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February 20, 2021

COVID-19 vaccines prompt different questions for employers and employees

Employers and employees are facing a lot of pressing questions on how to handle COVID-19 vaccines in the workplace. Legal experts discussed the latest developments in the Feb. 18 webinar, “GPSolo Workstation Vaccination,” which was part of the 2021 ABA Virtual Midyear Meeting

With vaccine news unfolding on a daily basis, it can be a challenge just keeping up with employment-related guidance. “Our clients are asking for plenty of guidance and they have been for the last 12 months,” said Richard Warren, who practices labor and employment law at Miller Canfield in Detroit.

Lisa Golan, an employment lawyer in Norcross, Georgia, joined Warren in offering advice about mandatory vaccinations and other workplace policies. They said updated employment-related guidance on COVID-19 vaccines is issued by the U.S. Equal Employment Opportunity Commission (EEOC), the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC).

Among the most asked questions:

Can employers mandate vaccinations?

The EEOC said COVID-19 presents a direct threat to health and safety, so an employer can keep someone out of the workplace if they’ve tested positive. “The EEOC has said that employers can have vaccination policies as a qualification for employment so long as they engage in a reasonable accommodation process for someone with a disability, is susceptible to the vaccine or has a religious objection,” Golan said. OSHA recommends employers make the vaccination available to employees, at low or no cost, as well as provide information about vaccines.

What if an employee refuses to comply?

The EEOC guidance supports a termination decision if an employee refuses to get a vaccine and does not have a protected reason that can be accommodated, Warren said. The guidance also walks employers through the types of analysis before making a termination decision.

Golan advised engaging in an interactive process when an employee objects to getting a vaccine. Employees can request a modification of the workplace policy so they don’t have to get the vaccine but can continue to work – or they can ask if reasonable accommodations can be provided. She recommended performing an individualized assessment of the employee based on his or her ability to safely perform the job. “You’ve got to decide if that accommodation is reasonable,” Golan said. “Does that employee present a direct threat to themselves or others by coming to the workplace unvaccinated?”

Employers are not required to create work-from-home positions where none exist. “If there is a transfer to an open position possible, that might be a reasonable accommodation, but we’re not required to transfer someone and bump someone else out,” Warren said.

What if an employer cannot make reasonable accommodations for an employee to return to work?

When you can’t arrive at a solution, you must consider granting a leave. Can the employee be given a period of leave until the threat of COVID is gone? Is there leave available under the Family Medical Leave Act? Does the employer have workplace leave policies that are generally applicable that could be used to allow the employee to take leave until the situation in the country changes? “Those are all things that are worth considering if you can’t figure out a way to get someone back to work,” Golan said.

Is it a good idea to mandate vaccinations?

You should not treat a vaccinated employee any differently than someone who is unvaccinated, Golan said. Employers should continue implementing all the safety protocols – wearing masks, hand-washing and social distancing – because no evidence exists that COVID-19 vaccines prevent transmission of the virus from person to person, she added.

If vaccinations are mandated, should employees be compensated?

The answer is addressed in the wage and hour regulations, which say that time spent in a medical exam, which is very close to what a vaccination is, if it’s mandatory, is compensable time. “It’s not just time getting the vaccine, it’s also time the employee spends waiting to get the vaccine as well as time that the employee spends traveling to and from the vaccination center,” Warren said.

The program was presented by the ABA Solo, Small Firm and General Practice Division and co-sponsored by Thomson Reuters and the ABA Tort Trial & Insurance Practice Section.