As we reflect on what has been a full year of grappling with COVID-19 and the transition to working remote, for the most part, employers and employees alike are eager to regain some semblance of normalcy. Many attorneys have voiced their surprise about how well their firms have adapted to a remote setting and some may even remain remote or move to a hybrid model, even after the pandemic-related restrictions cease.
For those who are ready to return, there is cautious optimism surrounding summer 2021 as a possible targeted return date to the office. The COVID-19 vaccine has taken on a sort of “golden ticket” quality, in the minds of many attorneys, and the key to returning to in-person court proceedings and working in an office setting.However, while many people eagerly await the opportunity, there are some who are hesitant to receive the COVID-19 vaccine. With such a divide existing in the population about the vaccine, it is unsurprising that there is discourse surrounding the issue of whether or not employers can mandate that employees be vaccinated before returning to the office. As your firm looks to the future and weighs the merits of going back to the office, what you should consider before potentially requiring proof of vaccination from your team?
It is important to note that there are currently no official federal guidelines on the issue of mandating the COVID-19 vaccine in the workplace, outside of a December 2020 U.S Equal Employment Opportunity Commission (“EEOC”) memo. The issue of employee vaccinations is complex, with pitfalls on both sides of the argument.
For example, not implementing a vaccine policy could potentially expose a firm to issues with the Occupational Safety and Health Act (“OSHA”). Tort and workers’ compensation claims could result if employees feel they are not provided with a safe and healthy work environment. Conversely, the problems associated with a vaccine mandate are multifold and can include complications with the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act.
In the EEOC’s December 2020 memo, the it imparts that “although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquires…If the employer administers the vaccine, it must show that such pre-screening questions asked of employees are job-related and consistent with business necessity.” Further, the EEOC says that if an employee cannot get vaccinated for COVID-19 due to a disability or religious belief, and there is no reasonable accommodation possible (absent undue hardship), then it would be lawful for the employer to exclude the employee from physically entering the workplace. It does not, however, provide for automatic termination of said employee.
Faced with the challenging decision of whether or not to implement a vaccine mandate, some employers may decide to take a “middle of the road” approach by offering employees incentives for getting a COVID-19 vaccination. However, vaccine incentives also come with potential issues. When implementing a vaccine incentive, it is important to avoid an incentive of significant value, thereby create the possibility that an employee could potentially claim that the vaccination was not, in actuality, voluntary.
The preceding is by no means an exhaustive list of circumstances that may arise in consideration of employee vaccinations and your firm’s stance on the subject. To read more about the EEOC’s guidelines, click here.