These are hard times for businesses trying to navigate the various rules and regulations related to reopening after the pandemic. No business wants to get caught up in litigation if it can be avoided. Five of the most pressing health-related concerns are discussed here:
1. Can COVID-19 vaccines be mandatory?This is a decidedly difficult area based in public health and company culture. Generally, employers are allowed to require employees to be vaccinated. However, requiring the COVID-19 vaccine is complicated by the fact that all the vaccines in use in the U.S. (Pfizer-BioNTech, Moderna, and Johnson & Johnson) are designated as emergency use only.
States are permitted to mandate vaccines based on the Supreme Court's decision in the 1905 case Jacobson v Massachusetts. In that case, which concerned the smallpox vaccine, the decision was based on states' broad authority to regulate individual rights to protect the general health, safety, morals and welfare of society as a whole, known as the police power. If the currently available vaccines gain full approval, states will have the power to mandate them. Pfizer and BioNTech have already applied for that status for their vaccine, but it remains to be seen whether they will get it and whether state governments will take advantage by making them mandatory. In the meantime, it is up to companies to set their own policies.
As a practical matter, companies need to assess how mandating the vaccine will be received by their employees. If, say, 25% of employees say they will not take the vaccine, the company may find itself with a lot of job vacancies.
2. Can incentives be offered for taking the vaccine?This is another tricky area for businesses. HIPAA's privacy requirements must be met if an incentive is offered. Generally, this means employees' confidential health information needs to be protected. HIPAA also requires that employees who have an "adverse health status factor" must be allowed to earn the incentive in some other way.
This can be a slippery slope, and employers should check with their attorneys before finalizing any incentive program.
3. Can companies require unvaccinated employees to take COVID-19 tests?The short answer is that companies can require unvaccinated employees to take regular COVID-19 tests, but the guidance on paying for the test, which test to use and how to keep accurate records is less clear. In addition, employers must be sure that all testing requirements are in compliance with the ADA and HIPAA.
4. Can masks be required?Recent CDC guidance allows fully vaccinated individuals to go without a mask in most places. Businesses need to keep in mind that state and local rules override this guidance. Some companies are continuing to require masks even when they are not mandated by law. Some other employers are requiring employees to complete a daily health questionnaire and asking them to wear masks if they are unvaccinated.
There are concerns about whether allowing vaccinated individuals to go without a mask while nonvaccinated people must wear masks indirectly reveals information that could be considered protected information under the ADA. There are other legal concerns as well, including whether employers can be held liable if someone contracts the virus while on their premises.
What does the Families First Coronavirus Response Act (FFCRA) change?The requirement that employers provide paid sick leave and expanded family and medical leave to eligible employees under the Families First Coronavirus Response Act expired on Dec. 31, 2020. However, the Consolidated Appropriations Act (CAA), 2021, extended employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021. This means that employers who voluntarily paid these benefits between Jan.1, 2021, and March 31, 2021, can claim tax credits for those payments.
The new American Rescue Plan Act does not mandate the leaves as instituted in the FFCRA. However, it has extended the credit for employers who voluntarily provide qualified leave benefits through Sept. 30, 2021.
As businesses struggle to decide how to make their employees feel safe as they return to the workplace, they must consider what their policies will be toward vaccines and mask wearing. These are difficult decisions, and company leaders should consider whether any of those decisions are increasing their exposure to lawsuits. Before making any firm decisions, company leaders should consult with legal counsel, as rules may vary from one jurisdiction to another, and the law in this area is evolving rapidly.
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