As many companies begin to reopen offices and bring employees back in, many are requiring that employees be fully vaccinated. But can companies actually require that of their employees from a legal standpoint? And what legal pitfalls do employers need to be aware of while navigating this tumultuous time?
Worth sat down with Domenique Camacho Moran, partner in the labor and employment practice of New York-based law firm Farrell Fritz, to discuss if employers can legally require their employees to get vaccinated, if employers can legally penalize an employee for not doing so and the biggest workplace health issue that has arisen during this time.
Domenique Camacho Moran
Q: Let’s start with the biggest question here, and that is, can employers legally require their employees to be fully vaccinated before returning to the office, and is it lawful for employers to implement a penalty if they don’t comply?
A: Yes, employers can legally require employees to be fully vaccinated with the caveat that they will have to provide a reasonable accommodation to those who cannot be vaccinated due to a disability or a sincerely held religious belief. In those circumstances, the employer is required under the law to engage in an interactive dialogue with the employee to determine if there is a reasonable accommodation that can be granted in lieu of full vaccination.
As for a penalty, employers can adopt a mandatory vaccination policy and separate those who choose not to comply as long as those employers offer to reasonably accommodate employees who are not vaccinated because of a disability or sincerely held religious belief.
So, provided you don’t have a disability and/or a strongly held religious belief, can a company rightfully penalize an employee for not getting vaccinated, including laying that employee off?
Companies have the right to terminate employment based on an individual’s refusal to be vaccinated if the refusal is not based on a disability or sincerely held religious belief. The Equal Employment Opportunity Commission (EEOC) has issued guidance that permits mandatory vaccination policies—whether someone is vaccinated is not a protected category. To use a silly example, if an employer decides to mandate that its workers all wear green socks, that policy is lawful. Requiring the COVID-19 vaccine is like all other employer rules, i.e., “this is what we ask of our employees.” In the private sector, such a policy is permissible.
As companies are beginning to require workers to go back to the office, what can, and can’t, they ask of them from a health standpoint?
Employers should always proceed with caution when asking employees about their health. While some employers are mandating the vaccine, others are managing how to transition back to the office without requiring vaccination. On May 19, the governor of New York adopted the CDC’s stance on masks and social distancing. Then, New York released guidance for offices and other workplaces that permitted employers to decide whether vaccinated employees needed to mask and/or social distance. Now, employers have a choice: They can either go with the honor system, where they say to their staff and employees, “OK, we’re accepting the CDC’s recommendation, if you’ve been vaccinated, you no longer need to wear a mask. And if you have not been vaccinated, you should wear a mask, and you should social distance. And we’re going to rely on you to abide by those rules.” Alternatively, here in New York, the employers can require employees to present proof of vaccination to remove their mask and continue to mandate masks and social distancing for those who have not been vaccinated. Employers, however, must take care when collecting proof of vaccination because the EEOC has declared that information and documents concerning vaccination status must be kept confidential. In short, employers cannot share employee vaccination status.
I think it’s really interesting that employers can ask for what I assumed to be a private medical thing.
Yes. It is unusual. Being allowed to ask about vaccine status feels like a step in a different direction. But what we’ve discovered during the pandemic is that employers may be permitted to do a little bit more than they could before to protect the health and safety of employees. I remember on March 18, 2020, I did a town hall and told the audience they were not the temperature police and should not be taking employee temperatures because that was a medical exam arguably prohibited by the Americans with Disabilities Act. Literally, within 48 hours, the EEOC released guidance that said taking temperatures was not going to be deemed a medical exam. We definitely have seen a bit of a transition over the course of the pandemic that has given employers greater ability to make sure they are creating a safe workplace. Gathering information about vaccination status is a step in that process. As a result, the rules and regulations have had to stretch a bit to get past the “we don’t tell anybody anything about our medical conditions and our medical history,” but I think on balance, the conversation for employers is, you can certainly ask this question—but keep the information confidential. From my perspective, it really means that employers need to be mindful of, “what is our policy going to be, and then how are we going to enforce it?” Keeping in mind that employers in private employment, for sure, can choose to ask their employees to wear masks going forward. That might not be popular, but it’s certainly lawful.
Let’s just say for a second that the employer, non-maliciously but accidentally, did say something about an employee’s vaccination or something along those lines. What happens?
I don’t know that there’s a clear answer. Arguably, it would violate the EEOC’s guidance regarding COVID-19 vaccination status and the Americans with Disabilities Act provisions that require medical information be kept confidential. But the question would be: “What is the harm?” Is there likely to be litigation 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 considering the vast number of venues—theaters, arenas, parties, etc.— that require proof of vaccination, it is puzzling that employers are charged with keeping the information confidential.
What should executives be aware of that is not legally permissible to ask employees as they begin to return to the office because, obviously, we’re navigating kind of a weird landscape right now?
From my perspective, executives should focus on three things. First, communicate with employees about the reopening plan if they haven’t reopened, particularly in New York City where lots of offices have not returned to the workplace. As businesses start to reopen their offices, it is a really good idea for people to go to their offices in a gradual way. Giving employees the option to return slowly allows everyone to become more comfortable over time. Also, employers should provide any COVID-19 rules and protocols ahead of time. For example, while health screenings are no longer required in New York, will employees be required to certify they do not have COVID-19 symptoms on a daily basis? Executives should spell out their mask policy and include the rationale. If the company has adopted a vaccination policy, provide plenty of advance notice to allow employees to get their shots. Finally, what will your organization expect when offices reopen? Is it, “we expect everybody back in the office on a full-time basis”? Is it, “we’re going to do some remote work”? Is it, “we’re going to continue to permit 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 during this time?
While I am a fan of the honor system, unvaccinated employees who decide not to mask may create conflict in the workplace. So, requiring proof of vaccination to unmask may be necessary. Such a policy will likely require that somebody be designated to check vaccination cards and spot check to make sure that those who have not been vaccinated comply. I also am concerned about discrimination claims. I think from the executive’s perspective, stick to the three Es: educate, encourage and enable. Employers want to make sure that they’re educating employees on where they can go to get vaccinated, encourage employees to get their shots, offer small incentives and enable employees to get vaccinated by providing time off from work with pay (federal and New York law provides paid leave to be vaccinated). I also think it is critically important to respect those who want to wear a mask and social distance. Not everybody wants to get rid of their mask, and so having employees understand that they should be respectful of how others want to proceed will promote a healthy and safe workplace. Even as we become more comfortable in group settings, for now, if you’re hosting an in-person meeting, establish the rules in advance and respect individual choices about comfort without the mask and in close proximity, particularly in this initial phase of return to the workplace.
Just out of curiosity, could an employer face some sort of legal repercussions if someone were to get COVID in the office?
I think we are going to see a few things happen in the next several months. New York has enacted something called the HEROES Act. That statute provides for there to be new guidelines and guidance on how to create a safe workplace so that the transmission of viruses, like COVID, are limited. Although most of the COVID-19 protocols have been lifted, employers should continue the cleaning protocols that provided some protection against the transmission of viruses. Generally speaking, it is difficult to ascertain whether an employee contracts the virus at the workplace, though we certainly have seen litigation during the last year alleging that employers failed to protect employees from the spread of COVID. The only way to minimize the risk (though not eliminate it) is for employers to comply with federal and state workplace safety guidelines.
What is the biggest workplace health issue you’ve seen arise during this time, and how should executives go about dealing with that in their own companies?
The irony is the biggest issue at the moment is the mental health issues associated with the pandemic. Employees are experiencing a fair amount of anxiety issues, depression and, in some cases, burnout. Executive need to gather resources and introduce programs to help employees manage their mental health challenges. An employee assistance program (EAP) can be enormously beneficial to employees at this moment in time. Executives will want to learn whether their organization provides an EAP, the benefits offered and how those benefits are communicated to employees. Establishing a wellness program that reminds their staff of available resources will help to ensure a healthy and productive post-pandemic workforce.