Compulsory vaccine programs could create workplace frictionPosted On: Jan. 5, 2021 7:00 AM CST
Employers can encourage their workers to be vaccinated against COVID-19, but they should not necessarily demand it, even if they can do so legally, employment experts say.
Even though the U.S. Equal Employment Opportunity Commission issued guidance on vaccine requirements last month, employers still should tread carefully in cases where workers object to being vaccinated because of medical concerns or religious beliefs.
In those cases, organizations must engage in an interactive process to seek a reasonable accommodation under either the Americans with Disabilities Act or Title VII of the Civil Rights Act, experts say.
The EEOC guidance states that employers can only exclude workers who refuse vaccination from the workplace if they cannot provide a reasonable accommodation that ensures the unvaccinated employee does not pose a direct threat to others.
Before terminating an employee over the issue, employers must also determine if any other rights apply under equal opportunity laws or other federal, state or local authorities’ guidance, experts say.
The EEOC guidance was largely unsurprising, said Mario R. Bordogna, a member of Clark Hill PLC in Morgantown, West Virginia.
“They certainly stood by the idea that those vaccines can be something the employer mandates if it chooses to do so,” provided companies follow disability and religious accommodation principles under equal employment opportunity law, he said.
Experts say, however, in part because of the politicization of the issue, many workers are nervous about receiving the vaccine. And employers may be reluctant to issue ultimatums on the vaccine.
“It’s going to depend on the work environment,” said Robin E. Shea, a partner with Constangy, Brooks, Smith & Prophete LLP in Winston-Salem, North Carolina.
Furthermore, studies have indicated that some minority group members may be more reluctant to be vaccinated due to historical abuses during medical research, which could create an environment for racial discrimination claims.
“How do you handle a situation where easily 30 to 40% of your work force will refuse to take the vaccine?” said Jeff Nowak, a shareholder with Littler Mendelson P.C. in Chicago. This is “a real, practical dilemma for employers as we move forward,” he said.
“Employers are going to have to really put a lot of effort into encouragement and education efforts,” said Nicole Stockey, a partner with K&L Gates LLP in Pittsburgh.
If workers refuse a vaccine without extenuating circumstances of a disability or religious belief employers can opt to terminate, transfer, offer remote working where feasible or place employees on temporary leave.
An important consideration is to not let some workers ignore a mandate while firing others “because treating people differently is a recipe for legal claims,” said Brett E. Coburn, a partner with Alston & Bird LLP in Atlanta.
Policies should also be industry specific. “The calculus is very different” between an office and a manufacturing environment, Mr. Coburn said.
Employers in the health care sector, where workers have daily contact with patients, would likely find it easier to mandate vaccinations, but they will still have to comply with the mandated exceptions, said Kevin O’Connor, co-chair of the labor and employment practice at Peckar & Abramson P.C. in River Edge, New Jersey.
“The bottom line is one size does not fit all. Each employer needs to have an individual assessment of the best program for them based upon the industry, the size and the nature of duties of the employees,” said Melvin J. Muskovitz, senior counsel with Dykema Gossett PLLC in Ann Arbor, Michigan.
The COVID-19 vaccines will likely not be available for most workers for several months, said Mr. Nowak of Littler Mendelson.
“Take a step back, take a deep breath, and let’s figure out reasonably how we can approach this,” he said.