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, allowing for employers to require employees to receive the 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 are several pending lawsuits arguing that the employer cannot mandate a vaccine that has only been approved for emergency use authorization (EUA). This is something 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.

Under federal law, 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. The Americans with Disabilities Act (ADA) requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination.

State and local laws may differ and should be reviewed. For example, Montana prohibits employers from requiring employees to disclose their immunization status, possess an immunity passport, or receive vaccines used under an emergency use authorization (such as the COVID-19 vaccine) or undergoing safety trials.

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. See Vaccination Policy: Mandatory and Vaccination Policy: Voluntary.

The US government is providing the COVID-19 vaccine free of charge to all people living in the United States, regardless of their immigration or health insurance status. As a vaccine recipient, you cannot be charged for the COVID-19 vaccine.

If the vaccine is mandated by the employer, the employer may be required to 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. 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.

The Occupational Safety and Health Administration (OSHA) COVID-19 Healthcare Emergency Temporary Standard requires employers to provide reasonable time off and paid leave for vaccinations and vaccine side effects to employees working in health care settings.

Many state laws also require employers to pay for time spent getting the vaccine and to recover from vaccine reactions requiring time off from work.

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.

In an effort to avoid discouraging vaccination and negatively impacting employer attempts to incentivize the COVID-19 vaccine, current OSHA guidance indicates that employers are not required to record an employee’s side effects from the COVID-19 vaccine on OSHA 300 logs through May 2022.

Yes, under federal guidance, employers may offer incentives to employees to obtain a COVID-19 vaccination. State and local laws may also come into play and should be reviewed.

The EEOC has stated that employees who voluntarily receive a vaccination administered by their employer or its agent may be provided an incentive as long as it is not “so substantial as to be coercive”. Since pre-vaccination questions must be asked that could reveal medical disability information, the incentive cannot be so large that employees would feel pressured to divulge protected medical information. The EEOC did not, however, define what the incentive limits might be.

Alternatively, when employees voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer, then per the EEOC, there are no limitations to the incentive employers may provide.

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, see COVID-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.

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.

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. See Biden 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. See Who is eligible for the COBRA subsidy under the ARPA, and how must we notify them? and IRS Notice 2021-13, Premium Assistance for COBRA Benefits.

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.

On May 18, 2021, the IRS released extensive guidance which includes detailed definitions on these two terms within the Q&As. See questions 21-23 for guidance on reduction in hours, and questions 24-34 for guidance on involuntary termination.

In general, “involuntary termination” refers to those terminations decided by the employer, such as a discharge (including for cause), or layoff from employment, but it can also apply to a constructive discharge initiated by the employee (explained in the guidance). Only an involuntary termination for “gross misconduct” 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, furlough, or work stoppage or strike 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.

The CDC has provided guidance on this which they update as recommendations change. SeeDiscontinuation of Home Isolation for Persons with COVID-19 (Interim Guidance).

Providing employees with factual information from health officials and assuring employees that their health and safety is paramount can help to prepare and educate employees without causing panic. See this memo.

As with most communicable diseases, common hygiene practices are the foundation for avoiding the spread of germs. See this poster.

No. The Americans with Disabilities Act (ADA) privacy rules restrict employers from sharing personal health information of an employee. Employers should inform employees that possible exposure has occurred in the workplace without disclosing any identifying information about the individual who tested positive.

Employers can ask an employee how he or she is feeling in general but should not inquire about a specific illness as that could rise to the level of a disability related inquiry under the ADA.

According to CDC guidance, essential employees who have had close contact with a person diagnosed with COVID-19 may continue to work as long as the employee is asymptomatic and protective measures are taken. This includes screening the employee each workday for fever and other symptoms, having the employee wear a mask and regularly disinfecting work areas.

Yes, employees who show signs of respiratory illness can be asked to leave the workplace and stay at home until they are symptom free.

If an employer applies the practice consistently, clearance from a health care provider to return to work can be required. However, guidance from the Centers for Disease Control and Prevention (CDC) suggests employers remove such requirements during a health crisis as access to health care providers may be limited.

The CDC recommends that unvaccinated travelers self-quarantine for seven days after travel with a negative test and for 10 days if they don’t get tested. Fully vaccinated travelers are not required to quarantine or be tested before or after domestic travel unless the travel destination requires such. If traveling internationally, fully vaccinated individuals do not have to be tested to leave the U.S. unless the destination country requires it. Anyone entering the U.S., including fully vaccinated individuals, must obtain a negative test no more than three days before travel, and it is still recommended he or she gets tested 3-5 days after travel. Any state or local quarantine requirements would apply.

A company’s normal paid-time off policies for absences due to illness would apply. Nonexempt employees who do not have paid leave available are not required to be paid for such absences, unless there is a collective bargaining agreement indicating otherwise.

A company’s normal paid-time off policies for absences due to illness would apply. Exempt employees who do not have paid leave available may only have their pay docked when full-day absences due to illness occur, and only where a bona fide sick leave plan exists. SeeWhat is a “bona fide” sick leave plan under the FLSA Salary Basis Regulation?

Infection with the coronavirus would likely qualify as a "serious health condition" under the FMLA, allowing an employee to take FMLA protected leave. SeeHow do I know if an employee’s medical absence qualifies for FMLA leave?

While not required, telecommuting may be a practical measure to reduce exposure of the virus in some work environments. Employees with disabilities that put them at high risk for complications may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic. SeePandemic Preparedness in the Workplace and the ADA.

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 for all employees.

Employers should also continue to follow the Occupational Safety and Health Administration (OSHA) guidance for all employers, updated June 10, 2021, which recommends employers continue to protect unvaccinated workers by requiring them to wear masks. Additionally, employers with health care workers now have an actual emergency standard (regulation) to follow.

See What should we consider when relaxing or continuing mask-wearing policies?

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.”