With the recent distribution of the COVID-19 vaccine in the community, many questions have been raised around whether it’s safe to return to in-person work. Now is the time for employers to update their workplace practices, including their HR manuals, to reflect safe practices to welcome employees back. Travis Pacheco of Fennemore Law spoke at the March WorkWell virtual event to provide information on the legality behind whether employers may require employees to get vaccinated, considerations regarding employer-mandated vaccination programs verses voluntary programs, and a brief employment law update for 2021.

Employment Law Updates:

State of Arizona:

  • Arizona minimum wage increased from $12.00 to $12.15 an hour. The City of Flagstaff’s minimum wage is $15.00 an hour.
  • Arizona Civil Rights Act amended to prohibit discrimination against employees because of pregnancy/childbirth. House Bill 2045 was signed on February 4, 2021, and the anticipated effective date is on July 19, 2021.
  • Recreational Marijuana – Voters passed Proposition 207 in 2020 election. This allows adults 21 years or older to use, possess, or transfer up to one ounce of marijuana.

Federal:

  • In June 2020, the U.S. Supreme Court ruled that Title VII prohibits employment discrimination against gay and transgender individuals.
  • On December 31, 2020, the FFCRA paid leave requirements expired, but employers can extend paid leave benefits and receive tax credits through 3/31/21.
  • On January 1, 2021, the minimum wage for federal contract workers increased by 15 cents to $10.95 per hour.
  • On January 29, 2021, OSHA issues workers safety guidance for employer Coronavirus Protection Programs.
    1. https://www.osha.gov/coronavirus/safework

Vaccines and your business:

Can employers require employees to get vaccinated when it becomes widely available?

Generally, yes with some important restrictions.  Exemptions must be allowed under certain circumstances.

  • The EEOC identified two principal exemptions to mandatory vaccination requirements:
    1. Disabilities under the ADA – Employers must make reasonable accommodations for disabled employees.
      1. If an employee has a disability under the ADA that prevents him/her from safely receiving a vaccine, a reasonable accommodation would be required unless it would result in undue hardship to the employer.
      2. Engage in interactive process to determine if there is a reasonable accommodation
        1. Is remote work possible?
        2. Can the employee wear PPE instead?
        3. Leave of absence?
        4. Alternative form of vaccine that does not include adverse contents in the vaccine.
      3. Sincerely held religious beliefs under Title VII of the Civil Rights Act of 1964. Employers must reasonably accommodate employees with religious objections.
        1. Under Title VII, employers are generally required to accommodate sincerely held religious beliefs.
        2. Per the EEOC: Once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him/her from receiving the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII.
        3. “Religion” has been broadly interpreted by courts when evaluating mandatory vaccination policies.
        4. Best Practice: Don’t outright dispute the employee’s claimed religion or religious practice. Instead, engage in the interactive process to evaluate:
          1. The employee’s religious beliefs are not sincerely held
          2. There is reasonable accommodation available that does not pose an unde hardship to the employer
          3. Whether you have granted a similar accommodation for other reasons (i.e. disability)

Employers most likely to be interested in mandatory vaccination programs include:

  • Hospitals and other health-care providers
  • Businesses with large employee populations in close contact/working quarters (i.e. manufacturers, distribution centers, meatpacking facilities).
  • Businesses with customer service employees, like retail stores and restaurants.

Business considerations for implementing a mandatory vaccination program:

  • Issue clearly written policy that is consistently applied. The policy must include a process for requesting exemptions and include language that the company will address, such as requests on a case by case basis.
  • Document legitimate business justifications for a mandatory vaccine policy.
  • Implement a reasonable vaccination deadline based on vaccine access and availability.
  • Consider paying any cost for the vaccine and making the vaccines available onsite and administered by a medical professional. Best practice is to pay non-exempt employees for their time spent getting a vaccine.
  • Implement a process for ensuring confidentially of employee medical information, exemption requests, and reasonable accommodations.
  • Educate employees on safety concerns. Obtain and disseminate fact-based print resources from the government regarding the vaccine.
  • Other considerations:
    1. State law prohibitions?
    2. Collective Bargaining Agreement?
  • Consider the actual impact of a mandatory policy. Would you lose a significant portion of your workforce?
  1. Potential side effects? Should you wait for full-fledged FDA approval?

Business alternatives to mandatory vaccines:

  • Strongly encourage vaccines, with easy access to vaccines onsite or access to transportation offsite, and/or paid time off to get vaccine.
  • Can employers provide incentives to employees to get vaccinated? (i.e. gift cards, additional PTO)
    1. Legal uncertainty: No EEOC guidance to date, but it is anticipated.
    2. Currently unknown whether the ADA wellness program rules would apply to vaccinations.
      1. The EEOC’s most recent proposed rule to regulate wellness program incentives states that most wellness program that include disability related inquiries and/or medical exemptions may offer no more than de minimis incentives to encourage employees to participate (i.e. water bottle or gift card of “modest value”)
      2. Issue: Voluntary vs. Involuntary Programs/Discriminatory

 

Posted by Annelise Patterson