Reopening Rollback

Last Tuesday, Governor Baker announced that Massachusetts would be rolling back its reopening effective Sunday, December 13.  For most businesses, the changes are relatively minor.  These changes include:

  • Reduced capacity limits for most businesses, including offices, from 50% to 40%
  • Office workers must wear masks at all times, unless they are in their own workspace and alone
  • Workplaces should close communal spaces such as breakrooms, kitchens, and conference rooms to the extent possible.
  • Businesses should continue remote work arrangements as much as possible.

The Commonwealth has also updated many of the sector-specific protocols in response to this rollback.  The sector-specific protocols are available at

https://www.mass.gov/resource/reopening-sector-specific-protocols-and-best-practices.

Looking Ahead to Vaccines

Governor Baker has also announced the Commonwealth’s plan for vaccines.  The initial batch of vaccines will be reserved for front-line health care workers and individuals in nursing homes and other communal living situations.  Starting in February, vaccines will be available for high-risk groups (individuals with underlying health conditions and seniors aged 65+).  Vaccines should be available for the general population later in the spring.

We have been fielding a number of questions from clients on how to handle vaccines

    Q.  When can we remove mask mandates and other restrictions? 

According to the Baker administration, it will take 6-9 months to vaccinate a sufficient number of Massachusetts residents to begin dropping restrictions and mask mandates.  Businesses should continue to follow their sector-specific protocols until those restrictions are officially lifted.

    Q.  When can employees come back to work? 

Employers should continue to observe capacity restrictions and encourage remote work until those restrictions are lifted, even as employees begin to receive vaccinations.

    Q.  Can we require COVID-19 vaccines as a condition of employment?

The EEOC has released its initial guidance for employers on COVID vaccines, including whether employers can mandate vaccines.  According to the new guidance, employers can require vaccines as a condition of employment, as long as you make exceptions for sincerely-held religious beliefs and medical conditions/disabilities, including pregnancy.  Note that religious beliefs should be tied to a bona fide religion.  Strongly-held political beliefs or opinions do not qualify as protected religious beliefs.

For employees with disabilities, employers can bar an unvaccinated person from the workplace if they pose a direct threat to others in the workplace.  This “direct threat” could include exposing others to the virus.  Employers should work with a disabled or pregnant employee to consider reasonable accommodations that would allow them to continue working, including remote work or a private workspace.  Hopefully, as more and more people receive the vaccine, the “direct threat” posed by an unvaccinated disabled or pregnant employee should decrease.

For employees with religious objections, the standard for reasonable accommodations is lower.  Employers need only provide de minimis accommodations that do not pose an undue burden on the business.  This could include continuing remote work until the pandemic has subsided, for example.  Employers can ask for supporting information regarding a religious belief if you have doubts about the nature or sincerity of an employee’s religious objection.

However, for most employers, we recommend encouraging – but not requiring – employees to get vaccinated.  Employees may respond negatively to being compelled to get a vaccine to keep their jobs.  And if an employee were to experience an adverse reaction to the vaccine, theoretically employers could be liable through workers’ comp if they required the employee to get the vaccine, although it is not clear that the courts would be willing to entertain such a claim.

In lieu of requiring the vaccine outright, you can encourage vaccination by giving employees time off work to get the vaccine and recover from any side effects.  You can also refuse to remove COVID-19 protocols (such as masks) until a critical mass of employees have received the vaccine.  Once the vaccine is widely available to all individuals, employers can consider incentive programs such as better shifts/work arrangements or bonuses for employees who get the vaccine.  However, we would not recommend incentive programs until the vaccine is available to anyone who wants it.

At this stage, we are still 4-6 months away from low-risk individuals having access to the vaccine, and it may be even longer until the vaccine is widely available.  Employers may want to take a wait-and-see approach to see how many of their employees are choosing to get the vaccine independent of employer pressure before adopting a vaccine requirement.

FFCRA is Ending

The Families First Coronavirus Relief Act (“FFCRA”) is scheduled to end on December 31.  Congress is currently negotiating a new stimulus bill and FFCRA expansion could be on the table.  However, without an expansion, FFCRA will expire as scheduled on December 31.

Using PTO and PFML Concurrently

Finally, we wanted to draw your attention to a small detail in PFML.  For employers using state-provided PFML, employees cannot use accrued PTO to “true up” their PTO benefits or to extend the duration of their leave.  Any days that employees use PTO will run concurrently with their DFML benefit, and employees cannot receive both PFML benefits and PTO on the same day.

In contrast, employers using private plans may allow employees to use accrued PTO to true up their PTO benefits or to extend the duration of their leave, depending on the terms of the private plan.  We recommend checking with your private plan provider to see how they are treating PTO and PFML benefits before employees can begin using PFML on January 1.

As always, please reach out at any time if you have questions.  Have a safe and happy holiday season!