According to the Centers for Disease Control and Prevention (CDC), approximately 56 percent of people in the United States ages 12 and older were fully vaccinated against the Coronavirus (COVID-19) as of July 19, 2021, and many people are still unable to or refuse to get vaccinated. This has been a source for much debate in workplaces, with employees and employers at odds with the situation. The vaccine’s distribution was issued under the Emergency Use Authorization Act by the Food and Drug Administration (FDA) instead of by the usual approval processes, which also contributes to the vaccination rates. Back in March, federal and state anti-discrimination agencies provided guidance for employers who wanted to require their employees to get the vaccine, but things have changed since then.
What Employer Guidance was Issued in March?
After the Society for Human Resource Management (SHRM) posted information on these guidelines, it was not long before the first lawsuits were filed. Those guidelines instructed employers how to react when an employee refused to get the vaccine. The U.S. Equal Employment Opportunity Commission (EEOC) indicated that companies could generally mandate COVID-19 vaccinations, and the California Department of Fair Employment and Housing stated that the Fair Employment and Housing Act also generally allowed companies to mandate vaccines approved by the FDA. Employers were told to address the employee’s concerns and then explain why the company had adopted a mandatory vaccine policy. This was supposed to encourage open dialogues and education.
One public sector employee filed a lawsuit that challenged their employer’s vaccine mandate, claiming that the Emergency Use Authorization needs to provide people with the option to accept or refuse getting vaccinated, and to inform them of the consequences of refusing to be vaccinated. The suit also mentioned the importance of employees being told about any alternatives to being vaccinated, along with the risks and benefits. Things can be different for private sector employees because these employers and employees can terminate their working agreements for any lawful reason.
What are the New Developments in Vaccine Requirements?
In early June, the EEOC released new guidance, allowing employers to legally require employees to get COVID-19 vaccinations before re-entering the workplaces. In addition, employers are also permitted to offer incentives to encourage employees to get their shots. These incentives cannot be coercive and designed to force employees into doing so.
Certain laws still stand when it comes to protected categories of people who may be exempt from vaccinations, workplace safety rules, and privacy. These are the bases for many of the lawsuits that have been filed to challenge company vaccine requirements. Employers can be placed in difficult positions, trying to balance employee needs with safety concerns while trying to keep their businesses afloat. All of these decisions should be made thoughtfully, with state and federal laws and government agency regulations and guidelines in mind.
What are Reasonable Accommodations?
Employers must still provide reasonable accommodations for workers who are exempt from mandatory immunization. This is all based on federal laws including the Title VII of the Civil Rights Act, as well as the Americans with Disabilities Act (ADA). Therefore, employers cannot apply vaccination requirements in ways that treat workers differently based on their race, religion, national origin, sex, gender identity, disability, age, pregnancy, or genetic information. Employers need to realize that some demographic groups and individuals have barriers that restrict them getting vaccinated and require reasonable accommodations.
In essence, employees who have sincerely held religious beliefs or medical conditions that prevent them from being vaccinated need to be dealt with appropriately and not discriminated against. Employers and these employees can go through interactive processes to see if they can come up with reasonable accommodations. Some companies have accommodation forms that can facilitate the process, and it is also important to document all the steps taken along the way.
These accommodations can take on different forms, depending on the setting and the employee’s job responsibilities. Safety is also an important concern; the employee should be able to safely perform all of their essential job duties. One example of a reasonable accommodation is allowing an employee to work remotely as long as it does not negatively impact the company. Other options might include wearing face masks, modified shifts, work reassignments, and physical distancing. This can be more of a gray area when employees refuse to be vaccinated because they distrust vaccines; this is not a legally protected reason.
Employers are still mandated to provide safe workplaces, and this follows Occupational Safety and Health Administration (OSHA) guidelines. Therefore, companies have to assess the COVID-19 exposure risk and develop plans to protect their workers. During the pandemic, this could include requiring vaccinations, setting workplace capacity limits, and providing employees with protective gear to wear.
What about Protecting My Privacy?
Companies that have at least 15 employees have to comply with the ADA and Title VII of the Civil Rights Act. These both permit employees to be exempt from vaccine requirements, and Title VII allows exemption for a sincerely held religious belief, practice, or observance. Based on these, employers must offer reasonable accommodations to employees who do not want to be vaccinated and who meet those standards.
The issue of employee privacy makes issue even more complicated. If an employee refuses to be vaccinated because of a health problem, how does the employer know that the employee is telling the truth? Medical information must be kept confidential, which can make things harder for some disabled employees. Again, keeping the communications open and interactive can lead to compromises.
How can Companies Encourage Employees to Get Vaccinated?
Many employers have found success by encouraging workers to get vaccinated instead of requiring them to do so. The first step toward encouragement is to develop a vaccination education campaign that provides all the information and answers any questions employees may have. Companies can also make it easier for employees to get their shots by facilitating vaccine access; this can be done by giving workers paid time off to get vaccinated and to recover from any vaccine side effects, or providing information for the closest vaccination site. According to the EEOC, if the employer obtains the vaccination information, they are required to keep it confidential.
There are no laws that restrict the kind of incentives employees can provide to workers who are vaccinated at third-party sites such as clinics, public health departments, and pharmacies. Some companies have on-site vaccinations and may use incentives for that as well, as long as the incentives are not unreasonable. Employees should not be pressured to disclose their medical information at any time during the process.
Are There Other Incentives Available?
Most vaccination sites offer free shots, and more and more organizations are offering incentives to people. The U.S. government is offering things such as free rides to child care and free transportation to vaccination sites. States are also providing things like lottery tickets, free food and drinks, and scholarships.
On July 28, NBC News reported that New York City would be providing a $100 incentive, starting July 30, to everyone getting their first doses at city-run vaccination sites. This statement was made by Mayor Bill de Blasio several days after he announced that all city workers would have to get vaccinated or have to complete strict testing protocols every week. The New York State Department of Health had reported that 45 to 65 percent of New York City residents had been fully vaccinated, and this new incentive could drive up the numbers.
Cherry Hill Employment Lawyers at Sidney L. Gold & Associates, P.C. Stay Current on Changing COVID-19 Requirements and Protect Workers’ Rights
The COVID-19 pandemic has changed the way companies conduct business, and employees have been impacted in countless ways. It is harder than ever for workers to know what is and what is not legal, but the Cherry Hill employment lawyers at Sidney L. Gold & Associates, P.C. are highly skilled and experienced in employment law and are dedicated to helping employees like you. Call us today at 215-569-1999 or contact us online for a free consultation. Located in Pennsauken, New Jersey, and Philadelphia, we serve clients in Cherry Hill, Haddonfield, Marlton, Moorestown, Mount Laurel, New Jersey, and South Jersey.