COVID-19 Federal Government Response

On the heels of the FDA’s approval of the Pfizer and Moderna COVID-19 vaccines, the EEOC updated its Technical Assistance Q & A to help employers navigate the latest pandemic related challenges. The EEOC guidance can be found here.

Below are highlights of the EEOC’s guidance, and our practical advice for employers who are considering rolling out a mandatory vaccination program for their employees.

Before jumping on the mandatory vaccination bandwagon, employers should consider these important questions:

  • Does your company need a mandatory vaccination program? Should you leave it to your employees to make their own decisions?
  • If you decide to implement a mandatory vaccination program, how will you announce it, how will you roll it out, and what is the timing? Have you factored in that vaccines may not be available to all employees at the same time?
  • If you decide to implement a mandatory vaccination program, how will you handle requests for exemptions? What will you do with employees who refuse to be vaccinated?
  • What are the pitfalls of a mandatory vaccination program?

Let’s break this down further.

Can employers mandate that employees receive a COVID-19 vaccine?

The answer is yes.

The EEOC’s updated guidance now addresses issues regarding “mandatory vaccinations” and makes clear that employers can mandate that employees get the COVID-19 vaccination. The justification for mandating vaccination, especially during the pandemic, is based on the premise that unvaccinated employees present a “direct threat” to others in the workplace. (K.5.).

Many employers are already stating that once the vaccine is widely available they may mandate a vaccine before employees can return to the office. However, as will be discussed below, even if a mandatory policy is enacted, employees may nonetheless be entitled to exemptions on the basis of disability or religious accommodation.

Do employers need a mandatory program?

The answer depends on your business.

If you run a business where your employees can safely work remotely or socially distance, you may not need it right away. On the other hand, if you run a retail business, school, a restaurant, or any similar business where employees circulate among each other or deal with the public, a mandatory vaccination program may beneficial to your operation. Many retail and customer facing industries believe that it will be a good advertisement if they can say that their employees are all vaccinated.

Whatever the approach, employers should not jump in without weighing the costs and benefits. Things to consider include administrative costs, challenges to implementing a mandatory program, such as training and legal compliance.

How will you roll it out and when?

Here again, messaging and timing must be carefully considered.  Right now, vaccines are only available to frontline healthcare workers. Thus, if your business does not fall into that category, you will need to wait until vaccines are available to your workforce to institute a mandatory program. Even then, you may have to allow for a vaccine rollout over time, and only make the mandate applicable to those employees who are eligible to receive a vaccine.

In the early months of 2021, practical questions about fairness may arise. For example, if an employee wishes to comply but a vaccine is not available to them, should they be excluded from the workplace? Employers adopting a mandatory program will likely face, and should be prepared to handle a number of similar questions.

Next let’s look at the issues surrounding employees receiving the vaccination.
Continue Reading The EEOC Confirms You CAN Mandate a Vaccine, But SHOULD You?

On January 20, 2021, Vice President Joseph R. Biden Jr. will be sworn in as the 46th president of the United States. Whichever side of the political spectrum you fall on, there can be no question that this is going to signal changes – and not all of them positive – for employers. For all

In an August 13 decision the National Labor Relations Board upheld an administrative law judge’s decision denying William Beaumont Hospital’s motion for an in-person hearing for an unfair labor practice charge. The charge was brought by the Michigan Nurses Association  alleging “numerous Section 8(a)(3) and (1) violations during an organizing campaign.” The Board shot down the Hospital’s “list of sundry problems” which could potentially occur during a video hearing as speculative and premature, and found that in light of the Michigan Nurses Association’s claims of anti-union tactics the judge’s decision that the pandemic constituted “compelling circumstances” warranting a remote hearing was not an abuse of discretion. The decision can be found here.

Although the Board’s decision may usher in more frequent remote hearings in the future, it’s not all bad. The same day as the Board’s decision in William Beaumont Hospital, the NLRB’s Division of Advice published 5 new advisory memos addressing COVID-19 related questions posed by different Regional Offices. In each case, the Division applied established law and recommended dismissal. Although, each advisory memo was written in response to an individual unfair labor practice charge and the Division’s conclusions are binding only as to the parties involved in that particular case, they provide some insight as to how similar cases might be handled and make it clear  that COVID-19 pandemic or not – the same rules apply.


Continue Reading NLRB Approves Video Hearing For Nurses Against Hospital’s Opposition – But It’s Not All Bad…

On March 27, 2020, the President signed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) into law.  The CARES Act’s purpose is aimed at reducing the economic impact of the COVID-19 pandemic and stimulating the economy with a $2.1 trillion dollar infusion.

Among other things, the CARES Act amends Section 7(a) of the Small Business Act creating the “Paycheck Protection Program (the “Program”). The Program broadens relief to a segment of small businesses other than those that would otherwise be ineligible to receive SBA 7(a) loans.  The Program will apply retroactively from February 15, 2020 until June 30, 2020. Below are some highlights:


Continue Reading CARES ACT HIGHLIGHTS: Paycheck Protection Program and FFCRA Amendments

On April 1, 2020, the Department of Labor (“DOL”) posted a temporary rule issuing regulations for implementing the Families First Coronavirus Response Act (“FFCRA”), which became effective the same day. We reported on the DOL’s other recent efforts to flesh out the new law through its FAQ section, which included some much needed guidance

The Families First Coronavirus Response Act (“FFCRA”) is effective today, April 1. In honor of this undoubtedly daunting occasion for employers with less than 500 employees, we analyze the most significant provisions from the Department of Labor’s updated FAQs, which fill in gaping holes in the legislation that left employers (and counsel) puzzled.  For employers with fewer than 50 employees, we also examine recent DOL guidance on the “small business exemption” and identify the ways in which employers can qualify for this exemption.


Continue Reading Updated DOL Guidance – What Employers Need To Know On The First Day Of The FFCRA