COVID-19 Vaccinations and Returning Employees. Rules for Employers to Follow

Is an Employer Still Required to Provide Paid Sick Leave Due to a COVID-19 Diagnosis?

• NO, in general
  • but an employee working for a NY-based employer may be eligible for benefit under NYS Paid Sick leave (many states are considering similar laws).
  • The Federal American Rescue Plan Act of 2021 (ARPA) extends federal tax credits for private employers with less than 500 employees that voluntarily decide to provide paid sick leave or family leave for each employee receiving the COVID-19 vaccination and for any time needed to recover from the vaccine through September 30, 2021. For more information about the tax credits, the IRS has published guidance for employers.

Can an Employer Require Employee Vaccinations?

YES, in most cases

• The employer must still abide by regulations released by the EEOC and the Americans with Disabilities Act.
  • Cannot if the employee is a teleworking remote employee.

Is an Employee Entitled to Paid Time Off When Obtaining the Vaccine?

• YES, depending on employer location
  • Effective March 12, 2021, NYS is granting up to 4 hours of paid leave per COVID-19 vaccine injection at the employee’s regular hourly rate.
  • Applies to all public and private employers in the state. The law is effective immediately and expires on December 31, 2022.
  • This is in addition to any other paid leave employers may offer voluntarily or through legislative mandate (i.e. NY Paid Sick Leave Law).
  • There are at least 7 states and many municipalities that have passed similar leave laws related to vaccinations.

Can an Employer Terminate an Employee Who Refuses a Vaccine?

NO, in general

• The employer must first determine if the employee’s reason is protected under EEOC rules, the ADA, or the Rehabilitation Act.

• Under current existing circumstances, the ADA allows an employer to bar an employee from physical presence in the workplace:
  • Under current EEOC guidance, if there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.

Can an Employer Take The Body Temperature of an Employee?

YES

Can an Employer Request Proof of Vaccination?

YES, but

• Instruct the employee not to disclose any other medical information besides the proof of vaccination.

Does an Employer Have to Provide Any Accommodation for Returning Employees?

YES, in some but not all cases

• If the employee is protected under the ADA the employer may have to make ‘reasonable accommodations’.

Can an Employer Ask Why an Employee Refuses to Vaccinate?

YES you can,

• but it is not advisable as it may elicit information about a disability and would be subject to the pertinent ADA standard that all questions be “job-related and consistent with business necessity”.

Can an Employer Require Employees to Wear Masks if They Have Not Received the Vaccination?

YES

• The employer may also ask vaccinated employees to visibly display their proof of vaccination.

As more and more employers ask employees to return to work we expect these and many other questions to arise.  To help you we have also prepared a more detailed employer FAQ document.  If you would like to receive this, please complete our contact form and we will gladly send it to you.