In most states, employers can require employees to get the vaccine, as long as the requirement is job-related and consistent with business necessities and safety. If an employer is requiring the vaccine, a written policy is vital and should allow for accommodation requests for disabilities and religious beliefs.
Even with a required vaccine policy, employers may face a situation where an employee does not want to get a vaccine. As previously stated, employees can request an accommodation for religious reasons and disabilities, but what if this isn’t the case? The employer has a few options and again, employers must evaluate the safety risk that the refusal poses. Options could include leave of absence, transfer of position, telework or flexible work arrangement. Employers need to be mindful of making exceptions and ensure they are consistent to avoid charges of discrimination, unfairness, etc.
Beyond these options, employers could consider potential termination; however, we recommend that employers proceed cautiously and seek legal counsel before moving forward with termination and be sure to vet out if any other employee rights apply under federal, state or local regulations and laws.
Employers might need to make exceptions to a vaccine requirement for medical and religious reasons. Employees may say it is unsafe for them to obtain the vaccine due to an underlying health condition or may object based on a sincerely held religious belief. In these circumstances, the law requires employers to enter into an interactive dialogue with the requesting employee, review documentation and have discussions with such employees to explore all available and reasonable accommodations.
The first step in this process is obtaining information regarding the request from the employee to determine if the accommodation falls under the ADA or Title VII. This starts the interactive process between the employee and employer. Employers must then determine whether the request can be reasonably accommodated or if it will cause undue hardship or a direct threat to the employee or others' health and safety.
Each request should be assessed on a case-by-case basis. Some considerations for a reasonable accommodation may include allowing the employee to remain in the workplace but continuing to wear PPE and practice social distancing, reassignment of the employee's job duties, telework, flexible job arrangements or a leave of absence. Prior to denying a disability or religious accommodation, it is recommended to consult with legal counsel. Please visit OneDigital’s Coronavirus Hub for sample accommodation request forms.
Yes. If your company already has a wellness plan, explore whether you can incorporate a COVID-19 vaccination within that plan. Employers should ensure programs utilized to encourage vaccines are non-discriminatory. They should be sensitive around the messaging to ensure employees do not view the programs as coercing them to obtain the vaccine. Employers may also consider providing a cash bonus to those who choose to obtain the vaccine. Some employers are considering gift cards and/or prizes for those who get vaccinated. Companies could offer a specific reward to all employees if the organization achieves a target vaccination rate, for example, 90%. Employers should be cautioned that bonuses and gift cards are subject to appropriate federal and state tax withholding by the recipient.
Employers can ask an employee to provide proof that they have received a vaccine. If you plan to require such proof, we recommend that you instruct employees to provide only information regarding the vaccine to ensure the employee is not providing any other medical information. The proof of vaccination should be treated as an employee’s medical record and, per law, be kept confidential and stored separately from employee personnel files.
No, this information is considered confidential. Disclosing such information would violate employee privacy laws.
If your company is requiring employees to be vaccinated, then yes, any cost associated with obtaining the vaccine, including time spent getting the vaccine, would be covered under the Fair Labor Standards Act as well as many states’ wage and hour laws. If your company has a voluntary vaccination policy, you would likely not be required by law to pay; however, you could consider doing so to help encourage employees to obtain the vaccine.
Keeping in mind that religious and/or medical accommodations may be at play, to ensure nondiscrimination, we do not recommend that you ask this question. Instead, we recommend that you communicate any vaccine requirement on the job posting, ensuring that you have language pursuant to accommodation requests on the posting. This language could include, "Our Company requires new hires to obtain the vaccine within 14 days of their date of hire. Candidates may seek a medical and/or disability-related accommodation with the Company as necessary. The Company determines reasonable accommodations on a case-by-case basis."
If you are requiring the vaccine, a policy should be created that addresses the “who, what, where, when and why” regarding vaccinations at work. You will want to outline which employees will be required to get vaccinated and define the timeline requirement for those employees to receive the vaccine, ensuring that the timeline is realistic with your state's rollout and distribution plans.
Furthermore, you will want to outline where employees can obtain the vaccine and how employees will receive pay for obtaining the vaccine (if applicable). You will also want to provide details of any employer programs encouraging the vaccine such as a cash bonus or gift, and discuss why this requirement is important for your business, the individual and the team as a whole.
The policy should also provide details about required employee vaccine certification paperwork and who employees should discuss accommodation-related requests with, noting that the employer will engage in an interactive process with the requesting individual. You can find a sample vaccine policy on OneDigital’s Coronavirus Hub.
The decision to return employees to the workplace should always consider employee safety, state and federal laws and guidance with respect to COVID-19, and CDC and OSHA recommendations and guidance. Under OSHA, an employee may refuse work that poses "a risk of death or serious physical harm." Educating employees about your decision-making process should help alleviate some of their fears of returning, but there may still be employees that are uncomfortable.
In this case, the company should review the situation to determine what makes the most sense. If being onsite is a condition of employment, the company may be forced to terminate employment. But, before doing that, look to see if there are other options or accommodations.
NOTE: a normal temperature reading is not indicative that the person does not have the virus.
If using COVID-19 testing as a barrier to reentry for the workforce, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later. Also there is currently no clear scientific answer to whether people who have recovered from the virus will be immune to it later. So anti-body testing may not be as effective for employers as testing for current viral infection. For any employee administering temperature exams or COVID-19 testing, employers should provide them with PPE, including training on how to properly use the PPE.
Whatever measures employers take, they must be applied consistently in a nondiscriminatory manner. Employers must also ensure confidentiality of any medical information obtained or stored in connection with COVID-19 inquiries or testing.
If someone is not otherwise protected by the ADA, FMLA, or some other legal protection, an employer can let someone go who refuses to come to work.
However, we are seeing employers want to be understanding during this challenging time. Some employers are allowing the use of accrued, unused paid sick leave or paid time off, or granting unpaid leaves of absence during this time to accommodate concerns. Many are allowing remote work, if feasible, where may not have been willing to do so prior to COVID-19.
It is recommended to set a policy and apply it consistently to avoid claims of discrimination. Employees may claim they have to care for their children, or they have a medical condition that puts them at risk. In these instances, you need to allow employees to apply for the appropriate protected leave, like FMLA, or engage in the interactive process for employees who may be protected under the ADA.
The OSHA PPE standard, which applies to all PPEs including masks, requires that the employers complete a hazard assessment, review alternatives, determine what PPEs will be required, train employees on the use and care of PPEs, clean and maintain the PPE, and have guidelines in place, which are periodically reviewed. If PPEs are required, employers must pay the cost for the PPE.
Although not required, an employee may decide to voluntarily wear a face mask or other PPE while at work. There are two levels of voluntary mask usage according to OSHA. The first involves wearing a N95 respirator and the other is a non-respirator mask (cloth or other material without a filter). The employer should review the situation to ensure that the PPE does not, in itself, create a hazardous situation (for example, a PPE getting caught in machinery) or that it does not initiate requirements under OSHA’s Respiratory Protection Standards.
If an employer is distributing masks that they have purchased, be sure to tell employees, in writing, that the masks are not required and are voluntary. Employers are not required to pay for masks to be used on a purely voluntary basis.
Given the CDC’s recommendation to wear masks in public, employers may want to communicate expectations around voluntary use in the workplace.
Yes; however, there may be restrictions to those changes. Employers should consider the following steps before adjusting employee contributions:
The following plan design changes can be considered when an employer is looking to control costs:
Qualifying events are events that cause an individual a status change to his or her group health coverage. The type of qualifying event determines who the qualified beneficiaries are for that event and the period of time that a plan must offer continuation coverage. COBRA establishes only the minimum requirements for continuation coverage. The following are qualifying events for covered employees:
If an employee needs a significant sum of money and doesn't expect to have the means to repay it, they could consider a hardship withdrawal from their 401(k). A hardship withdrawal allows funds to be withdrawn from an account to meet an “immediate and heavy financial need,” such as covering medical expenses or avoiding foreclosure on a home.
Employers don't have to offer hardship withdrawal options, so it is recommended to check your retirement plan before exploring such option.
If furloughs are not currently addressed in plan language, it may be possible to modify existing plan terms to allow for the continuation of benefits while an employee is on furlough. Employers will need to work with their insurance carrier or TPA and stop-loss carriers on any modification of plan terms.
It is important to note that furloughed employees may not have the funds to pay for continued coverage. In that scenario, unless the employer is willing to assume the costs, continuing coverage may not be a practical cost control measure. If the employer expects the employee to repay premiums upon their return to work, the employer should have employees sign an agreement that allows for the repayment of past premiums upon the employee’s reinstatement to a full-time position. If employees lose access to employer sponsored coverage, they can enroll in Exchange coverage, if they request enrollment within 60-days of the loss. It’s important to note that failure to pay premiums does not invoke a special election period. Those who lose coverage due a failure to pay their premiums will have to wait until the next open enrollment to obtain individual coverage, I.e. November 1.
There are a few things to cover here. First, there is a difference between employer paid and contributory benefits. If the employer pays the full premium, i.e. non-contributory benefits, the employer may change the offer of coverage prospectively if they provide proper notification of this benefit reduction. Since voluntary benefits are 100% employee paid, the employee is the only one who can make the change and only under certain circumstances.
If the employee’s contributions to their benefit plans are taken out on a pretax basis, they have a cafeteria plan. At the beginning of each calendar year, employees make an irrevocable election to contribute premiums on a pretax basis. The IRS provides only certain options, known as “change in status” options that may allow a mid-year change to those elections. These change in status reasons are optional. Each employer may adopt some or all these reasons. To do so, they must include them in their cafeteria plan document. So, to the extent that the change the employee seeks to make is an allowable change in status, and the employer’s plan document includes that as a valid reason for change, the employee may make a change to their contributions.
Some voluntary benefits will be impacted on whether or not an employee is actively at work. Some examples include:
Life and Disability Plans: Some life and disability insurance carriers may require that employees be actively-at-work for coverage to be honored. Employers need to identify carrier plan language to ensure benefit continuation will not be disrupted in the event of a furlough/temporary closure or when employees’ hours are reduced below eligibility criteria. If an employer is changing life and disability carriers during this pandemic, confirm that they will not delay insuring employees who are not actively-at-work as a result of a closure or who have experienced a reduction in hours of employment.
Commuter Benefits: Notify employees to cease contributions into a commuter benefit program, if they are expected to work for home for a month or more. Employees can also reduce the monthly elections to reflect a decrease in the number of days they anticipate to commute into the office. If employees are terminated, note that unused amounts in their commuter benefit plans will be forfeit.
Yes; however, there may be restrictions to those changes and not all carriers allow employers to make changes midyear. Additionally, a significant cost in change may trigger a new open enrollment if the employer’s plan allows mid-year changes due to a change in costs. If your carrier permits midyear changes, consider the following:
If employees are terminated/laid off, even if potentially for a limited amount of time they are no longer eligible for benefits as active employees. At this point, employers will need to offer COBRA or state continuation coverage, whichever is applicable. Employees have the option of continuing coverage or applying for individual coverage in the Exchange or the private market. A loss of coverage, at any time and not just due to the COVID-19 issue, creates a special enrollment period in the individual market. Individuals may enroll within 60 days of the loss of coverage.
If employees are furloughed, they may potentially be eligible to continue coverage. Due to a reduction in hours, furloughed employees are eligible to make mid-year election changes that are consistent with the reduction in hours. Employers should note that COBRA continuation coverage (or state continuation coverage, if any) must be offered for all group health plans when there is a loss of coverage because of a furlough or reduction in hours. Individual state continuation rules vary. It is important to check the circumstances and rules for each applicable state.
Typically, there are three options.
Employers should implement a policy or follow their existing policy for collecting employees’ share of healthcare premiums. Employers can choose to implement any one of the following policies and must apply the policy uniformly to all employees:
As long as an employee remains covered by an HSA-compatible high deductible health plan during the leave or furlough, the employee is able to contribute to his or her HSA account. However, for periods of unpaid leave, there would be no pay from which salary reductions may be taken. In that scenario, the employee may suspend HSA contributions and resume contributions when they return to an active state of employment. As another alternative, the employee can make after-tax contributions to their HSA account directly and deduct those contributions when the employee files his tax return for the calendar year. It is important to note that contributions are only allowed for the months that an individual is enrolled in an HSA-compatible high deductible health plan (HDHP).
If furloughed employees lose their eligibility for flexible spending accounts (FSAs) at the beginning of the furlough, then in some cases health FSA participants will need to be offered COBRA continuation coverage. Employees with available account balances that exceed the COBRA premium for the remainder of the plan year would be able to elect COBRA coverage in order to utilize those dollars for expenses incurred after the date they lost eligibility for health FSA coverage.
Unemployment eligibility is determined by specific states under individualized statutory and regulatory frameworks. On March 12, the Department of Labor (DOL) issued new guidance encouraging states to amend their unemployment laws to provide greater flexibility for unemployment arising from coronavirus. Federal law does not require employees to resign employment in order to receive benefits due to the impact of COVID-19.
Federal law allows states to pay benefits where:
It is encouraged for employees to apply for unemployment benefits in the occasion of a furlough or layoff due to COVID-19.
Typically, employees may be required to use their PTO as long as it’s consistent with:
The PTO policy should be implemented on a consistent basis, and the employer should consider the potential employee relations implications of requiring use of PTO. In contrast, note that employers may not be able to require use of paid sick leave; some paid sick leave laws allow the employee to use it at the employee’s option. Be sure to review your state’s requirements for administration of these rules.
A furlough is a temporary, leave of absence, which is generally shorter in duration in full-day or week increments. During the furlough, the employees are not paid, but they are still technically employed. When the business reopens to full strength, furloughed employees will become active again.
A layoff is a permanent separation of employment, with the possibility that former employees may be rehired should the business reopen.
A furlough could be seen as favorable to retain talent and reduce the cost of separation (e.g., payout of vacation balance payout) or future hiring and training. However, the laws on furloughs and final pay vary from state to state, and employers should ensure compliance with their states of operation.
FMLA is an unpaid leave of absence for qualified employees for the following reasons:
FMLA benefits to employees unable to work, or telework, due to school or daycare closings. This leave is twelve weeks; the first 10 days is unpaid, but then the remainder of the leave is paid at 2/3 of regular rate of pay up to a maximum of $200 per day and a $10,000 in aggregate.
The emergency paid sick leave becomes effective April 1, 2020 if the employee needs to exercise leave for one of the qualified reasons under the FFCRA. They are:
For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.
The answer is dependent upon many components, including applicable laws such as the federal Fair Labor Standards Act (FLSA), state wage and hour laws, company policy, and employee status (exempt versus nonexempt).A nonexempt employee, for example, is only required to be paid for the time they perform work. The employee may use his/her earned sick time, unused vacation time, personal time, or paid time off, to ensure continued earnings during the time the person is off work.
An employer’s duty should be to protect the workforce, while at the same time ensuring they aren’t creating panic. Due to medical privacy considerations, an infected employee should not be identified and confidential medical information about the employee should not be shared with others. However, the employer can inform the workforce that there has been a reported case of COVID-19. Once announced, it is important the employer identify the steps that are being taken to address the issue in the workplace, along with reiterating its infection control practices, including handwashing and sanitizing workplace areas.
Healthcare providers are required to notify federal, state and local health authorities of the diagnosis, and those authorities may provide additional guidance and requirements, including further notification, on-site medical questioning, or examinations.
Under the Americans with Disabilities Act (ADA), a temperature screening is likely to be considered a “medical examination,” which generally is prohibited. However, it may be permitted under limited exceptions. It must be job-related and consistent with business necessity, or the employer has a reasonable belief that the employee poses a direct threat to the health or safety of themselves or others. These exceptions may be more or less applicable depending on the employer’s industry and the employee’s job position. The Equal Employment Opportunity Commission (EEOC) has issued guidance permitting employers to take employee temperatures during this pandemic to determine if they have a fever. However, it is important to note that not everyone with the coronavirus may have a fever.
Requiring a doctor’s note certifying fitness to return to work is permissible if consistent with the employer’s standard practices, but employers should be aware that such documentation may be delayed due to the high volume of patients being assessed by healthcare providers during this period. Taking temperature or requiring a doctor’s note should be done consistently across the employee population or groups.
3/17 update: What used to be considered a medical examination and was not allowed under ADA has now been given the green light by the EEOC. On March 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued an update to its guidance that now expressly acknowledges that employers may implement temperature screening measures in response to the current COVID-19 pandemic. The EEOC noted that “because the CDC [Centers for Disease Control and Prevention] and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature.” The CDC has also issued a precaution to remind employers that not everyone with COVID-19 has a fever and not everyone with a fever has COVID-19. Employees sent home due to COVID-19 concerns may be eligible for expanded unemployment insurance if paid leave or other relief is unavailable.
If your business decides to conduct this practice in the workplace, follow these precautions, consistent with social distancing policies:
Employers can ask an employee how he or she is feeling in general, but should avoid inquiring about specific illnesses, as that could rise to the level of a disability-related inquiry under the ADA.
If an employee is showing symptoms, it is recommended that employers require a set period away from the workplace and receive medical clearance before permitting the employee to return to the workplace. These determinations should be made on a case-by-case basis following guidance established by public health officials.
OSHA considers contraction of COVID-19 as a reportable event when work related. Employers are responsible for recording cases of COVID-19 if all of the following are met:
Additionally, there is no specific OSHA standard covering COVID-19; however, some OSHA requirements may apply to preventing occupational exposure to COVID19. Among the most relevant are:
OSHA’s Bloodborne Pathogens standard applies to occupational exposure to human blood and other potentially infectious materials that typically do not include respiratory secretions that may transmit COVID-19. However, the provisions of the standard offer a framework that may help control some sources of the virus, including exposures to body fluids (e.g., respiratory secretions) not covered by the standard.
Employers may ban any business-related travel to high-impact areas, as identified by the CDC. Employers with business involving travel to those areas should consider reasonable alternatives for their workforce, such as videoconferencing. As additional U.S. locations report incidences of COVID-19, employers should recognize that assessments of elevated travel risks must remain fluid.
Although employers cannot mandate an employee’s personal travel, they should consider advising employees about the risks associated with such travel, inform them of the consequences of undertaking such travel, and may require periods of quarantine before being allowed to return to the workplace, applying any such practice on a non-discriminatory basis.
In tough economic times, employers might seek to cut compensation-related costs and employer contributions to 401(k) plans are an obvious target. While reducing employer contributions can hurt employee morale, it is sometimes a better option for reducing labor costs than furloughs and layoffs.
Here are some of the ways a business can change or stop company contributions:
Please note, the above commentary is a general guideline. Consult your individual plan document or contact your record-keeper for additional information.
Employers have already begun to furlough employees as opposed to terminating employment. IRS regulations discuss the impact that a furlough has on participant loan requirements. Employees with plan loans who are placed on unpaid leave of absence may forego making loan payments during the leave of absence without triggering taxation of the loan as long as the following requirements are met: