All posts by Navigant Law Group, LLC

It’s 2021. Do employers still need to pay for COVID-19 related Leave?

Confused? You are not alone. News articles vary between saying the Families First Coronavirus Response Act (FFCRA) expired and discussing how it was extended.  What does all of this mean?  Here’s what employers need to know:

What is the Families First Coronavirus Response Act (FFCRA)?

The FFCRA contains a number of new laws and small amendments to existing law, but for the purposes of this article we are focusing on three sections: Emergency Paid Sick Leave, Expanded FMLA (Family Medical Leave Act) and Tax Credits for Paid Sick and Paid Family and Medical Leave. The Emergency Paid Sick Leave Act implemented the requirement small businesses employers have all come to know – the required payment of up to 80 hours of sick leave for employees impacted by COVID-19. The Expanded FMLA broadened existing FMLA rules to apply in COVID-19 related childcare situations.  Tax Credits for Paid Sick and Paid Family and Medical Leave addressed how businesses can cover the costs for these paid leave requirements.  Each of these sections were set to expire on 12/31/20.

Did the FFCRA expire on December 31, 2020?

Yes and no.  (Love that answer don’t ya?) What does that mean: The required paid leave aspect of the law expired, but the ability to use tax credits was extended.

So what does that mean for employers in 2021?

The emergency paid “sick leave” and expanded “family and medical leave” requirements of the FFCRA are no longer mandated as of December 31, 2020.  That does not mean employers are not obligated to pay for time taken before 2021.  Employers can still be sued for violating these provisions while they were in effect.  What it does mean is that, unless new legislation is passed, an employee is not automatically entitled to FFCRA leave after December 31, 2020. However, employers may voluntarily decide to extend and provide FFCRA leave into 2021. Before you decide to extend, take note of the limitation on tax credits (discussed below).

So I don’t have to pay employees if they are out sick with COVID-19?

Not necessarily, your company sick leave policies will apply.

What did happen in December, 2020?

H.R. 133: Consolidated Appropriations Act, 2021(also referred to as ‘The Relief Bill’) was signed into law on December 27, 2020.  While the law addresses a large number of topics, for the purposes of this article we are focusing on Section 286 of the Relief Bill (“Extension of Credits for Paid Sick and Family Leave”).

Although FFCRA leave is no longer mandated, the Relief Bill allows employers another calendar quarter of paid leave tax credits and amends certain provisions of the FFCRA to allow employers to take a payroll tax credit for providing emergency paid “sick leave” and paid expended “family and medical leave” into the first quarter of 2021 for two purposes: (1) to recover costs of providing required FFCRA leave in 2020, and (2) to voluntarily provide paid emergency “sick leave” and emergency “family and medical leave” through March 31, 2021.  In other words: (1) if an employee took FFCRA-required leave in 2020, then the employer can take the appropriate tax credits in 2021; and (2) if an employer elects, voluntarily, to provide paid leave to an employee for an FFCRA-qualifying reason in Q1 of 2021, then it can take payroll tax credits for providing such paid leave.

For those following The Department of Labor’s FFCRA Guidance, the DOL published two new questions and answers related to the expiration of the FFCRA:

  1. I was eligible for leave under the FFCRA in 2020 but I did not use any leave. Am I still entitled to take paid sick or expanded family and medical leave after December 31, 2020? (added 12/31/2020)

Your employer is not required to provide you with FFCRA leave after December 31, 2020, but your employer may voluntarily decide to provide you such leave. The obligation to provide FFCRA leave applies from the law’s effective date of April 1, 2020, through December 31, 2020. Any change to extend the requirement to provide leave under the FFCRA would require an amendment to the statute by Congress. The Consolidated Appropriations Act, 2021, extended employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021. However, this Act did not extend an eligible employee’s entitlement to FFCRA leave beyond December 31, 2020.

Employers with questions about claiming the refundable tax credits for qualified leave wages should consult with the IRS.  Information can be found on the IRS website (http://www.irs.gov/coronavirus/new-employer-tax-credits).

  1. I used 6 weeks of FFCRA leave between April 1, 2020, and December 31, 2020, because my childcare provider was unavailable due to COVID-19. My employer allowed me to take time off, but did not pay me for my last two weeks of FFCRA leave. Is my employer required to pay me for my last two weeks if the FFCRA has expired? (added 12/31/2020)

Yes. WHD will enforce the FFCRA for leave taken or requested during the effective period of April 1, 2020, through December 31, 2020, for complaints made within the statute of limitations. The statute of limitations for both the paid sick leave and expanded family and medical leave provisions of the FFCRA is two years from the date of the alleged violation (or three years in cases involving alleged willful violations). Therefore, if your employer failed to pay you as required by the FFCRA for your leave that occurred before December 31, 2020, you may contact the WHD about filing a complaint as long as you do so within two years of the last action you believe to be in violation of the FFCRA. You may also have a private right of action for alleged violations.

 

If you have questions about how the Relief Act impacts your business or would like to schedule an initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at info@navigantlaw.com.

At Navigant Law Group we know the ropes of the legal system.  Our skilled attorneys provide unparalleled legal services to clients in the following areas: Business Law, Wills, Trusts and Estate Planning, Employment Law (management-side), WBE/MBE/VBE/DBE certification, Estate Administration and Probate, Guardianship and Guidance to Fiduciaries and Real Estate.  Our goal-oriented, attention to detail planning and advice will have you ship shape in no time.  Come Chart Your Course with Us! 

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice. To subscribe to our e-newsletter, pleases send an email request to www.info@navigant.com.

New Year. New Laws for Employers.

The year 2020 began with over 250 new state laws – while many considered the legalization of recreational marijuana would be the largest impact on employers, it was The Workplace Transparency Act – which resulted in employers needing to significantly overhaul their employee handbooks, employment agreements and offer letters, confidentiality agreements, severance agreements and many other documents – that initially caused the biggest impact.

And then came COVID-19 and everything changed.  Suddenly all the focus was on the Families First Coronavirus Act with its paid sick leave and expanded FMLA.  Employers we were learning new processes for safety and worrying about stocking up on PPE and securing PPP loans.  With the legislature being busy with all things pandemic we have a bit of a reprieve when it comes to new laws in 2021 that directly impact employers.

So, what do employers need to know going in to 2021?

Minimum Wage Increase (Public Act 101-0001)

As of January 1, 2021, the minimum wage will increase to $11 an hour for standard workers, $6.60 an hour for tipped workers, and $8.50 an hour for workers under the age of 18 who workless than 650 hours per calendar year. Employers are required to pay workers under the age of 18 the full minimum wage if they work more than 650 hours in a calendar year. Illinois is one of the states set to raise their minimum wage to $15 an hour by 2025, with more increases planned each year until that time.

Pandemic Policies

While Illinois has not introduced new laws mandating you implement new pandemic policies into your employee handbook, the number of issues that have come to light with the current COVID-19 crisis highlights the importance of incorporating general policies related to pandemic issues into your handbook.  Also consider adding a reference to the “Pandemic Coordinator” or “Emergency Coordinator” so employees know where to go to get more information about emergency response procedure.

 

While there are many other laws that are going into effect, the minimum wage increase is the law that impacts Illinois employers – but… did you know that new laws went into effect during the pandemic?  New laws that were not related to the pandemic, and still impact businesses across the state.  Yes, on July 1, 2020 a number of laws became effective, so it is important to make sure you are familiar with those as well and have updated your handbooks/policies accordingly.

These are the – non pandemic related – laws went into effect in Illinois in July, 2020:

Illinois Human Rights Act Amendments

SB 75 brings about significant changes to the Illinois Human Rights Act (IHRA) and broadens the responsibilities of all employers covered by its terms. Importantly, SB 75 amends the IHRA to include new reporting requirements and mandatory sexual-harassment-prevention training.

Sexual Harassment Prevention and Annual Training

While the law initially required employers with 15 employees or more to provide sexual harassment prevention training once a year, starting on July 1, 2020 the obligation expanded to all employers with at least 1 employee.  The law specifies that, at a minimum, training include definitions of sexual harassment, examples of conduct that is unlawful, and examples of appropriate and inappropriate conduct by a supervisor. The training sessions should also review federal and state laws, employees’ rights and available remedies, and a list of responsibilities companies have in handling claims.

All Employees Protected From Discrimination

The size of an employer will no longer determine whether workers will be protected from discrimination on the basis of race, sex, age, sexual orientation, religion and a range of other protected categories. The definition of employer in the Illinois Human Rights Act was changed to mean anyone employing one or more person in the state for 20 or more weeks within the calendar year. Previously, employer was defined under the act as having 15 or more people under employment.

Disclosures

Beginning July 1, 2020, and every July 1 thereafter, an employer that has had at least one adverse judgment or ruling against it in the preceding calendar year must disclose to the Illinois Department of Human Rights the total number of final, non-appealable judgments or final, non-appealable administrative rulings entered against the employer in which there was a finding of sexual harassment or unlawful discrimination. At this time, it is unclear whether this applies to all judgments against an employer or only to those that have occurred in Illinois.

 

Hotel and Casino Employee Safety Act takes effect July 1, 2020

Hotels and casinos must supply employees working in areas alone safety or notification devices to call for help if needed.  The law also requires  hotel and casino employers to include in an anti-sexual harassment policy a provision allowing employees to take paid time off to file a police report or criminal complaint.

 

Chicago Fair Workweek

Chicago’s Fair Workweek Ordinance requires certain employers to provide workers with predictable work schedules and compensation for changes. Employees are covered by the ordinance if they work in one of seven “covered” industries (Building Services, Healthcare, Hotels, Manufacturing, Restaurants, Retail, and Warehouse Services), they make less than $26/hour or $50,000/year, and the employer has at least 100 employees globally (250 employees and 30 locations for a restaurant).  Covered employees are given:

  • Advance notice of work schedule (10 days beginning July 1, 2020)
  • Right to decline previously unscheduled hours
  • 1 hour of Predictability Pay for any shift change within 10 days
  • Right to rest by declining work hours less than 10 hours after the end of previous day’s shift

 

If you have questions about any of these new laws, or would like to schedule an initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at info@navigantlaw.com.

Navigant Law Group, LLC is a full-service law firm with various areas of service to assist you and your business. Individual services include Estate Planning, Wills and Trusts, Probate, and Guardianship. Business services include: Contract Law, Employment Law, Intellectual Property, WBE/MBE/VBE certification, Commercial Real Estate, and other general Business Law services.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice. To subscribe to our e-newsletter, pleases send an email request to www.info@navigant.com.

New Year, New Name… LET’S CHART A NEW COURSE TOGETHER!

2020… well that was something wasn’t it?  It is amazing how much the world has changed over the past few months.  The COVID-19 pandemic has forced businesses across the globe into a balancing act – protecting the health and safety of their employees while simultaneously struggling to keep their own operations a float.  Family life has changed with entire households battling for Wi-Fi bandwidth and office space inside the home.  Suddenly “pivoting” is a dirty word and “zoom fatigue” is the latest challenge.  It has been an all hands-on deck type of year.

Well cheers to 2021!  This New Year’s Eve join us in saying goodbye to 2020 and start out 2021 with a clean slate by celebrating the launch of Navigant Law Group! That’s right, Waltz, Palmer & Dawson is starting 2021 out with a bang!  We have a new office, new logo and … hey why not just go for it – a whole new name!

“The secret of change is to focus all of your energy not on fighting the old, but on building the new.” – Socrates

Entrepreneur says now is the time to “focus on the future”. “We mean spending time to create a vision for the future of the company, beyond the next quarter or even the next year. If your organization has already gone through the steps to define a mission and vision, this should be the focus of the top team.”

And that is what we have done.

Introducing Navigant Law Group, LLC.  Why Navigant?  The word summarizes the mission of our firm perfectly.  The traditional Latin translation means “to sail” or “to navigate”.  Urban Dictionary defines it as tool used to generate directions or assist in navigating between fixed points.  Between those two definitions… that’s where you find us.  Whether you are making plans for your estate or charting out your business plan, you need someone who knows the ropes and is a trusted source to help you navigate between where you are today and where you want to be tomorrow.

“The winds and the waves are always on the side of the ablest navigators.”      – Edward Gibbon

Introducing a new logo and name during a pandemic (not to mention moving offices too – go big or go home people!) may seem like a …. but hey, let’s not forget we started our firm in 2008 – on the eve of the worst economic disaster since the Great Depression. We passed that test with flying colors, so moving offices in the middle of a pandemic? Please… we’ve got this!

Navigant Law Group is now be located at 3030 Salt Creek Lane, Arlington Heights, Illinois. While we are still working out of our temporary space at Suite 121, we hope to be in our new home, Suite 330, in February, 2021.  We cannot wait to show off our new offices as soon as they are ready, so stay tuned for more updates on that!

“I am not afraid of storms, for I’m learning how to sail my ship.” – Louisa May Alcott

 

According to Success, in history books, the year 2020 will be recorded as one massive, extended global disruption where so many of us were at loose ends.  The world has been whacked with a global pandemic, prolonged economic uncertainty, profound political and social discord, and ubiquitous protests of all kinds. It felt like we were all being forced to walk the plank.  Nobody knows for sure what the future will look like. Mark Cuban thinks some small businesses have an advantage over larger companies that might tend to be more focused on protecting their legacy businesses. “They can’t be as agile as a small business can,” he’s explained. “If you’re competing with larger companies who maybe can work on smaller margins, maybe you can work on smaller margins because you’re lean and mean.”

“Everything in life has some risk, and what you actually have to learn to do is how to navigate it.” – Reid Hoffman

2021 will be a new year. It’s time to rock the boat.  During the choppy waters of the past year, what emerged was the importance of embracing resilience and innovation. What we all witnessed was a collective effort to make it through together. Navigant Law Group is committed to working alongside you, finding new solutions and being your partner as we navigate these uncharted seas together.

While our name may have changed, we are still that small firm that gets Big Results. We remain dedicated to providing direct, efficient and cost-effective legal services to creatively achieve our clients’ goals. No over-lawyering. No big delays. Just high-quality service.

Navigant Law Group, LLC.  Chart your course with us!

“The most effective way to do it is just to DO IT.”  – Amelia Earhart

We understand you have a choice in law firms. What sets us apart from the rest? We are a certified woman-owned law firm committed to providing individual and corporate clients with high-quality, responsive legal services personalized to each client’s specific needs.

At Navigant Law Group, you are not hiring a generalist. We believe clients receive the best legal advice when working with an attorney who concentrates in a specific area of the law. Our full staff of lawyers and paralegals have years of experience and have honed their skills in their specific practice area.

Navigant Law Group, LLC is a full-service law firm with various areas of service to assist you and your business. Individual services include Estate Planning, Wills and Trusts, Probate, and Guardianship. Business services include: Contract Law, Employment Law, Intellectual Property, WBE/MBE/VBE certification, Commercial Real Estate, and other general Business Law services.

Should you have any questions about any of these services or would like to schedule an initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at info@navigantlaw.com.

Want to succeed in your business and make your personal goals a reality in the new year? Come chart your course with Navigant Law Group, LLC!

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice. To subscribe to our e-newsletter, pleases send an email request to www.info@navigant.com.

COVID-19 Vaccines are Here! Part II

COVID-19 Vaccines are Here!   Part II of the series

Should employers make them mandatory for employees?

The 43,000 vaccines the state took in at the Illinois Strategic National Stockpile on December 14, 2020 were distributed to 10 regional hospital centers across the state and directly to DuPage County, and from there to 45 counties and local health departments, and ultimately to 77 hospitals statewide, Pritzker said.  In Illinois, Phase 1 of the vaccination roll out is focused on healthcare workers and first responders, but Phase 2 expands to “workers in industries and occupations important to the functioning of society” and then later phases move on to make vaccinations gradually more available for more general use.

With the availability of vaccinations for the general public quickly approaching, many employers are considering whether they should require employees get the vaccine.   Like seemingly everything related to COVID-19, the answer to this question is more difficult than it seems.

To address some of these questions, the Equal Employment Opportunity Commission (EEOC) has release new guidance on the topic.  We’ve summarized this guidance in 2 articles. This article (Part II) focuses on the EEOC guidance related to Genetic Information Nondiscrimination Act (GINA). Part I focuses on the EEOC guidance related to the Americans with Disabilities Act (ADA).

As we are just summarizing here, be sure to review the full guidance on the EEOC’s website.  Looking for state specific state vaccination information? Look here: Illinois or Wisconsin.

Looking for state specific state information on employers obligations to protect genetic information? Look here: Illinois and Wisconsin

Summary of EEOC guidance released on 12/16/20 (Vaccinations and GINA):

  • Is Title II of GINA 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?

No. Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA 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. This includes vaccinations that use messenger RNA (mRNA) technology, which will be discussed more below.  As noted in Question K.9. however, if administration of the vaccine requires pre-screening questions that ask about genetic information, the inquiries seeking genetic information, such as family members’ medical histories, may violate GINA.

Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances.

Certain COVID-19 vaccines use mRNA technology. This raises questions about genetics and, specifically, about whether such vaccines modify a recipient’s genetic makeup and, therefore, whether requiring an employee to get the vaccine as a condition of employment is an unlawful use of genetic information.  The CDC has explained that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” (See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html for a detailed discussion about how mRNA vaccines work).  Thus, requiring employees to get the vaccine, whether it uses mRNA technology or not, does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.

  • Does asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA?

Pre-vaccination medical screening questions are likely to elicit information about disability and may elicit information about genetic information, such as questions regarding the immune systems of family members.  It is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations.

GINA defines “genetic information” to mean:

  • Information about an individual’s genetic tests;
  • Information about the genetic tests of a family member;
  • Information about the manifestation of disease or disorder in a family member (i.e., family medical history);
  • Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
  • Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.

29 C.F.R. § 1635.3(c).

If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA.  However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.

GINA does not prohibit an individual employee’s own health care provider from asking questions about genetic information, but it does prohibit an employer or a doctor working for the employer from asking questions about genetic information.  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer may want to warn the employee not to provide genetic information as part of the proof.  As long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.  See 29 CFR 1635.8(b)(1)(i) for model language that can be used for this warning.

Should you have any questions about the implementing vaccination policies or procedures or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, and General Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice. To subscribe to our business e-newsletter, pleases send an email request to www.info@navigantlaw.com.

COVID-19 Vaccines are Here! Should employers make them mandatory for employees?

With the availability of vaccinations for the general public quickly approaching, many employer are considering whether they should require employees get the vaccine.   Like seemingly everything related to COVID-19, the answer to this question is more difficult than it seems.

To address some of these questions, the Equal Employment Opportunity Commission (EEOC) has release new guidance on the topic.  We’ve summarized this guidance in 2 articles. This article (Part I) is focused on the EEOC guidance related to the Americans with Disabilities Act (ADA).  Part II focuses on the EEOC guidance related to Genetic Information Nondiscrimination Act (GINA).

As we are just summarizing here, be sure to review the full guidance on the EEOC’s website.  Looking for state specific state vaccination information? Look here: Illinois or Wisconsin.

Summary of EEOC guidance released on 12/16/20 (Vaccinations and the ADA):

  • Is administering an FDA approved COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts) considered a “medical examination” for purposes of the ADA?

 

Short answer, No. However, read on…

 

  • The CDC recommends screening before administering to ensure that there is no medical reason that would prevent the person from receiving the vaccination. Are these pre-screening questions subject to the ADA standards for disability-related inquiries?

 

Yes, these pre-vaccination medical screening questions are likely to elicit information about a disability, which means those questions, if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA.  So, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.”  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.

And don’t forget, the ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.

There are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement.

  • First, if an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary.  42 U.S.C. 12112(d)(4)(B)29 C.F.R. 1630.14(d).  If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.

 

  • Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.

 

  • Is requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?

 

No.  There are many reasons that may explain why an employee has not been vaccinated,  so simply requesting proof of vaccination is not “likely to elicit” information about a disability.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit disability information and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

 

  • If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability?

Since COVID pre-screening questions may screen out an individual with a disability, employers 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.”  29 C.F.R. 1630.2(r).  This means, Employers need to 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.

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.  However, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense).  This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.  In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, www.askjan.org.  JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but there may be situations where an accommodation is not possible.  When an employer makes this decision, the facts about particular job duties and workplaces may be relevant.  Employers also should consult applicable Occupational Safety and Health Administration standards and guidance.  Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.

  • If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? 

First, it’s important to know that EEOC guidance says the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must go through the “reasonable accommodation” analysis, similar to the disability analysis discussed in the bullet above.

  • What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief?

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.  This does not mean the employer may automatically terminate the worker.  Employers need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies.

Should you have any questions about the implementing vaccination policies or procedures or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice. To subscribe to our business e-newsletter, pleases send an email request to www.info@navigantlaw.com.