Mark Pestronk
Q: I hope to be able to start bringing back some of our laid-off employees in the near future. Now that vaccines are expected to become somewhat more widely available, I would certainly like all employees to be fully vaccinated before they return to the office. Can I legally require it? If so, can I also require that they show me proof of their vaccinations? Can I require the same of my independent contractors who come into our office?
A: Yes, you can require all employees returning to the office to be vaccinated, and you can require proof, according to guidance recently issued by the Equal Employment Opportunities Commission, which is the federal agency that interprets and enforces the civil rights laws in employment.
There are some exceptions to the general rule. One would arise under the Americans with Disabilities Act (ADA), which applies to companies with 15 or more employees. The ADA and similar state laws pertaining to fair employment practices require employers to provide "reasonable accommodations" to employees with medical conditions that would make them unable to be vaccinated, such as allergies to vaccine ingredients and compromised immune systems.
A second exception is that federal and state civil rights laws protect employees who refuse to take a mandatory vaccine because of sincerely held religious, moral or ethical beliefs. At the federal level, only employers with 15 or more employees would be subject to the law, but many state laws mirroring federal law apply to employers with fewer employees.
Because state laws vary, you should consult an employment attorney to see whether there are any other state or even local exceptions. Finally, civil rights laws do not apply to independent contractors, so no exceptions would apply.
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Correction: In my Jan. 18 column, "Digging deeper into the new round of PPP," one question asked whether the new PPP loans would be subject to the same full-time-equivalent and salary-reduction rules as the first loan. I answered: "For loans of up to $150,000, there will be no such requirements, as you will be able to obtain full forgiveness just by certifying that you spent the proceeds on allowable expenses and keeping records to show it." Actually, there will be no such requirements only for loans of $50,000 or less. (View the corrected column here.)
For loans of between $50,000 and $150,000, you still have to comply with the full-time-equivalent rule, although you can use the one-page Small Business Administration forgiveness application that does not require you to certify your compliance with those rules. For larger loans, you must certify and document compliance. In any event, most travel companies should be able to take advantage of the exception to the rule that excuses compliance if they could not restore all their staff due to CDC guidance in regards to clients, as I discussed in my Jan. 11 column, "Exceptions exist for PPP loan forgiveness."