As companies call employees back to the physical workplace, more employers are electing to implement mandatory vaccination policies to keep employees safe amidst the spread of the COVID-19 Delta variant. In turn, some employees are seeking accommodations, asserting that disabilities or religious beliefs prevent them from being vaccinated. Employers should develop consistent standards for handling
Accommodations & Leave Law
Mandatory Vaccinations in the Workplace 2.0: Spring 2021 Update (video)
COVID-19 vaccinations have been administered in the US for several months now. Employers are considering their available options in order to push employees to get vaccinated as quickly as possible, especially considering recent concerns around the variants of the virus. In our Mandatory Vaccinations in the Workplace 2.0: Spring 2021 Update video, we continue to…
New Zealand Paid Bereavement Leave for Miscarriage Effective March 31, 2021
We are increasingly seeing governments around the globe pass more progressive and compassionate legislation around families and pregnant women. For instance, in the US, there’s a new bill, known as the Pregnant Workers Fairness Act, currently in the House and commentators believe it just might pass. The bill would clarify and strengthen the Pregnancy Discrimination Act, which was passed more than 40 years ago as an amendment to the 1964 Civil Rights Act, and provide women who face pregnancy discrimination a clear channel for recourse.
Along these lines, this week New Zealand will become one of the first few countries providing paid leave for miscarriages. The Holidays (Bereavement Leave for Miscarriage) Amendment Bill (No 2) (view bill HERE) was just granted royal assent and the new law is effective March 31. The law extends current paid bereavement leave law for employees in New Zealand to miscarriages and stillbirths.…
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Required Poster for California Supplemental Paid Sick Leave Available Now
As previously covered, California reinstated and expanded COVID-19 supplemental paid sick leave last week. For more on the law’s requirements, click here.
The new law requires employers to give employees notice of the leave benefit:
- The California Labor Commissioner has issued a model poster available here and FAQs are available here.
- The poster
Efforts to Craft National Vaccination Policies Complicated by Patchwork Legislation
Employers are busy putting together return-to-work plans and deciding whether they should mandate employee vaccination or simply encourage it. Before creating a uniform vaccination policy, it’s imperative to understand the legislative landscape in each jurisdiction where the employer operates, especially regarding the freedom to mandate vaccines, require proof of vaccination, etc.
While most employers will not be surprised to hear that mandatory vaccination is permitted under the ADA, except for employees with disabilities or sincerely-held religious beliefs, a recent surge in state legislation may call this general rule into question. This pending legislation varies from requiring employers to use government-approved vaccines to outright bans of any consideration of vaccination status, as summarized below. (This information is current as of March 24, 2021.)…
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COVID-19 Employment Litigation On the Rise
For the last year, employers have faced unprecedented challenges navigating the impact of the pandemic. Keeping up with scores of new laws, evolving standards, shelter-in-place orders (see our tracker here), quarantine restrictions and more has meant no rest for the weary. And, in the backdrop, there’s the looming threat of employment litigation arising from…
New COVID-19 Sick Leave Laws in California and New York
Last Friday, California Governor Gavin Newsom signed Senate Bill 95 into law, providing California employees with up to two weeks of supplemental paid sick leave (SPSL) for COVID-19 absences, including paid time off for vaccination. The new law reinstates and expands the prior California supplemental paid sick leave law that expired on December 31, 2020…
New York Enacts COVID-19 Vaccine Paid Leave Law
On March 12, 2021, Governor Andrew M. Cuomo signed Senate Bill S2588, which grants time off for public and private employees to receive a COVID-19 vaccination. The newly enacted legislation is effective immediately, and expires on December 22, 2022.
New Paid Leave Entitlement
Employees receiving the COVID-19 vaccination will be provided with a paid leave of absence from their employer for a sufficient period of time, not to exceed four hours per vaccine injection, unless an employee is permitted to receive a greater number of hours pursuant to a collective bargaining agreement or as otherwise authorized by an employer. Time is to be paid at the employee’s regular rate of pay for each COVID-19 vaccine injection.…
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EEOC Issues Much-Anticipated Q&A Guidance on COVID-19 Vaccinations
On December 16, 2020, the EEOC posted a new section on vaccinations in its COVID-19-related technical assistance Q&As, only five days after the FDA granted its first Emergency Use Authorization for a COVID-19 vaccine. Section K of the EEOC’s COVID-19 Q&As (“Vaccinations”) updates and expands the EEOC’s publication “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” providing information to employers and employees regarding the impact legal requirements under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA) may have on whether and how COVID-19 vaccines can be utilized in the workplace.
The Q&As are linked here, and copied below for ease of reference.
The availability of COVID-19 vaccinations may raise questions about the applicablilty of various equal employment opportunity (EEO) laws, including the ADA and the Rehabilitation Act, GINA, and Title VII, including the Pregnancy Discrimination Act (see Section J, EEO rights relating to pregnancy). The EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.
1.1 ADA and Vaccinations
K.1. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)
No. The vaccination itself is not a medical examination. As the Commission explained in guidance on disability-related inquiries and medical examinations, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.” If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.
Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability. If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.” See Question K.2.…
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Breaking News: CDC Expected To Shorten Recommended Quarantine Period For Persons With Suspected COVID-19 Exposures
The US Centers for Disease Control and Prevention announced this week that it is finalizing new recommendations for shortening the 14-day quarantine period currently recommended for persons potentially exposed to COVID-19. While details on the new recommendations have not been announced, comments by various CDC officials indicate that the quarantine period could be reduced to…