We hope you all had a safe and delicious Thanksgiving. And we know you must have really missed our newsletter last week! Well, don’t worry – we’re back and we’ve got some pretty interesting updates. We’re discussing mandatory flu shots for employees, employees getting sick and suing their employers, and some changes employers can expect under the Biden administration (you didn’t think we’d not talk about the election, did you?). Check it out!
Can you (or should you) require your employees to get the flu shot? By now, all . . . . err, many . . . businesses that have workers onsite have implemented daily health safeguards for COVID-19 (monitoring for symptoms, temperature screening, travel and health questionnaires, mandatory face coverings, etc.). But what about the flu? What about requiring employees to get a flu shot? Fast forward a little bit and the same question will be asked about the COVID-19 vaccine. Can you do this? SHOULD you do this? There’s definitely some nuance here, but employers technically are allowed to require employees to get vaccinated (with some exceptions we'll discuss). In fact, certain regulations (i.e. OSHA) require employers to maintain a safe and healthy workplace. Of course, other laws (i.e. the ADA) prohibit employers from making medical inquiries or conducting examinations of their employees unless it’s job-related and a business necessity. Keeping the flu out of the office? A good idea, very important, but maybe not necessary. COVID-19? That’s maybe more of a necessity. These types of medical workplace requirements become even trickier when employees request an accommodation or exemption for legitimate purposes (religious observance, medical orders, etc.). Those are choppy waters and a recipe for liability. So, here’s our answer: it depends (just kidding . . . but not really). Ok, fine, how about: employers can require employees to get vaccinated (assuming no request for an accommodation or exemption), but they probably shouldn’t. Encouragement to get vaccinated is the safer – and easier – route. Avoid the risk of liability, disenfranchising employees, and the administrative/operational burdens such a policy would create. The EEOC agrees and has some guidance on encouraging, but not requiring, employees to get the flu shot. Note: the guidance is different for employers in certain industries, such as the healthcare industry. State and local laws often require healthcare workers to be vaccinated for certain preventable diseases, such as the flu. Those employers are still required to make lawful accommodations. Can I really get sued if an employee gets COVID-19 “in the office”? First, we say “in the office” because it’s certainly difficult to prove where someone actually contracted the virus. That’s a hurdle any plaintiff will struggle to clear. But, there’s no doubt that employees who go to work and get sick will inevitably point the finger at their employer. And, as we know, even meritless suits can cost business owners significantly. Unsurprisingly, these cases are already being filed en masse (not to mention the countless internal complaints that fell just short of a court filing). We’ll save you from summarizing the facts of those cases and just say this: in almost all cases, plaintiffs were able to point to specific examples of employers objectively not doing enough to stop the spread of COVID-19 at work. For example, forcing employees to work even when they’re sick, encouraging meetings where multiple people sit closely in a small space, not providing PPE, etc. These employers are just asking for trouble. Don’t be like them. Have a well-written and comprehensive safety plan for reducing the spread of COVID-19 at work. It protects employees’ health, lets employees know you care about them, and serves as a nice defense if someone gets sick and blames you (it’s also required under many states’ rules). This safety plan includes, among other things, a description of safety measures, a designated “safety” person, disseminating federal, state, and local COVID-19 notices, and providing for a clear complaint process for employees to raise concerns without fear of retaliation. Time will tell whether or not these plaintiffs will be successful. We think that workers’ compensation laws, among other things, will be a significant hurdle to employees (unless they can show that the employer intentionally put them at risk). Right now, all we can say is this: don’t ignore the guidance that’s out there and use common sense! Employers are already paying – and will continue to pay – for not taking this seriously. We know our clients are smarter than that. What employment law changes should business owners expect under the Biden administration? Answer: more employee-friendly laws, of course! There’s no surprise that the Biden administration will try to implement more labor-friendly laws and regulations during his first term. But what does that mean for small-business owners? Let’s take a look at some expected changes:
Increased COVID-19 regulations in the workplace: Biden has made it very clear that his administration will implement more sweeping safety and health measures to stop the spread. While we don’t know exactly what those measures will be, there’s a strong chance several will impact the workplace. Stay tuned.
Scrutiny on use of independent contractors: We expect that the Biden administration will try to undo some of the more recent pushes to make it easier for businesses to classify workers as independent contractors. This will be significant because, compared to employees, independent contractors get less legal protection and benefits, are typically cheaper to utilize, and create less employment-related headaches and administrative burdens. Businesses using independent contractors should make sure that they’re properly classifying their workers, paying them appropriately, and that they’ll withstand any regulatory scrutiny at the state or federal level.
Limits on mandatory employee arbitration: Biden has stated that he supports legislation that would prohibit employers from requiring employees to sign mandatory arbitration/class-action waivers as a condition of employment. Arbitration has been an effective tool to handle employee disputes in a timely and cost-effective way, and the Federal Arbitration Act and U.S. Supreme Court will be difficult foes, so we’ll keep you posted on how this shakes out.
Increases to the minimum wage: Following measures already taken by states such as New York and New Jersey, Biden has stated support for a $15 federal minimum wage (currently $7.25) and an end to the tipped minimum wages commonly used in the hospitality and restaurant industries. Although it’s unclear that these measures have the necessary support, it signals an increased focus on employee pay. Employers could be looking at significantly higher labor costs as a result.
So, there you have it. We covered flu shots, COVID-19, and the election in one shot. As always, we’ll continue to provide updates as the laws and regulations governing the workplace change before our eyes. In the meantime, feel free to contact us to ask questions, share your thoughts, or tell us how much you love these updates!
Damien + Brian
ABOUT WEINSTEIN + KLEIN P.C.
Established in 2019, New York City-based Weinstein + Klein is a boutique law firm focused on labor and employment law, business matters, and litigation. Weinstein + Klein works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, Weinstein + Klein advises small businesses and start-ups on various business law matters. For more information about Weinstein + Klein, please visit www.weinsteinklein.com.