While the vaccine is not federally mandated, there are certain jobs where it can be mandatory, such as for health workers or hospital staff, and many employers can make the case that a vaccine is required if they can show that not having a vaccine poses a “significant threat” to other employees in the workplace.3,4 The majority of US organizations (61 percent) report that they will encourage — not require — the vaccine for their employees.5
Employers, however, will be required to make exceptions for employees who cannot be vaccinated due to a disability, a religious belief, or other qualifying reasons. If an employee refuses to be vaccinated due to a qualifying reason, employers should work with the employee to determine if there are reasonable accommodations that can be made, such as allowing the employee to work from home or take leave.6 Employers and their HR teams should develop an accommodation plan in advance of rolling out any vaccine recommendations.
An employee who refuses to receive a vaccine at a place of employment with a mandatory vaccine requirement may be terminated if there is no medical or religious exemption provided. Employers should tread carefully in these circumstances and consult legal counsel before making any decision to terminate an employee for noncompliance.
Returning to the workplace can vary widely from one business to the next. Employers will need to consider job responsibilities and functions when determining if they will be able to support remote workers, adopt a hybrid model, or require employees to work onsite. About half (51 percent) of employers anticipate that their firms will discontinue stay-at-home policies in the second half of 2021, while many other offices will continue or expand remote work.7
Employees should expect new policies related to workplace health and safety, including personal protective equipment (PPE), temperature checks, COVID-19 testing, and COVID-19 vaccine disclosure. Employers are allowed to ask if an employee has received a COVID-19 vaccine, but they should be careful not to ask for or solicit any information related to an employee’s medical history or condition. A simple yes or no questionnaire can provide all the information that is needed.
Worksite arrangements may be altered, with staggered schedules, reduced capacity, or a hybrid remote/in-office set-up. Workspaces will likely be set up to accommodate recommended physical distance and walkways may be arranged to promote one-way traffic patterns.
Regardless of their policies, employers will need to be aware of ADA compliance and other Equal Employment Opportunity laws, and how to accommodate employees who are unable or uncomfortable returning to an office.8
If an employee is uncomfortable with the proposed workplace arrangement, it’s important to have a conversation with your employee and actively listen to their specific concerns. Employees may have a wide range of reasons for not wishing to return to the office — from a pre-existing medical condition to family consideration, such as additional responsibilities as a caregiver — and there are limits on what an employer can legally ask and what an employee is required to disclose.
If you’re able to, consider or continue remote work arrangements or explore alternative duties that can be performed remotely. Reasonable accommodations — which can include telework — must be made under the ADA for qualifying reasons.9
The FFCRA, which provided additional paid leave for coronavirus-related reasons, expired on December 31, 2020. Unless an employer is extending their policies, employee leave policies would return to the company’s original policy. State COVID-specific and paid-leave laws will still apply.
While employers are no longer legally obligated to provide paid sick leave or emergency Family and Medical Leave for coronavirus-related absences, many employers are continuing to offer extended leave or flexible work arrangements. Additionally, employers can still receive a tax credit if they continue to voluntarily provide paid coronavirus-related leave under the American Rescue Plan Act (ARPA) through September 30, 2021.
Moreover, the ARPA has expanded the qualifying reasons for paid leave that are eligible for the tax credit to include absences for obtaining the COVID-19 vaccination, recovery from illness related to receiving the vaccine, and waiting time for COVID-19 test results.
For more information, please visit our COVID-19 resource center at guardianlife.com/coronavirus.