EEOC Issues New COVID-19 Vaccination Guidelines for Employers

COVID-19 vaccine

The Equal Employment Opportunity Commission has affirmed that employers can mandate COVID-19 vaccines for employees, subject to some limitations.

The EEOC’s updated guidance offers direction regarding employer-mandated vaccinations, accommodations for employees who cannot be vaccinated due to a disability or sincerely held religious belief, and certain implications of pre-vaccination medical screening questions under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act.

Asking a patient pre-screening questions is a routine part of a vaccination. These questions may constitute a “medical examination” as defined by the ADA. An employer must be able to show that the inquiries are “job-related and consistent with business necessity” and that an unvaccinated employee could pose a direct threat to the health of others in the workplace.

The guidance does make clear that the administration of a COVID-19 vaccination to an employee itself does not constitute a medical examination for the purposes of the ADA.

Urging employees to get the vaccine voluntarily or requiring them to submit proof that a non-contracted third party (physician, pharmacist, or public health center) administered it may be a better alternative with fewer legal complications.

Reasonable accommodations

Some employees may be unable to get the vaccine for health or disability reasons. Other employees may have sincere religious objections to getting inoculated. In both cases, employers must make reasonable accommodations for the employees. The law permits them to exclude these employees from the workplace only if no reasonable accommodation is possible.

Employers and employees might not agree on what “reasonable accommodation” means. For this reason, employers should consult with human resources experts and carry employment practices liability insurance. Expert advice will help avoid these kinds of conflicts, and the insurance will pay for legal defense and settlement of resulting employee lawsuits.

Requiring employees to get vaccinated will also have implications for the employer’s obligations under state workers’ compensation laws. On the positive side, a vaccinated workforce should reduce the employer’s exposure to claims that an employee got the virus on the job.

On the negative side, some employees may experience adverse side effects. Since the vaccine would be a job requirement, the employee could make a claim for workers’ comp benefits due to the adverse reaction. In addition, the employer may have to pay the worker for the time spent getting vaccinated and for the cost of the injection.

What you can do

Employers can protect themselves by following these guidelines:

  • Follow federal and local health guidelines for the vaccine.
  • Vary the requirements depending on work conditions and locations, such as requiring vaccines for those who regularly interact with the public but making them optional for remote workers.
  • Accommodate employees unable to get the vaccine or resistant to it, to the extent you reasonably can without endangering other employees or the public.
  • Apply the requirements consistently to all employees.

No one wants to catch or spread this virus. Employers can help halt the spread by thoughtfully addressing the issue of vaccinating employees.

COVID-19 Relief Bill Extends Unemployment Benefits, PPP and More

COVID-19 employee benefits

The $900 billion COVID-19 relief bill, passed by Congress and signed into law on Dec. 27, includes a number of provisions that affect employers and their workers in terms of paid sick leave and Emergency Family and Medical Leave Act provisions.

The legislation also boosts unemployment benefits to out-of-work Americans, as well as reopening and expanding the Paycheck Protection Program that was introduced in March as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

Paid sick leave and family medical leave

The new law has not extended the obligation for employers to provide paid emergency paid sick leave and expanded family and medical leave beyond Dec. 31, 2020, instead making it voluntary after that date.

From Jan. 1, employers can continue receiving tax credits if they provide emergency paid sick leave (EPSL) and emergency family medical leave (EFML) to employees for COVID-19-related purposes through March 31. Here are the caveats:

  • Tax credits will be available for leave granted to employees who did not already exhaust 80 hours of EPSL and 12 weeks of EFML. For example, if a worker who was entitled to 80 hours of EPSL last year used 50 of those hours, they’d have 30 hours left to use between Jan. 1 and March 31 this year.
  • Employers must protect the jobs of any employee that is granted EPSL and EFML.

Other provisions

The legislation extends some CARES Act unemployment programs:

Unemployment benefits ― The new law extends the Federal Pandemic Unemployment Compensation (FPUC) program supplement from December 26, 2020 to March 14. However, instead of receiving $600 a week under the original program, benefits will be $300 per week.

Gig worker unemployment benefits ― The law also extends the Pandemic Unemployment Assistance (PUA) program, which covers independent contractors and gig workers who would usually not be eligible for unemployment insurance payments.

This program (originally created by the CARES Act) is also extended to March 14, and then a three-week phase-out period begins and will run until April 5. The law increases the number of weeks independent contractors are eligible for these benefits to 50 from the original 39.

Extra weeks for those whose benefits ran out ― The Pandemic Emergency Unemployment Compensation (PEUC) program, which provides additional weeks of unemployment insurance benefits to individuals who use up all of their state unemployment benefits, will be extended until March 14.

The law also increases the number of benefit weeks to 24, from 13 under the original version of the program. After March 14, this program will be phased out over three weeks until April 5.

More money ― Taxpayers with annual incomes below $75,000 will receive a $600 check, plus another $600 per dependent child. Payments are phased out for people with incomes in excess of $75,000.

Paycheck Protection Program (PPP) part II ― The law also sets aside $284 billion for forgivable loans to struggling businesses as part of a second PPP. Companies that receive funds will have to use the money on payroll and other specific expenses if they want the loan to be forgiven.

Depending on the loan, employers will have either eight or 24 weeks after receiving the loan to spend it on approved expenses.

But PPP part 2 does have some additional prerequisites that differ from the original. It lowers the employee threshold for businesses to 300 employees or fewer (down from 500). Additionally, the maximum loan is now $2 million, compared to $10 million under the original PPP.

Qualifying expenses are also different in this version, which means any business thinking about applying needs to read all the fine print.

 

Why Every Business Needs Non-Owned Auto Coverage

Even businesses that own fleets of autos sometimes use vehicles that do not belong to them. Often, a business asks an employee to run an errand or visit a customer or vendor using that employee’s car.

The business may become legally liable for anything an employee acting on the business’s behalf does while behind the wheel. Lawsuits and accompanying legal costs may confront the business if he has an accident. Many business automobile insurance policies cover this situation, but they do not do so automatically.

The standard Insurance Services Office Business Auto Policy uses numbered symbols to identify covered autos for each coverage the business has purchased. The policy provides liability coverage for non-owned autos only if symbols 1 or 9 are shown on the information page:

Symbol 1 — Means “Any auto.”

Symbol 9 — Means “Non-owned autos.”

The policy defines non-owned autos as autos the insured business does not own, lease, hire, rent or borrow and that are used in the business.

The term includes autos owned by:

  • The business’s employees,
  • Partners (if the business is a partnership),
  • Members (if it is a limited liability company), or
  • Members of their households.

Coverage applies only if the vehicle is used in the business or in the policyholder’s personal affairs.

To illustrate, assume that a printing company needs an emergency replacement part that broke on one of its presses.

One of the workers drives his personal vehicle to a parts warehouse 30 miles away. On his way back with the part, he collides with another car.

If the repair shop’s auto insurance policy’s information page has either symbol 1 or 9 for liability coverage, it will cover this accident. It will pay for the shop’s legal defense costs and any resulting damages the shop is liable for, up to the amount of insurance purchased.

If the policy has another symbol, it will not cover an accident resulting from the use of the mechanic’s car.

Many types of businesses allow employees or partners to use their own vehicles for work purposes. Some examples:

  • Restaurants that deliver.
  • Businesses that do not provide company cars for salespersons.
  • Architects, attorneys, engineers, and other professionals who make site visits.
  • Any organization that sends employees to offsite meetings, errands or professional conferences.
  • Contractors who borrow trucks on job sites or who send employees to get tools.
  • Any organization that sends employees to the bank or post office.

It is possible that the employee’s personal auto insurance policy may provide some coverage for the employer in case of an accident. But the employer should not assume that this is guaranteed.

Also, many individuals purchase the minimum amounts of insurance required by state law, so any coverage the employer shares with the employee may be used up quickly and the employer would be liable for the rest. It’s also possible that the employee’s personal insurer will subrogate with the employer’s insurer to recoup any claims payments if the accident happened in the course of an employee’s job.

The takeaway

Almost every business has a situation where it asks someone to use a personal vehicle for business. If you are concerned that you may not be covered if an employee has an accident in their own car while on the clock, make sure the proper coverage is in place. An uninsured loss can be financially devastating, but it’s easily avoidable.