COVID-19: FORCE MAJEURE AND COMMERCIAL LEASE

As this relentlessly awful year mercifully draws to a close, a light at the end of our pandemic tunnel is rapidly approaching. COVID-19 vaccines are poised for approval, and it is expected that distribution will begin in earnest shortly. But no matter how much and how confidently the FDA and other health experts proclaim these vaccines to be safe and effective, there are large numbers of Americans who say they won’t get the shot when it becomes available. The most recent Gallup poll found that only 63 percent of Americans say they are willing to be inoculated against the disease. Many of those who don’t want to get vaccinated will soon find out that they work for an employer who feels differently. Those employers may also tell them that they either need to get the vaccine or need to find a new job. And, in most cases, employers may be well within their rights to terminate employees who refuse to take the COVID-19 vaccine. Mandatory Vaccinations Are Not New Companies that have spent the better part of the year – and lots of money - trying to keep their workplaces COVID-free see the vaccine as the apex of those efforts. With a fully vaccinated workforce, business owners can operate without disruption and provide employees, customers, clients, and patients with confidence and peace of mind. But all of those benefits of the vaccine only accrue to fully vaccinated workforces. So, many companies may mandate that employees get their shot as a condition of continued employment. By doing so, they are following a legally sound path that predates the current pandemic. Well before anyone had heard of coronavirus, plenty of employers, primarily in the health care sector, required employees to get the flu vaccine and vaccinations against other infectious diseases. Most public school districts also require proof of vaccinations before a student can enroll and attend classes. Since most employees in Illinois work on an “at-will” basis, they can face termination for almost any reason not expressly prohibited by federal, state, or local laws. Generally, no law stands in the way of an employer requiring the COVID-19 vaccine for its workers. ADA and Religious Exceptions However, employers who make vaccines mandatory need to be mindful that employees with legitimate health or religious concerns about the vaccine may be protected from termination and other adverse employment actions if they refuse the shot. But these exceptions don’t necessarily apply just because someone doesn’t believe in vaccines generally (“anti-vaxers”) or thinks that forcing them to get vaccination is an infringement on their liberties. Employees who have a disability recognized under the Americans with Disabilities Act (ADA) that prevents them from taking the coronavirus vaccine cannot be forced to get the vaccine, so long as their exemption does not impose an “undue hardship” on the employer. Such disabilities in this context may include a compromised immune system or an allergy to an ingredient in the vaccine. While there has been no definitive guidance on the subject, one could credibly argue that an employee’s refusal to get vaccinated is an “undue hardship” if it places the health and safety of other employees and visitors at increase risk of infection. Even in such cases, however, an employer may need to make a “reasonable accommodation” for the employee, such as allowing them to work from home. Similarly, the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964 may protect a worker if their “sincerely-held religious beliefs” preclude them from getting a vaccination. Such beliefs do not include political or personal views. The burden is on the employee to demonstrate the legitimacy of their religious objections to the vaccine. More Than Legal Issues To Consider Even when an employer is within their legal rights to require employees to get the COVID-19 vaccine, other considerations may weigh against such a mandate. For example, they may need protection against an employee who has an adverse reaction, even if they signed a waiver upon receiving the shot. A vaccination requirement may also get an adverse reaction from employees generally as well as the general public if it seems heavy-handed and overreaching. Of course, those that decide against a mandate face risks if someone does contract the coronavirus in the workplace and sues. Please Contact Grogan Hesse & Uditsky With All Of Your COVID-Related Employment Questions If you have questions or concerns about how to handle vaccinations or other employment issues related to COVID-19, please call us at (630) 833-5533 or contact us online to arrange for a consultation.

Yesterday, in an update to its PPP FAQ, the SBA clarified its review of the “good faith” certification required in applying for PPP loans. As PPP applicants are aware, to apply for PPP loans, an applicant must certify in good faith that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” For most applicants, COVID-19’s ramifications made this statement a no-brainer. But many left wondering how the SBA would police this clause. After all, borrowers are relying on PPP loan forgiveness if they properly use their loan proceeds. There is concern that the SBA’s review of the good faith certification could thwart borrowers’ forgiveness goal even if they used their loans for payroll and other areas acceptable for forgiveness. The SBA’s announcement gave reason to alleviate that concern for some borrowers. In Question 46 of its PPP FAQ (found here in its entirety), the SBA states that borrowers with an original principal amount of less than $2 million will be deemed to have made the required good faith certification. In the legal world, statements deemed to be true are facts for all intents and purposes. This clarification likely means that the SBA won’t even spend the time reviewing good faith certifications for loans under $2 million. Keep in mind, however, that the $2 million threshold applies to applicants taken together with their affiliates. If your total loan amount falls under $2 million, then you’ll have the benefit of this safe harbor. For borrowers with loans greater than $2 million, you won’t have this safe harbor but that doesn’t mean you couldn’t have made a good faith certification. Your cases will be reviewed under their individual circumstances. In effect, today’s announcement changed little in advising how the SBA will review loans over $2 million. There remains uncertainty as to what the audit process for this good faith certification will look like and whether borrowers will have an opportunity to appeal, but if your loan is under $2 million you can breathe a small sigh of relief in knowing the certification you made in your application won’t be scrutinized. If you have any questions on this latest announcement or just want guidance on the PPP in general, give us a call. We’ll keep you updated as more clarification comes out.