administers the vaccine, it must show that pre-screening questions are “job-related and consistent with business necessity.” This is not a concern if the vaccine and answering the questions are voluntary.
  • Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is NOT a disability-related inquiry. 
  • Title II of the Genetic Information Nondiscrimination Act (GINA) is NOT implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute.
  • GINA may be implicated if pre-screening questions include questions about genetic information, such as family medical history. If the pre-vaccination questions include questions about genetic information, employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.

Due to the evolving nature of this issue, advice of qualified counsel should be sought before implementing any COVID-19 vaccine program in the workplace.

Employers Should Review their Policies Regarding Hairstyles as the CROWN Act Movement Gains Momentum

Contributed by Allison P. Sues, December 1, 2020

A law book with a gavel – Employment Law

Have you seen the 2019 viral video and articles about the young African American wrestler being told by a Caucasian referee that he either had to cut off his locs or forfeit the match? Or the resulting public outcry and negative media attention the referee and school received?

Since 2019, CROWN Act legislation has been gaining momentum. The CROWN Act stands for “Creating a Respectful and Open World for Natural Hair” and is legislation that specifically prohibits discrimination in employment based on hair texture, protective hairstyles – including braids, locs, twists, and bantu knots – and other cultural hair stylings such as extensions, hair ornaments, and head wraps.  The natural hair movement was created to counter the problem of minority employees, primarily African Americans, feeling compelled to change their natural hair styles or texture in order to abide by their workplace’s view of professional appearance.  

On October 23, 2020, Pittsburgh enacted a CROWN Act and in doing so followed several other states and cities, including California, New York, Washington State, Colorado, Maryland, Virginia, and New Jersey.  In the Midwest, Illinois, Michigan and Ohio are currently considering passing CROWN Acts. 

At the federal level, in September 2020, the U.S. House of Representatives passed a CROWN Act, which is now awaiting review by the Senate. 

Even if a CROWN Act is not enacted in your state or locale, employers should proactively review their workplace rules regarding appearance and hair styling to limit their exposure to discrimination claims, including those based on race, religion, national origin and gender. 

The U.S. Equal Employment Opportunity Commission has long taken the position that workplace rules about professional appearance that disproportionately affect employees in a protected class may give rise to Title VII discrimination claims. Employers should heed the following:

  • Eliminate workplace rules restricting hairstyles whenever possible.  Even neutral policies that require employees to keep hair neat, clean, kempt or tidy may be discriminatory if they are enforced in a way that prohibits employees who are minorities from wearing their hair naturally.
  • Where it is necessary to have hairstyle policies, ensure that any restrictions are rooted in legitimate health and safety justifications that are backed by objective evidence. The policy cannot restrict hairstyles associated with different cultures due to a “corporate image,” “customer preference,” or unfounded and stereotypical concerns about health or cleanliness. 
  • Any policies addressing hairstyles should be in writing and distributed to all employees.  The policy should expressly inform employees that they may request reasonable accommodations for hairstyles of religious significance. 
  • All policies should be enforced consistently amongst all employees.  For example, if all employees must tie their hair back if it is longer than their shoulders, this rule should be applied across the board regardless of the employees’ demographics (e.g. race, gender, national origin) and hair (e.g. locs, or fine blonde hair).
  • Employers should train managers on anti-discrimination laws and company expectations regarding hairstyles and remind them that if in doubt to immediately involve HR. 

In reviewing policies, changes to your policies and addressing any potentially problematic employee issues, make sure to work with trusted legal counsel, who is experienced in labor and employment law issues.

Can I Require My Employees to Get the COVID -19 Vaccine?

Contributed by Suzannah Wilson Overholt, November 12, 2020

Medicine doctor and vaccine dose syringe in laboratory, microbiology and pharmaceutical research.

With the prospect of an FDA approved COVID-19 vaccine on the horizon, employers are already wondering whether they will be able to require their employees to get the vaccine. Because the pandemic has caused changes in other workplace rules, the answer to this question is not clear.

The Americans with Disabilities Act (ADA) generally prohibits employers from mandating that employees receive any vaccinations unless they are job-related, consistent with business necessity, and no more intrusive than necessary. This is ordinarily a difficult standard to meet unless the employer is part of the healthcare field. However, due to the current circumstances of the COVID-19 pandemic and the fact that an individual with COVID-19 is considered to pose a direct threat to the health of others, the EEOC may allow mandatory COVID-19 vaccines in workplaces beyond healthcare.  This conclusion is supported by the fact that the EEOC has already allowed employers to screen employees for COVID-19 on this same basis.

  While employers may be permitted or able to require employees to get the vaccine, employers should carefully consider the potential legal and employee morale implications and complications.  A Gallup poll recently showed just half of Americans would be willing to get a COVID-19 vaccine that the FDA approved, which is less than were willing to do so this past summer. These poll results indicate that a large number of employees will likely be reluctant to get the vaccine – at least initially. Therefore, enforcing a vaccine mandate, i.e. telling workers they have to have the vaccine or be fired, could be difficult if a large number of employees refuse to comply.  

If the EEOC authorizes mandatory COVID-19 vaccines anywhere in the workplace, employers should likely assume that the same restrictions that apply to mandatory vaccines in the healthcare field now will apply to all workplaces.  Currently, the EEOC requires healthcare employers to consider exemptions for employees who cannot receive vaccines for reasons related to disability, pregnancy, or religion. Employers analyze each request for exemption on a case-by-case basis, including reviewing the employee’s job position as well as the employee’s particular religious belief or medical documentation corroborating the disability at issue.  For more about these exemptions and the analysis that goes with them, see our previous blog on this topic, “Navigating the Legal Risks of a Mandatory Vaccine Program.”

As long as there continues to be widespread concern about the safety of a COVID-19 vaccine and no specific authorization from the EEOC to allow employers to mandate that employees have the vaccine, employers would be wise to continue to require masking, proper hygiene and social distancing.  Employers may also stress the importance of getting a flu shot and encourage employees to get one by subsidizing the cost, allowing paid time off to get one, or offering flu shots at the workplace to reduce any inconvenience. 

We will continue to monitor and report on guidance from the CDC, EEOC and other federal agencies for developments regarding the COVID-19 vaccine.