As Covid-19 vaccines become more readily available and more adults become eligible to receive them, places of business are welcoming their employees back into the workplace. At the same time, employers are considering whether or not to require that employees get vaccinated before they return to the workplace, or whether or not to require them to get vaccinated to remain in the workplace.
According to guidance from the Equal Employment Opportunity Commission (“EEOC”), employers may require that employees get vaccinated before returning to or remaining in the workplace, as long as they provide an accommodation for employees who cannot get vaccines because of a disability or a sincerely held religious belief. Employers who wish to impose a vaccine requirement should inform employees of the requirement and should state the documentation required to support a request for an exemption from the requirement. A request for an exemption should be treated as any other request for a reasonable accommodation, and an accommodation should be granted if an alternative to the vaccine is reasonably available, but no accommodation need be granted if no reasonable alternative can be made.
Employers who do require employees to be vaccinated may require that employees provide proof that they have been vaccinated. As vaccinated individuals are routinely provided with a CDC vaccine card, this requirement should not be onerous. The proof of vaccination and any documents supporting a need for an accommodation should be treated as any other documents containing employee health information and should be maintained in a confidential manner.
Many employers are not requiring that their employees get vaccinated, but strongly encourage their employees to get vaccinated and provide an incentive if they do so. This should be considered as an alternative to requiring vaccines.
Family First Act Leave
The mandate in the Families First Coronavirus Response Act (“Families First Act”) requiring employers to provide two weeks’ paid sick leave for employees who tested positive for COVID-19, showed symptoms of COVID-19 or had to quarantine because they were exposed to COVID-19, and up to ten weeks’ paid family leave for employees who had to provide childcare for a child under the age of 18 expired on December 31, 2020. However, employers may still choose to provide the type of paid sick and family leave required under the Families First Act. If they do so, they may still take a credit against any federal payroll taxes for the amount paid to employees for those leaves for wages paid during the period beginning April 1, 2021, and ending on September 30, 2021, in the same manner they took tax credits under the Families First Act.