You’ve attended the webinars on navigating COVID-19. You’ve read the trade publication tips. You have implemented measures to protect your workers. So, you’re ahead of the game, right? Well, you’re certainly ahead of the Florida sheriff who reportedly instructed his employees not to wear masks in the ofﬁce. If a visitor entered Sheriff Billy Wood’s ofﬁce with a mask, they were reportedly instructed to remove it.
Employers generally have an obligation to provide a reasonably safe place for employees to work and for invited guests. In today’s environment, this may involve daily temperature checks of employees and visitors, daily certiﬁcations by each employee that they have no COVID-19 symptoms or exposure, and a requirement that prudent distancing be maintained when possible. Guidance from the Centers for Disease Control and Prevention (CDC) suggests essential workers may not require quarantining after potential exposure. Nevertheless, an employer may consider quarantining crews exposed to an infected person, particularly if face masks were not being used or distancing was not followed or possible. Each of these safety steps is expensive, in additional check-in time for employees and in work efﬁciency. That expense should be measured ﬁrst against the well-being of the workforce. If the employer has the duty to provide a reasonably safe place to work, then that duty is perhaps satisﬁed by these safety steps.
DOCUMENT THE COMPANY’S COVID-19 PRACTICES
So, you’re ahead of the curve. You have gate monitoring in place; toolbox meetings to discuss COVID-19 issues each morning; your home-ofﬁce employees are reminded about COVID-19 issues weekly; employees are sent home if they have symptoms; and you require certiﬁcations from each employee that they are symptom-free every day. Many of our readers have attended seminars emphasizing the importance of implementing good contractual and safety practices and of documenting them. An employer should consider whether it can put simple, effective documentation of its proactive COVID-19 prevention into place. Can the company computerize the morning representation by its employees? Can the temperature log be automated? How can the company conﬁrm that it held regular meetings to stress practicable COVID-19 preventive measures?
Good recordkeeping can pay off in several important ways. It can help prevent employee infections because management is requiring attention to the issue through documentation. It may also minimize the isolation at home of entire crews or of a key member of the home-ofﬁce staff. And it can allow the employer to prove it implemented and monitored the application of reasonable steps in the event of an employee who becomes infected with COVID-19 and claims it was caused at the workplace.
At least one state—Virginia—has issued a regulation classifying employers in construction jobs as medium risk and requiring those at medium risk with 11 or more employees to develop
a preparedness and response plan that takes into account several factors, including the designation of a person responsible for administering the plan. Some companies are appointing such a person not because it is required by an express regulation, but for the reasons we mention above: the health and well-being of the workforce.
Should you take a deeper look at the impact of COVID-19 on your workforce? Are there safety measures that you can take that will make your employees feel safer? Does COVID-19 have a disproportionate effect on women or minorities? Because of the impact of childcare costs on women in the workplace, some recent ﬁndings indicate a disproportionate impact on women. Is that something you should study with respect to your workforce? Are there targeted measures you can take to help with this? Is it important enough to document any effort your company makes to analyze that impact, if any? Is there an obligation to do so? A document will not “vaccinate” your workforce. But it can serve at least three salutary purposes:
1. Encouraging your management to consider how to implement a COVID-19 plan
2. Lowering the risk of infections at your project
3. Allowing you to show third parties that your company was safety conscious during this “new normal”
Now that two approved vaccines are being distributed, there is a new question for employers: “Do I mandate COVID-19 vaccinations? And if I do, do I select the priority for who gets the vaccination or for exempting employees or classes of employees?” Objections are likely from some employees, and thus, the employer should consider how those might be handled if they arise.
TO MANDATE OR NOT TO MANDATE?
Assuming vaccinations are not already being required by federal or state authorities (something that is quite likely in some areas and in certain industries, such as health care), in most cases, the decision on whether to mandate COVID-19 vaccinations will generally be left to an employer’s discretion. Exceptions to the policy may be necessary, but unless your employees are represented by a union, an employer may require vaccination.
If a union is involved, unilaterally implementing such a program may lead to a meritorious unfair labor practice charge if the collective bargaining agreement does not already address such an issue. When in doubt, bargain. At the very least, provide notice and an opportunity for the union to request bargaining. However, in an “at-will” employment scenario, an employer can make vaccination a condition of employment.
In deciding whether to mandate a COVID-19 vaccination for employees, an employer must balance the liberty interests of employees against the health and public safety beneﬁts associated with the vaccination requirement. An employer should, of course, consider anything of relevance to the issue. One such factor is the workers’ environment. Some jobs may be considered at higher risk for getting and transmitting COVID-19 than others.
For example, those working more closely together, such as in a meatpacking or manufacturing facility or in the accounting ofﬁce or at a construction site, where distancing may not be feasible for all crews, may be considered more at risk than those working in an ofﬁce where social distancing is more easily managed.
Similarly, a job requiring frequent interaction with customers, such as workers in the site trailer, may also be considered at higher risk for contracting or transmitting the virus than are workers without that interaction requirement. The risk that an employee will contract or transmit the disease must also be weighed against the risks associated with requiring the vaccination, such as the risk of potential liability for an employee that is harmed by the vaccine.
In most states, such an injury would likely be covered by the applicable workers’ compensation program, thereby limiting an employer’s liability to the remedy provided by the workers’ compensation statute. However, as has been seen with mandated COVID-19 testing programs, many enterprising plaintiffs’ attorneys have brought challenges to such limitations. Similar challenges may be expected in the “required vaccination” arena.
Other factors for consideration include the potential for claims from customers and perhaps even your employees that they contracted the coronavirus from an unvaccinated employee. This potential risk increases in cases where other similar employers have already decided to mandate vaccines. Expectations on what a reasonable business should do can change over time, depending on changes in the industry. Beyond the legal issues raised by a compulsory vaccination program, an employer should also consider that such a program can negatively impact employee morale. These morale issues may be outweighed by other factors but should not be dismissed out of hand. As more is learned about COVID-19, the calculations as to what is reasonable and how to address the risks associated with it may also change.
CONSIDERATIONS FOR A MANDATED COVID-19 VACCINATION PROGRAM
If an employer decides that compulsory vaccinations are the way to go, the employer must also account for the typical anti-discrimination protections that can impact its compulsory vaccination program. Assuming an employer is covered by either Title VII or a similar state anti-discrimination statute, the employer should administer the program in a nondiscriminatory manner, consistently requiring all employees with similar jobs under similar circumstances to be vaccinated. If an employer is going to require only certain employees to be vaccinated, there must be a legitimate, nondiscriminatory reason justifying the differing treatment between positions.
Similarly, assuming that an employer is covered by Title VII, the Americans with Disabilities Act (ADA) or similar federal or state accommodation requirements, an employer must include in its compulsory vaccination program a mechanism to carefully consider and decide religious or disability-related objections to the program’s application to a speciﬁc employee. The Equal Employment Opportunity Commission (EEOC) highlighted this on Dec. 16, 2020, in its updated guidance What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other Equal Employment Opportunity (EEO) Laws.
In that guidance, the EEOC explains that although EEO laws do not prevent employers from following CDC or other federal, state and local public health authorities’ guidelines and suggestions relating to any approved vaccines, if an employer decides to require that its employees take a vaccine, those laws must be considered when administering the compulsory vaccine program. A review of all questions answered in the EEOC guidance is a must if a compulsory program is to be implemented. However, the basic principles are set out in part
of the response to question K.5 as the EEOC discusses the ADA’s requirements:
The ADA allows an employer to have a qualiﬁcation standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualiﬁcation standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “signiﬁcant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk, so the unvaccinated employee does not pose a direct threat. If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations, such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the Family and Medical Leave Act, or under the employer’s policies. See also Section J, EEO rights relating to pregnancy.
[Available on the Department of Labor website.]
A similar analysis must be performed in the “religious objection” context as well. Therefore, in either a religious-objection scenario or a disability-related accommodation request scenario, an employer should engage in the “interactive process” with an employee to determine what accommodations are both necessary and available. Do not pre-judge the result when a request is made.
Rather, engage in the process through communication with the employee. If the predicate for requiring a reasonable accommodation exists, and a reasonable some accommodation is feasible, the reasonable accommodation must be made unless providing the accommodation would create an “undue hardship” for the employer. The potential accommodations could include considering anything from the use of personal protective equipment to permitting the employee to work remotely, if feasible.
Under the ADA, an accommodation poses an “undue hardship” if it results in signiﬁcant difﬁculty or expense for the employer, taking into account the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business. If a particular accommodation would result in an undue hardship, an employer is not required to provide it but still must consider other accommodations that do not pose an undue hardship. Note, however, that the EEOC has recognized that the undue hardship threshold under Title VII is a lower standard than that existing under the ADA. This may make it easier to meet, but an employer should not summarily dismiss religious objections to a COVID-19 vaccine requirement.
In sum, employers are in for a challenging time even as potentially lifesaving COVID-19 vaccines are rolled out to the public. The temptation to require all employees to take the vaccine will be great. Nonetheless, in considering whether to implement a compulsory vaccine program, an employer should compare the risks associated with implementing such a program with one that only recommends that employees take the vaccine.
The answer will not be the same for every employer. If a compulsory program is implemented, it should include recognition and appreciation for objections based on religious or medical/disability-related grounds. Failure to allow for such, or to handle these in a manner consistent with both Title VII and ADA obligations, may come back to haunt an employer even as the world begins to recover from the horrible effects of COVID-19.
Republished with permission. This article, "COVID-19 in the Workspace: Is Enough Enough?," was published in the February 2021 issue of Construction Business Owner Magazine. The original article can be accessed here.