Back to Work?

Two of the biggest questions facing many employers at the end of the first quarter of 2021 are, “How do we protect workers and get back to normalcy as much as possible?” and, “Can we require employees to get a COVID-19 vaccination?”

Under the relevant U.S. Equal Employment Opportunity Commission (EEOC) updated guidelines, employers may mandate employees be vaccinated—with some exemptions. COVID-19 is not the first serious pandemic that the U.S. has endured; a short list includes the Spanish Flu, smallpox, measles, polio, H1N1, HIV/AIDS, and H2N2. Some of these past pandemics involved the distribution of vaccines, but not until COVID-19 has the EEOC published guidelines that pave the way for employer-mandated vaccinations. Prior to the pandemic, however, any conduct that might be construed as infringing on an employee’s right to privacy or right to religious freedom was prohibited, with limited exceptions.

The EEOC recently released long-awaited updated guidelines indicating that employers can mandate vaccinations in furtherance of creating a safe workplace. The EEOC guidelines state that an employer may require an employee to receive a vaccination, either from the employer or a third party with whom the employer contracts, to administer a vaccine.

While many employers already provide employees with the opportunity to receive a seasonal flu vaccination—and, in many cases, mandate it in industries such as health and education—the notion that a private-sector employer could question employees regarding the presence of any COVID-19 symptoms, take an employee’s temperature, or even require employees to wear sensors that track social distancing in real time was unheard of a year ago, and would have resulted in immediate legal challenges.

After years of restrictions placed on employers by federal and state agencies for the purpose of protecting employees in the workplace from discriminatory practices, the EEOC’s recent updated guidelines granting employers permission to mandate vaccinations for employees—albeit with exemptions for religious reasons and certain medical conditions—as a condition of employment is a 180-degree change.

The current pandemic has staggering infection and death-rate numbers. Making worker safety a priority in our new normal is key. The EEOC’s updated guidelines indicate that prioritizing the safety of the majority with mandatory vaccination policies—with the two exceptions—takes priority over an individual’s personal choice not to be vaccinated.

 A Closer Look at Exemptions

The EEOC’s recent guidelines outline two clear exemptions from compliance with a mandatory vaccination policy: (1) the employee has a qualifying disability under the Americans with Disabilities Act (ADA) that prevents them from safely receiving the vaccine; or (2) the employee has a sincerely held religious practice or belief. The exemptions apply unless granting the employee the exemption would pose an undue hardship on the employer under Title VII of the Civil Rights Act, which generally prohibits employment discrimination against an employee because of an individual’s religion.

It is also important to note that courts have broadly interpreted religion in the context of required vaccination policies. To be exempt for religious reasons, employees must establish a sincerely held belief, and that not having the vaccination does not impose an undue hardship on the employer.

However, a sincerely held religious belief does not include a personal or political belief. This belief must be honestly held, and can be new, uncommon, and separate from a formal religious sect, group, or denomination. The undue burden under Title VII means more-than-a-de-minimis, or trivial cost to the employer.

The EEOC expressly confirmed that if vaccination for COVID-19 by an employee is untenable because of a disability or sincerely held religious belief, practice, or observance—and there is no reasonable accommodation possible—then it would be lawful for an employer to exclude the employee from the workplace.

 Best Practices for Employers

With the EEOC guidance in place, employers would be wise to ensure that they consider the following best practices for a mandatory vaccination policy.

Policy and Morale. Consider the policy implications and impact on employee morale or potential public backlash. Employers should also consider whether a mandatory vaccination policy is truly necessary for all employees in all departments, or if it should only be reserved for those who may be more at risk than others.

Potential Exposures/Safety Measures. Consider the risks associated with not mandating vaccinations prior to returning to work. The employer could risk other employees being exposed at the business as well as potential violations under the Occupational Safety and Health Administration rules for not having a safe working environment. There is also the risk of the business being responsible for COVID-19 infections within the community. Further, if the employer does not require vaccinations, then the other safety measures must remain in place: social distancing, mask wearing, health questions, and temperature checks.

Financial Burden. Consider the financial burden, including all costs involved, and determine whether it is possible to provide the vaccinations at little or no cost to employees. Employers should consider if it makes financial sense to engage a third party to provide the vaccine on or off site. Employers should consider making vaccinations available on site at times convenient to employees during their normal working hours, and factor the cost and lack of productivity into the analysis.

Restrictions Still Required. Educate your staff that, although everyone has received vaccinations, the COVID-19 procedures such as social distancing, mask wearing, and work-area sanitization remain in place until the Centers for Disease Control and Prevention (CDC), or state and local public health departments, provide otherwise.

Communicate in Writing. Distribute a written policy outlining the employer’s business justification for mandating vaccinations. It will be important to explain the purpose of the limited prescreening questions, and consequences for employees who refuse vaccination and do not fall within one of the exemptions. The employer must ensure that no retaliation ensues.

Clearly Identify the Exemptions. Be sure to discuss the religious and medical exemption and expressly state that the employer will engage in an interactive process with employees who refuse to take the vaccination to determine if a reasonable accommodation is possible.

Administrative Burden. Consider the administrative burden. The employer will need to document all efforts to engage in the interactive process for the exemptions, including forms for employees to request an exemption as well as the burden of distribution and tracking. Employers must be mindful that prescreening questions may elicit information about a medical condition or disability, and must be job-related and consistent with business necessity. Employers must keep all medical records confidential for individuals who receive a vaccine, regardless of whether the employee received the vaccine at work or whether the employee provides proof of compliance.

Consider Alternatives. For those employees who refuse, an employer may impose other infection-control measures, such as additional personal protective equipment, change in workstation, change in assignment, or remote work if granting a vaccination exemption.

Terminate With Caution. Consider termination carefully, and determine if any other rights apply under the equal employment opportunity laws or other federal, state, and local authorities that may provide further guidance. Keep in mind that employers risk a retaliation claim when an employee asserts one of the exemptions and challenges the unduly burdensome defense.

Check the Local Laws. Follow state and local municipality positions on mandating vaccines. It is very likely that some states or municipalities will mandate vaccinations, removing the decision from the employer.

 Impact on Workers’ Compensation

Regardless of how employers proceed regarding mandating vaccinations, they must still proceed with caution and adapt their workers’ compensation practices with COVID-19-specific contact questions that are consistent with CDC guidelines and with employers’ return-to-work and human-resources policies for handling COVID-19-related absences. This should include the following:

•    Develop and maintain a database of evolving statutory regulations.

•    Establish reporting/tracking capability to maintain control as statutes change to enable the ability to reopen claims and review positions, particularly as presumption laws are enacted.

•    Maintain an active and strong connection with regulatory bodies to ensure clear understanding of newly issued guidance and to provide feedback when guidance presents practical hurdles.

•    Establish a special unit to review all acceptances and denials.

•    Contemplate the need for targeted contact-tracing practices and activities that are distinct from core workers’ compensation investigations in support of insureds’ return-to-work plans.

 Ultimately, employers will need to proceed with caution, and should always confirm that both the policies and practices are legal before deciding whether to take any adverse action against an employee for refusing to comply with a vaccine policy. Employers should be ready to adjust and refine their policies and practices as the legal landscape related to COVID-19 continues to evolve.