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Special Coverage

By Timothy F. Murphy

Employers have a key role to play in ensuring the successful rollout of COVID-19 vaccines and that people are safe at work. Many employers may wish to adopt vaccine mandates, especially if their employees work in close contact with others. But before doing so, employers need to consider a number of things.

Can Employers Require Vaccinations?

Yes. Non-union employers can unilaterally require employee vaccinations because employment relationships are ‘at will,’ and they have a legal duty to provide a safe and healthy workplace. Many employers already require workers to get inoculated against certain infectious diseases.

Can Employees Object to Vaccine Mandates?

Yes. Anti-discrimination laws provide disabled and religious employees with legal protections from vaccine mandates. Employers that require employees to receive the COVID-19 vaccine must meet certain requirements under those laws.

A worker with a covered disability may seek an exemption from a vaccine mandate. For instance, medical advice to avoid a vaccine due to an employee’s underlying health condition may legally justify a vaccine refusal. In such situations, the employer must explore whether an exemption is a reasonable accommodation given the disability and job duties — so long as it isn’t an undue burden for the employer. Accommodations — like telework or working in isolation from co-workers — that would allow the unvaccinated employee to perform essential job functions would likely not be an undue burden.

According to recent guidance from the Equal Employment Opportunity Commission, sincerely held religious beliefs may also justify a vaccine refusal. An employer must provide a reasonable accommodation “for the religious belief, practice, or observance” that prevents the worker from receiving the vaccine, unless that accommodation poses more than a “de minimis” cost or burden. Employers may seek verification of such beliefs only if they have an objective reason for doing so.

Government Vaccine Mandates Appear Unlikely for Now

A general state vaccine mandate does not appear to be in the cards anytime soon. On the federal level, President-elect Biden has signaled that he is not considering a vaccine mandate at this time. It also appears unlikely that the federal agency charged with workplace safety, the Occupational Safety and Health Administration (OSHA), would require employers to mandate a COVID-19 vaccine. In the past, OSHA has permitted employers to require employees to receive the flu vaccine.

Public-health Experts Warn Against Mandates for Now

Even if employers can legally mandate COVID-19 vaccinations, U.S. Surgeon General Jerome Adams recommends against it. “Right now, we are not recommending that anyone mandate a vaccine,” Adams said in a recent interview with Yahoo Finance, noting that Pfizer’s vaccine hasn’t been fully approved yet. According to Saad Omer, a vaccinologist and infectious-disease epidemiologist at Yale University, “mandates shouldn’t be the frontline policy option.”

Avoid the Backlash

A vaccine mandate could trigger employee-morale issues. Vaccine hesitancy is a concern across the country. One study revealed that more than one-third of Americans would refuse a COVID-19 vaccine if offered one. However, other data suggests that Americans’ willingness to take a COVID-19 vaccine has risen as data on the vaccines’ efficacy have emerged. Many people have said they are more comfortable waiting a few months to get the vaccine. Employers need to be sensitive to employee concerns if vaccination is mandated as soon as it becomes publicly available.

Reduce Potential Legal Liability

Employees injured by a mandated vaccine may bring legal claims for workers’ compensation, negligence, and OSHA violations. It is difficult to predict the success of such claims. The ability to argue that government recommendations were followed would go far in defending against them. Limiting a vaccine mandate to high-risk positions or workplaces may also reduce potential legal liability and employee backlash.

Wait and See Is the Way to Go

Most Massachusetts non-healthcare employers and their employees are not going to have access to any vaccines before the spring of 2021. So most employers can wait to decide to mandate vaccines simply because there won’t be vaccines immediately available.

In the meantime, employers should be prepared to provide reliable information; reinforce other steps to protect employees and the public, like continued screening, fitness-for-duty programs, and contract tracing; implement employee incentives for voluntary vaccinations; and consider mandatory rapid testing, as those products come to market, as an alternative to mandatory vaccination.

Timothy Murphy is a partner at Skoler, Abbott & Presser, P.C., focusing his practice on labor relations, union avoidance, collective bargaining and arbitration, employment litigation, and employment counseling.

Daily News

SPRINGFIELD — Skoler, Abbott & Presser, P.C. announced it will hold two complimentary webinars in December to help employers prepare for the new Paid Family and Medical Leave (PFML) program.

“On January 1, 2021, PFML will be a reality in Massachusetts,” said attorney John Gannon, a partner at Skoler Abbott. “Once the program takes effect, Massachusetts employees will be eligible to take up to 12 weeks of paid family leave — up to 26 weeks in certain circumstances — and up to 20 weeks of paid medical leave. We expect that employees will immediately start filing claims, as many may have been waiting for PFML to go live before requesting leave.”

The first webinar, “Are You Ready for the Massachusetts Paid Family and Medical Leave Program?” will take place on Thursday, Dec. 10 from noon to 1:30 p.m. Gannon will be joined by attorney Meaghan Murphy to provide a general overview of the new law, discuss how to manage and prepare for PFML claims, talk about how to curb abuse, and share PFML policy updates. To register for this free webinar, visit bit.ly/38LeezX.

“In order to comply with the new paid-leave laws, employers must make important changes to their policies and procedures and update their employee handbooks,” said attorney Amelia Holstrom, another partner at Skoler Abbott. “Employees will be eligible to take PFML as of January 1, 2021 in Massachusetts, and Connecticut’s program is not far behind.”

The second webinar, “Employee Handbook Review,” will be held on Thursday, Dec. 17 from noon to 1:30 p.m. Holstrom and attorney Erica Flores will cover policy changes required by the new PFML laws and more, including how those changes may impact other policies and procedures, legally required policies for employers, and recommended changes to address impacts and prepare for PFML claims. To register for this free webinar, visit bit.ly/38P1592.

Daily News

SPRINGFIELD — Attorney Meaghan Murphy recently joined Skoler, Abbott & Presser, P.C., a labor and employment law firm serving employers in Massachusetts and Connecticut.

Murphy has more than six years of experience in general litigation and labor and employment law. She will advise clients regarding all employment-related matters, including, but not limited to, compliance with state, federal, and local laws, and discipline of employees. She will also create workplace policies for clients and represent them in various forums, including at the Massachusetts Commission Against Discrimination, the Commission on Human Rights and Opportunities, government agencies, and in state and federal court.

“We are delighted to have Meg join our firm. She offers the experience and skill our clients expect from us,” attorney Marylou Fabbo said. “She is hardworking, passionate about her work, and dedicated to her clients.”

Murphy is a graduate of Amherst College and received her law degree from Western New England University School of Law. She was named to the Super Lawyers Rising Star list in 2018 and 2019. She has also been an active volunteer with Hampden County Big Brothers Big Sisters since 2018.

Coronavirus

Novel Solutions

By John S. Gannon, Esq. and Erica E. Flores, Esq.

It has only been a few weeks since the novel coronavirus made its way to our shores, but life as we know it has changed completely and will, perhaps, never be quite the same again. After a near-record-low unemployment rate in February, nearly 3.3 million Americans filed for unemployment benefits last week, a figure that shattered the previous record of about 700,000 set back in 1982. The report confirms what the plunging securities markets have foreshadowed for the past few weeks — that the coronavirus is killing more than just those who are losing their lives to the disease; it is killing businesses and livelihoods as well.

How long this crisis will continue is impossible to predict. Health experts warn against lifting stay-at-home orders, opening non-essential businesses, and loosening social-distancing recommendations too early; economists worry that the economic consequences will be worse for Americans than the actual disease. But however long this new normal persists, the country has borne witness to another unbelievable sight, a welcome bright spot amid so much uncertainty — a sharply divided Congress coming together to try to mitigate the crisis.

Its first emergency measure? Legislation called the Families First Coronavirus Relief Act (FFCRA). It imposes significant new obligations on all private employers with fewer than 500 employees. Below is a summary of this unprecedented new law.

What new rights does the FFCRA provide to employees? The FFCRA requires covered employers to provide the following to all employees:

• Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay if the employee is unable to work or telework because the employee (1) has been quarantined (either by government order or on the advice of a healthcare provider) and/or (2) is experiencing COVID-19 symptoms and seeking a medical diagnosis. Employees will be paid their full wages, up to a maximum of $511 per day ($5,110 total) for these sick-leave reasons; and

• Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay if the employee is unable to work or telework because the employee (1) must care for someone who has been quarantined (again, either by government order or on the advice of a healthcare provider), (2) must care for a minor child whose school or childcare provider is closed or unavailable due to the virus, and/or (3) is experiencing a “substantially similar condition,” which has yet to be defined but will be the subject of regulations to be issued by the Department of Health and Human Services. Employees will be paid two-thirds of their wages up to a maximum of $200 per day ($2,000 total) for these sick-leave reasons.

• Employees who have been employed by a covered employer for at least 30 days may also take an additional 10 weeks of paid leave at two-thirds their wages to continue to provide care for a minor child whose school or childcare provider remains closed or unavailable due to the virus. This also caps out at $200 per day.

How are we going to pay for this? Important question! Qualified employers that pay sick leave will receive a dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA, up to the appropriate daily and aggregate payment caps. Here’s how the IRS explained it will work:

• If an eligible employer paid $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, including taxes withheld from all its employees, the employer could use up to $5,000 of the $8,000 in taxes it was going to deposit for making qualified leave payments. The employer would only be required under the law to deposit the remaining $3,000 on its next regular deposit date.

• If an eligible employer paid $10,000 in sick leave and was required to deposit $8,000 in taxes, the employer could use the entire $8,000 of taxes in order to make qualified leave payments and file a request for an accelerated credit for the remaining $2,000.

In its guidance, the IRS also stated that “reimbursement will be quick and easy to obtain. An immediate, dollar-for-dollar tax offset against payroll taxes will be provided. Where a refund is owed, the IRS will send the refund as quickly as possible.” Let’s hope this rings true.

Which employers are covered by the FFCRA? The FFCRA covers certain public employers and all private employers with fewer than 500 employees. For purposes of this count, employers must include all full-time and part-time employees in the U.S. (or any U.S. territory or possession), including any employees who are on leave, as well as temporary employees and day laborers supplied by an agency (with limited exceptions). Independent contractors need not be counted, but employers who may be a joint employer with another business or are owned even in part by another entity should consider consulting an employment attorney for additional guidance.

Are any employers exempt from the FFCRA? Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide sick time or FMLA leave due to school closings or the unavailability of childcare if doing so would “jeopardize the viability of the business as a going concern.” Regulations outlining this exemption are expected to be published by the Department of Labor in April.

When does this go into effect, will this leave be available forever, and do we need to notify employees? The law is effective April 1, 2020, and expires on December 31, 2020. And, yes, employers are required to post a notice in the workplace on the FFCRA requirements in a conspicuous place.

We are facing an extraordinary crisis. While this law will certainly be a challenge for employers to grapple with, it is important legislation that helps keep workplaces safe by encouraging sick employees to stay home. It also provides much-needed job and financial protection to employees who are home with their children because schools and daycares are closed. One piece of advice: don’t wait until the sick-leave requests start coming to get your questions answered. Our firm has been working around-the-clock with businesses and organizations that understand they need to plan now for the impact of this historic legislation. Be as prepared as possible, and stay safe.

John S. Gannon and Erica E. Flores are attorneys at the law firm Skoler, Abbott & Presser, P.C. in Springfield; (413) 737-4753; [email protected]; [email protected]