Bradley attorney Chuck Mataya was quoted in Law360 on the U.S. Equal Employment Opportunity Commission's (EEOC) new guidance setting out how businesses that adopt vaccine requirements should handle employees who forego a shot because of a disability or their religion, and how that guidance may impact law firms and court systems.
Reasonable accommodations could include allowing an employee to wear a mask or socially distance, to take personal leave or leave under the Family and Medical Leave Act, or to continue working remotely, said Mataya.
As long as a firm goes through that accommodation process, "then you're probably OK mandating that they take [the vaccine] and if they don't take it they can't come to work," Mataya said.
But most law firms will not actually decide to go ahead and implement a vaccine mandate just because of the new guidance, he added.
"I don't think that managers, for the most part, are going to want to put it in place for law firms," Mataya said. "They might encourage it, but I don't think they're going to mandate it in most situations."
A vaccine mandate could have a negative impact on morale, he pointed out, and the fact that so many firms have had success allowing their attorneys to work from home means there will be a ready and simple accommodation available for most employees who choose to avoid the shot.
But court systems could require litigants and attorneys who appear in their courtrooms to be vaccinated, and employment laws probably wouldn't apply in those cases, Mataya said, though he cautioned that the ADA still would. So even if firms don't mandate shots for their attorneys, some attorneys may need to be vaccinated regardless.
"I would think that the inherent discretion that a judge has probably gives them the right to say, 'I don't want you in front of me if you haven't had the proper protections,'" Mataya said.
Mataya said they expect there will be a steep learning curve and probably a good deal of litigation involving employees who refuse vaccinations due to health, religious and other concerns.
"It's going to be a learning experience for everybody as we go through it," Mataya said, "and people who think they know exactly how it's going to come out, I think they're in for a surprise."
The original article, "Firms, Courts Face Worker Vaccine Bind Despite EEOC Guide," appeared in Law360 on December 18, 2020.