Can employers require employees to be vaccinated? Plus, answers to other legal questions when we return to the office
As many companies begin to reopen offices and bring workers back in, many are demanding that employees be fully vaccinated. But can companies? really require from their employees from a legal point of view? And what legal pitfalls should employers be aware of when navigating through these turbulent times?
Worth sat down with Domenique Camacho Moran, a partner in the labor and employment practice of New York-based law firm Farrell Fritz, to discuss whether employers can legally require their employees to be vaccinated, or whether employers can legally punish an employee for failing to do so. this and the biggest workplace health problem that has occurred during this period.
Domenique Camacho Moran
Question: Let’s start with the biggest question here, which is, can employers legally require their employees to be fully vaccinated before returning to the office, and is it legal for employers to fine if they fail to comply? follow the rules?
A: Yes, employers can legally require employees to be fully vaccinated with the proviso that they must make reasonable accommodations for those who cannot be vaccinated because of a disability or a genuine religious belief. In those circumstances, the employer is required by law to engage in an interactive dialogue with the employee to determine whether reasonable accommodation can be provided rather than full vaccination.
As for a fine, employers can have mandatory vaccination policies and segregate those who choose not to, as long as those employers offer to reasonably accommodate employees who have not been vaccinated because of a disability or a genuine religious belief.
So, provided you do not have a disability and/or a strong religious belief, can a company justifiably punish an employee for failing to vaccinate, including firing that employee?
Companies have the right to terminate employment on the basis of a person’s refusal to be vaccinated if the refusal is not based on disability or genuine religious belief. The Equal Employment Opportunity Commission (EEOC) has issued guidelines permitting mandatory vaccination policies — whether someone has been vaccinated is not a protected category. To use a silly example, if an employer decides to require that its employees all wear green socks, that policy is legal. Mandating the COVID-19 vaccine is like all other employer rules, that is, “this is what we ask of our employees.” Such a policy is allowed in the private sector.
Now that companies are starting to require employees to go back to the office, what can and can’t they ask of them from a health perspective?
Employers should always exercise caution when asking employees about their health. While some employers mandate the vaccine, others know how to go back to the office without vaccination. On May 19, the New York governor adopted the CDC’s stance on masks and social distancing. Subsequently, New York issued guidelines for offices and other workplaces that allowed employers to decide whether vaccinated employees should mask and/or practice social distancing. Now employers have a choice: They can either go for the honor system, where they tell their staff and employees, “Okay, we accept the CDC’s recommendation, if you’re vaccinated, you no longer need a mask. And if you don’t vaccinated, you have to wear a mask and social distancing and we’re going to trust you to follow those rules.” Alternatively, the employers here in New York may require employees to provide proof of vaccination to take off their mask and continue to mandate masks and social distancing for those who have not been vaccinated, but employers should exercise caution when collecting proof of vaccination as the EEOC has stated that information and documents related to vaccination status should be kept confidential.In short, employers cannot share the vaccination status of employees.
I think it’s very interesting that employers can ask about what I assumed was a private medical matter.
Yes. It’s unusual. Asking about vaccine status feels like a step in a different direction. But what we’ve discovered during the pandemic is that employers may be allowed to do a little more than before to protect the health and safety of workers. I remember doing a town hall on March 18, 2020 and telling the public that they weren’t the temperature police and shouldn’t be taking employee temperatures because that was a medical exam arguably prohibited by the Americans with Disabilities Act. Literally, within 48 hours, the EEOC issued guidelines stating that taking temperatures would not be considered a medical examination. We have certainly seen a transition over the course of the pandemic that has given employers more options to ensure they create a safe workplace. Collecting information on vaccination status is one step in that process. As a result, the rules and regulations had to be stretched a bit to get past the “we don’t tell anyone about our medical condition and our medical history”, but I think on balance the conversation is for employers, you can certainly ask this question, but keep the information confidential. From my perspective, it really means employers need to be aware of, “What’s our policy going to be and how are we going to enforce it?” Keep in mind that private employers can certainly choose to ask their employees to wear masks in the future. That may not be popular, but it’s certainly legal.
Let’s just say that the employer, not maliciously but accidentally, said something about an employee’s vaccination or something like that. What is happening?
I don’t know if there is a clear answer. It would arguably violate the EEOC guidelines regarding COVID-19 vaccination status and the provisions of the American with Disabilities Act that require medical information to be kept confidential. But the question would be, “What’s the damage?” Is there likely to be a lawsuit over an isolated circumstance? Probably not. With or without a lawsuit, employers must understand their responsibility. According to the EEOC, vaccine information is confidential, but given the sheer number of venues — theaters, arenas, parties, etc. — that require proof of vaccination, it’s puzzling that employers are charged with keeping the information confidential.
What should executives be aware of that by law it’s not allowed to ask employees when they return to the office because of course we’re navigating some kind of weird landscape right now?
From my perspective, executives should focus on three things. Communicate with employees about the reopening plan first if they haven’t reopened yet, especially in New York City, where many offices have not returned to the workplace. Now that companies are starting to reopen their offices, it’s a very good idea for people to gradually move into their offices. Giving employees the opportunity to return slowly can help everyone feel more comfortable over time. Employers must also provide all COVID-19 rules and protocols in advance. For example, if health screenings in New York are no longer needed, will employees be required to confirm daily that they have no COVID-19 symptoms? Executives should outline their mask policies and state the rationale. If the company has adopted a vaccination policy, notify them well in advance so that employees can receive their injections. Finally, what does your organization expect when offices open again? Is it, “we expect everyone to be back in the office full time”? Is it “we’re going to do some remote work”? Is it, “we continue to allow remote work indefinitely”?
How do you think executives should navigate trying to have the safest workplace for everyone, while also respecting people’s health decisions today?
While I’m a fan of the honor system, unvaccinated workers who decide not to mask can cause conflict in the workplace. So it may be necessary to require a vaccination certificate to unmask the mask. Such a policy would likely require someone to be assigned to check the vaccination cards and to check on the spot that those who have not been vaccinated are adhering to them. I am also concerned about discrimination claims. I think from the manager’s perspective, stick to the three E’s: educate, encourage and enable. Employers want to make sure they inform employees about where to get vaccinated, encourage employees to get their injections, offer small incentives and enable employees to get vaccinated by providing time off for a fee (federal and New York law paid leave to be vaccinated). I also think it is crucial to respect those who want to wear a mask and social distancing. Not everyone wants to get rid of their mask, so understanding that employees need to be respectful of how others want to work will promote a healthy and safe workplace. Even now that we feel more comfortable in groups, for now, if you are organizing a face-to-face meeting, you must set the rules in advance and respect individual choices about comfort without the mask and in close proximity, especially in this first stage of return to the workplace.
Just out of curiosity, could an employer face legal ramifications if someone got COVID in the office?
I think we’re going to see some things happen in the coming months. New York has enacted something called the HEROES Act. That statute provides new guidelines and guidelines for creating a safe workplace to limit the transmission of viruses, such as COVID. While most COVID-19 protocols have been lifted, employers must continue with the cleanup protocols that provided some protection against the transmission of viruses. In general, it is difficult to determine whether an employee will contract the virus in the workplace, although we have certainly seen lawsuits in the past year alleging that employers had not protected employees from the spread of COVID. The only way to minimize (but not eliminate) the risk is for employers to comply with federal and state workplace safety guidelines.
What is the biggest workplace health problem you’ve seen emerging during this time, and how should executives deal with it in their own company?
The irony is the biggest problem right now is the mental health issues related to the pandemic. Employees experience quite a few anxiety complaints, depression and in some cases burnout. Executives must gather resources and introduce programs to help employees cope with their mental health problems. An Employee Assistance Program (EAP) can be hugely beneficial for employees right now. Executives will want to know if their organization offers an EAP, what benefits are offered, and how those benefits are communicated to employees. Establishing a wellness program that reminds their staff of the resources available will help ensure a healthy and productive workforce after a pandemic.