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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 \u201cWhat Questions Do Employers Need To Ask About Covid-19 Vaccinations<\/a>?\u201d\u00a0 A recent poll conducted by the Society of Human Resource Management (\u201cSHRM\u201d) reveals that 52% of workers support policies that require Covid-19 vaccinations as a condition of employment.\u00a0It further discloses that 63% of the employees surveyed stated their intention to get vaccinated as soon as the vaccine becomes available.\u00a0\u00a0[SHRM Survey: Some Workers Favor Required Vaccinations<\/a>].\u00a0 Employers with voluntary vaccination policies or those who require them but leave where to get vaccinated up to their workers received good news recently.\u00a0 The American Rescue Plan Act [Text \u2013 H.R.1319 \u2013 117th Congress (2021-2022): American Rescue Plan Act of 2021 | Congress.gov | Library of Congress<\/a>] (\u201cARPA\u201d) allows them a tax credit to provide paid time off to workers to get vaccinated and for vaccination related illnesses. \u00a0\u00a0In addition, the Occupational Safety and Health Administration has recently provided guidance, which states that employers who recommend, but do not require Covid\u201419 vaccinations, need not report any illnesses related to such vaccinations on an OSHA Form 300.<\/p>\n 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.\u00a0 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<\/a>\u00a0), (\u201cFFCRA\u201d) (see\u00a0\u201cCovid-19 Disrupts Workplaces And Confronts Employers With Complicated Labor And Employment Law Issues<\/a>\u201c, namely:<\/p>\n The FFCRA authorized paid sick leave at the employee\u2019s full pay to a maximum equivalent of $511.00 daily for any of these reasons for up to ten days.\u00a0 It further permitted family leave for reason number 5 for a period of ten additional weeks at two-thirds of the employee\u2019s full pay to a maximum equivalent of $200.00 daily.\u00a0 The FFCRA covered such paid sick leaves and family leaves during the period between April 1, 2020 and December 31, 2020.\u00a0 The appropriations bill that President Trump signed on December 27, 2020 had previously authorized the FFCRA\u2019s paid leaves and tax credits through March 31, 2021 on a voluntary basis.\u00a0 The ARPA further extends those leaves and tax credits on a voluntary basis between April 1, 2021 and September 30, 2021.\u00a0 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.\u00a0 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.\u00a0 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. \u00a0The ARPA adds two additional reasons for paid sick leave, namely:<\/p>\n 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.\u00a0<\/p>\n 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.\u00a0 It may further offset all such sick leave pay and family leave pay from its federal employment tax payments.\u00a0 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 \u00a0Form 7200.\u00a0 See Employer tax credits for employee paid leave due to COVID-19 | Internal Revenue Service (irs.gov)<\/a><\/p>\n The ARPA imposes no mandate on employers to provide paid sick leaves and paid family leaves to their workers.\u00a0 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.\u00a0 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.<\/p>\n The Occupational Safety and Health Administration (\u201cOSHA\u201d) recently issued guidance regarding the reporting of illnesses attributable to Covid-19 vaccinations.\u00a0 See COVID-19 \u2013 Frequently Asked Questions | Occupational Safety and Health Administration (osha.gov)<\/a> The guidance draws a distinction between voluntary and mandatory Covid-19 vaccination policies.\u00a0 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\u2019s illness on its OSHA Form 300.\u00a0 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\u2019s illness on its OSHA Form 300.<\/p>\n OSHA\u2019s guidance uses the same analysis of an adverse reaction to the vaccine in workplaces with either a voluntary or mandatory vaccination policy.\u00a0 According to the agency, \u00a0to 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.\u00a0 OSHA sees a worker\u2019s voluntarily getting a vaccination to fail the work-related criteria.\u00a0 On the other hand, it views an adverse reaction after a mandatory Covid-19 vaccination to satisfy the work-related standard.\u00a0 Thus, if \u00a0a 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) \u00a0because of it, the employer must report the adverse reaction on its OSHA Form 300. \u00a0Employers, 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.\u00a0 \u00a0They may need medical evidence to determine whether a worker experienced such an adverse reaction.\u00a0 Before reporting a potential adverse reaction to a mandated Covid-19 vaccination on an OSHA Form 300, an employer should consult its labor counsel.\u00a0<\/p>\n In situations in which employers impose no Covid-19 vaccination requirements, OSHA\u2019s guidance provides welcome news.\u00a0 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.\u00a0 The key issue in such a situation concerns the absence of a mandatory vaccination requirement.\u00a0 The OSHA guidance considers voluntariness based on the absence of any adverse employment consequences for employees who do not get vaccinated. \u00a0<\/p>\n In closing, Covid-19 vaccinations create new wrinkles for employers to consider.\u00a0 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.\u00a0 The decision to have either a mandatory or voluntary vaccination policy may also determine whether an employer must report a worker\u2019s adverse reaction to the vaccine on its OSHA Form 300.\u00a0 For more information about either of these topics, please contact: Gerry Richardson | (314) 552-0453 | grichardson@evans-dixon.com<\/a>\u00a0\u00a0<\/p>\n\n
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