In June, with tens of millions of Americans getting vaccinated, the COVID-19 pandemic finally seemed to be in full retreat. The prospect of a nearly normal summer seemed tantalizingly close, and employers looked forward to welcoming workers back to the office in the fall.
Instead, the Delta variant struck and as a result, case numbers have nearly returned to their pre-vaccination peaks. Hospitalizations and deaths rose during the summer months and vaccinations stalled. Only 55 percent of the population is fully vaccinated, with 64 percent having at least one vaccine dose.
Employers are frustrated, concerned and looking for answers. Many are taking or considering more proactive steps, particularly employee vaccine mandates, to keep their workplaces safe. But with such mandates come a complex array of legal and business considerations, not the least of which is employee reaction—both for and against workplace vaccine requirements.
Womble Bond Dickinson Labor & Employment attorney Richard Rainey recently joined Business Litigation attorney Mark Henriques for a webinar discussion of “What Employers Need to Know About COVID-19 Vaccine Requirements in the Workplace.” The following Q&A discussion is taken from this webinar:
The Legal Standing of Vaccine Mandates
MH: “Vaccinations aren’t new. Can you give us some of the history of vaccine requirements to put things in context?”
RR: “We’ve had vaccine mandates of various natures throughout the years. We’ve required vaccinations for children to go to school. With employers, I have a number of hospital clients that have required flu vaccines for years. They have policies in place to deal with exemptions due to religious or medical reasons, but they’ve been doing it for a long time without a lot of controversy.”
MH: “Have we gotten any governmental guidance? What has the EEOC said at the federal level?
RR: “The EEOC is clear that employers can mandate the vaccine. The ‘Should we?’ question is a bit more complicated.”
MH: “From the business litigation side, the courts have upheld mandates involving the COVID-19 vaccine. The Supreme Court upheld Indiana University’s mandate requiring students to be vaccinated. A U.S. District Court dismissed a lawsuit challenging Houston Methodist Hospital’s vaccine requirement for employees. And in South Dakota, a federal judge held three U.S. Marshals in contempt of court after they refused to disclose their vaccination status.”
MH: “Are there any restrictions on mask mandates or social distancing mandates?”
RR: “They’ve been pretty readily accepted. I’ve had instances where employees have tried to claim a medical exemption to wearing a mask. You have to at least go through the process, but in many cases, employers have found they aren’t able to accommodate that request and this is a safety protocol that has to be followed.”
The EEOC is clear that employers can mandate the vaccine. The ‘Should we?’ question is a bit more complicated.
Religious Exemptions to Vaccine Requirements
RR: “Mark, you referenced the Houston Methodist Hospital case. In that case, 142 people refused to comply with the vaccine requirement and lost their jobs. As I previously mentioned, you have to give reasonable accommodations for a person’s religious beliefs and ADA accommodations.
“The religious belief question has been a tough one. There are two parts to the test: 1. A person must have a “sincerely held religious belief.” The EEOC has made it tough to challenge someone’s belief, but it is possible to do. For example, if a person has been acting inconsistently regarding those beliefs, that could be a way to challenge it. The courts also have held that personal or political views don’t rise to the level of a religious belief. So if someone said, ‘I saw on Facebook that if you get the vaccine, they put a chip in your arm so I don’t want to take it,’ that wouldn’t be a religious belief.”
“The second prong is whether you can reasonably accommodate it. Working from home could be a reasonable accommodation. Or masking and distancing could be. There is some case law from the flu vaccine that safety can be paramount, and that if accommodating the exception would create an undue hardship for the employer, that can be a reason not to accommodate. But it’s very much a case-by-case basis.”
MH: “What are the mechanics of an employer determining a religious belief?
RR: “The best practice is to have a written form in which the employee must request an accommodation. It may require supplemental information from their church or additional questions asked of the employee.”
Medical Exemptions to Vaccine Requirements
MH: “What about medical exceptions? Why kinds of medical issues are people claiming in connection with the COVID-19 vaccine?
RR: “With the flu shot, the CDC and EEOC have been strict that allergic reactions have to be severe to count as a medical exception. And with the COVID-19 shot, there haven’t been too many of those severe allergic reactions. I also have seen claims of underlying conditions. The vaccine does have a rare side effect of myocarditis, so that might be a reason for someone with a heart condition.”
MH: “Does a doctor generally have to supply information for a medical exception?
RR: “Yes. It would be just like any other ADA accommodation process, and those typically require medical documentation.”
MH: “What about people who have already contracted COVID-19?”
RR: “Right now, the CDC says if you have had COVID-19 in the past, you still need to get vaccinated. So as an employer, that’s what I would point to.”
MH: “Do you have to provide employees with your rationale for why you are requiring the vaccine?
RR: “I’ve had situations where employees have asked for that. The response is pretty simple—provide them with the link to the CDC website where they talk about the importance of vaccines.”
Right now, the CDC says if you have had COVID-19 in the past, you still need to get vaccinated. So as an employer, that’s what I would point to.
Accommodations and Testing Considerations
MH: “For people who claim those exemptions, is masking, distancing, remote work or some combination of those how companies are handling accommodations?”
RR: “Yes, those and testing—producing a negative test result, typically on a weekly basis. The cost of a lot of that testing will be borne by the employees, which hopefully will be an incentive to get vaccinated.”
MH: “Is time spent testing considered company time for hourly employees?”
RR: “I would err on the side of that being paid company time, since it is a requirement.”
MH: “Can employers ask about vaccination status for employees who are coming to the office?”
RR: “It’s another ‘Can we?/Should we?’ issue. The EEOC guidance is clear that you can ask. But you should keep that information confidential and separate from the personnel file. I think it makes a lot of sense to ask—how are you going to keep your workforce safe unless you have a true measure of how many people are vaccinated?”
I think it makes a lot of sense to ask—how are you going to keep your workforce safe unless you have a true measure of how many people are vaccinated?
Proof of Vaccination Issues
RR: “Delta has changed the game. More and more employers are now requiring proof of vaccination status.”
MH: “Are there risks of voluntary reporting without proof? What are the best practices?”
RR: “The risks are that if you don’t require reporting, you are depending on the good faith of employees. On the other hand, there might be some employee pushback if you require reporting.”
MH: “And what about record-keeping? How should employers keep these vaccination records?”
RR: “I would think about keeping them in a separate COVID-19 vaccination file, and you need to make sure access to that is limited. Access should only be provided on a ‘Need to know’ basis. And if a person has been approved for an exemption, their supervisor doesn’t need to know all the details about it, just that they’ve been approved for an exemption.”
MH: “Collective bargaining can complicate issues around vaccination mandates, testing and proof of vaccination requirements. What do employers need to know if they are in a collective bargaining situation?”
RR: “You need to pull out the collective bargaining agreement itself. There may be an argument that the union has waived its right to bargain over that issue. Many CBAs allow employers to unilaterally impose safety requirements, but others don’t.”
Other Vaccination Mandate Considerations
MH: “What about clients or customers imposing rules, rather than the employer itself?
RR: “That’s one reason many of my clients are looking at a mandate—they have customers who are requiring vaccinations before going on their site. In those cases, they are telling employees who are going to those customer locations that they have to be vaccinated.”
MH: “What about compliance and enforcement, either of your own policies or with local governmental mandates?”
RR: “I’d treat it as any other safety violation, because that’s what it is. Typically, that’s some type of progressive discipline.”
MH: “Are there any issues about boosters or types of vaccines required?
RR: “If the CDC is saying you have to get a booster, I think that’s sufficient for employers to mandate boosters. As far as the type of vaccine, that’s typically left up to the employee.”
MH: “Should employers be concerned about forged vaccination cards?”
RR: “I would take a look at what they give you—some of these forgeries aren’t that great and you can tell they aren’t on the up-and-up.”
MH: “What about only requiring certain employees, such as those in public-facing positions, to be vaccinated?”
RR: “There’s not a one-size-fits-all approach. I can see a situation where a company could mandate vaccines for some employees but not others. For example, I’ve seen some companies require vaccinations for new hires but not existing employees.”