By Brian G. Formella, Anderson O’Brien Law Firm

Although the transition in presidential administrations from Trump to Biden will likely bring many changes to employment and labor law rules and regulations in 2021, the more immediate concern for Wisconsin employers is to review and, if necessary, revise their COVID-19 leave and vaccine polices. In either circumstance, employers should communicate their policies to employees as soon as possible.

1.) COVID-19 Leave
The federal Families First Coronavirus Response Act (“FFCRA”) was originally enacted into law in March 2020 for qualifying leave that was taken between April 1, 2020 and December 31, 2020. But its requirements of mandatory leave expired on December 31, 2020. This means that mandatory paid leave at companies that employee less than 500 employees is no longer required.

However, the recent federal stimulus legislation signed by President Trump on December 27, 2020 allows that covered employers who voluntarily offer such leave may use payroll tax credits to cover the cost of leave benefits paid to employees through the end of March 2021. The legislation does not modify the qualifying reasons for which employees may take COVID-related leave, the caps on the amount of pay eligible employees are entitled to receive, or the FFCRA’s documentation requirements. However, an employer will not receive a tax credit for paid leave if an employee exceeds the maximum amount of FFCRA leave, whether that leave was taken in 2020 or 2021.

Upshot for Employers: An employer should consider whether it is in its best interest, and the best interests of their employees and their employees’ families, to continue to offer paid FFCRA leave. In either scenario, the company should draft and communicate its policy — whether it will continue paid FFCRA leave or not — for the benefit of all employees.

Presumably an employer may modify the leave benefit to something less than the amount originally required under the FFCRA and still receive the tax credit, although the U.S. Department of Labor has not yet issued an opinion on such hybrid approach.

2.) COVID-19 Vaccine
On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance that gives private employers the go-ahead to implement COVID-19 vaccine policies that would require employees to be vaccinated as a condition to continue employment, or at the least as a condition to returning to the physical workplace.

The distinguishing feature is that the vaccine is not a “medical examination.” If it were, then the Americans with Disabilities Act (ADA) would be implicated. The ADA limits the ability of an employer to require a medical examination to situations where the exam is “job-related and consistent with business necessity.” But even though a required vaccine does not itself run afoul of the ADA, pre-screening vaccination questions may implicate the ADA’s limitation on disability-related inquiries, because the inquiries may elicit information about a disability.

Upshot for Employers: Employers should consider whether they will require their employees to receive a COVID-19 vaccination when it is available. Health care facilities will likely invoke such a requirement. But nonhealth care facilities should consider many factors before invoking a mandatory vaccine requirement, such as the ability to socially distance in the workplace, the availability and effectiveness of remote work options, and the general duty to keep a safe workplace. In either scenario, the astute employer will inform employees of its policy in writing. An employer that offers the vaccine to its employees should consider the benefit of using a third-party vendor. That vendor should be well-prepared with respect to when it may ask questions before administering the vaccine the ensure that there is no medical reason that would present the person from receiving it.