Vaccines, unemployment, and more!
I had a COVID return-to-work quiz back in May, but a lot has changed since then, so I thought it might be fun to do an updated version. So . . .
How much do you know about COVID in the workplace in 2021? Take our quiz and find out! As always, the answers will appear immediately below each question, so you can cheat all you want, and we’ll be none the wiser.
Ready? Here we go!
No. 1: Pharmaceutical manufacturer Disease Control Corporation has a small facility in a town that has really gone overboard on COVID precautions. A town ordinance requires people to wear five face masks at a time, and to social distance from each other at 1,000 feet. DCC considers the ordinance unworkable but fully complies with the latest guidance from the Centers for Disease Control and Prevention.
After a layoff, DCC calls back several contractors. Lulabelle refuses to come back to work because DCC is not in compliance with the town ordinance. Then she files for unemployment. DCC contests her claim on the ground that it is fully compliant with CDC guidance. Based on the latest word on unemployment from the U.S. Department of Labor, who wins the unemployment case?
A. DCC, because work was available, and DCC followed the CDC.
B. DCC, because Lulabelle is obviously a fruitcake.
C. Lulabelle, because DCC didn’t comply with the town ordinance.
D. Lulabelle, because unemployment laws are hopelessly skewed in favor of employees and an employer just can’t get a break.
ANSWER: C. (D may also be correct.) Just yesterday, the DOL issued new guidance saying that individuals filing for Pandemic Unemployment Assistance will be retroactively eligible for benefits if they refused available work because the employer did not comply with COVID-related federal, state, or local regulations. PUA benefits apply to self-employed individuals, gig workers, and independent contractors, as well as people who have already exhausted their “regular” unemployment benefits.
No. 2: Farkus Medical Center has decided that it will require all employees who provide direct patient care to get the COVID vaccine. All of the direct care employees are currently eligible under state law to get the vaccine. But Farkus has four employees who refuse. Which of these “objectors” might not be entitled to a reasonable accommodation?
A. Blenda, who is in her first trimester of pregnancy.
B. Warlos, who sincerely believes that the vaccine will secretly implant a microchip developed by the evil Bill Gates.
C. Dorita, whose religion teaches that it would be a sin to get the vaccine because it alters one’s mRNA, which is sacred.
D. Yolo, who has a number of drug allergies and is at high risk of experiencing anaphylaxis if he is vaccinated.
E. None of the above.
F. All of the above.
ANSWER: B. Blenda, Dorita, and Yolo arguably have legally recognized reasons for refusing to get vaccinated. This means that Farkus will at least have to engage in the interactive process with them and determine whether it is possible to accommodate them by allowing them to continue to work unvaccinated. But Warlos’s reason, although sincere, is not legally protected. Under current guidance, Farkus can require him to get the vaccine under penalty of discharge.
No. 3: Hulu is one of the lucky individuals who has already had both COVID vaccine shots. Immediately after getting Shot #2, he went to a bar to celebrate, and sat next to Cadbury, who had COVID but didn’t realize it at the time. The next day, Cadbury tested positive and promptly informed the bar, which promptly informed Hulu. Because Hulu had already been vaccinated, he reported to work as normal and casually mentioned the exposure to his supervisor. The supervisor freaked out and went to Human Resources. A few minutes later, HR sent Hulu home and told him not to return for 14 days. Hulu is getting paid, so he’s not planning to make a big deal out of it, but was his employer right to require him to quarantine?
A. No. The employer is being overly cautious. It’s a good thing they paid Hulu or they’d be looking at a big lawsuit.
B. No, because Hulu is 66 years old and forcing him to quarantine could be age discrimination
C. Yes, because COVID is a very bad disease.
D. Yes, because under current CDC guidance, Hulu should quarantine.
ANSWER: D. The current CDC guidance says that a vaccinated employee should be allowed to forgo the quarantine only if he or she meets all of the following criteria: (1) the employee has had the final dose of the vaccine, (2) it has been at least two weeks since the employee had the final dose, (3) it is less than three months since the employee had the final dose, and (4) the employee has had no symptoms of COVID since the exposure. Hulu does not meet criterion #2, so HR was correct in requiring him to do a full quarantine after his exposure. (We do expect the CDC guidance on this to change as we acquire more experience with the vaccines, so please check back for updates.)
No. 4: Swell Company’s vice president of HR believes it is too “Big Brother-ish” to mandate employee vaccinations. Instead of setting a hard rule, she is thinking about “incentivizing” employees to get vaccinated. Under her proposed policy, any employee who was unable to get the vaccine for reasons related to pregnancy, disability, or religion would be reasonably accommodated by being treated the same as employees who got the vaccine. With reasonable accommodations, which of these options would be legal?
A. Giving employees $25 gift cards when they present proof of the second vaccination.
B. Imposing a $350-per-month surcharge on the employee share of group health insurance premiums for any employee who does not get vaccinated.
C. Making vaccination a prerequisite for promotion or merit pay increase.
D. Giving each employee who gets vaccinated one extra vacation day. (Hat tip to Bill Goren.)
E. None of the above.
F. All of the above.
G. Who knows?
ANSWER: G. At this time, there is no federal legal guidance on employer incentives for employees who get vaccinated. Because it is legal for employers to flat-out require vaccinations, presumably any incentives or penalties are also legal. But employers should be careful. If an employer offers a significant incentive to employees who get vaccinated, or imposes a significant penalty on those who do not, the incentives/disincentives could be viewed as a “constructive mandate.” In other words, the legal effect would be the same as if the employer required employees to get the vaccine. Although vaccine mandates are legal, we don’t know whether employers would face liability if something goes wrong in the short term (e.g., an employee has anaphylactic shock) or in the long term (e.g., in 2031, they discover that these vaccines really did implant microchips!). Employers should take this into account when deciding whether to mandate vaccinations, or how aggressively to “incentivize” them.
No. 5: Bupkiss Corporation requires employees to be vaccinated for COVID. To confirm that employees have been vaccinated, what documentation can Bupkiss require?
A. A receipt from the entity that administered the vaccine, showing only that the vaccine was administered, the “dose” (that is, “Shot #1” or “Shot #2”), and the date.
B. The medical history form completed by the employee before the vaccine was administered.
C. The employee’s responses to questions about drug allergies.
D. All of the above.
E. None of the above. Employers are not allowed to request or require proof of vaccination.
ANSWER: A. The EEOC guidance says that employers are allowed to require documentation showing that an employee has been vaccinated. But the documentation should not include any of the employee’s personal medical information. For this reason, the EEOC recommends — but does not require — that employers let employees get their vaccines from third parties (for example, county health departments, employees’ own health care providers, or drug stores). That way, the employer will be “walled off” from any employee medical information that it is better off not having.
No. 6: OK, we get that it’s legal for employers to require employees to be vaccinated, as long as the employers offer reasonable accommodations in appropriate circumstances. But wasn’t that based on guidance issued during the Trump Administration? How likely is that guidance to remain in place?
A. Highly unlikely.
B. Highly likely.
C. Maybe until July 2022, but after that, who knows?
ANSWER: C. The guidance came from the Equal Employment Opportunity Commission, which will have a Republican majority until July 2022, when the term of former Chair Janet Dhillon expires. Once President Biden gets a Democratic majority, there may be some changes to the current guidance. But a Democratic EEOC may still be ok with allowing employers to mandate COVID vaccinations (with accommodations).
No. 7: With quiz questions 1 and 6, this counts as our “Biden Time” for the week.
TRUE
FALSE
ANSWER: True! And here he is:
HOW’DJA DO?
5-7 correct: Invulnerable! You had both your shots more than two weeks ago!
2-4 correct: Not bad! You’ve had your first shot, and your second is less than a month away!
0-1 correct: Ugh. Bill Gates is not impressed.
Just kidding — you all did great!
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.
