Employers are understandably still confused about the ever-changing COVID-related employment rules and obligations.
The rules are changing quickly as we open back up the workplace.
Here are answers to some of the most common issues:
Paid leave and the Families First Coronavirus Response Act: An employer asked last week whether it had to provide an employee paid leave when she became ill and had to quarantine due to testing positive for COVID-19.
The employee cited the company’s obligations of paid leave under the Families First Coronavirus Response Act.
The employer is not obligated to pay for her quarantine or leave under the that statute because that law expired on Dec. 31, 2020.
While the law expired last year, Congress gave employers the option to voluntarily provide the paid leave when it passed the American Rescue Plan Act of 2021 effective March 11.
Under the plan, employers with fewer than 500 employees may voluntarily participate in the paid leave provisions of the Families First Coronavirus Response Act and in doing so continue to receive tax credits. There are numerous administrative and notice burdens if employers voluntarily choose to extend that program and accept the tax credits.
An employer who does not voluntarily extend the Families First Coronavirus Response Act is not required to provide paid leave for quarantine or other emergency family leave related to COVID or otherwise.
Virginia’s permanent safety standards: Virginia employers continue to grapple with the inconsistent permanent standards that were approved by the state’s Health and Safety Codes Board earlier this year.
These standards run counter to the guidance from the U.S. Centers for Disease Control and Prevention and Gov. Ralph Northam’s rescission of the emergency order.
Courtney Malveaux, an attorney with the Jackson Lewis law firm who also sits on the board that implemented the standards, said the Safety and Health Codes Board recently adopted recommendations to amend the permanent standards to enable most vaccinated workers to work without face coverings or physical distancing.
In addition, Malveaux said Northam added a suggested amendment that businesses should “follow the science” which would enable employers to comply with the standard by following CDC guidance.
The board’s recommendations are in a public comment period until the end of July, and then it will meet again. At that point, Malveaux believes that the board will agree to the suggested changes from the governor and others.
The state standard also would adopt the federal Occupational Safety and Health Administration’s emergency temporary standard for health care employers. Last month, the OSHA implemented long-awaited COVID-related standards, but these are limited to health care providers.
“These are good developments that will bring Virginia up to speed with the rest of the country,” Malveaux said.
Mandatory vaccinations: The other lingering issue for employers is whether they can mandate vaccinations as a condition of continued employment.
The answer generally is yes and this is especially true if an employee works in health care.
Last month, a federal judge dismissed a lawsuit filed by 117 Texas hospital workers who were mandated to get the vaccine or face termination. They likened taking the vaccine to Nazi medical experiments during the Holocaust.
A federal judge dismissed the lawsuit by reasoning that the mandate did not violate federal or state law, including any public policy. The employees plan to appeal.
The Equal Employment Opportunity Commission has already opined that employers can require the COVID-19 vaccination as a condition of employment.
In fact, some unvaccinated workers may pose a direct threat to the workplace, and this is especially true in health care with high-risk populations.
Last month, a prominent Richmond-area continuing care residential facility allowed an unvaccinated health care provider to continue to work at the facility.
When she tested positive for COVID-19, the facility announced in late June that all health care residents had to be quarantined for 14 days, even those who were vaccinated. Residents planning to leave the facility to see family over the July 4 weekend or to visit with loved ones at the facility were denied that opportunity because of the decision of this health care worker to not be vaccinated and the policy of the facility to not mandate vaccinations.
Under the Americans with Disabilities Act, unvaccinated employees can be excluded from the workplace, even those who cannot be vaccinated due to a medical condition, if their presence poses a direct threat to the health and safety of others and cannot be eliminated or reduced with reasonable accommodation.
The ADA direct threat requirement is a high standard. The employer must show that an employee poses a significant risk of substantial harm to the individual or others.
“To determine if an employee who is not vaccinated due to a disability poses a ‘direct threat’ in the workplace, an employer first must make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job,” according to the EEOC.