Incentivizing Vaccines and Other Thorny Issues in 2021

The 2021 legal landscape for employers and human resources professionals continues to be a “wait-and-see” game as we enter the third month of 2021.  It’s now been almost a year since COVID-19 shut down many workplaces and generally disrupted everything about life as we all knew it, and the after-shocks continue to ripple.  With states like Maine slowly rolling out the vaccine implementation, employers are now facing a probable post-COVID-19 workplace, with very limited guidance from the feds on how to proceed. Here are some things to think about.

  1. The Vaccine: to incentivize or not incentivize?

The EEOC recently issued – and then rescinded – guidance about whether or not an employer can or should incentivize employees to get the COVID-19 vaccine.  Until the regulations are clarified, it is not recommended that employers provide significant incentives for employees to receive the vaccine.  This is because, beyond providing small compensation for time and expense away from work, offering significant incentives for getting vaccinated creates potential exposure for discrimination and accommodation claims.  For example, employees may allege discrimination if they cannot receive the incentive or participate in company events because they have a disability and have been advised not to get vaccinated. Similar liability concerns could arise if an employee’s sincerely-held religious belief prohibits them from being vaccinated.

  1. The Masks: to wear or not to wear?

The short answer is, “wear.”  Governor Mills’ Executive Order requiring face coverings in all public places remains in full force and effect even though some of the public have now been vaccinated.  Under the Order, a person may be charged with a criminal offense for not wearing a face covering in a public setting, and all owners of indoor public settings must require entrants to wear a face covering.  Failure to do so may result in criminal fines and other penalties for businesses.

Notably, having received the vaccine is not a reason to go without a mask in public.  Maine and federal CDC guidance still recommend wearing masks even if you have received the vaccine.  Further, though reasonable accommodations should be made for those who cannot tolerate a face covering due to a medical condition, the Governor’s Order specifically notes that, “any individual over the age of two (2) may not enter or remain in any indoor public setting without a face covering. Curbside delivery, the use of personal shoppers, and other accommodations may be used to accommodate individuals who are unable to wear a face covering, without allowing them into indoor public settings.”

  1. The FFCRA: coming back or not? 

We know that the 2020 version of the Families First Coronavirus Response Act (“FFCRA”) was not, and has not, at least of this writing, been renewed.  Nevertheless, employers have just another month to get their paperwork in order to seek certain tax credits if they elected to continue to provide FFCRA leave benefits to their employees.  (Check out ST&A’s Article on this topic here.)  The tax credit for employers who elect to continue to provide their employees FFCRA-type leave may only be taken for leave through March 31, 2021.  You should be working closely with your attorneys, accountants, and other advisors this month to ensure you receive the tax credit, if it applies to you.

Attorneys Jordan Payne Hay and Amy Dieterich will be digging deeper into these issues and many more with the L/A Chamber of Commerce on Friday, February 26th at 12:30pm via Zoom.  There is still time to register!  Click HERE to register and bring your questions!

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Amy DieterichJordan Payne Hay, and James  F. Pross are employment and labor law attorneys; others at the firm handle business and other matters. Since 1853, Skelton Taintor & Abbott has provided a full range of high-quality legal services to the individuals, companies, and municipalities of Maine. The firm’s main office is located in Auburn and in January 2019, a mid-coast office was opened in Waldoboro.