While I’m as ready as the next guy to say goodbye to 2020, there are a few remnants of the year that need to be addressed first. Hopefully, these are the last aspects of 2020 that will affect employee management going forward:
The FFCRA
The Families First Coronavirus Response Act (FFCRA) leave mandate expired on December 31st of 2020. The FFCRA was the act that provided paid leave for employees in companies of less than 500 who were:
• Recovering from COVID-19
• Caring for somebody with COVID-19
• Taking care of children whose care facilities or schools were closed due to COVID-19
The expiration of this act means that organizations are not required by the federal government to provide paid leave for those purposes, though state and local legislation may require paid leave for broader reasons. Employers are still required to pay for the leaves taken before the expiration of the act, even if that payment occurs in 2021.
However, the employer tax credit for providing this leave has been extended through March of 2021. If an employee has not exhausted their FFCRA leave limits, their employer is eligible to receive the same tax credit for allowing them coronavirus leave to recover from the illness or care for a family member recovering from the illness. Employees who have already taken all the paid leave afforded to them by the FCRA cannot take more leave that earns their employer a tax credit.
Employers should strongly consider allowing paid leave for employees who have not exhausted their FFCRA leave. Allowing employees to better manage the coronavirus crisis may give employers an advantage in employee retention at no cost other than absent labor. Encouraging employees to stay home when they may have been exposed to the virus also protects the rest of the employee population; employees who are not paid to stay home may try to work through the contagious and dangerous disease instead.
The COVID-19 Vaccines
While it was one of the few good things to come from 2020, the COVID-19 vaccines aren’t yet the solution that businesses were hoping for.
While the vaccines are being rolled out, they are still currently under an emergency use authorization instead of the level of full endorsement that we see with vaccines that have been studied longer. Ultimately, this means that employees may have a protected right to decline to take the vaccine, out of fear of personal harm. It is unclear if there are unknown exceptions to who may take the vaccine safely, so an employee’s refusal may be the same as exercising their health and safety rights.
However, if an employee decides to refuse the vaccine, you as an employer have the right to keep them from entering the workplace. While it is important to respect the rights of individual employees, organizations also have the obligation to keep their employees and customers safe. If an unvaccinated employee represents a danger to the rest of the people in the workplace, you may prevent them from returning to work. In this case, preventing somebody from entering the workplace is not the same as firing them; you should allow them to return to the workplace when the COVID-19 pandemic is over.
This may not impact most employers, due to the strategic distribution of the first rounds of the vaccine. By the time the vaccines are available in general workplaces, they may have advanced beyond an emergency use authorization. Employers may also still be able to require the vaccine for employees physically in the workplace. In much the same way that 2020 was unprecedented, the application of emergency use vaccines in the workplace very literally have no precedent.
Conclusion
Some rules for 2020 are going the way of the old year, but 2021 already has some new rules of its own. While we don’t have a crystal ball for the rest of the year, we certainly have a magnifying glass and will be closely examining any new updates in COVID-19’s impact on the workplace, and publishing blogs as necessary. As always, if you have any questions about rules and best practices for the workplace, feel free to contact Terch & Associates.