As more workplaces reopen and Covid-19 vaccinations become available to everyone over the age of 16 years, employers must decide whether to establish mandatory or voluntary vaccination policies. See “What Questions Do Employers Need To Ask About Covid-19 Vaccinations?” A recent poll conducted by the Society of Human Resource Management (“SHRM”) reveals that 52% of workers support policies that require Covid-19 vaccinations as a condition of employment. It further discloses that 63% of the employees surveyed stated their intention to get vaccinated as soon as the vaccine becomes available. [SHRM Survey: Some Workers Favor Required Vaccinations]. Employers with voluntary vaccination policies or those who require them but leave where to get vaccinated up to their workers received good news recently. The American Rescue Plan Act [Text – H.R.1319 – 117th Congress (2021-2022): American Rescue Plan Act of 2021 | Congress.gov | Library of Congress] (“ARPA”) allows them a tax credit to provide paid time off to workers to get vaccinated and for vaccination related illnesses. In addition, the Occupational Safety and Health Administration has recently provided guidance, which states that employers who recommend, but do not require Covid—19 vaccinations, need not report any illnesses related to such vaccinations on an OSHA Form 300.
- Employers May Claim Tax Credits If They Allow Employees Paid Leave for Covid-19 Related Reasons between April 1 and September 30, 2021.
The ARPA permits employers with fewer than 500 employees to claim tax credits for paid leaves granted to their employees for any of eight reasons. These reasons include the same ones originally recognized in the Families First Coronavirus Response Act, (https://www.congress.gov/bill/116th-congress/house-bill/6201/text ), (“FFCRA”) (see “Covid-19 Disrupts Workplaces And Confronts Employers With Complicated Labor And Employment Law Issues“, namely:
- A governmental authority has ordered an employee to quarantine or to isolate because of Covid-19.
- A health care provider has told an employee to quarantine because of Covid-19 exposure.
- An employee with Covid-19 symptoms visits a health care provider for a medical diagnosis.
- An employee must care for an individual ordered to quarantine by either a governmental authority or health care provider because of Covid-19 concerns.
- An employee provides care to a child because of either a school or childcare provider’s closing related to Covid-19 concerns.
- An employee experiences other conditions like Covid-19, as identified by the Secretary of Health and Human Services (to date, none exist).
The FFCRA authorized paid sick leave at the employee’s full pay to a maximum equivalent of $511.00 daily for any of these reasons for up to ten days. It further permitted family leave for reason number 5 for a period of ten additional weeks at two-thirds of the employee’s full pay to a maximum equivalent of $200.00 daily. The FFCRA covered such paid sick leaves and family leaves during the period between April 1, 2020 and December 31, 2020. The appropriations bill that President Trump signed on December 27, 2020 had previously authorized the FFCRA’s paid leaves and tax credits through March 31, 2021 on a voluntary basis. The ARPA further extends those leaves and tax credits on a voluntary basis between April 1, 2021 and September 30, 2021. It permits employers to obtain a tax credit to offset the cost of paid sick leaves to a maximum equivalent of $511.00 per day for up to ten days. Similarly, if an employee misses work to care for a child because of school or childcare service closings for Covid-19 related reasons, employees may take paid leave for a maximum of 12 weeks at two-thirds of their full pay. The employer may also claim a tax credit to offset the paid family leave for a maximum equivalent rate of $200.00 daily or a maximum amount of $12,000.00 per eligible worker. The ARPA adds two additional reasons for paid sick leave, namely:
- After being exposed to Covid-19, the employee either voluntarily or at the employer’s direction seeks a diagnostic test or awaits the results of such a test; or
- An employee misses work to obtain a Covid-19 vaccination or to recuperate from any injury, disability, illness, or condition attributable to such a vaccination.
If an employer decides to grant paid leave to an employee and to claim the tax credit in either, or both additional circumstances, then it may obtain a tax credit equal to the paid leave to a maximum equivalent of $511.00 daily or a maximum amount of $5,110.00 per eligible employee.
The employer both reports all paid sick leave and paid family leave on its quarterly federal employment tax return, typically an IRS Form 941, when it makes quarterly payroll tax payments. It may further offset all such sick leave pay and family leave pay from its federal employment tax payments. If the total amount of its sick leave pay and family leave pay exceeds the amount of its federal employment taxes for the quarter, the employer may claim a payment from the government in the amount by which its credit exceeds its employment taxes for that quarter by filing an IRS Form 7200. See Employer tax credits for employee paid leave due to COVID-19 | Internal Revenue Service (irs.gov)
The ARPA imposes no mandate on employers to provide paid sick leaves and paid family leaves to their workers. If an employer, however, chooses to do so and to claim tax credits to offset their costs to the employer, then it must afford such leaves on a non-discriminatory basis to all employees that satisfy the eligibility standards for paid leaves between April 1 and September 30, 2021. Before an employer decides whether to provide paid sick leaves and paid family leaves in accordance with the APA, it should consult both its labor counsel and its tax adviser.
- OSHA Exempts the Reporting of Illnesses Attributable to Covid-19 Vaccinations from an Employer’s Form 300 in Workplaces without Mandatory Vaccination Policies.
The Occupational Safety and Health Administration (“OSHA”) recently issued guidance regarding the reporting of illnesses attributable to Covid-19 vaccinations. See COVID-19 – Frequently Asked Questions | Occupational Safety and Health Administration (osha.gov) The guidance draws a distinction between voluntary and mandatory Covid-19 vaccination policies. If an employer merely encourages employees to get vaccinated and an employee experiences an adverse reaction to the vaccine, the employer lacks any duty to report the employee’s illness on its OSHA Form 300. On the other hand, if an employer requires its employees to receive Covid-19 vaccinations as a condition of employment and an employee suffers an adverse reaction to the vaccine, then the employer must record the employee’s illness on its OSHA Form 300.
OSHA’s guidance uses the same analysis of an adverse reaction to the vaccine in workplaces with either a voluntary or mandatory vaccination policy. According to the agency, to be recordable, an adverse reaction must be (1) work-related, (2) a new case, and (3) satisfy one of the general recording criteria, such as cause the worker to experience any one or more of days away from work, restricted work, a transfer to another job, or medical treatment beyond first aid. OSHA sees a worker’s voluntarily getting a vaccination to fail the work-related criteria. On the other hand, it views an adverse reaction after a mandatory Covid-19 vaccination to satisfy the work-related standard. Thus, if a worker suffers an adverse reaction to a mandated Covid-19 vaccination and experiences time away from work (or any other events that involve general recording criteria) because of it, the employer must report the adverse reaction on its OSHA Form 300. Employers, however, may have no reason to know that an employee suffered an adverse reaction to a vaccination, unless it occurs immediately after the employee receives the vaccination. They may need medical evidence to determine whether a worker experienced such an adverse reaction. Before reporting a potential adverse reaction to a mandated Covid-19 vaccination on an OSHA Form 300, an employer should consult its labor counsel.
In situations in which employers impose no Covid-19 vaccination requirements, OSHA’s guidance provides welcome news. Even if an employee suffers an adverse reaction to a Covid-19 vaccination, the employer has no duty to include that reaction on its OSHA Form 300. The key issue in such a situation concerns the absence of a mandatory vaccination requirement. The OSHA guidance considers voluntariness based on the absence of any adverse employment consequences for employees who do not get vaccinated.
In closing, Covid-19 vaccinations create new wrinkles for employers to consider. Whether they have voluntary or mandatory vaccination policies, employers with fewer than 500 employees may provide paid leaves to their workers to enable them to get vaccinated and obtain a tax credit to offset the cost of the paid leaves. The decision to have either a mandatory or voluntary vaccination policy may also determine whether an employer must report a worker’s adverse reaction to the vaccine on its OSHA Form 300. For more information about either of these topics, please contact: Gerry Richardson | (314) 552-0453 | grichardson@evans-dixon.com
