Employment law: COVID-19 conundrums continue related to employer rights

By Richard I. Lehr and Whitney R. Brown

With COVID-19 vaccinations available to all age 12 or older who want the vaccine, we wanted to provide you with an update on employer rights when dealing with COVID issues.

May I require employees to become vaccinated?
Yes, that is an employer’s right. Two exceptions to evaluate are if the employee cannot take the vaccine for medical reasons or if the employee objects to taking the vaccine due to a sincerely held religious belief. If either applies, you should reasonably accommodate, such as requiring the employee to continue to wear a mask at work. Learn more here.

May I require those who aren’t vaccinated to wear a mask, but not those who are vaccinated?
Yes, you may do this. We suggest you evaluate how this may be perceived by customers and employees, but it is your right to do that.

May we require new hires to show proof of vaccination?
Yes. Ideally, you’d provide notice that proof of vaccination will be a condition of employment, unless exception is required by law, in job advertisements.

May I continue to permit some to work from home but require others to return to work?
Yes. Whether work from home is permitted is solely up to the employer, except where the request to work from home is a request to accommodate a disability-related limitation. Telecommuting can be a reasonable accommodation in some circumstances. Even in cases where telecommuting might be a reasonable accommodation, an employer has the right to both verify the medical necessity of the request and to select alternative accommodations that address the restrictions and the employer’s needs better, even if they’re not the accommodations the employee prefers. You should review accommodation issues with your employment counsel.

May I require that certain job classifications become vaccinated but not others?
Yes. For example, you may decide that only employees with direct customer contact must take the vaccine.

May I refuse to provide employer sponsored COVID sick pay for an employee who is unvaccinated and absent due to quarantine or COVID?
Yes. You may treat those absences as any other medical absence and provide preferred leaves to vaccinated employees. An employer that is seeking tax credits by extending Emergency Paid Sick Leave (EPSL) or Emergency FMLA (EFMLA) Leave may not deny those based on vaccination status.

May an employer receive FFCRA tax credits if an employee needs to be absent due to a child’s day care, school or camp temporarily closing for quarantine?
An employer may opt to continue to receive federal tax credits for providing employees with EPSL and EFMLA leave, as you can read here. Continuing either of these programs is optional. Due to a lack of clarity in the EFMLA extension statute as well as the expansion of reasons for which EFMLA may be taken, we do not recommend that employers continue EFMLA. Under either program, a temporary or full closure/loss of childcare, school or scheduled summer camp/childcare that is caused by COVID-19 is a covered reason for the leave, and reimbursement.

Richard Lehr and Whitney Brown are shareholders with Alabama Retail’s labor and employment law partner, Lehr Middlebrooks Vreeland & Thompson PC.  Alabama Retail members can contact them about COVID-related workplace issues or other employment law matters through our Employment Law Hotline