The Equal Employment Opportunity Commission (EEOC), the Treasury Department and Internal Revenue Service (IRS) and the Occupational Safety and Health Administration (OSHA) have provided guidance and technical assistance recently on several workforce issues. These include vaccinations in the employment context, the temporary COBRA subsidy included in the American Rescue Plan Act, and the recording of adverse reactions to the COVID-19 vaccines.

Here’s what you need to know.

EEOC Updates COVID-19 Technical Assistance

On May 28, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance guidance to address vaccinations in the employment context. The updated guidance is in a question/answer format. According to the EEOC, the key updates, which are in section K, include:

• Federal EEO laws do not prevent employers from requiring all employees physically entering the workplace to be vaccinated for COVID-19 — provided they comply with the reasonable accommodation provisions for disability and sincerely held religious beliefs of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. The guidance provides that, as a reasonable accommodation, “an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.” 

• Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide proof of vaccination. If employers obtain vaccination information from their employees, the ADA requires that they keep the information confidential.

• Employers that administer vaccines to their employees may offer incentives for employees who get vaccinated provided they are not coercive. The EEOC cautions that a very large incentive could make employees feel pressured to disclose protected medical information. 

• Employers may provide employees and family members with information about COVID-19 and the benefits of vaccination. 

• The Genetic Information Nondiscrimination Act (GINA) would prohibit an employer from offering any incentives to an employee in exchange for a family member’s receipt of a vaccination from an employer or its agent. 

The EEOC also released a new resource for both job applicants and employees detailing how federal employment discrimination laws protect workers during the pandemic. 

Treasury and IRS Issue COBRA Subsidy Information

The Treasury Department and the Internal Revenue Service (IRS) have issued 86 questions and answers designed to provide guidance on the six-month COBRA subsidy law that is included in the American Rescue Plan Act. The 100% COBRA subsidy became effective on April 1, 2021, and ends on September 30, 2021. It applies when group health plan coverage ends due to an involuntary termination or a reduction in hours. The guidance, Notice 2021-31, addresses several issues, including:

• A reduction in hours includes a furlough where there is a reasonable expectation of a resumption of employment and the intent to maintain the employment relationship. It would also include a work stoppage due to a lawful strike or an employer lockout.

• Termination that would qualify for the COBRA subsidy includes:

  • Termination for a cause other than for gross misconduct, 

  • Retirement, (although generally a voluntary termination) where employees would have been terminated if they did not opt to retire,

  • Departure due to workplace safety concerns where employees can show that employer action/inaction resulted in a negative change in the employment relationship, 

  • Material change in the geographic location of employment for the employee, and

  • Decision not to renew an employment contract where the employee wanted to renew it.

• A personal decision to leave the job for reasons such as a child being unable to attend school due to the pandemic, health of the employee or family member would not result in COBRA subsidy eligibility. 

• The amount of the federal subsidy is based on the amount of the COBRA premium charged to qualified beneficiaries. For example, if the usual COBRA rate is $750 per month, but the plan sponsor charges only $500, the federal subsidy would be $500.

• Employers would claim the subsidy on Form 941, the quarterly federal employment tax return.

The Treasury Department and the IRS indicated that it may issue further guidance. The Department of Labor previously issued model notices for the continuation of COBRA coverage. Use of a model election notice by employers would constitute good faith compliance with the election notice requirements in both COBRA and the American Rescue Plan Act. 

OSHA Decides That Employers Don’t Need to Record COVID-19 Side Effects

The Occupational Safety and Health Administration (OSHA) announced on May 21 that federal agencies are working to encourage COVID-19 vaccinations. As a result, OSHA stated that it “does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022.”

The OSHA announcement represents a partial reversal of its April 20 guidance concerning the obligations of employers to record adverse reactions to the COVID-19 vaccine. At that time, OSHA decided that if an employer required employees to be vaccinated as a condition of employment, then any adverse reaction to the vaccine would need to be recorded on the OSHA 300 log of work-related illnesses and injuries if the employee missed more than one day of work, required medical treatment, or resulted in restricted work or transfer to another job. If employers only recommended the vaccine, adverse reactions did not need to be recorded.  

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at [email protected].