Answers to the Most Common Coronavirus Questions

In general, it is recommended for employers to offer vaccinations to employees on a voluntary basis rather than implementing a mandatory vaccination policy. The Equal Employment Opportunity Commission has released specific guidance (Section K) on the COVID-19 vaccine. It has also updated its Pandemic Preparedness for the Workplace guidance to reflect the current COVID-19 pandemic. The guidance indicates that an employer must consider reasonable accommodations for employees with disabilities and those employees whose religious beliefs conflict with receiving a vaccine.

In addition, there is a pending lawsuit against a public employer in New Mexico (Legaretta v. Fernando Macias, et al., Case 2:21-cv-00179) arguing that the employer cannot mandate a vaccine that has only been approved for emergency use authorization (EUA). This case is one to keep an eye on and we will provide updates as available.

State laws are rapidly evolving regarding mandatory vaccination policies and employers should monitor this activity for any vaccine restrictions in states where employees are working.

If your workforce is covered by a collective bargaining agreement (CBA), a required vaccination would be a condition of employment that may already be included in the CBA or may need to be bargained with the union before such a policy could be implemented.

Employers are permitted to ask employees if they have been vaccinated against COVID-19; however, caution should be taken to avoid soliciting information related to an employee’s medical condition. A simple yes or no response from employees should be sufficient and employers should instruct employees not to provide additional information about the reason they may not have received the vaccine.

While employers may be able make vaccinations a condition of employment absent medical and religious accommodations, some employees may have general objections to receiving a COVID-19 vaccination and employers need to decide how they will proceed in these circumstances. Terminating employees might not be the desired approach, but allowing for a leave of absence, transfer to another position, telework or other modifications might be acceptable solutions. See What Employers Can Do If Workers Refuse a COVID-19 Vaccination.

Yes; employers should develop a policy outlining any requirement or recommendation for COVID-19 vaccinations in the workplace. SeeVaccination Policy: Mandatory and Vaccination Policy: Voluntary.

If the vaccine is mandated by the employer, the employer may be required to cover the cost of the vaccine and pay an employee for time spent getting the vaccine. Under the Fair Labor Standards Act, an employer must cover any work-related expenses for an employee if the cost of the expense would drop the employee below minimum wage. State laws may also require payment.

In addition, an employer is obligated to pay an employee for time spent seeking medical attention that is required by the employer and occurs during work hours.

Absent a medical or religious exemption from a mandatory vaccination requirement, an employer may be able to make a COVID-19 vaccination a condition of employment and terminate employees who do not comply. However, employers should tread carefully with this practice and consult legal counsel prior to making termination decisions.

The Public Readiness and Emergency Preparedness Act may provide employers immunity from claims related to side effects of a vaccine or other injury at the employer’s vaccination site if the employer supervises or administers an onsite vaccination program.

An employer that voluntarily provides employees with paid leave as previously required under the FFCRA can claim a tax credit for qualifying leave provided from April 1, 2021, through September 30, 2021. The employer will take a dollar-for-dollar tax credit by retaining the amount of payroll taxes equal to the amount of qualifying sick and family care leave that it paid (up to statutory maximums), rather than deposit them with the IRS. For an overview of FFCRA requirements for tax credit eligibility, seeCOVID-19-Related Tax Credits for Paid Leave.

The ARPA also expands the qualifying reasons for paid leave eligible for the tax credit to include absences because:

• The employee is obtaining a COVID-19 vaccination.
• The employee is recovering from any illness related to receiving the vaccine.
• The employee is seeking or waiting for test results or a medical diagnosis for COVID-19, or the employer has requested the employee to obtain the same.

While the requirement to provide paid leave under the FFCRA is expired, the need for coronavirus-related employee absences continues. To ensure employees are able to take time off from work when sick and/or when needed to care for a family member, employers will need to decide whether to continue providing FFCRA-like leave voluntarily and, if not, determine what other leave options are available for employees. Consider state COVID-19-specific and other paid-sick-leave laws, leave as an accommodation under the Americans with Disabilities Act, FMLA leave for serious health conditions, and internal policies for paid time off when determining how to respond to employees who are unable to work for coronavirus-related reasons. Employers should avoid placing employees in a situation where they may feel forced to report to work when ill.

While the DOL has not provided guidance on this, there does not appear to be any requirement to offer both types of paid leave in order to receive the tax credits. It is likely employers may offer one or the other, or both types of paid leave after April 1, 2021, and still receive a tax credit.

While we await guidance from the DOL, as this leave is voluntary there does not appear to be a requirement to offer the full allotment of either leave in order to receive the tax credit. If offering fewer days, however, it is advisable to state this from the outset of your policy, to avoid unlawful discrimination issues.

Again, since there is no requirement to offer this leave, employers may offer it for a specified time that ends before September 30, 2021. This should also be made clear at the outset to avoid unlawful discrimination.

The 10-day allotment under the FFCRA which could be carried over to 2021 under the Consolidated Appropriations Act of 2021 (as a tax credit only, not an employee entitlement) expired as of March 31, 2021. Therefore, the tax credit under the ARPA effective April 1, 2021, likely only applies to a new bank of up to 10 days for every employee. We will update this FAQ when more guidance is available.

Neither of these issues is addressed in the act. Some experts trying to interpret the law think yes while others disagree. We will update this FAQ when more guidance is available.

No. Paid leave under the FFCRA was in addition to an employee’s other leave entitlements and therefore, an FFCRA-like voluntary plan in 2021 must provide the same to claim the tax credit.

While an employer may not claim the tax credit by requiring an employee to use his or her paid vacation, personal, medical or sick leave, if the employee and employer agree, existing paid leave can be used to supplement FFCRA-like leave, up to the amount of the employee’s normal earnings, without jeopardizing the tax credit.

At this time there is no specific guidance from the DOL indicating whether or not FFCRA-like child care leave will count as FMLA leave, as it did under the FFCRA.

Under the ARPA, from April through September 2021, free COBRA coverage is available for employees (and their covered family members) who lost group health insurance due to an involuntary termination or reduction in hours due to the pandemic. This subsidy does not apply to those who voluntarily quit their employment. The subsidy will be paid to employers through a payroll tax credit, resulting in no premiums for covered participants during the six-month period. SeeBiden Signs Stimulus Bill with 100% COBRA Subsidy Through September.

Employers will need to identify AEIs to ensure the subsidy is applied correctly and that election notification requirements are met. SeeWho is eligible for the COBRA subsidy under the ARPA, and how must we notify them?

There is a “no double dipping” rule with these tax credits, so employers claiming two or all three credits need to ensure they claim the appropriate amounts for each.

The COBRA subsidy under the American Rescue Plan Act (ARPA) creates a 100 percent tax credit for the cost of health care coverage. As the other two credits allow for qualified health plan expenses to be included in the calculation of applicable tax credit due, claiming these credits simultaneously will create a double-dipping issue if these health plan expenses include the costs related to COBRA coverage.

Additionally, federal and state relief-based loans, such as those provided under the federal Paycheck Protection Program (PPP), may exclude wages eligible for tax credits under other programs (i.e., PPP loans will not cover paid leave submitted for credits related to the FFCRA).

Yes, the subsidy covers dental and vision coverage under COBRA. The subsidy does not, however, cover flexible spending accounts.

While the ARPA does not define involuntary termination and no additional guidance is yet available, in general, “involuntary termination” refers to those terminations decided by the employer, such as a discharge or layoff from employment. Only an involuntary termination for “gross misconduct,” which is also not defined, would exclude an employee from the subsidy.

Eligibility due to a reduction in hours has no qualifiers; whether the reduction in hours was at the employee’s request or due to the employer’s business needs is not relevant. Those eligible for COBRA coverage while on a leave of absence would also be eligible for the subsidy due to a reduction in hours.

Additionally, the eligibility reason does not need to be related to the pandemic. For example, if an employer terminates Marguerite’s employment on April 15, 2021, due to performance issues, she would be eligible for the ARPA subsidy if she elects COBRA coverage.

While neither the DOL nor the IRS have released guidance on this, it seems unlikely this will be allowed. Under the FFCRA, employers were not able to pick and choose among the various reasons for paid leave; therefore, when offering voluntary FFCRA-like leave under the ARPA, it seems likely leave will need to be offered for all allowable reasons in order to receive the tax credit.

We will update this FAQ when more guidance is released.

The details of each employer's plan to return will look different, but SHRM has a checklist of 10 key issues for employers to address. See COVID-19 Back-to-Work Checklist.

If the practice is applied consistently, an employer may ask an employee to be tested for the virus that causes a COVID-19 infection before allowing the employee to return to the workplace. However, not everyone will have immediate access to testing and employers may want to refer to the CDC guidance on allowing individuals to return to work without requiring a test. Antibody testing, however, is not currently permitted under the ADA, per EEOC guidance.

Updated CDC guidance indicates that fully vaccinated individuals no longer need to wear a mask in indoor or outdoor settings due to the minimal risk of COVID-19 infection once vaccinated. However, many states and localities continue to enforce mask requirements and private businesses and workplaces may set their own policies.

The new CDC guidance does not apply in all workplace settings, and some industries such as healthcare or correctional facility personnel should continue mask requirements.

Additionally, employers must continue to follow the Occupational Safety and Health Administration (OSHA) guidance on face coverings in the workplace until they are updated.

Because the CDC and state/local health authorities have acknowledged community spread of COVID-19, employers may measure employees' body temperature. As with all medical information, employers must maintain the confidentiality of employee temperatures and other symptoms as required by the ADA. See A Guide to Employee Temperature Checks.

Employers must weigh an employees' health concerns and legal rights under the Occupational Safety and Health (OSH) Act, the National Labor Relations Act (NLRA) and the American’s with Disabilities Act (ADA) with the organizations' business needs. See What to Do When Scared Workers Don’t Report to Work Due to COVID-19.

Some employers have discovered during this crisis that remote work can be a successful arrangement and will consider allowing telework arrangements to continue. However, absent a need to work remotely as a reasonable accommodation under the American’s with Disabilities Act, employers are not obligated to allow telework. See Work at Home/Telework as a Reasonable Accommodation.

In most cases, no. If the employees were not separated from payroll, documenting the temporary layoff or furlough dates for the personnel file is sufficient. Significant changes, such as a new job title or pay rate, should be documented as well.

No, according to the CDC, “Antibody test results should not be used to determine if someone can return to work.” The EEOC has also released guidance stating, “the ADA at this time does not allow employers to require antibody testing before allowing employees to re-enter the workplace.”