For years (and I do mean years), the EEOC has waffled about whether incentives were permissible in connection with a medical inquiry under a voluntary wellness program.  Friday, the EEOC issued its most recent pronouncement on the topic, this time related to incentives for COVID-19 vaccinations.

The ADA prohibits employers from requiring medical examinations or making “disability-related inquiries” except in very limited circumstances.  One such exception is in the case of a voluntary wellness program.  But it has never been clear what voluntary means in this situation. Is it voluntary if an incentive is provided?

A Brief Primer on Incentives and “Voluntary” Wellness Programs Under The ADA

The EEOC stated its position on voluntariness in 2000, in its Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act: a wellness program is “voluntary” as long as an employer “neither requires participation nor penalizes employees who do not participate.”  In 2014, the EEOC sued several employers claiming they had crossed the line in terms of when a penalty connected with a wellness plan makes the wellness plan involuntary.  But in oral argument the EEOC refused to identify what the particular line was. See Court Denies EEOC’s TRO Motion Seeking to Halt Employer’s Wellness Program | Benefits Law Advisor

In other contexts, the Affordable Care Act (ACA) permitted incentives, significant incentives, under group health plans. The other federal agencies, the IRS, HHS, and DOL issued joint implementing regulations for such programs.  Acknowledging congressional intent for some form of incentivized wellness programs, the EEOC then issued regulations which generally allowed employers to offer an incentive of up to 30% of the total cost of self-only insurance coverage.  But, its rules were quickly challenged in the United States District Court for the District of Columbia.  The court ordered the incentive provisions vacated, concluding the EEOC did not provide sufficient reasoning to justify the incentive limit adopted, even though the limit was largely based on the ACA’s approach.  As a result, the EEOC revised the regulations by removing the section permitting incentives, but leaving in place the remaining portions:

An employee health program that includes disability-related inquiries or medical examinations (including disability-related inquiries or medical examinations that are part of a health risk assessment) is voluntary as long as a covered entity:

(i)     Does not require employees to participate;

(ii)    Does not deny coverage under any of its group health plans or particular benefits packages within a group health plan for non-participation, or limit the extent of benefits (except as allowed under paragraph (d)(3) of this section) for employees who do not participate;

(iii)   Does not take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees within the meaning of Section 503 of the ADA, codified at 42 U.S.C. 12203; and

(iv)    Provides employees with a notice that:

(A) Is written so that the employee from whom medical information is being obtained is reasonably likely to understand it;

(B) Describes the type of medical information that will be obtained and the specific purposes for which the medical information will be used; and

(C) Describes the restrictions on the disclosure of the employee’s medical information, the employer representatives or other parties with whom the information will be shared, and the methods that the covered entity will use to ensure that medical information is not improperly disclosed (including whether it complies with the measures set forth in the HIPAA regulations codified at 45 CFR parts 160 and 164).

29 CFR 1630.14(d)(2).  See Has the Grinch Stolen Wellness Plans this Christmas? | Disability, Leave & Health Management Blog (disabilityleavelaw.com)

Then in January of this year the EEOC proposed new regulations allowing only de minimis incentives, unless the wellness program was connected to a group health plan.  See Wellness Programs and Water Bottles, the EEOC Proposes New Rules under the ADA and GINA | Benefits Law Advisor

To help guide employers on “voluntariness,” the agency provided examples of what would and would not meet the test. For what would be considered de minimis, the EEOC provided two examples: a water bottle or gift card of modest value. A quick online search reveals an approximate price range for water bottles is between $5 and $50. On the other end of the voluntariness continuum, the EEOC observed that charging an employee $50 per month more for health insurance (or, the “carrot” approach, offering a $50 per month reduction in the charge for health insurance, either way totaling $600 per year), would be too great an incentive and violate the ADA.  Similarly, paying for an employee’s annual gym membership or rewarding an employee with airline tickets would be considered more than de minimis. Of course, these examples provide little insight about the incentive’s value.  So, assuming a $25 or even $50 gift card would meet the “a water bottle or gift card of modest value” test, and $600 incentive clearly would not, what about incentives with a value in the middle, say $100? It is worth noting that the EEOC’s proposed rule would permit more liberal incentives for wellness programs structured as part of a group health plans, provided they follow the ACA rules referenced above.

Unfortunately, these proposed regulations were quickly pulled back under the new administration, leaving once again a black hole in terms of what, if any, incentive an employer could provide in connection with voluntary disability-related medical inquiries or medical examinations in connection with a voluntary wellness program.

New “Very Large” and “So Substantial” Guidance

Last week the EEOC updated the technical assistance it maintains on its website with respect to COVID-19 issues.  See EEOC UPDATES ITS GUIDANCE ON VACCINATIONS | Disability, Leave & Health Management Blog (disabilityleavelaw.com)  The EEOC, which had already opined that the pre-vaccination screening questions may be a disability-related medical inquiry, stated that if an employer offers to vaccinate employees on a voluntary basis, the employer does not have to show the pre-vaccination screening questions are job-related and consistent with business necessity. “However, the employee’s decision to answer the questions must be voluntary.”   The EEOC then went on to explain what type of incentive could be offered in connection with vaccination provided by the employer or its agent.  According to the EEOC, the incentive (which includes both rewards and penalties) must not be “so substantial as to be coercive.”  “[A] very large incentive could make employees feel pressured to disclose protected medical information.”  Although this particular guidance is related to COVID-19, presumably the same analysis would apply to other voluntary inquiries where employers seek to take advantage of the voluntary wellness program exception.

While it is nice to see some explanation as to the EEOC’s position on this topic, the EEOC’s language: “not so substantial as to be coercive” or not “very large” as to make employees feel pressured, is certainly not the epitome of clarity.  What does “substantial” or “very large” mean in practice?  Does it allow more than a water bottle?  The EEOC did not provide examples this time, presumably because it is being pulled in two directions.  On the one hand the government has made clear that it does not want to say anything that would discourage vaccinations (and is also looking to encourage vaccinations), at the same time what it says here may be used in other settings with respect to wellness programs.

Incentives Related to the COVID-19 Vaccine

The good news for employers, at least with respect to incentives offered in connection with COVID-19 vaccinations, is that the EEOC has stated that merely asking whether an employee has been vaccinated is not a disability-related medical inquiry under the ADA and, therefore, does not need to meet the voluntary wellness program exception.  The EEOC made this clear in its guidance last week: “Requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination in the community is not a disability-related inquiry covered by the ADA.  Therefore, an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community.”

However, if the employer is offering the vaccine or having an agent offer the vaccine, the pre-vaccination inquiries may be disability-related medical inquiries. In that case, the incentive offered must comply with the voluntary wellness program regulations.  In that regard, the EEOC reiterated that the amount of the incentive is not the only issue of compliance with respect to vaccinations offered by employers or its agents.  In order to be voluntary, the “ADA prohibits taking an adverse action against an employee, including harassing the employee, for refusing to participate in a voluntary employer-administered vaccination program.  An employer also must keep any medical information it obtains from any voluntary vaccination program confidential.”  Indeed, presumably, all of the requirements of 29 CFR 1630.14(d)(2) (referenced above) continue to apply.

Some employers also have expressed interest in incentivizing employees’ family members to get the vaccine. The EEOC’s recent COVID-19 technical assistance addressed this as well. Remember that under the Genetic Information Nondiscrimination Act, family medical history information, in general, constitutes genetic information of the employee. As a result, the EEOC’s guidance confirmed that an employer may not offer an incentive to an employee in return for an employee’s family member getting vaccinated by the employer or its agent because the pre-vaccination questions of a family member would constitute family medical history of the employee. However, employers may offer an incentive to employees to provide documentation or other confirmation that their family members received a vaccination from their own health care provider.

The years long battle over what is and is not an appropriate incentive in connection with voluntary medical inquiries or wellness programs is far from over.  To avoid “very large” penalties of their own, employers should consult with counsel whenever they are designing a wellness program with incentives (carrots or sticks) attached.

 

Just as you may have been preparing to settle into a relaxing Memorial Day Weekend, the EEOC issued additional informal guidance today concerning COVID-19 vaccination issues. Although there are still many holes to be filled, and employers continue to be left with incomplete guidance, here are some initial highlights and observations:

MANDATING THE VACCINE

• The EEOC starts off by reminding employers that “It is beyond the EEOC’s jurisdiction to discuss the legal implications of EUA or the FDA approach… Indeed, other federal, state, and local laws and regulations govern COVID-19 vaccination of employees.” The EEOC directs individuals seeking more information about the Emergency Use Authorization (EUA) status of the COVID-19 vaccines to the FDA’s EUA page. Many employers rushed out after the last guidance issued by the EEOC believing that the EEOC had said they could legally mandate the COVID-19 vaccination regardless of the EUA nature. The EEOC clarified today that it only opines on the legal implications under the federal discrimination laws.

• According to the EEOC, the federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations, including concern with disparate impact. The EEOC is silent regarding whether employers can mandate the vaccine for remote workers. It is critically important for employers to consider fully the limitations the EEOC references.

• The EEOC stated that employers can require COVID-19 vaccination with respect to all employees entering the workplace, so long as certain requirements are met. First, the qualification standard must be job-related and consistent with business necessity. Second, if a particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace. This remains a controversial position and some employers may argue that a lower burden of proof is required.

DIRECT THREAT

• The EEOC reminded employers that 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. “The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Such medical knowledge may include, for example, the level of community spread at the time of the assessment. Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee. Additionally, the assessment of direct threat should take account of the type of work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.”

• The EEOC stated that even if the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees ), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.

• The EEOC recommended that as a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.

REASONABLE ACCOMMODATIONS

• The EEOC reminded employers that Title VII and the ADA may require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.

• In addition, employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion.

• The EEOC provided examples of reasonable accommodations, including an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.

DISPARATE IMPACT

• The EEOC stated: “As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act (40+)). Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”

INCENTIVES

• The EEOC clarified that incentives may be provided to encourage vaccination without running afoul of the EEOC’s laws as long as the incentive is not tied to the employee receiving the vaccine from the employer or someone with whom the employer contracted. Simply providing an incentive for an employee to voluntarily provide proof of vaccination he/she received from a third party, like a pharmacy or health clinic, is not a disability-related inquiry and therefore, the ADA’s limits on incentives are not implicated.

• However, if the incentive is tied to a vaccine provided by the employer or its agent then any incentive (which includes both rewards and penalties) must not be so substantial as to be coercive.

• An employer may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from an employer or its agent.

• Employers must not require employees to have their family members get vaccinated and must not penalize employees if their family members decide not to get vaccinated.

CONFIDENTIALITY

• The EEOC made clear that the “ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination. This ADA confidentiality requirement applies regardless of where the employee gets the vaccination. Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.”

• Unfortunately, the EEOC offered no opinion as to what if anything employers could do with the information once collected, in light of its suggestion that confidentiality applied. [This too is a controversial position, as the EEOC’s view with respect to confidentiality of medical information is broader than that included in the ADA itself.]

Discrimination based on vaccination status is prohibited under a new Montana law (House Bill 702). Enacted on May 7, 2021, the new law went into effect immediately.

The new law provides that employers, including governmental entities, are prohibited from refusing employment to a person or discriminating against a person in compensation or in a term, condition, or privilege of employment based on the person’s vaccination status or whether the person has an “immunity passport.”

The legislation also prevents an employer from requiring employees to get vaccinated with a vaccine administered under Emergency Use Authorization status.

Though employers may not require employees be vaccinated as a condition of employment, employers may still encourage employees to become vaccinated.

Read our full coverage.

What is an employer’s risk in terminating an employee who has suffered an injury or becomes disabled and no longer can perform the essential functions of the position?  How can that risk be lowered?

The Seventh Circuit Court of Appeals recently addressed this issue in Conners v. Wilkie, a lawsuit brought by a licensed practical nurse who had worked at a healthcare center operated by the U.S. Department of Veterans Affairs.  Unfortunately, five years after she was hired, Ms. Conners was hit by a car and suffered severe injuries that seriously impeded her ability to perform most of her nursing duties.  Her supervisor initially permitted her to retain her LPN position but radically reduced her responsibilities.  After more than two years in that status, the VA concluded that she could not perform the essential duties of an LPN even with reasonable accommodations.  The VA attempted to work with Ms. Conners on an acceptable reassignment, but those efforts failed.  Over two years after her accident, the VA terminated Ms. Conners’ employment.  She sued and lost on summary judgment.  On appeal, she alleged that the agency violated her rights under the Rehabilitation Act by failing to accommodate her disability.

The Rehabilitation Act borrows the definition of a qualified individual definition from the Americans With Disabilities Act, which has a two-step inquiry:  (1) does the plaintiff have the basic qualifications required for the position, such as educational prerequisites, employment experience, skills or licenses; and (2) can the plaintiff perform the essential functions of the job with or without reasonable accommodations.  To determine whether a job duty is an essential function of the position, courts consider the employer’s judgment, the employee’s written job description, the amount of time the employee spends performing the function, and the experiences of past and current workers.

Ms. Conners claimed that she was able to perform a reduced set of duties after the accident, which demonstrated that she was capable of performing the essential functions of her position.  However, an employer need not create a new job or strip a current job of its principal duties to accommodate a disabled employee.  Ms. Conners alleged that the VA failed to engage in the interactive process to identify reasonable accommodations for her disability.  Because Ms. Conners was unable to prove that she was qualified to perform her LPN job with accommodations, any failure to engage in the interactive process was irrelevant.

While the VA prevailed in this lawsuit, the cost was considerable:  extensive discovery, preparing and responding to cross-motions for summary judgment, and briefing an appeal.  It is unfortunate and sad when an employee, because of an accident or disability, can no longer perform the essential functions of their position.  It is fair to both the employee and the employer to address the employee’s new limitations as early as practicable to determine whether the employee can perform the essential functions of the position with reasonable accommodations.  Allowing an employee to self-limit duties and not perform an essential function of a position for an extended period of time may give the employee the expectation that they are performing the essential functions of the position.  Setting employee expectations is often key to avoiding litigation.

The Centers for Disease Control and Prevention’s (CDC) latest guidance that fully vaccinated people no longer need to wear masks or social distance in many settings raises questions for businesses in retail, hospitality and other settings open to the public. Last week, we discussed considerations for businesses considering relaxing their mask and social distancing policies for employees. Business open to the public may have questions on how the CDC recommendations impact face covering policies they have established during the pandemic.

Businesses who are interested in relaxing mask requirements for customers should consider the following:

  1. Check if state/local emergency orders require customers to wear face coverings in the establishment. If so, then the order controls.
  2. If there are no such applicable requirements, the CDC’s recommendation does not prohibit a business from continuing a policy requiring customers to have face coverings in the establishment, subject to reasonable accommodation obligations and/or the obligation to modify a policy for disabled individuals.
  3. The business may contemplate modifying a policy requiring customers to wear face coverings to only require unvaccinated customers to wear face coverings. Putting aside the practical challenges of reliably identifying vaccination status under these circumstances, such a policy is consistent with the CDC recommendation that unvaccinated people should still wear face coverings.
  4. Where businesses establish such a policy as described above, they may ask a customer who is not wearing a face covering whether they have been vaccinated, so long as there are no state or local laws prohibiting businesses from inquiring about vaccination status or treating individuals differently based on vaccination status. While the Department of Justice (DOJ) has not provided guidance on whether this would be a medical inquiry under Title III of the ADA, the Equal Employment Opportunity Commission (EEOC) has issued guidance that such an inquiry is not prohibited under Title I of the ADA. However, requiring proof of vaccination is not recommended due to legal uncertainties on whether such documentation is permitted under Title III of the ADA.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.

 

In a surprise move today, CDC followed the lead of the various states that have lifted their masking and physical distancing recommendations. However, CDC’s new recommendations come with a twist. The CDC’s recommendations only apply to fully vaccinated people in non-healthcare settings.  Here’s what your business should consider as it decides whether to “unmask.”

The May 13, 2021 CDC Interim Public Health Recommendations for Fully Vaccinated People states that fully vaccinated people no longer need to wear a mask or physically distance in any non-health care setting (except prisons and homeless shelters and public transportation), except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. According to the CDC, prevention measures (including masks and physical distancing) are still recommended for unvaccinated people.

Employers who are interested in relaxing mask requirements in the workplace should first consider the following.

  • Check state and local laws and orders.  If a state executive order or local order requires employers to have employees wear masks or impose physical distancing requirements, employers should follow those rules.  In addition, keep in mind that some states have their own OSHA rules (e.g., VA, MI, CA, OR) or recently enacted laws such as New York’s Hero Act which we discussed here.  Employers must follow all applicable state and local laws and standards regardless of CDC’s relaxed recommendations.
  • OSHA has yet to come out with new guidance and currently recommends that all employees must continue to follow protective measures such as wearing a face mask and remaining physically distant regardless of vaccination status.  However, this guidance was issued on January 29, 2021, so it is now several months old.  It is unclear whether OSHA will change this guidance given the CDC’s position.
  • Determine whether removing mask and physical distancing requirements makes sense given your employee populations and preferences.  Many employees may be reluctant to return to work without masking and physical distancing rules in place.  Assess whether removing such requirements is likely to help or hurt the effort to return employees to work.  Generally, employers can choose to continue to require masks and physical distancing regardless of vaccination status.
  • Consider how removing mask and physical distancing requirements will impact your customers.  You may also want to maintain a consistent practice across all your locations so that you are not dealing with a patchwork of state and local COVID-19 requirements.  To the extent you decide not to relax your requirements, you may need to accommodate customers who have medical conditions that make wearing a mask unsafe.
  • Consider whether it makes sense to continue to require or encourage physical distancing (regardless of masking) until more is learned, for everyone’s comfort and to avoid isolating unvaccinated individuals who may have protected reasons for being unvaccinated or who may fall into a protected classification, or where any isolation or exclusion may set back diversity efforts.  And, of course, if an individual needs an accommodation in connection with masking for religious or medical reasons, engage in the interactive process.
  • Clarify that fully vaccinated employees and customers are permitted to wear masks or face-coverings.
  • Reinforce that employees must respect employee and customer decisions to wear masks and engage in physical distancing regardless of their vaccination status.
  • Avoid actions that would suggest a correlation between vaccination status and mask wearing and/or employee observance of other COVID-19 safety practices.
  • Consider whether and how the company will monitor whether unvaccinated employees are properly wearing masks and engaging in physical distancing practices.  It is lawful to ask employees if they are vaccinated, however, asking employees why they are not vaccinated may implicate the Americans With Disabilities Act.  To enforce such a rule, employers will need to know who is vaccinated. If such information is gathered, the best practice is to treat this information as confidential. Make sure it is securely maintained with limited access.  Employers may also consider having all employees certify that if they are not fully vaccinated they will continue to wear masks and physical distance.
  • If you choose to relax your mask and physical distancing requirements, make clear that fully vaccinated employees should make their own personal decision regarding whether to wear a mask and physically distance at work.  In this manner, if an employee chooses not to wear a mask, it will be the employee who is disclosing his or her vaccinated status.
  • Consider adopting a formal policy or issuing a communication clarifying the company’s policy and position on these issues so that everyone knows your expectations.
  • If you have a union, consider whether you need to bargain with the union over changes to your COVID-19 policy and practices.

 

Employers are sure to have many questions regarding how this new guidance should impact their COVID-19 policies and practices. Jackson Lewis attorneys look forward to helping you make these decisions.

With COVID-19 infection rates and hospitalizations decreasing, states are slowly loosening restrictions on businesses. For example, Connecticut, New York, and New Jersey announced plans to fully reopen by May 19th  with some constraints remaining in place, including mandatory wearing of masks and social distancing.  All three states have announced significant capacity rollbacks for indoor and outdoor activities.  The capacity rollbacks in these states will affect many businesses as operational needs will increase in the coming months.

What operational challenges should employers anticipate as they fully reopen?

Employers, particularly those who have allowed their employees to work remotely for the duration of the pandemic, can expect to face some resistance from employees as they begin to require those employees to return to the office. Some employees may be protected by local, state, or federal law, depending on the reason for their refusal to return, and others may be entitled to leave and/or certain accommodations.

As such, employers need to be strategic in their application of their reversion to ‘pre-pandemic’ operations.  In addition to ensuring that the workplace is compliant with CDC and OSHA guidelines,  employers may need to utilize the interactive process and analyze each situation on a case by case basis to ensure that they meet compliance obligations. Employers should coordinate their operational approach in such a way to ensure continuity of business while mitigating the risk of potential operational issues.

Jackson Lewis attorneys are available to guide businesses as they transition to pre-pandemic operations or their new normal.

Employee question of the day for HR: “I need time off because I’m donating a kidney.”  You’re probably wondering: “How do I respond to this request? Is this incredibly generous employee entitled to protected leave?”

Whether organ donation qualifies for federal Family Medical Leave Act (“FMLA”) leave is typically dependent on whether there is continuing treatment or an overnight stay in the hospital.  But effective on or about June 26, 2021, if you are a covered employer under the FMLA, the employee is eligible for FMLA, and the employee works in Pennsylvania, then the answer is yes! Last week, Pennsylvania Governor Tom Wolf signed the Living Donor Protection Act (“LDPA”) into law, adding Pennsylvania to a growing list of states providing statutory leave to employees who donate all or part of an organ or tissue.

Specifically, the LDPA requires FMLA employers to afford FMLA-eligible employees who are living organ donors with FMLA leave and protections so they can take time off work to undergo preparation for and donation of an organ or tissue, and to recover from the surgery.  The LDPA also requires employers to provide similar leave for an eligible employee to care for a spouse, child, or parent with a serious medical condition for the preparation and recovery necessary for surgery related to organ or tissue donation, or if the spouse, child, or parent is the donor.

For questions regarding this new form of leave in Pennsylvania, please contact your JL attorney or a member of the DLHM practice group.

Last week, President Biden encouraged employers to pay employees for time off to get vaccinated against COVID-19 and highlighted the tax credits available for employers with less than 500 employees. The American Rescue Plan Act of 2021 (ARPA) signed by the President on March 11, 2021 continued the tax credits available under the Families First Coronavirus Response Act (FFCRA) for covered employers who voluntarily decide to provide “qualified” paid sick leave or paid family leave wages to their employees through September 30, 2021.  As discussed in our March article, employers can receive the tax credit for providing leave for certain qualifying reasons.  Those reasons include, among other COVID-related reasons: (1) obtaining a COVID-19 immunization and (2) recovering from an injury, disability, illness or condition related to COVID-19 immunization.

On the same day as President Biden’s statement, the IRS issued this Fact Sheet providing further details about the tax credits available under the ARPA including information about how employers may claim the credit for paid leave if they choose to provide it for the reasons covered under the ARPA including for employees to obtain or recover from COVID-19 vaccinations.

While paid time off under the federal ARPA is optional for employers, some states including New York, require employers to provide employees with paid time off for COVID-19 vaccinations. Last week, Chicago joined the list of jurisdictions legislating vaccination pay requirements. Chicago’s ordinance includes pay obligations for employers who mandate vaccinations and requires other employers to allow employees to use accrued paid time off to obtain vaccinations. Employers considering pay obligations for time off from work for COVID-19 vaccination should also consider state and local paid sick leave laws which may cover time off for preventative care that would include vaccinations.  Finally, state and federal wage and hour laws may impact whether pay is required for time spent receiving a vaccine depending on the employee’s exempt/non-exempt status, the timing of the vaccination, and whether the vaccine is required for the employee’s job.

Jackson Lewis attorneys are closely monitoring updates and guidance in this area and are available to assist employers in preparing policies and procedures related to COVID-19 paid time off.

 

The COVID-19 Supplemental Paid Sick Leave statute was signed into law a month ago and, despite a FAQ issued by the California Labor Commissioner, employers were faced with uncertainty as to whether their employees’ leave requests qualified under the statute.  Fortunately, the Labor Commissioner has updated its FAQs to provide further clarity to employers. Read more here.