About a year ago, most employers had to abruptly change their operations. You may have rushed out work-from-home arrangements. You may have been forced to reduce your workforce. You may have sought out PPP loans to keep your business afloat. And while you tried to maintain some business operations through all of this, you had to keep your eyes on changing state and federal laws and guidance. We hope you developed a COVID-19 plan and kept track of new paid time off requirements for pandemic-related work absences. But now that case counts seem to be coming down, that more and more people are getting vaccinated, and that we’ve all learned to live with masks, many employers have to face new choices. Below, I’ve assembled some of the leading questions employers face and some guidance for complying with the latest standards.
A. Can I mandate vaccines for my workforce?
The short answer is yes. If you wish to do this, consult with legal counsel to structure it properly, as you will have to allow for some exceptions under the standards of the Civil Rights Act and the Americans with Disabilities Act. But it is possible to enact a mandate, and data suggest that very few workers would qualify for exceptions. However, you should also consider the non-legal implications. If you expect some workers to refuse, are you prepared to terminate their employment? Many employers are not ready to take that step, and the latest reports suggest that few employers will make vaccination mandatory. As an alternative, some have suggested paying a premium to workers who get vaccinated. Ironically, this “voluntary” option could create a greater legal risk than a mandate. Older EEOC guidance on wellness programs suggests that if employers give more than a de minimis incentive to encourage participation, they could be discriminating against workers whose disabilities prevent them from taking part in the wellness initiative. And there is no current guidance on what amounts to “de minimis.” Even so, at least one national company announced a plan to pay $100 bonuses to vaccinated employees. Employers certainly can—and probably should—take steps to encourage vaccination, but be sure you check with your legal advisors before wading into this area.
B. Am I required to offer paid time off for COVID-19?
Maybe. Many employers re-set benefits at the start of a year, so plenty of workers will have access to some paid sick time in 2021. And some states (such as Michigan) mandate paid sick leave that could be used for many Coronavirus-related situations.
Further, although the paid leave rights under the Families First Coronavirus Response Act expired December 31, 2020, there are circumstances where that can extend to March 31, 2021. And some lawmakers are exploring further extensions. Even without new legislation, employers should also be mindful of unpaid leave rights under the FMLA and other controlling policies on workplace leave.
C. What safety precautions should I have in my workplace?
The primary considerations are the things we have been hearing for months now: social distancing, face coverings, and frequent hand washing. But OSHA recently published comprehensive standards on what that means. See the latest guidelines here.
D. Can I enforce mask mandates on my clients and customers?
Yes. You have a duty to reasonably accommodate business patrons whose medical conditions prevent them from wearing a face covering. But that does not necessarily mean letting them into your place of business unmasked. The accommodation could be conducting business online, sending a (mask-wearing) representative into your business on behalf of the customer, or having the person wear a different kind of face covering.
E. How should I approach the future of work-from-home?
The answer to this will vary greatly from company to company. Some employers are eager to get their workforce back into the office and will be looking for ways to scale back, or even eliminate, working from home. Others will find the forced experiment of 2020 pushing them towards a business model that encourages telecommuting. And still others will fall in between. As a general rule, employers have a lot of latitude in setting the terms of employment, but anti-discrimination laws figure into the equation. Under some conditions, telecommuting could be a reasonable accommodation for a worker with a disability. The option to work from home could also be considered a perk of employment, so you will want to be sure it is offered on a fair basis. The same could be said of the option to not work from home. In other words, you will need to take steps to ensure workspace assignments are made in a non-discriminatory manner.
F. Where can I find more help?
We’ve already pointed you to the OSHA website, and useful guidance is also available from the EEOC. For employers with memberships in local or national human resources organizations, your membership likely entitles you to helpful publications on these and many other issues. And our employment lawyers at Tuesley Hall Konopa are always ready to help. As our communities move into the next season of this pandemic, we look forward to working with you to promote legal compliance and help keep everyone healthy and safe.
Author: Michael J. Hays is a civil litigation attorney and Partner at Tuesley Hall Konopa, LLP. His practice areas include employment law, business transactions, and real estate law. Michael is licensed to practice in Indiana and Michigan.
You can contact Michael by calling 574.232.3538 or email mhays@thklaw.com
Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.