By Donald “Dino” Velez
Many Americans are now fully vaccinated for COVID-19, meaning they have received the necessary dose(s) and time for immune response, and employers have broader options to open up workplaces. The changing landscape still has employers asking about their options and whether they can mandate vaccinations for their employees.
What is the current CDC guidance for fully vaccinated employees?
The Centers for Disease Control (CDC) advised that fully vaccinated persons may meet indoors without wearing a mask or staying 6 feet apart. Further, fully vaccinated persons can meet indoors with unvaccinated persons of any age from one additional household without wearing a mask or staying 6 feet apart, unless any of the unvaccinated individuals or anyone residing with them has an increased risk of severe illness from COVID-19. Fully vaccinated individuals can also partake in outdoor activities and recreation without a mask, except in certain crowded settings and venues.
If a person is exposed to someone with COVID-19, the CDC states that a fully vaccinated individual does not need to quarantine, be restricted from work, stay away from others, or get tested unless the fully vaccinated person has COVID-19 symptoms (with exceptions for certain group settings). Anyone who has tested positive for COVID-19 in the prior 10 days or are experiencing COVID-19 symptoms should not visit or attend work.
What are the responsibilities of an employer?
Under federal OSHA rules, employers are required to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” Employers should determine whether worksites must be staffed only with vaccinated workers as part of fulfilling this duty.
Can employers mandate a COVID-19 vaccine for all employees?
The Equal Employment Opportunity Commission (EEOC) announced that employers may implement mandatory vaccination programs. However, if a vaccination program is implemented, it requires care and/or accommodations for employees. A common strategy of employers since the widespread rollout of the COVID-19 vaccine is to “strongly encourage” vaccination, rather than mandate vaccination.
Has there been litigation to challenge employers’ ability to mandate vaccination?
In Bridges v. Houston Methodist Hospital, a U.S. District Court in Texas referred to the EEOC guidance and dismissed a suit by private hospital employees to prohibit the hospital’s mandatory vaccination policy and to prevent termination of employees who refused to comply with the policy. The court stated, “If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired.” However, each state will have different rules, and the Texas case required workers at a private employer to prove that receiving vaccination was a crime. Employers should remain vigilant and seek legal counsel to keep up with developments.
Are there risks involved with implementing a mandatory vaccination program?
Employers implementing or planning to implement mandatory COVID-19 vaccination programs should be ready for increased sick days, extended sick leave, worker’s compensation claims, and/or lawsuits from employees who may experience side effects or complications.
Employers should consider that many Americans in the workforce are vaccine-hesitant. Employers will want to communicate with employees about their concerns and provide up to date information about the benefits and safety of the vaccines.
What are the additional considerations for unionized workforces?
Under the National Labor Relations Act (NLRA), typical state laws, and most collective bargaining agreements, employers are required to provide notice and an opportunity to bargain changes in working conditions. Mandatory vaccination constitutes a change in working conditions, thus prompting such requirements.
The NLRA protects unionized and non-unionized employees’ rights to engage in “concerted activities” for “mutual aid and protection.” Employees’ ability to oppose or discuss a vaccination should not be impeded by an employer.
Is the administration of a COVID-19 vaccine a “medical examination” under the ADA?
Administering the COVID-19 vaccine is not considered a “medical examination” for purposes of the Americans with Disabilities Act (ADA).
Are employers permitted to ask pre-vaccination screening questions?
It is possible that pre-vaccination screening questions may implicate prohibitions on disability-related inquiries under the Americans with Disabilities Act (ADA) and/or prohibitions on asking about family medical history under the Genetic Information Nondiscrimination Act (GINA).
Employers’ screening questions should be related to an employee’s job and consistent with business necessity. Based on objective evidence and/or data, employers must have a reasonable belief that an employee who does not answer the questions and does not receive a vaccination will pose a direct threat to the health or safety of themselves or others.
Employees can be asked screening questions that do not satisfy the “job-related and consistent with business necessity” requirement in two situations.
First, an employee’s decision to respond to the questions is voluntary if the employer offers employees vaccination on a voluntary basis. An employer may decline to administer the vaccine if an employee refuses to answer the questions.
Second, employees receiving the vaccine from a third-party should be required to sign forms authorizing release of information.
How should the employer handle an employee who objects to being vaccinated because of existing medical conditions?
Employers who screen individuals with disabilities must show that an unvaccinated employee presents a “significant risk of substantial harm to the health or safety of the individual or others that cannot be reduced by reasonable accommodation.”
Whether a direct threat exists may include considerations of: (a) duration of risk; (b) nature and severity of potential harm; (c) likelihood of potential harm; and (d) whether potential harm is imminent. A determination that an individual presents a direct threat would “include a determination that an unvaccinated individual will expose others to the virus at the worksite.”
If the risk cannot be reduced to an acceptable level, the employer may exclude the unvaccinated employee. However, the right to exclude the employee from the workplace does not mean that the employer can terminate the employee, as he/she may be entitled to accommodation, or to take leave provided by law or under the employer’s policies.
Can employees object to receiving a vaccine on religious grounds?
Employers considering mandatory vaccination programs should inform employees early, and seek notice from employees who will refuse vaccination based on religious beliefs and/or practices. Employers should document attempts to accommodate those employees who express religious objections.
Employers with more than 15 employees fall under Title VII of the Civil Rights Act of 1964 (Title VII) and must provide reasonable accommodations for employees whose sincerely-held religious beliefs or practices prevent them from receiving a COVID-19 vaccination, unless doing so would cause undue hardship on the employer. Under Title VII, “undue hardship” suggests the accommodation would impose more than a de minimis cost or burden on the employer.
Grounds for objection worth considering
Every state and/or jurisdiction may have different rules for mandatory vaccination that may require additional considerations. Several states allow individuals to decline vaccinations on philosophical grounds. Some states allow individuals to decline vaccinations for any reason.
Must an employer provide paid time off for employees to receive the vaccine?
Under the federal Fair Labor Standards Act and any equivalent state laws, if an employer mandates vaccines for its employees, the time that employees spend obtaining these injections (including the travel time to and from the vaccination facility) count as “hours worked.”
Must the employer pay for vaccination?
Most COVID-19 vaccines are free. If an employee does incur any costs associated with the vaccine, employers may be required to cover such costs.
About the author:
Donald “Dino” Velez, Of Counsel, is an attorney with Smith, Currie & Hancock LLP, in the firm’s San Francisco, California, office. Smith Currie is a nationally recognized law firm focusing on Construction Law and Government Contracts. Contact Dino at firstname.lastname@example.org. Learn more: www.smithcurrie.com.
This article originally appeared in the July/August 2021 issue of Utility Contractor, a sister publication to TBM: Tunnel Business Magazine.