COVID-19 in the Workspace: Is Enough Enuf?

Construction and Procurement Law News, Q1 2021

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You’ve been to the webinars about COVID-19 and its impacts. You’ve read the trade publication tips. You’ve implemented measures to protect your workers. You’ve been vaccinated. You’re ahead of the game, right?

Employers generally have an obligation to provide a reasonably safe place for employees to work and for invited guests. In today’s COVID-19 environment, this may involve daily temperature checks of employees and visitors, daily certifications by each employee that she or he has no COVID-19 symptoms or exposure, and a requirement that prudent distancing be maintained when possible. Visitors, too, should likely be required to make a similar certification.

Each of these safety steps is expensive, both 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.

It May Make Sense to Document the Company’s COVID-19 Best 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, infected employees are sent home, and you require certifications from each employee that she or he is 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. Clearly, with the coronavirus, 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 daily or weekly meetings with groups of employees at the site or home office to stress practicable COVID-19 preventive measures?

Good recordkeeping 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; and 3) allowing you to show third parties that your company was safety conscious during this “new normal.”

Now that three 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.

To Mandate or Not to Mandate?

Assuming vaccinations are not already being required by federal or state authorities (something that is potentially likely in certain industries, such as healthcare), 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 sometimes 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 this awful virus may also change.

Some 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.

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, if any, are necessary and available. Do not pre-judge the result when a request is made. Rather, engage in the interactive process through communication with the employee. If the predicate for requiring a reasonable accommodation exists and a reasonable 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 rolling 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.

This article, "COVID-19 in the Workspace: Is Enough Enuf?," was published in the Bradley Construction and Procurement Law Newsletter for the first quarter of 2021.