The EEOC has issued new guidance about employers requiring employees to be vaccinated and if employers can provide incentives for employees to become vaccinated.     
Employers can require employees to be vaccinated but need to consider several factors, such as;

• Does an employees need a reasonable accommodation because of a disability or a sincerely held religious belief, practice, or observance?
• Will the vaccine requirement have a disparate impact on or disproportionately exclude employees based on Title VII such as race, color, religion, etc.?
• What are the State and Local laws and guidelines?

If an employee needs a reasonable accommodation, employers should work with the employee to determine what accommodations must be made.  Examples include;

• Continued wearing of masks
• Social distancing
• Periodic COVID-19 tests
• Continued Work at Home programs

For employees that are hesitant to get the vaccine, employers can provide education information about the vaccine, address questions and concerns, and even provide incentives.  Incentives(rewards or penalties)  can be provided as long if the incentive is not so substantial to be coercive.
Special Note: Any information collected  regarding proof of vaccination must be confidential and stored separately from the employee's personnel file.
A vaccination policy is recommended and before any policies are implemented, local and state guidelines, as well as any federal guidelines by OSHA, EEOC, ADA and other relevant agencies should be reviewed.

​Governor Abbott informed the U.S. Department of Labor on May 17, 2021, that Texas will opt out of the federal unemployment compensation related to the COVID-19 pandemic effective June 26, 2021.  This only includes the $300 weekly unemployment supplement from the Federal Pandemic Unemployment Compensation program.  Regular unemployment benefits are still available.

“The Texas economy is booming, and employers are hiring in communities throughout the state,” said Governor Abbott.  “According to the Texas Workforce Commission, the number of job openings in Texas is almost identical to the number of Texans who are receiving unemployment benefits. That assessment does not include the jobs that typically are not listed, like construction and restaurant jobs. There are nearly 60 percent more jobs open (and listed) in Texas today than there was in February 2020, the month before the pandemic hit Texas.”

According to the Texas Workforce Commission (TWC), nearly 45 percent of posted jobs offer wages greater than $15.50 per hour.  Approximately 76 percent pay more than $11.50 per hour. Only 2 percent of posted jobs pay around the minimum wage.

With opening the state back to 100 percent, the focus must be on getting unemployed Texans back to work, rather than paying unemployment benefits.
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Another reason is the high level of fraudulent unemployment claims being filed. Fraudulent unemployment claims rob everyone including employers and do nothing to help the unemployed. TWC estimates that nearly 18 percent of all claims for unemployment benefits during the pandemic are confirmed or suspected to be fraudulent, which totals more than 800,000 claims, worth as much as $10.4 billion, if all claims had been paid.
 
The $300-a-week federal payments, which is a reduced version of a $600 weekly benefit authorized last March under the CARES Act to help the millions of workers thrown out of work amidst the coronavirus pandemic will go until Sept. 6th in states that do not opt-out of the federal program.  

For the first time, the Department of Labor (DOL) issued Cybersecurity regulations for benefit plans regulated by ERISA.  The guidelines, issued in April, provide best practices on Cybersecurity programs, Online Security Tips and Tips for Hiring a Service Provider.  As a reminder, any benefit plan such as medical plan with more than one participant must comply with ERISA regulations. A few of the tips from the DOL include;
What can businesses do to ensure participant information is secure?

• Offer Cybersecurity training for employees
• Encrypt sensitive data, either stored or in transit
• Implement strong security controls
• Work with service providers that have strong cybersecurity policies
  • Does the provider have Cybersecurity insurance?
  • Has the provider had any breach of security in the past?
  • How does the provider monitor its security practices?

If you need more information regarding the ERISA Cybersecurity regulations, you can reach out to us. 

1. Bringing Employees back to work

When the decision is made to bring employees back to the workplace, as much notice as possible should be provided. Communication of safety protocols may help in easing employee’s fears about returning to the workplace.  The employer’s responsibility is to provide a workplace that protects employees and the general public.

Steps to consider in creating a safe workplace; 

• Phasing in shifts or alternating days in the workplace
• Provide personal protective equipment such as masks and gloves, as well as hand sanitizers and have them easily accessible
• Set up protocols for workplace visitors 
• Provide maximum social distancing in the workplace
• Limit how many people will be allowed in common areas such as breakrooms and lunchrooms
• Describe the process for cleaning all common areas and employees personal work areas

Employers should follow the Center for Disease Control (CDC) guidelines and continue to watch for updates.  The CDC also provides guidelines for specific industries.  Follow the CDC guidance at; ​Workplaces and Businesses | COVID-19 | CDC

2. What if an Employee does not want to come back to work?

For employees that are concerned about returning to work, discussing their concerns will help to determine next steps.

If the reasons fall under the under the American Disability Act (ADA) or the Family Medical Leave Act (FMLA), reasonable accommodations such as continued teleworking or additional time off from work may be required.

For  employee’s that are hesitant about returning to work, but do not have a reason that falls under the  ADA or FMLA, disciplinary action can be taken. It is always best to understand the employees’ reasons and be emphatic since the pandemic has created stress for both employers and employees. One note: according to a recent survey, over 65% employees want to continue to work remotely so employers may consider continuing a work from home option.

3. Can an Employer require employees to get the COVID-19 vaccine?

Yes--employers may lawfully require employees to receive the COVID-19 vaccine or show proof they have received the vaccine, keeping in mind guidelines of the ADA and Title VII of the Civil Rights Act of 1964. Some federal and state laws allow exemptions protecting the rights of employees who are not able to receive the vaccine, including those with a disability or a sincerely held religious belief. Employers should have a conversation with the employee to determine reasonable accommodations.  If an employees’ concern does not fall under any federal, state, or local guidelines, the employee can be  terminated, but all avenues of accommodations should be reviewed first.

Employers may offer incentives, such as bonuses or discounts on health insurance premiums, to encourage employees to receive the vaccine voluntarily.

4. Tax Credits available for Small Businesses

Employers with less than 500 employees may be eligible for a paid-leave tax credit that provides full pay to employees who take time off to get and recover from a COVID-19 vaccination. The tax credits are available from April 1, 2021 to September 30, 2021 and are equal to the sick leave wages paid for COVID related reasons for up to two weeks (80 hours) or paid family leave wages for up to twelve weeks.  There are limitations on the wages that will qualify for the tax credit.  More information is located at;

https://www.irs.gov/newsroom/employer-tax-credits-for-employee-paid-leave-due-to-covid-19

5. What requirements should employers establish for employees that travel?

​Employers should address travel protocols and require employees to disclose personal travel plans.  Fully vaccinated travelers do not need to get a COVID-19 test before or after travel unless the destination requires it.  Vaccinated employees do not need to self-quarantine. Be sure to check state and local laws to see if employees must be paid for time off.

6. What can employers do to limit employee off-hours activities?

While it is difficult to control what employees do outside of work, employers can continually communicate to employees the established policies and CDC guidelines, encourage employees to social distance, and remind employees it takes everyone to maintain a safe workplace.

7. Can an employer be held liable if an employee who contracted the virus at work spreads it among relatives at home, or other COVID-19 related claims?

It may be difficult to show that an employer’s failure to protect workers from COVID-19 caused a household member to contract the virus, as one claim suggested. Other complaints have included unsafe-workplace allegations, handling of layoffs, remote-work arrangements and leave requests. The top three COVID-19 related claims have been;

• Remote Work and Leave conflicts
• Retaliation and Whistleblower complaints
• Employment Discrimination

 
Employers should continue to follow all their normal policies, as well as keep up to date with the local, state, federal and CDC  COVID-19 updates. Some states have enacted legislation blocking COVID-19-related claims against employers, but these laws do not prevent federal lawsuits.

Final Notes

• Continually check with public health officials and Federal, State and City guidelines for updated COVID-19 information and workplace requirements.  Guidelines are constantly evolving and changing and vary by state and city
• Be consistent in workplace practices
• Remember to follow all requirements listed under ADA, OSHA, FMLA and the EEOC
• Prepare a COVID-19 policy and ensure employees are familiar with the policy