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It’s hard to keep up with all the recent changes to labor and employment law, especially given the rapid pace at which the new administration has been moving on initiatives impacting the workplace and beyond. For the latest changes and a compliance action plan, here’s a quick review of some critical developments and a checklist of the essential items you should consider addressing in May and beyond.
| _____ | Check out the Fisher & Phillips First 100 Days Report for employers. The first 100 days of any new administration set the tone for what’s to come — and in 2025, that tone has been unmistakable: bold, fast-moving, and deeply consequential for employers. They created this special report —a snapshot of where things stand, where they’re headed, and what your organization should be doing to keep pace. |
| _____ | Stay tuned for more guidance on “disparate impact” claims. For decades, employers could face liability for policies and practices that didn’t intentionally discriminate but had a “disparate impact” on a group of job applicants or employees based on a protected characteristic, such as race or sex. The president is now aiming “to eliminate the use of disparate impact liability in all contexts to the maximum degree possible,” according to an April 23 executive order. Here’s what you need to know about this development and how it may impact your practices. |
| _____ | Prepare for EEO-1 reporting to begin. This year’s collection of EEO-1 reports could begin in less than a month – and will likely not allow employers to categorize workers as “non-binary.” Private employers with at least 100 employees and federal contractors with at least 50 employees should prepare to sort company data by employee job category, as well as by sex and race/ethnicity, to turn over to the EEOC between May 20 and June 24. While these dates are not yet set in stone, the compliance window will be here before you know it. |
| _____ | Safeguard your corporate leaders against rising security threats. Executives are increasingly at risk of becoming targets of violent acts or cyberattacks such as doxing or social engineering, and your organization must think ten steps ahead to ensure the safety of your people and the future of your business. Here’s an overview of executive protection programs and four key steps to help you build yours. |
| _____ | Consider alternatives to the H-1B visa for hiring foreign nationals. You may be disappointed if your candidate was not selected for an H-1B visa in the recent cap lottery – but not all hope is lost. If you employ foreign nationals, the good news is that you can explore certain short-term, long-term, and even some lesser-known solutions. Here are 11 alternatives your organization can use to retain top talent and critical staff, even if your candidate was not selected last month in the FY 2026 H-1B cap lottery. |
| _____ | Review your accommodation request process. A federal appeals court recently clarified that an employee may qualify for a reasonable accommodation under the Americans with Disabilities Act (ADA) even if they can perform essential job functions without such an accommodation. The 2nd Circuit’s March 25 decision in Tudor v. Whitehall Central School District reinforces that the ability to perform essential job functions is relevant – but not decisive – in ADA failure-to-accommodate claims. Here’s what employers need to know about this case. |
| _____ | Slay summer hiring. As the weather gets warmer and you shift your focus to seasonal hiring, you’ll want to be sure to connect with Gen Z applicants, many of whom are college and high school students in search of summer jobs. Here’s your guide to hiring Gen Z this summer. |
| _____ | Prepare for new state sick leave requirements in 2025. Over the past few years, we’ve seen a sharp increase in state-level legislation and ballot initiatives mandating employer-provided leave options for employees with strong voter support. Missouri’s new paid sick leave law took effect May 1, but there is still time to learn more here about how your company can manage this patchwork of state laws. |
| _____ | Track additional state law developments. With so many changes at the federal level, don’t forget to stay updated on state and local developments, too. For example: Now that we’re less than a year away from Colorado having the nation’s most stringent set of laws regulating the use of artificial intelligence in the workplace and elsewhere, some lawmakers are asking whether it’s better to take a step back and cool the jets. Click here to learn about a new bill that was introduced on April 28. Speaking of AI rules, California’s privacy regulator intends to advance sweeping new rules that would govern AI tools used for automated decision-making purposes – but Governor Newsom just stepped in and signaled concern that these rules could stifle innovation and drive AI companies out of the state. A California appellate court handed employers a wage and hour win on April 21 by ruling that meal period waivers prospectively signed by non-exempt employees are enforceable if certain criteria are met. A new law in Florida will make it the most enforcement-friendly state in the country for non-compete and garden leave agreements. Here is what employers should know about the CHOICE Act and three steps you can take to prepare. Ohio has taken a major step toward modernizing workplace compliance after finalizing a new law in April that will allow employers to post certain mandatory labor law notices electronically, as long as they are accessible to all employees. An April 1 decision in Massachusetts offers a textbook example of how employers can work with their trial counsel to limit their financial exposure – even after a trial loss – through thoughtful litigation strategy. |
The Department of Justice (DOJ) withdrew 11 documents providing guidance to businesses on compliance with Title III of the Americans with Disabilities Act (Title III). The DOJ Guidance sets forth how the agency interprets certain issues addressed by Title III of the ADA. Although the guidance has been withdrawn, the law remains the same. Title III requires that covered businesses must provide people with disabilities with an equal opportunity to access the goods or services that they offer.
The DOJ says the documents were withdrawn in order to “streamline” ADA compliance resources for businesses consistent with President Trump’s January 20, 2025 Executive Order “Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis” . According to the DOJ’s press release, the “withdrawal of 11 pieces of unnecessary and outdated guidance will aid businesses in complying with the ADA by eliminating unnecessary review and focusing only on current ADA guidance. Avoiding confusion and reducing the time spent understanding compliance may allow businesses to deliver price relief to consumers.”
The DOJ identified the following guidance for withdrawal:
The DOJ is also “raising awareness about tax incentives for businesses related to their compliance with the ADA” by prominently featuring a link to a 2006 publication.
The withdrawn guidance was prepared before the most recent Title III regulations went into effect in 2011 or deals with COVID-19. It is not expected the DOJ’s withdrawal of the guidance to have significant impact on business operations, but we are closely monitoring the rapid developments from the federal agencies that impact our clients.
As more employers incorporate wearable technology in the workplace, including those enhanced by artificial intelligence, the Equal Employment Opportunity Commission (EEOC)’s new fact sheet “Wearables in the Workplace: The Use of Wearables and Other Monitoring Technology Under Federal Employment Discrimination Laws,” offers important considerations for employers. The EEOC explains how employers can navigate the complexities of using wearable technologies while ensuring compliance, primarily, with the Americans with Disabilities Act (ADA), the Pregnant Workers Fairness Act (PWFA), and to a lesser extent, Title VII and GINA.
What Are Wearable Technologies?
Wearable technologies, or “wearables,” are electronic devices that are designed to be worn on the body. These devices are often embedded with sensors that can track bodily movements, collect biometric information, monitor environmental conditions and/or track GPS location. Common examples of wearables include:
Other examples of wearables that are beginning to be used in the workplace include smart glasses and smart helmets that can measure electrical activity of the brain referred to as electroencephalogram or “EEG” testing or detect emotions. Exoskeletons are also being used to provide physical support and reduce fatigue.
Wearables in the workplace may implicate federal and state employment, data privacy, AI, and potentially other laws when employers require employees to wear them or if the information collected from the employee’s wearable is reported to the employer.
Key Considerations From the EEOC Guidance
The EEOC’s new guidance outlines several important considerations for employers using wearable technologies with employees:
This overview highlights the key points from the EEOC’s new guidance. Employers should review the full guidance to ensure compliance and consult with legal counsel if they have specific questions or concerns. In addition to compliance with discrimination laws, the adoption of wearables and other emerging technologies in the workplace to manage human capital raises a number of additional legal compliance challenges including privacy, occupational safety and health, labor, benefits and wage-hour compliance to name a few.
Courtesy of Jackson Lewis P.C.
The Covid-19 pandemic made us all vulnerable, and many of us are struggling to keep our mental health. In the U.S., the percentage of adults with recent symptoms of an anxiety or depressive disorder increased from 36.4% to 41.5% from 2020 to 2021 — so much so that the U.S. Preventive Services Task Force, an expert panel managed by the Department of Health and Human Services, recommended that doctors screen all adult patients under age 65 for anxiety. The Lancet also estimated that the pandemic caused an additional 53.2 million cases of major depressive disorder globally and an additional 76.2 million cases of anxiety disorders globally.
So, if one of your employees is struggling with their mental health, how do you talk about it? While you will have to have conversations that feel intimate and discomfiting, it’s also not your job to be the office therapist, and you don’t need to have all the solutions when a team member is struggling. Said Daisy Auger-Dominguez, chief people officer at Vice Media Group: “We are not therapists [but] we have to show evidence of care in our engagement with our teams. We also must ensure employees have access to the things that they need to be able to do their work well.”
The good news is that it’s possible to handle mental health conversations without overstepping your expertise. And while it’s natural to worry you’ll start asking the wrong questions or that your employee might ask questions you can’t answer, you can take steps now to create a culture where vulnerable conversations are OK, where boundaries stay in place and where people can get the help they need.
If having conversations about employee mental health makes you nervous, here are three things to remember:
Be Prepared for Vulnerable Conversations
All managers need to be familiar with the basics of privacy practices in the workplace and to have a set of questions ready for when mental health conversations happen.
Jen Porter, COO of the non-profit workplace mental health consultancy, advises to be curious about the impact of an employee’s mental health challenges, not the cause. She said, “You can ask anything you want about the impact of what’s happening on their work and at work. That’s fair game.” What you shouldn’t ask about, she said, is why the employee is having difficulties. Stay away from “what’s going on at home, the deep causes, the health history…anything that falls into that camp. That’s all therapist camp.”
In the U.S., the Americans with Disabilities Act (ADA) offers a basic rule: You can’t discriminate against someone based on health. This means “you can’t force them to talk about their health,” noted Porter. But you can address impacts on work — and the ADA also states employers should provide “reasonable accommodations” to employees with disabilities, including mental illness.
Porter suggested asking open-ended questions and pairing them with non-judgmental observations. “You can ask something like, ‘Hey, I’ve noticed you’ve been absent in our usual meetings, just wanted to check in and see how you were,’ or ‘You’re such an awesome project manager, but a lot of things seem to have been falling by the wayside. I just wanted to check in on you and see if there’s extra support you need or, or if you need to have a conversation with someone.'” These are very human but still about work.
If your employee opens up, however, what do you do? Porter advised, “Clearly they’ve found you to be a person that they trust — well done.” Your job as a manager is to listen, and then enable your employee to get help — but you “don’t want your employee to feel like you’re dropping them or handing them off. … We always recommend a more collaborative approach.”
Auger-Dominguez agreed. “You can say, ‘I’m feeling a little bit over my head right now. If it’s ok with you, I’ll reach out confidentially to HR to make sure that I’m giving you all the support that you need. And let’s meet again in a week.'” You might even suggest that you and the employee walk down to the HR office or connect to a mental health employee resource group. “Just because they’re getting support from someone somewhere else doesn’t mean that they’re [still] not getting support from you,” Auger-Dominguez noted. “It just means that they’re getting support from multiple places and you can focus on where you can give the right support, which is in a work-related context.”
If there’s low trust in HR within an organization, Porter suggested connecting an employee to a peer-based group which tends to have higher trust among employees. “Often people in those groups will have worked with HR or will have tried out the mental health benefits. And sometimes that storytelling and normalizing can be super helpful.”
Set and Protect Boundaries
Whenever you talk about mental health, personal boundaries come into play — the limits and rules we set for ourselves in our relationships. When we cross our own or others’ boundaries, things can feel uncomfortable, emotionally draining and just not right. Many managers fear becoming their employees’ go-to resource for mental health challenges because instinctively we know that our boundaries will be crossed, which will zap our own energy and mood. This might lead us to avoid having vulnerable conversations with members of our team.
However, there is a way to have these conversations and protect boundaries, said clinical psychologist Dr. Emily Anhalt. When it comes to addressing how people should share in a work setting, Anhalt suggested using “boundaried vulnerability”: sharing enough with others to invite connection, without sharing so much that you or your team has an emotional hangover.
The idea, Anhalt said, is that “There’s a spectrum from too tight to too leaky. Too tight is when we don’t let ourselves show up as humans at work. When we’re going through a really tough time and someone asks how we’re doing and we say ‘I’m good, everything’s fine. I don’t know what you’re talking about.'” This doesn’t work well because people are perceptive and may feel like we’re shutting off possibilities for authentic connection. Too leaky is when people “evacuate so much of their emotional stuff at work that it puts other people in a position of being their therapist or fixing something they don’t have the responsibility to fix.”
Let’s say a person is going through a messy divorce. They’re really overwhelmed and it’s affecting their work. If they pretend everything is fine, that’s too tight of a boundary and not reality. You and your colleagues actually want to know how the person is doing! But on the other end of the spectrum, saying something like “My spouse is just being absolutely horrible to me, and I don’t know what I’m going do about it. Every day I wake up and I don’t know how I’m going get through the day and I get here and it’s just more of the same. What do you think I should do? How should I handle it?” — that’s too leaky.
What’s the middle ground? Anhalt said the boundaried vulnerability version would be for the person to say something like, “To be honest, I’m actually going through some really tough stuff at home. It’s definitely affecting how I’m showing up at work. I’m getting support with it. But what I’d really love from you, if you’re open to it, is a little bit of extra time on that deadline? Is that doable?”
As managers, we can model boundaried vulnerability. If someone comes to us in a puddle, we can say, “I can tell that you’re going through a lot, and I want to make sure that you get the support you deserve for this.” In this situation, we’re modeling own boundaries while also helping the person move to the most appropriate next steps. Auger-Dominguez said you can also keep boundaries and support an employee by holding structured time open for them. If you learn about a mental health crisis during a one-on-one check-in, you can end that meeting by saying something like: “Our next scheduled meeting is five days from now. Is it okay to wait until then? Or would you like to check in earlier?” Then, honor their preference and show up for them at their desired time.
Further, as you set your own boundaries, it’s important to understand that our own anxieties and challenges may be triggered by leaning in to help our employees, said Arti Kashyap Aynsley, global head of health and wellbeing at Ocado Group. Managers want to “lean into being empathetic and compassionate, but we have tasks and deliverables and things that need to get done,” and there are only so many hours in the day. Managers can provide support and guidance, but other professionals in your organization likely have time and training dedicated to help employee mental health.
However, she noted, because rates of mental ill health are so high, and so many people need additional support, companies also need to give managers the time to accommodate increased needs of their teams. It’s not fair to expect managers to support their teams’ needs while not building in space for these conversations to happen.
Showing Up Is the Most Important Thing
Perhaps the most important thing a manager can do to support employees is to show up and listen, and then figure out what your employee needs.
Auger-Dominguez said if a team member seems “a little wobbly,” she asks a simple question: “Do you need me to witness, help or distract you right now?”
This is important, “because if we get clear on that, I’m also normalizing asking what people need, rather than making an assumption. It also creates clarity on what the expectation is from me as their manager. Sometimes they just want me to witness, so it’s not about me solving for anything. It’s just about them. If they want help, I’m going to help them get the resources they need.” And if the employee needs a distraction, Auger-Dominguez might say, “Hey, let’s go for a walk or coffee.” This strategy also helps develop your employees’ agency; that way, they feel empowered to ask for help, versus you trying to assume what they need.
The conversations you have with your employees are the culture you create. Dr. Thomas Insel, former director of the National Institutes of Mental Health, said that only 10% of mental health outcomes are a result of clinical mental health care. The determinants of mental health are broader and societal, and our workplaces are a huge factor in our mental health. Mentally healthy workplaces want employees to feel valued, heard, impactful — and to have agency over their time, work and decisions.
So, remember: You don’t need to be the office therapist. You just need to be ready to listen.
During a special legislative session, Florida just passed a new law banning private employers from mandating COVID-19 vaccines unless several exemptions are offered to employees. The law, signed by the governor on 11/18/21, comes as OSHA’s national emergency temporary standard mandating vaccines is embroiled in legal challenges. What do Florida employers need to know about this new law, which takes effect immediately?
Who is Covered and What Does It Do?
The law applies to all private employers in Florida, regardless of size. It prohibits those employers from requiring employees to get vaccinated against COVID-19 unless various exemptions are offered.
What are the Exemptions?
Some of the exemptions in the new law will sound familiar to employers. Others are unique. If an employer receives a statement from an employee (as described below), they must allow the employee to opt-out of the vaccine mandate. The Department of Health will be creating template forms for each of these exemptions.
This includes for reasons of pregnancy or anticipated pregnancy. To receive a medical exemption, an employee must submit a signed statement by a physician or physician assistant that vaccination is not in the best interest of the employee. While not addressed in the legislation, we suspect that this exemption will function similarly to those provided for disabilities under the Americans with Disabilities Act (ADA).
An employee must present a statement that they decline the vaccine because of a “sincerely held religious belief.” Although that term is undefined, it likely refers to sincerely held religious beliefs as understood under federal lawA.
An employee must show “competent medical evidence” that they have immunity to COVID-19, which is documented by the results of laboratory testing on the employee. The law does not state what “immunity” is but directs the Department of Health to establish a standard for determining that immunity.
An employee must provide a statement indicating that they will comply with the employer’s requirement to submit to regular testing. Although “regular testing” is not defined, the law directs the Department of Health to adopt emergency rules specifying requirements for frequency of testing. Importantly, any testing must be at no-cost to the employee.
Because this exemption has no ties to existing federal law such as Title VII and the ADA, and the law does not address any “undue hardship” defense, it is likely that an employer cannot decline to pay for the testing if there is a charge the employee would otherwise incur.
An employee must present a statement that they agree to comply with the employer’s reasonable written requirement to use employer-provided personal protective equipment when around others. “Personal protective equipment” is not defined. It is unclear whether the use of the term would implicate OSHA regulations or CDC guidance on “personal protective equipment.”
But What About Federal Law?
The CMS Rule and Federal Contractor vaccine mandate requirements, which both require that covered staff be vaccinated and only allow for exemptions for medical conditions (ADA) and sincerely held religious beliefs (Title VII), should preempt this Florida law to the extent the laws directly conflict. The CMS Rule explicitly provides that it preempts state and local laws.
If OSHA’s ETS survives in the courts, it is likely that Florida’s new law will conflict with the OSHA ETS at least in so far as an employer (with 100 or more employees) might want to implement a mandatory vaccination policy instead of allowing employees to choose to be vaccinated or undergo weekly testing. However, the scope of that conflict is unknown and will depend on the final terms of the ETS if it survives.
How is the Law Going to be Enforced?
Florida’s vaccine mandate law will be enforced by the Department of Legal Affairs, in the Attorney General’s office. Employees can file complaints that an exemption was not offered or was improperly applied or denied, which will then be investigated. If the Department finds a violation, it must notify the employer of its determination and allow the employer the opportunity to cure the noncompliance. If the Department finds that an employee was improperly terminated and the employer does not restore the employee to their position with back pay, then the Department may fine the employer up to $50,000, depending on employer size and other factors. Employees who are wrongfully terminated may also be entitled to unemployment benefits. The Department of Legal Affairs will be issuing rules to further flesh out the complaint and investigation process.
What We Don’t Know Yet
There are many unanswered questions. For example, the new law does not address workers’ compensation claims and remains an open question whether an employee’s side effects to a mandated vaccine is covered by workers’ compensation.
What About Public Employers or Schools?
The legislature also passed statutes banning vaccine mandates for public employees and prohibiting any public educational institution or elected or appointed local official from imposing a COVID-19 vaccination mandate for any student. Unlike private sector employers, public sector employers are prohibited from mandating the vaccine — even if they offer the enumerated exemptions.
There are also provisions prohibiting public schools from requiring a student to wear a face mask, a face shield, or any other facial covering. Instead, such issues are left to the parent’s sole discretion. Further, the law prohibits public schools from barring any student or employee from school or school-sponsored activities or subjecting them to other disparate treatment based on an exposure to COVID-19, so long as the student or employee remains asymptomatic and has not received a positive test for COVID-19.
What Employers Can Do
Importantly, the law is not an outright prohibition on vaccine mandates. Private employers can still have a vaccine mandate, so long as you offer the various exemptions discussed above.
Neither does the law prohibit employers from “stacking” their COVID-19 prevention and mitigation efforts. Meaning, for example, you likely can still require both use of PPE and regular testing in order to protect its workforce. In other words, the statute is a ban on vaccine mandates without certain opt-out accommodations, but it is not a ban on your organization opting to require testing and/or continued use of PPE.
It is worth noting that this new law does not address employers’ immunity against COVID-19 claims. In March 2020, Florida passed a law granting businesses immunity from COVID-19 claims. Absent any more specific legislation, if an employer meets the standards of the immunity law (specifically, demonstrating good faith effort to comply with government-issued health guidance), the language of the immunity law is clear that the employer is immune from civil liability. This new law does not affect that.
You should also keep an eye out for the implementing rules to be issued by the various state agencies. According to the statute, such rulemaking must occur initially by filing emergency rules within 15 days after the effective date of the statute, followed by regular rulemaking thereafter. For the next 15 days (unless the Department of Health files its emergency rules earlier), employer COVID-19 vaccination mandates are deemed invalid under this statute.
What’s Next?
This new law is yet another issue facing employers, who are increasingly confronting a myriad of conflicting orders at the state and federal levels. Unfortunately, the issue of COVID-19 vaccines in the workplace remains incredibly fluid and will surely continue to evolve through the holiday season. As always, we will continue to monitor the situation regarding employers’ vaccine mandates and provide updates as warranted.
The Department of Labor (DOL) has launched a new concentrated outreach initiative. For business owners, that means the DOL has promised to actively reach out via radio announcements, social media platforms and neighborhood posters informing employees of their rights under the Fair Labor Standards Act (FLSA).
You may now be thinking “What does that have to do with me? I pay my employees to work”. While this may be mostly true, often we (or our managers) inadvertently allow or encourage our employees to work off the clock. Before your internal defenses kick into high gear, let me provide a few examples of how this could occur:
Over the past year, business owners and managers have dedicated their time, energy and focus to keeping the essential business doors open or attempting to reopen and get employees back in the office. To allow employees to safely return to work, you have had to operate/reopen your business within CDC guidelines, transition your business to accommodate a remote workforce, follow OSHA’s recommendations, keep up with Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic, as well as the interaction between the Americans with Disability Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). It is no wonder some of our focus on day-to-day compliance may have slipped.
My company’s mission is to be The Employer Advocate. Under the new administration, changes are happening at lightning speed and, as your advocate, we are here to help you navigate through changes as they occur. Administrators Advisory Group (AAG) is a benefits brokerage that works with small to mid-size businesses, specializing in human resources compliance. We work alongside your human resource team to keep you up to date with the latest workplace rules and regulations.
The Department of Labor (DOL) campaign is the first in our four-part series designed to let you know what changes have taken place that may affect your business. In the following weeks, we will cover changes regarding the Family First Coronavirus Response Act (FFCRA) as amended under the CARES Act, changes occurring within OSHA, and a new federal taskforce created whose goal is to unionize your employees.
While Wage & Hour rules have not changed, the informational outreach by the DOL has just begun. The biggest change comes in the form of visibility and accessibility of the information, beginning with the revamp of their website. The DOL has promised to proactively reach out to employees using radio public service announcements, national webinars, social media messages, and posters.
Reminding employers and employees alike that employees must be paid for ALL hours worked is the center of this outreach! Even if you don’t ask an employee to work overtime, even if it’s done remotely, and even if you aren’t aware (but should have been), the employee is entitled to be paid.
Wage & Hour rules can be one of the many landmines that employers have to navigate on a daily basis. With AAG on your side, we will help you ensure you are prepared in case the DOL shows up on your doorstep. Let us know if you have questions or would like to review some of your existing practices or policies.
The EEOC kicked off the unofficial start of summer with a bang by clearing the way for employers to offer their employees incentives to get the COVID-19 vaccine in new guidance released on the eve of the Memorial Day weekend. The May 28 updates to the agency’s COVID-19 Technical Assistance guidance now provides employers with two clear options, drawing a key distinction based on who administers the shot:
Regardless of which path you travel, there are still hoops to jump through if you want to provide vaccine incentives – providing accommodations, ensuring confidentiality, etc. – but you now have a clear direction to take to encourage your workers towards vaccination. What do you need to know about this critical update?
Why Was This Guidance Necessary?
Before we take a deeper dive into discussing the options and other considerations, some employers may be wondering why this guidance was even necessary. Couldn’t you just offer some cash or PTO or some other reward to induce employee behavior without concern about the legal ramifications?
The main sticking point troubling employers for months concerned wellness program rules. Historically, the EEOC has indicated it didn’t want employers to force employees to make medical-related decisions through the use of incentives. Until this latest guidance, the EEOC believed that too significant of an incentive could coerce employees to participate, thus leading to legal violations if employees are “forced” to disclose protected medical information to gain the incentive. Through rules, guidance, and federal litigation, the EEOC has taken steps to ensure that any employment decisions in this regard were genuinely voluntary.
Earlier this year, the EEOC issued a proposed rule expressly permitting only de minimis incentives as passing muster under participatory wellness programs. The proposed rule contained language referring to a permissible incentive as a “water bottle” or something of equivalent value. However, the Biden administration withdrew the proposed rule under a regulatory freeze typically seen when new leadership takes charge at the White House. The proposed rule is still pending review and it is unclear when or what form it may re-emerge. Against the backdrop of this uncertainty, employers have been attempting to navigate the thorny path of vaccine incentives, concerned that offering robust incentives could bring about a higher legal risk. At the urging of business groups seeking clarity on the matter, the EEOC finally heeded the call and provided the certainty that employers have been craving.
Option 1: Unlimited Incentives
Under the first option, you are seemingly permitted to provide unlimited incentives to your workforce so long as your employees voluntarily provide you with documentation or other confirmation they received the COVID-19 vaccine, and they received the vaccination on their own from a third-party provider that is not an “agent” of your organization. The EEOC describes such third parties as pharmacies, public health departments, or other health care providers in the community.
Option 2: Restricted Incentives
On the other hand, if employees are voluntarily vaccinated by you or your “agent,” you can offer only incentives that are “not so substantial as to be coercive.” Which leads to two questions: what is an “agent,” and how substantial is “substantial”?
Definition of “Agent” and How to Avoid This Designation
Definition of “Substantial” and How to Avoid Violations
Other Considerations
Whichever path you take, there are several other considerations to keep in mind when offering vaccine incentives based on voluntary inoculations.
Accommodations
Some employees may have legitimate medical or religious reasons not to get vaccinated, and failure to provide them with the same types of incentives could lead to claims under the Americans with Disabilities Act (ADA) or Title VII. You will need to consider offering alternative means by which an employee can earn an incentive if they cannot be vaccinated due to a disability or sincerely held religious belief. Alternative ways to earn the incentive might be watching a workplace COVID-19 safety video or reviewing CDC literature on mitigating the spread of COVID-19 in the workforce.
Confidentiality
Once you gather information from employees about whether they have been vaccinated or not, you must maintain confidentiality. You should maintain the records as you would any other medical-related documentation (in a separate file, accessible to only those who need to know, etc.) and comply with all other state-specific privacy rules (such as in California).
Family Members
While you can offer an incentive to employees to provide documentation or other confirmation from a third party not acting on your behalf that their family members have been vaccinated, the EEOC confirmed that you may not offer incentives to your employees in return for their family members getting vaccinated by your organization or your agent. This would be considered a violation of the Genetic Information Nondiscrimination Act (GINA) Title II health and genetic services provision. Asking pre-screening medical questions would lead to you receiving genetic information in the form of family medical history of the employee, and GINA regulations prohibit employers from providing incentives in exchange for genetic information. However, you can still offer an employee’s family member the opportunity to be vaccinated by your organization or your agent if you take certain steps to ensure GINA compliance.
Possible Incentives to Consider
If you are now considering what kind of incentives to offer your workforce in light of this new guidance, you might find comfort knowing that employers’ two most common incentive options include cash/gifts (38%) and paid time off (30%). This is according to an FP Flash Survey conducted earlier this year, which found that more than one in five employers were providing vaccine incentives. That number is bound to rise given that close to half of all respondents (43%) said they were unsure about whether to offer some form of incentive, many commenting that the then-current legal uncertainty fueled their hesitancy.
Now that the country is on course to see all adult Americans eligible for COVID-19 vaccination in a matter of days, and an increasing number of employees are returning to the workplace, vaccination status is likely to be an increasingly common topic over the coming weeks and months. Which leads to these inevitable questions: when and how can employers ask their workers whether they’ve been vaccinated without getting into hot water? Whether it’s an innocent question asked while trying to make conversation or an inquiry posed to determine whether someone can return to normal duties, you need to understand your legal rights and obligations regarding this serious topic. Missteps can easily lead to legal complications.
A Simple Vaccine Question is Okay, But Be Wary of Going Further
The Equal Employment Opportunity Commission has indicated in recent guidance that it is generally permissible for employers to ask employees about COVID-19 vaccination status. That’s because this simple question alone is not likely to elicit information from the employee about possible medical conditions, an inquiry that otherwise would invoke federal or state disability laws.
And in many cases, the answer to that question alone may be all you really need. If you don’t really need to know anything beyond a simple “yes” or “no” to the question of whether they have been vaccinated – and in most cases, you won’t – the EEOC suggests warning employees not to provide any other medical information in response to your question to make sure you don’t inadvertently receive more information than you want.
If you require proof of vaccination, you should ask the employee to provide documentation from the immunization source showing the date(s) the vaccine was administered. To avoid potential legal issues related to this process, you should affirmatively inform employees that they do not need to provide any additional medical or family history information. The documentation you receive should be treated as a confidential medical record.
But issues could arise if you venture further than asking this simple question. Asking follow-up questions could trigger obligations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) depending on a variety of factors, so you need to tread cautiously if you take the questions any further.
Going Further with Your Inquiries
That’s not to say you can’t or shouldn’t ask anything further than eliciting a simply yes-or-no answer. There may be circumstances where it is advisable or even necessary to ask more. In those cases, the key considerations relate to the kinds of questions posed and the kinds of responses provided. These are the situations that raise potential legal issues that will likely require you to confer with your lawyer.
Questions about why the employee isn’t vaccinated
If you need information about why the employee has not yet been vaccinated, you might end up eliciting information about the employee’s medical status. Therefore, you can only pose such questions if they are “job-related and consistent with business necessity.” As the EEOC has said, you meet this standard if you have a reasonable belief, based on objective evidence, that an employee who is not vaccinated would pose a direct threat to the health or safety of themselves or others. This can be a challenging and complicated hurdle to clear. You should coordinate with legal counsel to determine whether you can meet this standard in your situation.
If you are treating workers differently based on vaccination status – for example, not allowing them to participate in certain work activities, work in certain locations, interact with the public or other employees, etc. – and you have confirmed with counsel that you have a valid justification for doing so, you may need to ask additional questions to assist with an interactive process. It may be that you need to provide reasonable accommodations to those workers unable to be vaccinated due to underlying medical conditions or sincerely held religious justifications. Each situation will require a case-by-case, fact-specific analysis, and you should be prepared to engage in substantive interactive process discussions related to any accommodation requests.
Questions about how the vaccination process went
If your managers are asking follow-up questions to find out how the employees fared after vaccination – especially after the second dose of Moderna and Pfizer vaccines – you need to recognize that this can be a slippery slope. Such questions could reveal information related to disability status (see above) that you would otherwise not want to know about. Caution your managers to tread carefully when asking such questions, even if their intent is innocent, and train them to know what to do if they receive information that should lead to human resources involvement.
Questions to help with an employee leave program
It is always permissible for your managers to ask about the medical status of an employee in order to help administer an employee leave program that includes absences for vaccine side effects, whether due to federal or state law or due to company policy. As with any such inquiries about medical status, however, make sure your managers know that they need to keep the information confidential to protect the privacy of any medical records received, and to only ask questions that lead them to gather the type of information necessary.
What Steps Should You Take Right Now?
Federal and state anti-discrimination agencies have issued guidance for employers that want to require workers to get a COVID-19 vaccine—but at least one lawsuit has claimed that employers can’t mandate a vaccine that is approved only for emergency use. While this argument might not hold up in court, employers should be aware of the risks associated with a vaccine mandate.
When employees refuse a vaccine, the employer should address their concerns and explain the reasons why the company has adopted a mandatory vaccination policy. An open dialogue and education will be key, as will following FDA updates in this regard and consulting with legal counsel.
There are many reasons why an employee may be unwilling to receive a COVID-19 vaccine, and employers may need to explore reasonable accommodations, particularly with employees who have disability-related and religious objections to being vaccinated.
Distribution of COVID-19 vaccines has been issued under the Food and Drug Administration’s (FDA’s) Emergency Use Authorization (EUA) rather than the FDA’s usual processes. But the FDA has said that the vaccine has met its “rigorous, scientific standards for safety, effectiveness and manufacturing quality” and that “its known and potential benefits clearly outweigh its known and potential risks.”
An employee who recently filed a lawsuit challenging an employer’s vaccine mandate argued that the EUA states that people must have “the option to accept or refuse administration of the [vaccine]” and be informed “of the consequence, if any, of refusing administration of the [vaccine] and of the alternatives to the [vaccine] that are available and of their benefits and risks.”
Although the employee in the case works in the public sector, many employment relationships in the private sector are at-will, which means either the employer or the worker can terminate the employment for any lawful reason. An employer that mandates a vaccine may argue the consequence of refusing a vaccine is being fired.
“Consensus in the legal community has been that, at least in the private sector, employers may require at-will employees to be vaccinated, subject to accommodations that may be required for medical or religious reasons,” said Kevin Troutman, an attorney with Fisher Phillips in Houston, and Richard Meneghello, an attorney with Fisher Phillips in Portland, Ore.
The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance indicating that employers generally can mandate COVID-19 vaccinations. “The EEOC specifically addressed vaccinations that are authorized or approved by the FDA,” noted Anne-Marie Vercruysse Welch, an attorney with Clark Hill in Birmingham, Mich.
The California Department of Fair Employment and Housing (DFEH) also recently said that the Fair Employment and Housing Act (FEHA) generally allows employers to mandate vaccines that have been approved by the FDA. The DFEH specially noted that the FDA has authorized and recommended three COVID-19 vaccines—all of which have been authorized under an EUA.
But vaccine mandates may still be risky for employers. It is possible that employees who are terminated for refusing to receive a vaccine authorized by the FDA under an EUA could try to pursue claims for wrongful termination in violation of public policy. The viability of such claims will depend on applicable state law regarding a potential public policy exception to at-will employment and how courts—state and federal—construe the EUA wording.
The regulatory framework is still unclear and a number of states are considering legislation that would prohibit employers from requiring employees to receive a COVID-19 vaccine. If these bills become law, the uncertainty regarding the EUA issue will become moot in those states, at least as of the time the laws go into effect.
The EEOC issued guidance stating that employees may be exempt from employer vaccination mandates under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws.
California’s guidance noted that the FEHA prohibits employers from discriminating against employees or job applicants based on a protected characteristic—such as age, race or sex—and requires employers to explore reasonable accommodations related to a worker’s disability or sincerely held religious beliefs.
“If an employee has a medical condition or sincerely held religious belief that would prevent them from being able to be vaccinated, their employer must go through the interactive process to determine if a reasonable accommodation is available,” Welch said. She recommended that employers have accommodation forms available to employees to begin the interactive process and document the steps the employer took to attempt to arrive at a reasonable accommodation.
Accommodations could take various forms, depending upon the employee’s job and setting. Employers may offer remote work, change the physical workspace, revise practices or provide a leave of absence. In each situation, the employer must determine whether an accommodation would enable the employee to safely perform the essential functions of their job.
Some employees might refuse to receive a vaccine for reasons that aren’t legally protected, such as a general distrust of vaccines. Employers need to be very thoughtful as they consider whether to mandate vaccines because employers may have to fire a material portion of their workforce who refuse to be vaccinated or allow some employees to ignore a company policy–which can lead to discrimination risks and employee morale issues.
“Most employers are encouraging vaccination rather than requiring it,” Welch observed.
Coburn recommended that employers focus on the following measures to encourage employees to receive a vaccination:
Employers that want to offer incentives should be mindful of wellness program limitations and offer alternative ways for employees who cannot get vaccinated to receive the incentives, Coburn noted.
Employers wanting to require workers to get a COVID-19 vaccination should be prepared to respond to workers’ concerns and make reasonable accommodations under federal and state law.
Mandating vaccinations could have benefits for employers and employees alike. Vaccinations will likely decrease the risk of spreading the virus in the workplace, reduce absenteeism, increase productivity and decrease employee health care costs. On the other hand, employees may react poorly to mandatory vaccination policies.
“Most employers are choosing to inform, educate and encourage their employees to consider the vaccine,” observed Katherine Dudley Helms, an attorney with Ogletree Deakins in Columbia, S.C. However, she noted, there may be industries where vaccination is critical and a mandatory approach makes sense.
“Even then, employees should be informed and educated as to why the business felt that approach was necessary,” she said. “If the employer has made the vaccine mandatory, it needs to be sure that it is ready to terminate or otherwise address employees who refuse and who are not entitled to a reasonable accommodation.”
Employers that require vaccinations may face discrimination claims if they deny accommodation requests based on medical or religious objections.
The Equal Employment Opportunity Commission (EEOC) issued guidance stating that employees may be exempt from employer vaccination mandates under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws.
Under the ADA, an employer can have a workplace policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”
If a vaccination requirement screens out a worker with a disability, however, the employer must show that unvaccinated employees would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.
Title VII requires an employer to accommodate an employee’s sincerely held religious belief, practice or observance, unless it would cause an undue hardship on the business. Courts have said that an “undue hardship” is created by an accommodation that has more than a “de minimis,” or very small, cost or burden on the employer.
The definition of religion is broad and protects religious beliefs and practices that may be unfamiliar to the employer. Therefore, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief,” according to the EEOC.
Helene Hechtkopf, an attorney with Hoguet Newman Regal & Kenney in New York City, said an employer will need to evaluate the employee’s job functions, whether there is an alternative job that the employee could do that would make vaccination less critical and how important it is to the employer’s operations that the employee be vaccinated.
Employers that mandate vaccines will have more issues to consider beyond providing reasonable accommodations. For instance, can an employer be held liable if a worker has an adverse reaction to the vaccine?
A severe allergic reaction to the vaccination is possible but rare, according to the U.S. Centers for Disease Control and Prevention (CDC).
“If an employer mandates vaccines, there is likely coverage for injury or illness under the employer’s workers’ compensation policy, but employers should check with their carriers,” Hechtkopf said. “If an employer merely encourages employees to obtain a vaccine, coverage under workers’ compensation policies may not be available.”
Employers must also be careful about collecting medical information. “If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own healthcare provider, the employer cannot mandate that the employee provide any medical information as part of the proof,” according to the CDC.
Additionally, Helms noted, a number of states are contemplating legislation that would prohibit businesses from making the COVID-19 vaccination mandatory. So employers will have to monitor the rules in each applicable location.
Employers that plan to require employees to get a vaccine should develop a written policy, Hechtkopf said.
If a significant portion of the workforce refuses to comply with a vaccine mandate, the employer will be put in the very difficult position of either adhering to the mandate and terminating the employees or deviating from the mandate for certain employees, noted Brett Coburn, an attorney with Alston & Bird in Atlanta. This can increase the risk of discrimination claims.
“Rather than implementing mandates that could lead to such difficult decisions, employers may wish to focus on steps they can take to encourage and incentivize employees to get vaccinated,” he said. For example, employers may want to:
Regardless of whether the policy is for mandatory or voluntary vaccinations, Helms said, employers should communicate clearly and often with the workforce as to why the company believes that vaccinations are important and let employees know that other COVID-19 precautions remain in place.