Can Employers Require Employees to Get the COVID-19 Vaccine?

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Happy New Year! 

Moving on from 2020 does not mean we have moved on from the scourge that is COVID-19.  However, the COVID vaccine is finally here! Though distribution has been slow, employers are planning ahead and wondering if they can require employees to get a vaccine as a condition to returning to work.  The short answer is yes, but there are some important factors to take into consideration to avoid potential risks, such as compliance with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other state and federal employment laws.

According to newly published EEOC guidance, employers, in general, can require employees to be vaccinated against COVID-19 and have determined that administration of a vaccine is not a medical examination under the ADA. “If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” However, employers should be careful with any pre-vaccination questions as those could be subject to ADA laws. Employers need to make sure that these questions are job-related and consistent with business necessity.

Of course, there are always exceptions to the general rule.  Employees who have medical concerns related to a disability or sincerely held religious beliefs that preclude them from being vaccinated may be exempted from the vaccination requirement. In these scenarios, a reasonable accommodation that does not pose an undue hardship to the employer’s business may be required, such as allowing the employee to work from home, requiring the employee wear protective equipment at all times, or providing a separate space for the employee to work.

Where an accommodation is not possible or cannot substantially reduce the risk of infection to others, the employer must be able to demonstrate that the unvaccinated employee poses a “direct threat” to the safety and health of other individuals at the workplace. The following factors should be evaluated in determining if a direct threat at the workplace exists:

  • the duration of the risk
  • the nature and severity of the potential harm
  • the likelihood that the potential harm will occur
  • the imminence of the potential harm 

If there are no reasonable accommodations available and the employer finds that the employee does pose a direct threat to others, the employee may be prohibited from physically entering the workplace, but this does not mean the employer can terminate the worker without liability. Employers will need to determine if any other rights apply under other federal, state or local laws.

Finally, employers are not shielded from liability if an employee suffers adverse effects from a mandated vaccine administered by the employer or a third party with whom the employer has contracted. Therefore, the best option for employers is to encourage employees to take the vaccine voluntarily rather than mandating it. Employers can choose to give incentives to those employees that decide to get the vaccine to promote voluntary compliance.

Always best to contact legal counsel if you have any further questions.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer


2101 N.W. Corporate Blvd., Suite 410

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

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In older blog posts, I have stressed the importance of creating an estate plan that will best suit your individual and/or family needs.  With all of the craziness and uncertainty brought about by the Covid-19 pandemic, this importance has magnified that much more.  In an article written in the Miami Herald recently, Jose A. Iglesias stated “As the coronavirus crisis escalates, catastrophic projections of 100,000 to upwards of 240,000 deaths in the United States are forcing people to act on long-deferred intentions to get their affairs in order. No one is immune. Legal experts urge all mortals — not just the elderly and not just the wealthy — to put their end-of-life plans in writing.”

What we, as parents of young adults, often fail to think about is planning not for our children, but by our children. I, like many of my friends, am about to become an “empty nester”.  My older daughter is about to begin her senior year in college and my youngest is about to begin her freshman year.  As we scour websites to see what their dorms or apartments are going to look like, buy every school supply known to man and prepare for the inevitable parental tears from knowing that the kids are away and mom and dad are going to have to reintroduce ourselves to one another, we need to consider important legal documents that can protect our young adults and our ability to act as their guardian in emergency situations.

I can agree that, while important, a Last Will and Testament may not be a priority for my eighteen year-old and twenty-one year old daughters – however, I cannot stress the importance of them having other essential advance directive documents in place.  In no particular order, I recommend that anyone over the age of 18 have the following:


A signed Designation of Health Care Surrogate communicates your wishes in case you are unable to make medical decisions or communicate this information due to a medical emergency or incapacity. This form will also contain a Health Insurance Portability and Accountability Act (HIPAA) authorization by your adult child naming you as a designated “surrogate” giving you the ability to ask for and receive information that would normally be protected from you from your child’s healthcare practitioners about their health status, progress, and treatment. Without a HIPAA authorization in place, the only other way to obtain information regarding your child’s health would be to have a court appoint you as his or her legal guardian.


A Living Will is a statement indicating you would not want to be kept alive by life-sustaining measures if in a coma or vegetative state with no hope of recovery.


A Durable Power of Attorney authorizes a trusted person (in the case of young adults, typically parents or legal guardians who are referred to as “attorney-in-fact”) to make important decisions or conduct matters on behalf of the young adult, even after they become incapacitated. With a Durable Power of Attorney, the attorney-in-fact named would be legally permitted to take care of important matters for your young adult, if they’re unable to do so themselves. The powers granted to the attorney-in-fact are broad and provide the ability to make medical, legal, and financial decisions on the young adult’s behalf.

The thought of needing these documents is not something that any parent wants to think about. Unfortunately, with the Coronavirus being such a changing force in our daily lives, there could not be a better time to consider and prepare for this scenario.

While we are on shelter at home Order, I will be offering a fifty percent student discount on my advance directive packages for young adults between the ages of 18-25 or alternatively, to be included at no charge to be as part of a full estate planning package for the parents of young adults.

Jason Steinman, Esq.


213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: JSteinman@assoulineberlowe.com 


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As the enormity of the Coronavirus pandemic takes hold of the business community, the economic stranglehold on tenant’s ability to pay the rent due the first of the month is coming to bear. 

Today, April 1st, is the first due date for monthly rent since the March 11th apocalyptic change to the business environment.  The World Health Organization (WHO) declared on March 11 that the Coronavirus was a pandemic, an Oil Price War began, and President Donald Trump announced travel restrictions from Europe to the United States.  This was the beginning of the new era, which will mark when things changed. 

Tenants nationwide have announced that they will not be making today’s rent payment.  This will cause major pressure on landlords on how to deal with their own obligations to their lenders, to pay real estate taxes, as well as utilities that continue to be provided to the real property (even if they are getting less use), etc. Landlords need to take a good look at the rental environment and figure out their best strategy, especially in light of the fact that no one right now knows how long they are going to have to wait out this crisis. 

Eric N. Assouline, Esq.

Business Litigation Partner


Miami Tower

100 SE 2nd St., Suite 3105

Miami, FL 33131

Telephone: 305-567-5576

Email: ena@assoulineberlowe.com


Intellectual Property, Labor & Employment Law,  Real Estate, International Dispute Resolution, Commercial Litigation, Corporate Law, and Bankruptcy

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The Families First Coronavirus Response Act (“Act”) was signed into law on March 18, 2020, takes effect on April 2, 2020 and expires on December 31, 2020.  This email briefly summarizes those aspects of the Act applicable to employers with fewer than 500 employees.


The Act amends the Family & Medical Leave Act (“FMLA”) by providing 12 weeks of job-protected leave for employees who have been on the job for at least 30 days, as follows:

  • The emergency leave must be for an employee to quarantine due to exposure to or symptoms of coronavirus, to care for an at-risk family member who is quarantined due to exposure to or symptoms of coronavirus, or care for a child if the child’s school is closed or a child-care provided is unavailable due to the virus.
  • The first ten (10) days of the leave may be unpaid (though the employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave), but the rest of the leave must be paid as follows: two (2) weeks of fully paid leave, and the remaining leave paid at two-thirds (2/3) the employee’s usual pay.
  • Paid leave shall not exceed $200 per day and $10,000 in the aggregate.
  • While employees taking this leave have the right to be reinstated in a position with equivalent pay and benefits, employers with fewer than 25 employees do not have to reinstate an employee if the position held by the employee when the leave commenced does not exist due to economic conditions or changes of operation that were caused by the public health emergency.
  • Employees who are emergency responders or who work for health care providers may not be eligible for emergency FMLA.
  • Employers with less than 50 employees can be exempted from the Act’s requirements when the imposition of such requirements would jeopardize the viability of the business as a going concern.


The Act also allows for paid sick leave for employees (the “Emergency Paid Sick Leave Act”) who are unable to work due to: 

  1. A governmental quarantine or isolation order related to COVID-19;
  2. Advice from a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee experiencing symptoms of coronavirus and seeking a medical diagnosis;
  4. A need to care for or assist an individual who is subject to a governmental quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  5. A need to care for a child whose school or place of childcare is closed or unavailable due to coronavirus.

Other highlights of the Emergency Paid Sick Leave Act include the following:

  • Employers with fewer than 500 employees are required to provide up to 80 hours of paid sick leave for full time employees.  Part-time employees can receive an amount equal to the to the number of hours the employee works on average over a two-week period. 
  • Employers may not require that employees use other paid leave time prior to using emergency paid sick time. 
  • Employers may not require employees who request paid sick leave to find a replacement to cover for their scheduled hours as a condition to grant the request.
  • Sick time will not carry over after 2020.
  • As with emergency FMLA, employers of health care providers and emergency responders may elect to exclude such employees from the application of the paid sick leave; and employers with less than 50 employees can be exempted from the Act’s requirements.
  • This section of the Act makes it unlawful for an employer to discharge, discipline, or in any other manner discriminate against any employee (1) who takes leave in accordance with this Act, or (2) has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding. 
  • An employer who fails to provide sick leave as required under the Act shall (1) be considered to have failed to pay minimum wages in violation of section 6 of the Fair Labor Standards Act of 1938 and (2) be subject to the penalties described thereunder with respect to such violation, including liquidated (double) damages for willful violations.
  • As with other labor law posters, employers will be required to post notice of the Emergency Paid Sick Leave Act (to be provided by the Secretary of Labor) in a conspicuous place on the employer’s premises within seven (7) days from enactment.


Employers who pay employees for emergency FMLA leave or sick leave under the Act are entitled to refundable tax credit taken against the employer’s share of certain employment taxes. The credits are limited up to $200 per day for up to 10 days for each employee who takes paid sick leave, but if the sick leave was for the employee’s own covered quarantine or isolation or for the time for the employee to receive his or her own diagnosis, the credit is limited to up to $511 per day. 


This time of crisis requires everyone to be flexible – employers and employees – and employers must definitely update their time off and sickness policies to reflect the  changes imposed by the Act.  Employers who are able to allow employees to work from home and remain productive, should do so.  Employees who cannot work remotely and who do not qualify for emergency FMLA or sick leave should continue to work for as long as local ordinances do not require sheltering in place and so long as the employer has work for the employee.  The bigger issue, and one which Congress may next have to address, is the slowing down of commerce and the lack of work in many sectors of the business community.  More on that to follow as the matter winds its way through the halls of government.

As always, please stay safe and take care of yourselves and your families.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer


2300 Glades Road

East Tower – Suite 135

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

[Bio] [V-card] [Directions]



Intellectual Property, Labor & Employment Law,  Real Estate, International Dispute Resolution, Commercial Litigation, Corporate Law, Bankruptcy, Trusts & Estates, Probate and Guardianship

Miami • Ft. Lauderdale • Boca Raton 

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STAY THE COURSE – Employers on Edge with Labor and Employment Related COVID-19 Concerns

Litigation - Assouline & Berlowe

SOUTH FLORIDA – First and foremost, we at Assouline & Berlowe hope this note finds you and your family, friends, employees and others safe and well.   

We have been hearing from many of our clients and colleagues with questions about the impact of the coronavirus on their businesses – such as: allowing employees to work from home; what to do for those employees who cannot work from home; whether such employees can/should/must be paid for their absences; etc. The questions are wide-ranging and require advice that is a mix of the legal and the practical.

 As most of you may have heard, Congress is currently poised to pass federal legislation that the president is intent to sign into law that will address some of these employment-related issues, including paid leave to employees (along with a corresponding tax credit to the employer), expanded rights under the Family and Medical Leave Act and enhanced unemployment benefits. 

Once the law is enacted, we will follow up this blast with specific details (the House version of the bill – “The Families First Coronavirus Response Act” – has yet to have been voted on by the Senate).

In the meantime, you may have specific issues unique to your business that the law may not address, that may be addressed by other laws or that you may not even know are covered by any law.  Regardless of the nature of the inquiry, we are here to help as best we can, so please feel free to reach out.

Although these are uncertain times, if we each “stay the course” – be safe and smart and look out for ourselves and each other, we will get through this.    

In the meantime, you may have specific issues unique to your business that the law may not address, that may be addressed by other laws or that you may not even know are covered by any law.  Regardless of the nature of the inquiry, we are here to help as best we can, so please feel free to reach out.

Ellen M. Leibovitch, Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A., 2300 Glades Road, East Tower – Suite 135, Boca Raton, Florida 33431 Main: 561-361-6566
Direct: 561-948-2479




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