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Employment Law

EEOC Guidance Regarding Mandatory COVID-19 Vaccinations

December 28, 2020

With the first vaccines for COVID-19 being administered last week, the U.S. Equal Employment Opportunities Commission (“EEOC”) issued new guidance in a publication titled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws. Employers generally have had the right to set health and safety requirements, including mandatory vaccinations, if they are a “business necessity”.  Although the EEOC has not yet issued specific guidance on which employers may require vaccinations as a business necessity, it is expected that certain sectors that already require a flu vaccination will also be able to mandate a COVID-19 vaccination. In its guidance, the EEOC reiterates that employers must provide accommodations and exceptions for those with disabilities and sincerely held religious beliefs. Employers may not discriminate, terminate, or retaliate against those with such disabilities or religious beliefs. 

Due to the severity of COVID-19 and as the vaccine becomes more readily available, employers of essential sectors who haven’t had vaccination mandates in the past such as food production, grocery, retail, or education could decide that it is, in fact, a business necessity to require a COVID-19 vaccine. If this is the case, the following should be considered:


First, for those of you representing employees of private sector employers, there are important legal issues arising under the Act. It appears clear that Unions will have the right to bargain over any mandatory vaccination program which the Employer may roll out.  Indeed, this very issue was addressed by the NLRB in Virginia Mason Hospital, 357 NLRB 564 (2011).  Therein, the Board expressly concluded that (A) employer implemented vaccination programs are a mandatory subject of bargaining and (B) the obligation to bargain over a vaccination program extends both to the origination of the program as well as its implementation.  In other words, bargaining over vaccination programs should start with the decision itself and is not limited to effects bargaining.  Similar legal requirements exist in the public sector.


The EEOC has identified two principal exemptions to a mandatory vaccination requirement: disabilities under the ADA and sincerely held religious beliefs under Title VII. If a vaccine requirement would apply to an employee with a disability, a reasonable accommodation should be provided such as increased PPE upon the employee’s request. The employer cannot terminate an employee in such a case and cannot exclude the employee from the workplace unless there is no possible way to provide a reasonable accommodation. If the threat cannot be reduced, the EEOC states the employer can disallow their physical presence but clearly holds the employer cannot automatically terminate the employee. The employee should be offered remote work or may be entitled to leave under a local COVID-19 relief act, FMLA, or other employer policy. Similarly, if an employee chooses to not answer the employer’s screening questions regarding a disability, the employer may not retaliate against or threaten the employee, and ADA protections may still apply. If an employee indicates they will not vaccinate for religious reasons, the employer must provide a reasonable accommodation unless it would pose an undue hardship. While providing a safe workplace and protecting workers' health is important, all policies adopted should be clear, non-discriminatory, and comply with the requirements of your collective bargaining agreement.

However, keep in mind that if an employee refuses to undergo vaccinations, the likelihood of success on a claim is very remote.  We would estimate only about ten percent (10%) have a chance of prevailing. Those who are granted waivers to vaccinations appear to be an extraordinarily narrow exception to the general rule which is that both private and governmental employers have the right to require their employees to undergo vaccinations as a term and condition of employment (subject to any collective bargaining obligations).

Unions May Apply for Economic Injury Disaster Loans until March 31, 2021

December 27, 2020

On December 27, 2020, the omnibus 2021 Consolidated Appropriations Act was signed into law. Title III of the law, Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act, extends and reauthorizes the Paycheck Protection Program ("PPP") and Economic Injury Disaster Loan program ("EIDL") initially provided under the CARES Act. The new deadline to apply is March 31, 2021.

Although PPP was not made available to labor organizations, it does seem that the EIDL may well be available and we are encouraging our labor union clients who believe they may need such relief to apply. These loans are made available to "private nonprofit organizations," an undefined term that tax lawyers are interpreting to include labor organizations and other non-charity nonprofits. 

Your Accountant or our firm can assist in the application process.

The maximum loan amount is the lesser of (a) the actual economic injury to the organization as determined by the SBA or (b) $2,000,000. An organization may request as an advance on the loan an emergency grant of up to $10,000 to be provided within three days after application for the loan. The interest rate is 2.75% for non-profits.

These loans may be used to pay fixed debts, payroll, accounts payable and other bills that cannot be paid because of the disaster’s impact. They may also be used, among other purposes, for: paid sick leave to employees unable to work due to the direct effect of COVID–19; maintaining payroll to retain employees during business disruptions or substantial slowdowns; rent or mortgage obligations; and obligations that cannot be met due to revenue losses.

Employers Cannot Always Make Employees Use Paid Time Off While on FMLA/CFRA

March 12, 2019

Since the FMLA came into existence, employers have frequently required employees on FMLA to utilize sick leave, vacation and other forms of PTO (“paid time off”) concurrently with FMLA. 

When this issue comes up, and it continues to do so, the question to be answered is whether the FMLA leave is, in fact, unpaid. FMLA regulations provide that if during FMLA leave an employee also receives benefits, in any amount, from a disability plan or workers’ compensation, the FMLA leave is not unpaid. Because the FMLA’s general rule permitting employers to require employee substitution of paid leave only applies to unpaid FMLA, during periods of FMLA when any income replacement is received, employers cannot require employees to substitute paid leave. This exception to the FMLA general rule applies regardless of the amount of income replacement received. The same principles apply to leave under the California Family Rights Act (CFRA), which is the state law version of the FMLA.

For example, if an employee taking FMLA/CFRA leave is also receiving California State Disability Benefits (“SDI”) that replace a portion of their income, the employer may not require that the employee use PTO to make up for the portion of income not covered by the disability benefits. The employee can, however, be required to use paid leave during a waiting period before disability benefits are received, because the limitation is triggered by the receipt of income replacement benefits.

This issue was at the center of Repa v. Roadway Express, Inc., a 2007 7TH Circuit case.  Alice Repa suffered an injury that required surgery and a six-week absence from work. During the leave, Repa received a weekly $300 disability benefit through a private third-party disability plan. While she was on FMLA, her employer required her to use vacation and sick leave. Repa sued seeking to have her sick leave and vacation benefits restored. Repa was awarded summary judgment as the Court held that an employer’s ability to require an employee to substitute paid leave during FMLA is limited if, during FMLA leave, the employee also received disability benefits. While Repa, during her FMLA leave, could have elected to substitute paid leave at the same time she was receiving disability benefits, it was unlawful for her employer to require her to do so.

While this limitation is not new, it is commonly overlooked by employers especially where a collective bargaining agreement (“CBA”) or past practice allows for concurrent use of PTO with FMLA/CFRA time, without making the appropriate distinction.  It is our position that any such provision in a CBA would have to be interpreted in accordance with federal and state regulations. If your employer is requiring you to use PTO concurrently with FMLA or CFRA and you are also receiving a public or private form of disability benefit as full or partial income replacement, including Workers Comp, you may have a good claim. You have the right to file a complaint with the United States Department of Labor Wage and Hour Division (which enforces the FMLA) and the California Department of Fair Employment and Housing (which enforces CFRA). You also have the right to file a lawsuit in federal or state court. Importantly, if you win the lawsuit, your employer may be required to pay your attorneys’ fees as well as actual damages. If you believe your employer is violating your rights under the FMLA or CFRA, you should contact us for assistance.

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