COVID-19 Update: What Employers Need to Know for 2021
Over the past few months, we have witnessed significant changes to the COVID-19 landscape, including the FDA approval of COVID-19 vaccines and the expiration of the mandatory paid leave requirements under the Families First Coronavirus Response Act (“FFCRA”). With these changes comes new guidance and law. While we cannot predict what will happen under the Biden administration, we want to make sure that you have the most current COVID-19 related legal updates affecting employers as we begin 2021.
Federal Payroll Tax Credits under the FFCRA Extended
Beginning January 1, 2021, employers are no longer required to provide paid Families First Coronavirus Response Act (“FFCRA”) leave to employees. While Congress did not extend the mandatory paid leave benefits under the FFCRA, the Consolidated Appropriations Act, 2021 (the “Act”), signed into law on December 27, 2020, extends federal payroll tax credits for employers who voluntarily provide paid sick and family and medical leave to an employee who would have otherwise been qualified for the paid leave under the FFCRA, provided that the individual has not exhausted the maximum FFCRA leave allotment. The payroll tax credits extension runs from December 31, 2020 to March 31, 2021.
Employers should communicate to their employees a clear policy regarding whether the employer will continue offering paid sick and/or family and medical leave and under what circumstances the paid leave is available. Employers may also want to consider continuing to provide paid leave pursuant to this extension as it may incentivize employees to stay home when sick and to seek prompt testing and/or medical care rather than ignoring COVID-19 symptoms due to personal income and work concerns.
Equal Employment Opportunity Commission Issues Guidance on COVID-19 Vaccines
On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance relating to the COVID-19 vaccine and anti-discrimination laws. The EEOC stated that employers may require that employees receive the vaccine. If the vaccination requirement screens out or tends to screen out those with a disability (because hypothetically the person’s disability may prevent them from receiving the vaccine), however, then the employer must undergo a four-factor analysis to determine whether the 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”. These four factors are 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. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.
Even though an unvaccinated employee may pose a “direct threat”, this does not mean that the employer can automatically terminate the employee. Rather, the employer will need to determine whether a reasonable accommodation exists, such as working remotely. Employers should also engage in the interactive process before making any employment decisions. The EEOC recommends that employers consult the Job Accommodation Network (JAN) website as a resource for different accommodations, which also provides specific guidance on engaging in the interactive process during COVID-19.
The EEOC guidance additionally advises employers that employees who indicate that they cannot receive the COVID-19 vaccine due to a sincerely held religious practice or belief may be entitled to an accommodation unless the accommodation poses an undue hardship, defined as having “more than a de minimis cost or burden on the employer”.
Finally, the EEOC reminds employers that COVID-19 test results or medical information must be kept confidential and separate from the employee’s general personnel file. The EEOC also notes that since pre-vaccination questions may reveal genetic information or disability information prohibited by the Genetic Information Nondisclosure Act and/or the Americans with Disabilities Act, employers will most likely want to have a third-party administer any vaccines.
The complete guidance from the EEOC can be found in section K, “Vaccinations”, of the EEOC’s website: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
Department of Labor Issues Field Assistance Bulletins
On December 29, 2020, the United States Department of Labor (“DOL”), Wage and Hour Division, issued Field Assistance Bulletin No.: 2020-7, entitled “Electronic posting for purposes of the FLSA, FMLA, Section 14(c), of the FLSA, EPPA, SCA, and DBA”, and Bulletin No. 2020-8, entitled “Telemedicine and Serious Health Conditions under the Family and Medical Leave Act (FMLA)”.
In both Bulletins, the DOL recognizes how COVID-19 has changed how people work and how people receive medical treatment. With regards to Bulletin 2020-7, the DOL states that electronic notices, such as through email or posted on an employer’s website, will in most cases supplement rather than replace the statutory and regulatory requirements that employers post a hard copy-notice. If the statute requires continuous posting, then electronic posting will only be acceptable when 1) all of the employer’s employees exclusively work remotely, 2) all employees customarily receive information from the employer via electronic means, and 3) all employees have readily available access to the electronic posting at all times. If the statute requires individual notice, then the notice requirement can be met via electronic delivery if the employee customarily receives information from the employer electronically.
In Bulletin 2020-8, the DOL explains that the Wage and Hour Division will consider telemedicine an “in-person” visit for purposes of defining a serious health condition that involves “continuing treatment by a health care provider”. To be considered an “in person” visit, the telemedicine visit must include 1) an examination, evaluation or treatment by a health care provider, 2) be permitted and accepted by state licensing authorities, and 3) generally, should be performed by video conference.
Our team wishes you a happy and healthy New Year and, as always, stands ready to answer your labor and employment law questions as they arise.
Joan M. Vecchioli is a partner in the Clearwater office and is Board Certified in Labor and Employment Law by the Florida Bar.
Colleen M. Flynn is a partner in the Clearwater office whose practice focuses on Labor and Employment Law.
Rachael L. Wood is an associate in the Clearwater office whose practice focuses on Labor and Employment Law.
THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE. LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION.