The coronavirus (COVID-19) outbreak has changed the work situations for millions of people throughout the United States. In this time of crisis, Outten & Golden is particularly concerned about protecting people’s employment rights and has prepared a set of FAQs to explain how federal, state, and local laws can protect your job, your wages, and your livelihood.
On December 16, 2020, the U.S. Equal Employment Opportunity Commission issued guidance to employers considering COVID-19 vaccination programs for their employees. The first doses of the COVID-19 vaccination approved or authorized by the Food and Drug Administration (FDA) are being administered throughout the United States.
As companies continue to operate, employers are implementing vaccination programs. However, these programs cannot violate federal civil rights law, and certain employees still have protections from mandatory programs. Vaccination requirements implicate several federal civil rights laws, including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the religious protections of Title BII of the Civil Rights Act of 1964 (Title VII). Guidance on COVID-19 at the federal, state, and local level is ongoing.
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Yes. The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) now requires all employees of employers with 100+ employees, healthcare employees, federal government employees, and federal contractors to be fully vaccinated or else be subjected to weekly COVID-19 testing before coming into work. These covered employers must provide employees paid time off to get vaccinated and to recover from post-vaccine side effects. According to EEOCs guidance, COVID-19 vaccine by employers is not considered a “medical examination” and therefore is permissible under the ADA.
Employers who fall outside the OSHA mandate (primarily, private employers with fewer than 100 employees) still may require employees to be fully vaccinated as a condition of employment. However, employees with qualifying disabilities and/or sincerely held religious beliefs may be entitled to reasonable accommodation in lieu of an employer’s vaccination requirement.
In addition to the Federal mandate, several states and localities require certain categories of employees to be vaccinated. Please consult the rules of your locality as this FAQ is not exhaustive and state guidelines may change.
California: Per State Orders, all state workers, healthcare workers, and workers in high-risk congregate settings must show proof of full vaccination or be subjected to testing once per week. Healthcare employees are required to receive their second dose by September 30.
DC: Pursuant to Order 2021-099, all DC government employees, contractors, interns, and grantees must be fully vaccinated by September 19. All healthcare workers must receive the first dose of a vaccine by September 30. Employees who remain unvaccinated will be required to undergo weekly testing. All adults who are regularly in schools and childcare centers must be vaccinated by November 1 and will not have an alternative option for weekly testing.
New York: Patient-facing healthcare workers at State hospitals were required to be vaccinated by Labor Day and will not have an alternative option for weekly testing. All other healthcare workers are required to be vaccinated by September 27. All New York State employees and MTA/Port Authority workers were required to get vaccinated by Labor Day or be subjected to weekly testing. All school employees, teachers, and administrators are required to show proof of vaccination or submit to weekly testing.
No. The EEOC has reiterated its prior guidance that disability-related objections to receiving the vaccine must be accommodated to the extent required under the law. Even if your employer determines an unvaccinated individual will expose others to the virus at the worksite, your employer cannot exclude you from the workplace or subject you to any other action unless there is no way to provide a reasonable accommodation absent undue hardship. Further, your employer must engage in an interactive process regarding disability-related requests for accommodation.
No. Employers must provide reasonable accommodations to workers who have sincerely held religious practices or beliefs. Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation unless it would pose an undue hardship under Title VII. Your employer should not question the sincerity of your religious belief. If your employer has an objective basis for questioning the nature of the objection, however, they can request documentation to support your religious practice. Note: “anti-vaxxers” are not recognized as a religious objection.
No. Employers can exclude unvaccinated employees from the workplace, but that does not mean an employer can automatically terminate the employee. The employer may be obligated to offer the option to work remotely as an accommodation or offer leave under other laws or the employer’s existing leave policy. You should seek accommodations to retain your employment.
Yes. Employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Testing administered by employers that is consistent with the most up to date CDC guidance will meet the ADA’s “business necessity” standard.
No. An antibody test is considered a medical examination under the ADA, and therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.
Employers can ask you whether or not you have been vaccinated since the EEOC has stated that the vaccine is not a medical examination or a disability-related inquiry. However, if your employer is administering a COVID-19 vaccine, any pre-vaccination medical screening questions cannot ask you about your disability unless it is job-related or there is a business necessity for the question.
If your employer is administering the vaccine and it is mandatory for you to participate, the pre-screening questions cannot be about your disability, unless the questions are job-related and consistent with business necessity. If you are asked questions related to your disability, ask the administrator how the question is job-related or tied to a business necessity before providing any information. If you refuse to answer a question about your disability, the employer must show that you refused and that your refusal will pose a direct threat to the health or safety of yourself or others. This does not mean that your employer can automatically terminate you from your work.
No. Employers cannot ask if a member of your family or household has contracted COVID-19 or have symptoms associated with COVID-19. These questions violate the Genetic Information Nondiscrimination Act (GINA), which prohibits employers from asking employees medical questions about family members.
However, GINA does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms.
An employer can deny your request for accommodation, even during the pandemic, if the request poses an undue hardship, meaning significant difficulty or expense. What is considered a significant difficulty is based on the facts of the particular job and workplace; the pandemic may have created new difficulties for your employer to grant the request.
Also, the pandemic’s impact on budgets and resources may have impacted what your employer now considers a significant expense. These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic. Ultimately, requests for accommodations must include an interactive process to explore what is feasible in the current climate.
Yes. ADA confidentiality does not prevent you from communicating to your supervisor that your coworker has COVID-19 symptoms. After learning about this situation, your supervisor should contact the appropriate management officials to report this information and discuss next steps.
No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.
For example, an employee without a disability is not entitled under the ADA to telework as an accommodation to protect a family member with a disability from potential COVID-19 exposure.
Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.
The federal Family & Medical Leave Act (FMLA) allows a qualified employee to take up to 12 weeks of unpaid leave within a 12-month period if they or an immediate family member requires care for a “serious health condition.” The law also entitles a qualified employee to continued health insurance benefits and requires their employer to offer them the same or equivalent position when they return. Qualified employees are those who have worked for at least one year, over 1,250 hours in the prior year, and whose employer has at least 50 employees in a 75-mile radius.
The Families First Coronavirus Response Act (FFCRA) allows employees who work for employers of less than 500 employees to take up to 80 hours of emergency sick leave. An employee may take emergency sick leave under the FFCRA if they are:
- subject to quarantine or isolation order or caring for someone who is subject to a quarantine or self-isolation order;
- advised be a health care provider to self-quarantine due to coronavirus concerns or caring for someone who is advised to self-quarantine;
- experiencing symptoms of coronavirus and are seeking a medical diagnosis;
- caring for their child if, because of coronavirus protections, their school or day care has been closed or their childcare provider is unavailable; or
- experiencing similar conditions, as specified by the Secretary of Health and Human Services.
The rate of pay varies depending on the circumstances and more information is available through the Department of Labor.
Some companies' policies provide paid leave for those who are forced to take time off in connection with an illness. For those employers, the company policy generally will control the terms of the leave. Also, some states and cities have laws that provide employees with access to paid sick leave.
The FFCRA allows employees of employers of less than 500 employees to take up to 80 hours of emergency sick leave for qualified reasons, as follows:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.
These payments are subject to limits on maximum benefits and more information is available through the Department of Labor.
As described in FAQ 1, the FMLA and other federal laws protect qualified individuals absent from work because of a serious health condition. Similarly, the Americans with Disabilities Act (ADA) prohibits discrimination against individuals with a disability. In certain circumstances, an employee who has an underlying condition exacerbated by the coronavirus (for instance, asthma or a heart condition) may be considered disabled.
The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities, a history or record of such an impairment, or a perception by others of such an impairment. Besides prohibiting discrimination against people with disabilities, the ADA requires employers to provide reasonable accommodations for such individuals. State and local laws sometimes extend additional protections for people with disabilities or serious health conditions.
Generally, there is no legal right to telecommuting, as employers have the right to dictate the terms of employment. If an underlying disability places you at high risk for coronavirus, you may have the right to telecommute as an accommodation, depending on whether working from home is reasonable under the circumstances.
The FFCRA permits employees to take emergency sick leave to care for a child whose school or day care has closed, or where childcare is otherwise unavailable because of coronavirus protections. In addition, employees may be entitled to up to an additional 10 weeks of leave at two-thirds the employee’s regular rate of pay if an employee is unable to work due to bona fide child care need related to COVID-19. These payments are subject to limits on maximum benefits and more information is available through the Department of Labor.
Employers have the right to set the terms and conditions of employment, which includes work location, so long as they comply with the law. That means that an employer can require employees to work from home due to a reason such as business need or health and safety.
However, an employer may not mandate that certain people work from home because of a perceived or actual disability if it would operate as an adverse action based on a disability. For example, if working from home was akin to a demotion or resulted in lower pay for only certain individuals, those individuals may be protected by federal, state, or local statutes that prohibit discrimination based on a disability.
Your employer can prohibit you from traveling for business reasons because work-related travel is considered a condition of employment. Your employer cannot prevent you from traveling for personal reasons on your own time, but it may be able to bar you from working in the office if you have recently traveled or for purposes related to health and safety.
Yes! Generally, if you are a salaried employee and you work any portion of the week, you must be paid your regular weekly pay. Hourly employees who work from home are entitled to be paid for all hours worked, including overtime hours.
Whether you are entitled to reimbursement depends on your jurisdiction and your rate of pay. If the expenses you incur in setting up your home office causes your weekly pay to drop below the minimum wage, you may have a claim under the federal Fair Labor Standards Act (FLSA) and some state wage and hour laws. Certain states, like California, require an employer to reimburse workers for things like internet access, computers, and cell phones used for work.
There are specific laws that protect employees from mass layoffs. For example, under the federal Worker Adjustment and Retraining Notification (WARN) Act, companies must give affected employees 60-days advanced written notice of the mass layoff, worksite closing, or plant closing. Some states have their own WARN Acts, including California, Connecticut, Illinois, Hawaii, Iowa, New Jersey, and New York.
Several states and cities require an employer to provide schedules in advance and must pay the workers when they take away or add shifts. Some laws also require extra pay when employers require workers to work split shifts, and if you are laid off or have your hours reduced, you may be entitled to unemployment benefits, which vary by jurisdiction.
If your employer offers you a severance agreement, it is important to consult with an attorney about what rights you may have and what rights you may be giving up by signing the agreement.
In general, as a matter of contract law, any offer can be withdrawn or revoked before it is accepted, unless it is “irrevocable” - which is rarely seen in employment situations. Once an offer is accepted unconditionally (before being withdrawn or revoked), it becomes a binding agreement.
Generally, an employer can withdraw a job offer for almost any reason, except a discriminatory one (race, religion, nationality, etc.). Nonetheless, most offer letters, even if binding, do not provide much in the way of substantive rights for the employee; and most employment agreements provide that the employment is “at will,” so the employer can fire the employee without cause (even before the employment has started).
Under any offer letter or employment agreement, the key issue is whether the employee has any enforceable rights upon termination of employment without cause (e.g., a notice period, severance pay, payment of an accrued bonus, or vesting of deferred compensation).
Even if contractual rights do not exist, an employee might have claim against an employer who rescinds a job offer under the doctrine of promissory estoppel. Under that doctrine, some states (including New Jersey, California, and Illinois) allow an employee to seek damages due to withdrawn job offers: examples include moving costs that the candidate incurred to relocate for the offer or lost income resulting from quitting prior employment based on the withdrawn offer.
With respect to a person with a disability, an offer may be revoked if the employer can show that the prospective employee would be “unable to perform the essential functions of the job (with or without reasonable accommodation)” or the prospective employee poses a “significant risk of causing substantial harm” to others. How this analysis may apply to those suffering illnesses from COVID-19 is yet to be seen.
Ordinarily, a severance agreement can be withdrawn before it is accepted. Arguably, the employer cannot withdraw during a stated “consideration period” (21 or 45 days under the Older Workers’ Protections Act. But even that is not a black letter law and exceptions exist, particularly where the employer is not asking an employee to waive rights under the Age Discrimination in Employment Act.
Generally, a contractual promise to pay is enforceable, and an employer would be in breach of contract if it if reneges on that promise, absent a material breach by the employee. If an employer fails to honor its obligations under a severance agreement, the employee may be able to sue for breach of contract.
If a company goes bankrupt and cannot pay agreed-upon severance benefits, the affected employee may be able to file a claim in bankruptcy court. In any event, with respect to plant closings and mass layoffs, employees may be entitled to relief under federal and state laws, like the WARN Act (see FAQ 8).
Whether the deadline to exercise your vested stock options can be changed depends on several factors, such as whether you have ISOs or NSOs, the expiration date of your options, and how the relevant plan is drafted. Sometimes, the deadline can be extended by asking the employer to provide working notice instead of severance, by entering into a contractor arrangement with the company, or by simply extending the exercise period.
The False Claims Act (FCA) protects employees, contractors, and agents who report to their employer or supervisor any company conduct that may result in a fraud on the government. Healthcare-related fraud might include opposing double-billing of Medicare or Medicaid, reporting the sale of defective products to the government, refusing to follow an order to upcode, reporting the payment of kickbacks to refer patients for services reimbursed by Medicare or Medicaid, or trying to stop a provider from billing Medicaid for unnecessary medical services.
During national disasters, the government often issues grants or stimulus packages to help fend off other kinds of harm. If you report concerns that your employer is defrauding a disaster relief program through FEMA, HUD, or another government agency, you may also have protections against whistleblower retaliation. Finally, some states have protections for employees who raise concerns about company conduct that is unlawful or endangers public health or safety.
If you know your employer is fraudulently billing the government or breaking the law in other ways, contact an attorney immediately so you can take steps to make sure you are protected.
As the coronavirus outbreak has escalated, some employees have reported negative treatment from employers or coworkers because of their race, ethnicity, or national origin. That type of mistreatment is discrimination, and it’s illegal under federal law and many state and local laws.
Discrimination can take many forms, including derogatory comments, slurs, stereotyping, and adverse employment actions like poor performance reviews, demotion, or termination. If you have reason to believe you are being discriminated against because of a protected characteristic like your race, ethnicity, or national origin, contact an employment discrimination attorney immediately to understand what options you may have.
These laws also prohibit employers from retaliating against employees because they have exercised – or sought to exercise – their workplace rights. Retaliation includes any threat, discipline, firing, demotion, suspension, or reduction in hours, or any other negative employment action when those actions are caused by a worker’s efforts to assert their workplace rights.
Yes. According to EEOC guidance, all employers may require employees (regardless of vaccination status) to wear protective gear (like masks and gloves) and observe infection control practices (like regular hand washing and social distancing).
These are challenging times for all of us. Although we can anticipate a “new normal,” that transition does not allow employers to unlawfully deprive employees of their jobs, compensation, or dignity.
As Outten & Golden monitors developments to protect our personnel and families, we will continue to update you about your employment rights and protections.
Please stay safe and contact an attorney if you have concerns about your workplace rights.
This information was prepared by the attorneys in the Family Responsibilities & Disability Discrimination practice group, in conjunction with the Class & Collective Action, Discrimination & Retaliation, Whistleblower-Retaliation, and WARN practice groups.
Due to the nature of the current public health crisis, these resources may be updated as more information becomes available, and are only current as to the date of publication. This page was last updated on January 6, 2021.