A&E Quarterly Regulatory Round Up Q3 2021

We are pleased to share with you our A&E Quarterly Regulatory Round Up. This quarterly report highlights regulatory developments and insights that are important to the A&E firm sector.

Our 3^rd Quarter 2021 report includes a summary discussion of the recent Equal Employment Opportunity Commission’s (EEOC) guidance on employer COVID-19 vaccine policies and Employee Retention Credits (ERC) to help A&E firm owners decide the easiest and most beneficial way to monetize the ERC for much needed cash that can be used to hire new employees, expand R&D, and invest in new or improved products or services.

EEOC Issues Guidance on Employer COVID-19 Vaccine Policies

On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) posted updated technical assistance guidance related to employer policies on COVID-19 vaccinations, and the impact of EEO laws including the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”), and Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act (“Title VII”).

This article provides a high-level summary of the EEOC guidance, with references to the relevant numbered questions for more information on a particular point. The guidance is detailed and addresses employer practices in responding to and evaluating accommodation requests, which are beyond the scope of this article.

As A&E firms begin to bring employees back to the office or off-site at clients, they should review this guidance and their policies with employment counsel. Keep in mind this guidance is limited to federal EEO laws. State and local laws, along with collective bargaining and other employment agreements, may impose further restrictions.

Confidentiality of COVID-19 Vaccination Information

The guidance states that under the ADA, an employer is required to “maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination,” regardless of whether an employee’s vaccination is obtained in the community or directly from the employer.

Therefore, if an employer collects or retains documentation of an employee’s vaccination, this documentation must be kept confidential and stored separately from the employee’s personnel files, like all medical information under the ADA. [K.4]

Mandatory Employer Vaccination Programs

Federal EEO laws do not prohibit an employer from requiring employees to be vaccinated before physically entering the workplace, as long as the employer complies with the reasonable accommodation provisions of the ADA and Title VII [K.1, K.2] for an employee who does not wish to be vaccinated due to:

• Disability, [K.5, K.6]
• Pregnancy, [K.13] or
• A sincerely held religious belief. [K.6, K.12]

The guidance provides examples of reasonable accommodations, including:

• wearing a face mask,
• working at a social distance from coworkers or nonemployees,
• working a modified shift,
• getting periodic tests for COVID-19, or
• given the opportunity to telework. [K.2]

As with any employment policy, an employer should be attentive to whether its vaccination requirement has a disparate negative impact on employees covered by a protected category, such as situations where accessibility barriers make it difficult to obtain a vaccination. [K.1]

The guidance also clarifies:

• If an employer requires employees to provide documentation of their vaccination from an unrelated third party in the community (such as a pharmacy, personal health care provider, or public clinic) this generally will not raise issues under EEO laws, assuming a reasonable accommodation exists for employees who cannot be vaccinated due to disability, pregnancy, or a religious objection. [K.9, K.15]
  • For purposes of the ADA, merely requesting documentation or other confirmation of vaccination by a third party in the community is not a disability-related inquiry. GINA is not implicated, because the employer is not asking the employee any medical screening questions (rather, the employee’s own health care provider is asking those questions).
• If an employer requires employees to get a vaccination from the employer or its agent (for example, from an onsite nurse or a workplace clinic), the pre -vaccination medical screening questions are likely to elicit information about an employee’s disability.
  • This raises ADA issues, as an employer can only require an employee to answer such questions if they are “job-related and consistent with business necessity.” To meet this standard, an employer would have to assert that an employee’s refusal to answer (and therefore failure to receive the vaccine) would pose a direct threat to the health and safety of the employee or others in the workplace. Therefore, when an employer requires that employees be vaccinated by the employer or its agent, the employer should be aware that an employee may challenge the mandatory pre -vaccination inquiries, and an employer would have to justify them under the ADA. The guidance provides further information on evaluating these situations. [K.5 , K.7]
  • However, GINA would not be implicated as long as the pre -vaccination medical screening questions did not include questions about the employee’s genetic information, such as asking about the employee’s family medical history. The pre -vaccination medical screening questions recommended by the Centers for Disease Control and Prevention (“CDC”) as of May 27, 2021, do not ask about family medical history or any other genetic information. [K.14]

Employers may not require employees to have their family members vaccinated and must not penalize employees if their family members decide not to get vaccinated. [K.21]

Voluntary Employer Vaccination Programs and Incentives

Voluntary vaccinations provided by the employer

An employer may wish to facilitate the vaccination process by making vaccinations available to employees and/or family members. This means the employer or its agent will have to ask the employee and/or family members to answer pre-vaccination medical screening questions.

Unlike a mandatory program (described above), the guidance makes clear if an employer offers to vaccinate its employees on a voluntary basis (meaning the employees can choose whether to get the COVID-19 vaccine from the employer), the employer does not have to show that the pre- vaccination screening questions are job-related and consistent with business necessity. Therefore, if the employee is voluntarily answering the CDC-recommended pre-vaccination medical screening questions in this context, this doesn’t trigger concerns with the ADA or GINA. [K.8, K.14, K.19]

For an employee’s family member, the employer must take extra steps to comply with GINA. For example, the family member must give a voluntary written authorization before answering medical condition questions, and the employer must keep the family member’s medical information confidential and inaccessible to any individual who makes employment decisions for employees. [K.21]

An employer who offers voluntary vaccinations also must comply with federal employment nondiscrimination laws. For example, it would not be permissible to exclude certain employees from the opportunity to be vaccinated based on national origin or another protected basis under the EEO laws. [K.10]

Resources: Section K, Vaccinations of the EEOC’s “What You Should Know About COVID -19 and the ADA, the Rehabilitation Act, and Other EEO Laws” is found at https ://www.eeoc.gov/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

Employee Retention Credits for Architectural & Engineering Firms

Architectural & Engineering (“A&E”) firm owners may be eligible for the Employee Retention Credit (“ERC”) if they experienced a full or partial suspension of operations during 2020 and 2021 due to the COVID-19 pandemic OR are suffering significant declines in gross receipts as compared to 2019. The ERC is a refundable payroll credit of up to $5,000 per qualified employee in 2020 and $7,000 per qualified employee per quarter in 2021 ($28,000 per employee over the course of 2021). Cherry Bekaert’s ERC Team is helping many A&E firms qualify for this credit.

The A&E industry is experiencing significant growth opportunities which are expected to escalate as the new Administration supports greater energy efficiency in new construction and renovated real estate. The ERC provides A&E firm owners with much needed cash that can be used to hire new employees, expand R&D, and invest in new or improved products or services.

For additional guidance on deciding the easiest and most beneficial way to monetize the ERC, read our recent article: 4 Ways to Monetize the Employee Retention Credit.

Cherry Bekaert is ready to assist you in claiming the ERC. We have a proprietary technology platform that allows us to provide an audit-ready deliverable in which we document your status as an Eligible Employer, calculate the credit from your wage data, maximize the wages treated as Qualified Wages, and allocate PPP loan forgiveness proceeds across the eligible payroll quarters. For questions or guidance, contact your Cherry Bekaert tax advisor or Martin Karamon.