CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Archive for the ‘Employment Law Blog (US)’ Category

A Mandatory COVID-19 Vaccination Program in the Workplace: Will It Open An Employer To Liability?

Posted on: January 29th, 2021

By: Kevin G. Kenneally and Janet R. Barringer

With the development of vaccines that have been determined to be effective against COVID-19, both employers and employees are asking when it is appropriate or safe to return to the office. One recurring question is whether a business can require its workers to be vaccinated in order to return to work. While there is much recent written guidance suggesting that the employer can require employees to be vaccinated, there remain questions about the potential legal liability of a business either for requiring or failing to require employees to undergo vaccination. For this reason, some employers—other than those in the health care or on the frontlines fighting this scourge– believe the preferred path to take might be encouraging – rather than mandating – the vaccine for its employees.

The Equal Employment Opportunity Commission (EEOC) issued guidance in December 2020, located on its website at www.eeoc.gov, that employers can mandate that employees receive COVID-19 vaccinations. Employers who require the vaccine, however, must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other federal and state workplace laws. Federal employment laws require employers to make exceptions to any mandatory vaccination policy, including under the ADA, which protects employees with disabilities who may be vulnerable to side effects, and Title VII, which protects any employee with sincerely held religious beliefs that prevent the employee from receiving the vaccination.

The ADA allows an employer to include as a workplace policy “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace” which permits a mandatory vaccine policy.  If an employer’s vaccination requirement impacts a worker with a disability, however, the employer must show that unvaccinated disabled employee would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  The EEOC has said employers should evaluate four factors to determine whether a “direct threat” exists: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm. If an employee who cannot be vaccinated poses a “direct threat” to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.

There are two exceptions where disability-related screening questions can be asked without satisfying the “job-related and consistent with business necessity” requirement.  First, if an employer has offered a vaccination to employees on a voluntary basis, the ADA requires the employee’s decision to answer pre-screening disability-related questions to also be voluntary.  If an employee chooses not to answer these questions, the employer may decline to administer the vaccine and may not retaliate against the employee for refusing to answer any questions. Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions. 

FMGlaw BlogLine previously discussed the vaccine manufacturers’ immunity from products liability suits conferred by federal law for illness, injury or complications caused by the vaccine. An employer, however, may find itself liable for an employee’s injury resulting from a mandatory vaccine, which could be considered a workplace injury under state workers compensation laws. Such injuries and illnesses resulting from required vaccines may be covered by the employer’s workers’ compensation insurance. Employers considering a mandatory vaccination program should check with their broker or business insurance provider to determine whether there is coverage.

Employers that choose not to require employee vaccinations separately may find themselves liable to customers or vendors exposed to COVID-19 at a business that could have been prevented by a vaccination program. Depending on the business and the nature of interaction with the public, a vaccination program may be advisable.

If vaccination is mandatory for employees, the business could encounter wrongful termination or other legal issues when the requirement is enforced in the workplace. Adverse action, such as termination, change of shifts or hours, demotions or transfers involving workers who refuse the COVID-19 vaccine could expose the company to litigation. Thus, many businesses and employers may opt to encourage employees to be immunized rather than implement company-wide mandatory vaccination programs.  The EEOC, for example, previously suggested such a voluntary approach for the seasonal flu vaccine in certain instances: “Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”  Such encouragement – as opposed to a workplace-wide requirement – might be prudent for some employers for the COVID-19 vaccine. Many employers may opt to encourage their workers to obtain the COVID-19 vaccine, including by offering the following: make the vaccine readily available to the employees, cover the cost of the vaccine, provide workplace incentives to those who receive the vaccine, and pay for time off to obtain the vaccine.

Employers need to strike the proper balance during the pandemic and when assessing the competing objectives of protecting employees’ rights under the ADA and freedom of religion, limiting their own exposure to legal liability, and protecting employees and customers from the COVID-19 virus.

If you have questions or would like more information, please contact Kevin G. Kenneally at [email protected], Janet R. Barringer at [email protected].

New COVID-19 Notice Requirements for California Employers

Posted on: January 12th, 2021

By: Chelsea Whelan

The new year ushers in new rules for California employers receiving notice of potential COVID-19 exposure in the workplace. California Labor Code section 6409.6 became effective January 1 this year following the passage of Assembly Bill 685 and will sunset on January 1, 2023. Section 6409.6 requires employers provide written notice within one business day to employees potentially exposed to COVID-19 in the workplace. 

What Constitutes “Notice of Potential Exposure”?

Section 6509.6 defines notice of potential exposure as exposure to a “qualifying individual”. A “qualifying individual” is defined as an individual who has been diagnosed, tested positive for or died from COVID-19, or anyone subject to a COVID-19-related order to isolate by a public health official. (Cal. Lab. Code section 6509.6(d)(4).) Accordingly, section 6509.6(d)(3) defines notice of potential exposure to COVID-19 as notice either that an employee is a qualifying individual or that an employee was exposed to a qualifying individual at the workplace. 

Written Notice Requirements

In order to comply with section 6509.6, employers notified of potential exposure to COVID-19 in the workplace must provide written notice to all employees, as well as the employers of subcontracted employees, who were on the premises at the same worksite as a qualifying individual within the infectious period. The notice can be sent via email, text or personal service if it can reasonably be anticipated to be received by the employee within one business day of sending. Also, the notice must be in English or the language understood by the majority of employees. The following must be included in a written notice:

  • Information regarding COVID-19-related benefits an employee might be entitled to under federal, state or local law, including, but not limited to workers’ compensation and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions.
  • Notice of antidiscrimination and antiretaliation protections for employees disclosing a positive COVID-19 test or diagnosis.
  • Notice of the disinfection and safety the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.

As described in the notice requirements above, section 6409.6 contains antiretaliation and antidiscrimination protections for workers disclosing a positive COVID-19 test, diagnosis or order to quarantine or isolate and allows for the Department of Labor Standards Enforcement to issue citations and penalties for violation of the statute.

Section 6409.6 also requires employers to report a COVID-19 outbreak to the State Department of Public Health within 48 hours. What constitutes an outbreak is defined by the State Department of Public Health.

If you have questions or would like more information, please contact Chelsea Whelan at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

New DOL Rule Aims To Allow Benefits For Independent Contractors

Posted on: January 8th, 2021

By: Justin Boron

Independent contractors can receive ‘employee’ type benefits without becoming “employees” under a rule finalized by the U.S. Department of Labor Wednesday.

The provision is part of a final DOL rule that re-vamps the independent contractor classification test. It aims to allow companies to make independent contractor opportunities more attractive without having to also accept the other financial and administrative burdens that accompany compliance with labor and employment laws that protect employees.

“For example, payment of proceeds owed into a worker’s own health plan or retirement account would not indicate an employment relationship,” the DOL wrote in response to comments received during the review process.

Of course, there are caveats.

First and foremost, all of the other required elements of the independent contractor relationship must be maintained. For example, the independent contractor must still exercise the appropriate degree of control over their work and opportunity for profit or loss as a result of personal investment. 

Second, a company risks the independent contractor status if the benefits too closely resemble the ones that the company provides its full and part-time employees.

The DOL stated: “providing a worker with the same employer-provided health or retirement plans on the terms that a business also gives its own employees may indicate the worker is not an independent contractor but rather an employee.” Additionally, paid leave or bonuses similar to those that employees receive also could jeopardize the independent contractor status.

The fact that benefits might need to be different and provided separately could dissuade smaller companies from even bothering. But the rule could provide an attractive incentive for large companies that rely heavily on independent contractors to perform services.

It remains to be seen if this rule will have a significant impact on labor strategy. But at the very least, it eliminates one element of the independent contractor test that many critics had called outdated.

To review the entire rule, visit https://www.dol.gov/agencies/whd/flsa/2021-independent-contractor

If you have questions or would like more information, please contact Justin Boron at [email protected].

Important Changes to Georgia’s Garnishment Laws Coming January 2021

Posted on: December 31st, 2020

By: Amy C. Bender

Without much, if any, attention, Georgia’s garnishment laws were amended in ways that will significantly impact continuing garnishments served on employers effective January 1, 2021. Some of the major changes are discussed below.

As background, garnishment is a method by which a creditor may recoup a debt owed by an individual. Once a creditor obtains a judgment in court against the individual for the underlying debt, the creditor can initiate a separate legal action against a business organization that owes money or property to the individual (typically, an employer), which obligates the organization to set aside a portion of the individual’s earnings over a period of time to satisfy the debt – a “continuing garnishment.”

Continuing Garnishments Now Arguably Apply to Independent Contractors

The current statutes address garnishment of “wages earned as the garnishee’s employee” and a continuing garnishment being served on an “employer,” leading to the consensus that continuing garnishments could not be used to recover earnings paid to an independent contractor (albeit with little guidance from the case law). Now, the statutes have been amended to state that a continuing garnishment allows for garnishment of wages or “any sum for goods or services periodically provided to the garnishee” and may be served on an entity that is an employer of “or under periodic obligations for payment to” the indebted individual. Based on these changes, employers likely will have to garnish periodic (although apparently not one-time) payments made to independent contractors.

Time Period of Continuing Garnishment Significantly Expanded

Until now, continuing garnishments had a relatively short shelf life in that entities were required to garnish earnings from each paycheck for a total period of 179 days (roughly 6 months). The amendments expanded that time period to 1,095 days (3 years). As with the current version of the statute, the creditor still will need to file a new garnishment action to recover any amount of the debt outstanding after the 1,095-day period, but this change significantly reduces the frequency of the creditor’s need to do so. The employer’s obligation to garnish will end earlier if the debt is satisfied in full or if the employment relationship/periodic payment obligation terminates.

Continuing garnishments can present pitfalls for employers. In some instances, the failure to respond timely can result in a default judgment leaving the employer on the hook for the entire amount of the debt. FMG’s Labor and Employment Law team can assist your organization with all steps of the garnishment process. If you have any questions or would like more information, please contact Amy Bender at [email protected].

PPP is Back with Second Draws and Favorable Tax Treatment

Posted on: December 22nd, 2020

By: Justin Boron

The Paycheck Protection Program is set to return in 2021. 

As part of the $900 billion COVID-19 relief bill passed yesterday, Congress renewed the popular small business relief program administered by the Small Business Administration to allow certain qualifying businesses to take out a second draw on their forgivable loan, re-opened PPP to first-time borrowers that qualify, and set tax law to allow businesses to take advantage of tax deductions associated with PPP-funded expenses.

To qualify for a second draw loan, the business must have 300 or fewer employees, exhaust their current loan proceeds before the second loan is issued, and show a 25 percent decline in gross receipts in any 2020 quarter compared to the same quarter in 2019.  These are new requirements that apply only to second loans.

The loan comes with some of the same conditions as the PPP loans issued in the first two rounds of funding in 2020—such as requirement that 60 percent of the funds be spent on payroll.  But it also eliminated a disfavored IRS ruling that effectively diminished the value of forgiveness by prohibiting deductions for expenses using PPP funds.  The new provision expressly states that the forgiveness amount will not be treated as income and the expenses may be deducted.

Additionally, the new law expands the list of forgivable expenses to include certain personal protective equipment needed to comply with federal COVID-19 guidelines, certain operations expenses such as HR and payroll accounting software, and certain property damage costs caused by public disturbances in 2020.

The amount of the loan will remain the same—2.5 times the business’s average monthly payroll costs in the year prior to the loan or the calendar year—unless the business has a NAICS code beginning with 72, such as restaurant and hospitality businesses.  Congress upped their loan amount to 3.5 times the monthly payroll cost calculation.  But it lowered the cap on all loans to $2 million.

The new law also opened forgivable loans up to 501(c)(6) organizations, such as chambers of commerce or certain industry associations as long as they don’t exceed certain lobbying activities.

It will take some time for the SBA to be set up for new loan applications.  But the law requires it to issue regulations within 10 days after the legislation is signed into law.

FMG’s Coronavirus Task Force is reviewing the entire stimulus bill passed by Congress to advise clients on the benefits and obligations it creates. Please check back for additional posts on this topic.

If you have questions or would like more information, please contact Justin Boron at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you. We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**