It is December 17, 2020, and this week was the beginning of vaccine distribution in the United States.
Many people are asking, “Can the government or my employer require me to get the Covid-19 Vaccine?”
The simple answer is YES, but the likelihood of that happening is going to depend on a lot of factors, and it is not likely that the FEDERAL government would issue such a mandate.
Historically, states have had the right to mandate vaccines in order to ensure safety of the public. However, experts believe that it is very unlikely it will happen.
What is more likely is that employers and states will condition return or access to workplaces, public schools and universities upon getting the vaccine. Currently, all 50 states and Washington DC have laws requiring certain vaccines for students, but there are exceptions for personal, moral or other beliefs.
The industries most likely to mandate vaccines are going to be those most at risk for contracting the disease, such as those who work in HEALTHCARE, EDUCATION, PUBLIC SAFETY. Another important factor will be: AVAILABILITY OF VACCINE.
Currently, the available Coronavirus vaccines have been given Emergency Use Authorization (EUA) by the FDA. By the time the vaccines receive full FDA approval, which could take months. A lot will depend on how widespread the current vaccine has been distributed.
It is not clear if employers could legally mandate a vaccine that is only approved for Emergency Use. However, it would be very unusual to mandate a vaccine that has not been fully licensed and approved by the FDA. Right now, the consensus seems to be to encourage as many people as possible to voluntarily receive the vaccine. Assuming large numbers of people get vaccinated, there is a much less likely chance that there will be mandates by states or employers.
On the other hand, once the vaccine is approved by the FDA, if the number of people vaccinated is still too low to be effective, AND there is an available supply of the vaccine, we should probably expect to see some mandates.
As with any vaccine, there will be exceptions to those mandates; for example: pregnant women, people with disabilities, or those who hold deeply-rooted religious convictions.
So, what does that mean for you? To be vaccinated is a personal decision for each of us. I can tell you that I will be volunteering to get the vaccine as soon as it becomes available, and I look forward to putting an end to this deadly disease.
If you have questions about the vaccine as it relates to your employment, please feel free to contact me, Chip Clark, for a free consultation.
Effective April 1, 2020 and continuing through December 31, 2020, the Families First Coronavirus Response Act (“FFCRA”) will require certain employers to provide their employees with paid sick leave and/or expanded Family Medical Leave for reasons related to COVID-19.
There are essentially 2 parts to the Act. Part 1 is an emergency expansion of the Family Medical Leave Act (“FMLA”). Part 2 requires certain employers to provide Federal Paid Sick Leave.
The Act applies to all employers with fewer than 500 employees. This includes both full and part-time employees. This number also includes dual employees, such as those provided by professional employment organizations (PEO’s) also known as staffing agencies. There may be exceptions for “extreme financial hardship,” but the Department of Labor has not yet produced any guidance for what that means.
The Act also provides for a “Distressed Small Business Exception,” which only applies to employers with 50 or less employees. Again, because this law is so new, there is little to no guidance from the Department of Labor as to who will qualify for this exception.
So, what does the FFCRA require employers to do?
Generally, all employers must provide their qualifying employees with:
Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined either (1) pursuant to Federal, State, or local government order or advice of a health care provider, and/or (2) is experiencing COVID-19 symptoms and seeking a medical diagnosis; AND up to 10 additional weeks of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of COVID illness or a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.
FAQ’s about the FFCRA:
How does an employee qualify for these FFCRA benefits?
Some examples include:
Being diagnosed with the COVID-19 virus.
Having symptoms of the virus.
Being required to be in self-quarantine.
Being ordered by your doctor to self-quarantine.
Having to care for a spouse or child who is infected with the virus.
Another common example will be caring for a child whose school or daycare has been closed because of COVID-19 – Or having substantially similar condition based on guidance from the Secretary of Health and Human Services.
Can both parents claim paid leave under the FFCRA?
There is nothing in the law that suggests that both parents would not be entitled to paid leave if they otherwise qualify for the benefits.
Can my employer require me to use paid sick leave before paying benefits under the FFCRA?
It depends. The expanded benefits to FMLA do not kick in for the first 10 days, therefore you may be required to use unpaid sick leave to cover that gap. The mandatory sick leave would not require you to use accrued unpaid leave.
How much pay am I entitled to receive?
It depends on whether you are seeking the expanded benefits of the FMLA, or the mandatory paid sick leave. Normally, a qualifying employee is entitled to 12 weeks of unpaid leave under the FMLA. The new law expands that to include paid leave of two-thirds of base pay based on number of hours normally worked. The maximum is $200 per day, or $10,000 per employee, based on 12 weeks of eligibility.
The mandatory paid sick leave under the FFCRA is capped at $511 per day, with a total benefit of $5,110 per employee.
How are employers expected to pay for these FFCRA benefits?
The government has rolled out several plans to help small business employers pay for these new benefits. One option is a dollar for dollar tax credit for payments made. A second option is a small business loan through the Small Business Administration (SBA) to cover payroll costs. If certain conditions are met, and all of your employees remain on the payroll for a specified period, these loans will be forgiven (they don’t have to be paid back). Lastly, some employers may have business interruption insurance that could be applicable. Definitely check your policy to determine coverage.
Can my employer disclose my diagnosis of COVID-19?
Yes, under certain circumstances, there are exceptions to HIPPAA’s confidentiality requirements. For example, an employer can disclose such a diagnosis for the safety of your co-workers.
What if I contracted COVID-19 at work, will workers’ compensation cover my treatment?
There is much we don’t know about how the new laws will be interpreted, and whether a diagnosis of COVID-19 could be considered an occupational disease. Certainly, for those on the front lines fighting this disease, for instance health care workers, an argument could be made that it is a risk of the job.
If I have to provide these FFCRA benefits, my business will be forced to shut down. Are there any exceptions?
Yes. Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
If I have to take leave, can I get my job back when I return?
Yes. The new law requires employers with 25 or more employees to reinstatement after 12 weeks. If your employer has less than 25 employees they must “make reasonable effort” to reinstate an employee who has taken leave under the Act.
In these uncertain times, it is always best to know your rights. If you have questions about Coronavirus/COVID-19, and your entitlement to benefits under the new laws, please contact us for a free legal consultation. We are not currently taking in-person interviews in our efforts to avoid unnecessary spread of the virus, but we are always available for telephonic consultations.
In the next five years, approximately 25% of our workforce will be 55 years or older. For some people like Bruce Arians, a former Colts NFL football coach, jobs are still opening up (see recent news article here). But how are things going for the rest of our older workers? Are you an older professional that was just fired or handed a severance package?
Demographics show a large portion of the Baby Boomer generation is still working. Whether its because they need to work or because they want to work, many 50+ year olds are not retiring. Theoretically, our federal law protects employment discrimination against workers 40 years of age and older. The law is known as the Age Discrimination in Employment Act, or the “ADEA”. But not all employers follow the law, and it’s much tougher for older workers to find new jobs – let alone financially recover from an unexpected severance.
In Indianapolis, our attorneys see this scenario commonly unfold in the medical industry. Goodin Abernathy LLP attorneys are experienced with pharmaceutical and medical device representatives suddenly facing a “forced retirement.” Typical scenarios show the experienced reps are asked to train new, younger sales people. The trainees tag along, meet the customers and learn the ropes. Then, if they aren’t fired, the older rep’s territory just gets split up. Part of the territory is assigned to the younger worker, while the older rep’s compensation package does not change. This means the experienced worker just trained themselves into a pay cut. You can imagine what happens after a little more time when the younger worker learns the ropes: they’re handed both territories and the older worker is shown the door.
Other times the older, experienced worker gets pushed out or “harassed out” of their position. Their younger managers start building flimsy records of statistical violations. They say the older worker isn’t making enough sales calls; is not attending enough meetings; fails to use the company’s technology correctly, etc.
Behind the scenes, the company’s strategy is simple: replace the higher paid, experienced worker with cheaper labor offered by young workers. The older workers – who devoted their careers to improving the company’s interests – get cut loose by new or younger managers trying to make their own numbers look better.
Another typical scheme involves luring away experienced, older workers from competitors. After the older worker shares her book of business and discloses other proprietary information, the new company abruptly lets them go. The new company just wanted the work intel for its younger reps and never really planned to keep the new, older hire on board.
When companies plug younger workers into jobs and push out 40+ year old workers, the experienced workers should contact our Goodin Abernathy LLP attorneys for an ADEA evaluation.
Contact Goodin Abernathy LLP, and we will tell you how to look for signs of illegal ageism or age discrimination. Consult us and we will explain the legal process for an ADEA or EEOC claim with an eye towards enforcing your legal rights.
Volunteers with NOPAL Cultural promoting their Dia de los Muertos event last weekend at the Indy 11 game.
Our good friends at NOPAL Cultural have a special celebration of Day of the Dead planned for this Saturday, October 31, 2015 from 11am to 5pm at the Eiteljorg Museum in downtown Indianapolis. The event will highlight the exhibition of ofrendas and altares made by local artists and civic groups to honor their loved ones. There will be special musical performances, art projects, a marketplace and a Catrina parade. The event is free and open to the public. You can find out more at the event page on Facebook : https://www.facebook.com/events/770875693040591/ We hope to see you there!
How does your family remember your loved ones? How do you celebrate Day of the Dead? Let us know in the comments!
Every week there are stories in the newspaper and on television involving semi-truck and passenger automobile accidents. Just this morning, there was a tragic semi – passenger vehicle fatality on Interstate 65 near Lafayette, Indiana. Now this afternoon, there is another multi-car accident involving a semi-truck on I-65 in Greenwood, Indiana. As we all travel on roads with semi-trucks, please keep these factors in mind in order to avoid a personal injury and situations of wrongful death involving a collision with an 18-wheeler.
Wide Turns – Semi-trucks are a lot longer than passenger vehicles. They will have to make a wide right turn in order to avoid the curb or other obstacles. Drivers in passenger vehicles should watch to see if a semi is signaling for a turn and avoid pulling up alongside the truck. The semi driver is concentrating on the turn and may not see the driver if they are alongside the truck, in a blind spot.
Blind Spots – Along with turns, semi-trucks have larger blind spots than the average vehicle. Due to their size, there is a blind spot immediately in front of the semi, along the sides near the cab, and directly behind the trailer. The blind spot on the right side of the truck is worse than the left due to the position of the driver. Passenger drivers should move out of these blind spots as quickly as safety permits so the trucker knows if they can safely pass or make an evasive move to avoid collisions due to other drivers.
Passing a Semi – Due to the blind spots that are larger on the right side of the truck, passenger vehicles should pass on the left whenever possible. When the pass is completed, passenger automobiles should also make sure they do not cut off the semi when re-entering the same lane of travel as the semi. Again, due to their size, semi-trucks take a lot longer to brake and come to a complete stop.
Wind Issues – Semi-trucks are susceptible to acting like a sail when there is any type of wind. This is true even for a fully loaded semi, much less a semi pulling an empty trailer. Again, staying out of a blind spot and passing as quickly as safety permits will aid passenger vehicles in avoiding collisions with semi-trucks.
Sleepy Drivers – Semi truck drivers are sometimes under too much pressure by their clients and employers to deliver loads by a certain time. This can make drivers fail to follow regulations regarding sleeping and breaks, which then leads to road weariness and falling asleep at the wheel. When a passenger vehicle sees a semi-truck swerving erratically late at night or even during the day, the semi driver could be drowsy and the truck should be avoided.
These are just some of the issues that come with sharing the road with semi-trucks. All of us enjoy the benefits of these trucks through the shipping of products and food; therefore, we all need to be aware of these issues and help maintain safe driving conditions.
Our good friends at NOPAL Cultural Center and The Eiteljorg Museum present a day of festivities, alters, offerings, dance, music and much more scheduled for this Saturday, October 25, 2014 at the museum from 11:00am-4:00pm (located at the corner of Washington and West Streets. The goal of the event is to promote the Mexican tradition with the whole Indianapolis community.
How do you celebrate Day of the Dead in your family? Tell us in the comments below.