Must an employer provide paid time off for employees to receive the vaccine? Under the Fair Labor Standards Act and any equivalent state laws, if an employer mandates vaccines, the time employees spend obtaining these injections (including the travel time) count as “hours worked.” Must the employer pay for vaccination? If an employee incurs any costs associated with the vaccine, employers may be required to cover such costs. Employees who refuse to be vaccinated and cannot work remotely may eventually be subject to dis- cipline for failing to report to work unless they need a disability-related or religious accommodation. Paid Leave Under Extension to FFCRA, the ARPA The American Rescue Plan Act of 2021 (ARPA) extended tax cred - its to employers who voluntarily choose to provide paid leave ben- efits under the Families First Coronavirus Response Act (FFCRA). The ARPA extends employers’ eligibility for tax credits through September 30, 2021. TheARPAalso expanded the list of qualifying reasons for taking paid leave. ARPA Additional Qualifying Reasons for FFCRA Leave Additional qualifying reasons for FFCRA leave under ARPA include: 1. The employee is obtaining a COVID-19 vaccination. 2. The employee is recovering from an injury, disability, illness, or condition related to a COVID-19 vaccination. 3. The employee is seeking or awaiting the results of a COVID-19 test or diagnosis because either the employee has been exposed to COVID-19 or the employer requested the test or diagnosis. The ARPA also resets the allotment of 80 hours (10 days) of Emer - gency Paid Sick Leave (EPSL) per employee beginning on April 1, 2021. However, FFCRA leave was limited to 80 hours. If the affected employees took part of the 80 hours, they only have the remainder of the 80 hours available under ARPA.
and/or data, employers must have a reasonable belief that an employee who does not answer the questions and does not receive a vaccination will pose a direct threat to the health or safety of themselves or others. Employees can be asked screening questions that do not satisfy the “job-related and consistent with business necessity” requirement in two situations. First, an employee’s decision to respond to the questions is voluntary if the employer offers employees vaccination on a voluntary basis. An employer may decline to administer the vaccine if an employee refuses to answer the questions. Second, employees receiving the vaccine from a third-party should be required to sign forms authorizing release of information. How should the employer handle objections to being vac- cinated because of existing medical conditions? Employers who screen individuals with disabilities must show that an unvaccinated employee presents a “significant risk of substantial harm to the health or safety of the individual or others that cannot be reduced by reasonable accommodation.” Whether a direct threat exists may include considerations of: (a) dura - tion of risk; (b) nature and severity of potential harm; (c) likelihood of potential harm; and (d) whether potential harm is imminent. A deter - mination that an individual presents a direct threat would “include a determination that an unvaccinated individual will expose others to the virus at the worksite.” If the risk cannot be reduced to an acceptable level, the employer may exclude the unvaccinated employee. However, the right to exclude the employee from the workplace does not mean that the employer can terminate the employee, as he/she may be entitled to accommodation, or to take leave provided by law or under the employer’s policies. Can employees object to receiving a vaccine on religious grounds? Employers considering mandatory vaccination programs should in- form employees early and seek notice from employees who will refuse vaccination based on religious beliefs and/or practices. Employers should document attempts to accommodate those employees who ex- press religious objections. Qualified employers under Title VII of the Civil Rights Act of 1964 (Title VII) must provide reasonable accommodations for employees, whose sincerely held religious beliefs prevent them from receiving a COVID-19 vaccination, unless it would cause undue hardship on the employer. “Undue hardship” suggests the accommodation would im- pose more than a de minimis cost or burden on the employer.
DONALD “DINO” VELEZ, Of Counsel, is an attorney with Smith, Currie & Hancock LLP, in the firm’s San Francisco, California, office. Practicing for three decades as a career litigator, Dino Velez advises clients on labor and employment; construction and contract matters, and general civil litigation. Smith Currie is a nationally recognized law firm focusing on Construction Law and Government Contracts. Contact Dino at davelez@smithcurrie.com. Learn more: www.smithcurrie.com.
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csengineermag.com
october 2021
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