Answers to the Most Common Coronavirus Questions

On Dec. 11, 2020, the U.S. Food and Drug Administration issued the first emergency use authorization for a vaccine for the prevention of COVID-19 in individuals 16 years of age and older. Each state will determine in what order residents will be able to receive the vaccine, with most allowing health care workers and long-term-care residents to receive the vaccine first.

In general, it is recommended for employers to offer vaccinations to employees on a voluntary basis; however, employers in most states may be able to mandate COVID-19 vaccinations as long as the employer complies with the Americans with Disabilities Act and Title VII of the Civil Rights Act.

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.

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.

Because COVID-19 is a pandemic, it is likely that federal or state regulations will mandate vaccinations for certain personnel such as health care workers. This would be similar to current requirements for the flu vaccine. Employers in these industries should watch for and defer to regulations specific to their workplace.

In addition, each state has the authority to determine vaccine priority, and, while federal recommendations will likely be followed in most states, there may be some state-by-state variation.

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.

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 continues to provide paid leave as previously required under the FFCRA can claim a tax credit for qualifying leave provided from January 1, 2021, through March 31, 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 child 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 Families First Coronavirus Response Act: Employer Paid Leave Requirements.

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.

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.

Because the FFCRA leave requirement expired on Dec 31, 2020, and continuation of FFCRA-like leave is voluntary and only for the purposes of collecting a tax credit, it appears that child care leave taken in 2021 would not qualify as FMLA leave and should not be designated as such.

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.

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.

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.