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17 March 2021
The COVID-19 pandemic has put unprecedented strain on organisations of all sizes across all industries. The uncertainty of the 'new normal' is forcing employers all over the world to consider various new policies as workers return to the workplace. To properly navigate the complexities of these novel COVID-19 employment issues, employers need innovative but practical solutions.
With the COVID-19 vaccination process underway, employers are navigating unprecedented issues within their workforce. This article explores the most pressing questions that employers are asking – including whether employers can (and should) mandate vaccination – as well as other novel workplace challenges stemming from the roll-out of a COVID-19 vaccine.(1)
Where do mandatory vaccination workplace policies stand in light of (yet) undetermined widespread confirmation of the efficacy and effectiveness of the COVID-19 vaccines currently available?
The law is no different for the COVID-19 vaccine as it was for the H1N1 (swine flu) vaccine in 2009. Notwithstanding sceptics, it is permissible to mandate the vaccine, subject to Title VII of the Civil Rights Act (religious accommodation) and Americans with Disabilities Act (ADA) (disability accommodation) issues and parallel state counterparts. As a practical matter, until a COVID-19 vaccine is readily available to a workforce, it makes no sense to make it mandatory. Moreover, because of the wide range of views (both scientific and unscientific) as to the efficacy and effectiveness of COVID-19 vaccines, many employers are opting and will continue to opt for voluntary programmes. As time passes, that information and those views may evolve.
Can employers mandate that some employees get the vaccine and not others, such as union versus non-union administrative employees?
Having different rules for union versus non-union employees does not violate the National Labour Relations Act, provided that the different treatment is not retaliatory or motivated by anti-union animus.
Can employees refuse to return to the workplace indefinitely without a request for accommodation, making the argument that they have been able to successfully complete their job requirements remotely since the start of the pandemic? Under what circumstances could employers refuse that request?
The answer is going to turn on whether working in the office is an essential function of the job. If yes, employees cannot work remotely indefinitely. However, proving that working in the office is an essential function of the job will be difficult for employers if employees have spent the past nine months performing their job duties well remotely.
The EEOC guidance seems to suggest that not all workplaces would be viewed the same under the individualised enquiry framework (eg, a meatpacking plant versus an office setting might be viewed differently in terms of mandatory vaccinations). What does this mean for employers?
According to the Equal Employment Opportunity Commission (EEOC) guidance, in the context of a mandatory vaccination programme, employers should conduct an individualised assessment in determining whether unvaccinated employees would pose a direct threat at the worksite (eg, would expose others to COVID-19 at the worksite). The following factors may affect the undue hardship consideration:
Therefore, employers should consider these factors when engaging in the interactive process to identify workplace accommodation options that do not constitute an undue hardship.
What implications come into play if a programme is voluntary but an employer allows for paid time off to get the vaccine from an unrelated third party and agrees to reimburse for any out-of-pocket cost (eg, admin fees)? Are these incentives an ERISA or federal government concern?
Admin fees may not be charged, so vaccines must be provided at no cost to individuals – whether through a group health plan, Medicare or the Health Insurance Marketplace. Therefore, this approach will not create an Employee Retirement Income Security Act (ERISA) plan.
Do employers which provide in-person job safety training have any jurisdiction to require students (who are all adults) to be vaccinated before they enter the premises?
At the time of writing, there is no guidance relating to requiring proof of vaccinations from customers. Current EEOC guidance regarding COVID-19 vaccinations focuses on Title I of the ADA, which governs employment relationships. If a company is a public accommodation, Title III of the ADA would apply. The EEOC will likely issue Title III guidance in the future, as the vaccine becomes more widely available to the US population.
How should employers handle employee anti-vaccination advocacy on the job? Particularly where an employee disseminates misinformation?
As purely political objections to a vaccination programme are not protected under federal law, employers are under no obligation to exempt an employee from receiving a vaccine simply because the employee is an 'anti-vaxxer'. Moreover, employers are generally allowed to limit anti-vaccination misinformation disseminated by an employee and should do so consistent with their discipline policies. However, employers should keep in mind that some states (eg, California) prohibit employers from taking actions that tend to control or direct their employees' political activities or affiliations. Therefore, employers should be careful to communicate to an employee engaging in anti-vaccination advocacy that they are free to do so outside of the workplace.
Can employers create a hybrid approach where the vaccination programme is voluntary but if employees choose not to get vaccinated, they must work remotely from home?
Under current guidance, employers can implement a hybrid approach if they implement a voluntary vaccine programme but require unvaccinated employees to continue to work remotely.
Can employers advertise that all employees have been vaccinated or would employers risk claims from employees that their personal health information has been disclosed?
Employers should be careful not to disclose employees' immunisation histories as those may be protected from disclosure under state statutory or common law. To minimise the risk of potential claims, employers should consider using broad and general language when 'advertising' their mandatory or voluntary vaccination programmes (eg, "to ensure a safe environment for employees and customers, the company has implemented a vaccination programme for its employees").
Will having a third party administer the test on company property subject a company to any additional HIPAA regulations? Can employers simply ask if an employee has been vaccinated?
Employers may simply ask about vaccination status – nothing more. This will not implicate Health Insurance Portability and Accountability Act (HIPAA) privacy. However, if employers administer the vaccine, there will likely be a questionnaire (eg, comorbidity factors) which would implicate HIPAA privacy.
If employers' vaccination programmes are voluntary, can employees refuse to return to the workplace because they are uncomfortable working among employees who may be unvaccinated?
While general concerns that other employees are unvaccinated may not be protected under the ADA or Title VII, employers should listen to employee concerns and, if they are genuine, explore alternative working arrangements with them (eg, continuing to work remotely). Employers should keep in mind that accommodations made for one employee may set a precedent regarding how other employees should be managed in similar situations. In addition, employers should be mindful that if employees come together to protect or refuse to return to work, their concerned efforts could be protected under the National Labour Relations Act.
What sort of governance and protocols would be necessary if reviewing religious exemption requests?
Employers should engage in the interactive process as they would with any other request for religious accommodation. In general, employers should assume that an employee's request for a religious exemption is based on a sincerely held religious belief, practice or observance given the broad definition of religion under EEOC guidance. However, if employers have an objective basis for questioning the sincerity of the particular belief or its religious nature, they may seek additional supporting information from the employee. Employers should then access whether providing a religious exemption would pose an undue hardship on themselves.
Under a mandatory or voluntary vaccination programme, is there an obligation (or a business reason) to consider requiring a COVID-19 test before coming back to work?
There is no legal obligation that employers require COVID-19 testing as part of a vaccination programme. However, employers may have separate obligations under state or local regulations, orders and ordinances to require COVID-19 testing before employees may return to work.
What are the potential workers' compensation claims relating to possible adverse reactions to a vaccine? Should employers mandate vaccinations? Are employers truly responsible?
If employers implement a mandatory vaccination programme, the vaccination is considered work-related. Under most state laws, an adverse reaction to a vaccine would fall under workers' compensation. Employers should check with their workers' compensation policies to determine whether injuries and illnesses from mandated vaccines are covered.
Can employers use different vaccination requirements or incentives for different kinds of employee (eg, back office versus customer facing)?
Employers may consider whether to implement different vaccination policies with respect to employees in different roles (eg, those who directly interact with other employees or the public versus those who do not). However, employers should ensure that they are not treating (or appear to be treating) employees differently based on a protected class.
For further information on this topic please contact Christopher A Braham at McDermott Will & Emery's Los Angeles office by telephone (+1 310 277 4110) or email (firstname.lastname@example.org). Alternatively, please contact Michael J Sheehan, Carole Spink or Judith Wethall at McDermott Will & Emery's Chicago office by telephone (+1 312 372 2000) or email (email@example.com, firstname.lastname@example.org or email@example.com). The McDermott Will & Emery website can be accessed at www.mwe.com.
(1) This article is based on a recent webinar, available here.
Philip Shecter, associate, assisted in the preparation of this article.
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