EMPLOYMENT LAW UPDATE:
As pandemic fears wane and with coronavirus case rates on the decline by virtue of more and more Americans getting COVID-19 vaccines, an increasing number of businesses are turning the lights back on and reintegrating their workforces.
This is great news, though many employers are steering toward “business as usual” without a roadmap for lawfully compliant reintegration. Some in management are also uncertain as to whether they can, or should, require employees to be inoculated against the novel coronavirus. These topics are addressed here, beginning with the latter.
CAN EMPLOYERS IMPOSE MANDATORY COVID-19 VACCINATION POLICIES?
The short answer is yes, employers can legally require their workers to be injected with the COVID-19 vaccine. That being said, whether a mandatory vaccine policy should be imposed is another question altogether.
As a matter of law, mandatory vaccinations are permissible, and that is not a new concept. For instance, plenty of workplaces, like hospitals, have mandated flu shots for decades.
Bottom line: private employers have an inherent duty to protect their employees, so says the Occupational Safety and Health Administration. OSHA’s General Duty Clause compels every employer to provide workers a place of employment free from recognized hazards likely to cause death or serious physical harm.
Without question, the novel coronavirus qualifies as a dangerous — potentially even fatal — hazard, and therefore, its spread must be contained. Toward that end, mandatory vaccines, wearing PPE on the job, and continued testing appear to be the best, if not only, ways forward.
OBSTACLES TO REQUIRING COVID-19 VACCINES
An employer’s legal imposition of a COVID-19 vaccine requirement is not without limits.
Employees can leverage the American With Disabilities Act to avoid immunization to the extent it prohibits discrimination against individuals with disabilities. No doubt, some workers are bound to claim to have infirmities that preclude them from getting inoculated, even if mandatory. And if they do, the ADA calls for individualized assessments to determine if these unvaccinated employees would pose a direct threat to the workplace. In the face of such a threat, employers must establish whether a reasonable accommodation could be provided to reduce the risk without causing undue hardship.
It is important to understand that if a direct threat cannot be mitigated by way of a reasonable accommodation, the unvaccinated employee can be barred from physically entering the workplace — the ADA notwithstanding. However, a disabled (and unwilling) worker cannot be automatically terminated.
Title VII of the Civil Rights Act provides another basis upon which employees can seek to avoid a COVID-19 vaccination requirement. According to the law, reasonable accommodations must be made for employees whose sincerely held religious beliefs, practices or observances prevent them from being vaccinated. If no reasonable accommodation — absent undue hardship — is possible, then (as above) it would be lawful for these unvaccinated workers to be kept from the workplace, but their refusal to get immunized would not be grounds for automatic termination.
To be sure, a mandatory vaccine policy, while legal, presents a difficult decision for any employer, and the imposition of a vaccine requirement could be asking for trouble. Litigation — premised upon the ADA, Title VII or otherwise — is likely to be filed by aggrieved workers who either do not want to be vaccinated or experience adverse reactions to their injections. Added to that is the impact that a vaccine mandate could have upon employee relations given ever-growing political and cultural divisions among our populace. Taken together, it would be wise for employers to think long and hard before making COVID-19 vaccines a condition of employment.
OSHA AND WORKPLACE SAFETY
Employees will want to know and feel that their places of business are completely safe in the aftermath of COVID-19.
As such, workplace safety should be everyone’s priority.
OSHA, employees and unions will surely characterize the aforementioned General Duty Clause as just that, a duty. Of course, the standard of what is appropriate to maintain a safe environment for employees will differ by industry, and the size of an employer and the nature of the work performed by its employees will be key factors. In any event, every employer should engage in a top-down review to determine how, and if, it can make its workplace safer as business returns to normal.
Toward that end, OSHA has made recommendations consistent with what is now common practice in workplaces nationwide. They call on employers to implement COVID-19 protocols that incorporate all of the following elements:
• Assignment of a coordinator to oversee COVID-19
policies and mitigation efforts.
• A system for communicating COVID-19 policies and procedures.
• Identification and correction of COVID-19 hazards.
• Implementation of measures — PPE usage, social distancing and frequent handwashing — to limit the spread of COVID-19.
• Assurance that infected workers are separated and sent home from the workplace.
• A policy instructing exposed workers to stay home and quarantine.
• Protections for higher risk associates by way of policies that allow them to work from home or from workstations located in less dense, better ventilated areas.
• Implementation of engineering and administrative controls related to COVID-19.
• The provision of paid leave or salary continuation.
• Enhanced cleaning and disinfection protocols.
• Guidance regarding screening and COVID-19 testing.
• Policies that protect workers from retaliation for voicing concerns about an employer’s lack of COVID-19 infection control.
• Provision of no cost COVID-19 vaccines.
• Assurance that even vaccinated employees will adhere to PPE and social distancing requirements until medical evidence suggests that such measures are no longer necessary.
• A system of COVID-19 reporting and recordkeeping.
• Detailed return to work criteria.
• Management and employee training regarding COVID-19 policies and procedures (in appropriate languages assuming a multi-lingual workplace). Note that while execution of pandemic-related policies is critical, sufficient management training so that all COVID-19 protocols are understood and sufficiently implemented is equally important.
• Adherence to all other applicable and enforceable OSHA standards, including those that pertain to respiratory protection, sanitation and medical records.
By abiding by this guidance, employers will go a long way toward providing their workers with the safe workplace they seek and that which is required by law.
Dana A. Kravetz specializes in a range of employment law matters — discrimination, wrongful termination, whistleblower and class action litigation, sexual harassment prevention, workforce reduction, hiring best practices and wage and hour issues, among them. He can be contacted at (310) 299-5500 or [email protected].
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