Article updated 10/8/2021
Being a business owner or decision maker has recently become more difficult in the face of impending new federal and state mandates related to the on-going COVID-19 virus. BHMK hopes to help ease that burden. They have been working with clients to determine the best fit for their return to work as a result of the widespread availability of coronavirus (COVID-19) vaccines and some easing of coronavirus-related restrictions by state governments. With more employees returning to the workplace, employers face difficult questions surrounding how to best protect the health and safety of their employees. Such decisions can have a lasting impact on an employer’s business, employer-employee relationships, and implicate a variety of state and federal laws, which all must be considered during the planning phase of your return to work.
Employers must make the central decision whether to have their employees be vaccinated as a mandatory condition of employment, encourage their employees to be vaccinated on a purely voluntary basis, or stay silent on the matter of employee vaccinations. With each of these decisions, employers and employees alike must understand the implications of these differing strategies.
OPTION #1: Mandating Employee Vaccinations
Private employers may lawfully require all employees physically entering the workplace to receive COVID-19 vaccinations. However, in accordance with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII), employers must provide reasonable accommodations for employees who refuse to be vaccinated based on disability-related reasons and sincerely held religious beliefs, unless providing such accommodations would pose an undue hardship for the employer. Employers must work cooperatively with such employees and engage in the “interactive process” (i.e., a collaborative dialogue) to find a solution that allows these employees to perform the essential functions of their job positions without imposing significant difficulty or expense on the employer. Having the ability to work collaboratively with your employees is key, as these are tough decisions and some employees may have legal exemptions that need to be analyzed and considered as discussed above.
Examples of potential reasonable accommodations for such employees include telework, requiring the use of masks or other personal protective equipment in lieu of vaccination, social distancing, schedule changes, or reassignment. The ADA also requires employers to keep any documentation or confirmation of an employee’s COVID-19 vaccination confidential and separate from other personnel information.
Additionally, mandating vaccinations can implicate a variety of other labor and employment laws. For example, under the Fair Labor Standards Act, the employer may be required to cover the cost of a mandatory vaccination and pay an employee for time spent getting the vaccine, if such costs would decrease the employee’s salary below minimum wage. If employers have a unionized workforce, a mandatory vaccination requirement may need to be collectively bargained before a mandatory vaccination policy can be implemented.
Much of the above could be impacted by the White House’s September Executive Order as well. Unfortunately, the regulations implementing and clarifying that Executive Order – including if or what exemptions may be available to impacted employees – are still to be issued and remain unclear.
OPTION #2: Incentivizing Employee Vaccinations
There are valid business and legal justifications for choosing to incentivize employees to be vaccinated as an alternative to implementing a mandatory vaccination policy. This option will be appropriate if it meets your business needs and fits within the overall strategy you are following with respect to your employees. For example, an employer may prefer to avoid the administrative burden of implementing a mandatory vaccine policy or having to determine whether or not it can terminate or discipline employees who fail to comply with its mandatory vaccination policy.
Many businesses have opted to encourage their employees to become vaccinated by offering employees additional paid time off (PTO), bonus payments, gift cards, or other incentives. Employers may also provide employees and their family members with educational information about COVID-19 vaccines in order to raise awareness about the benefits of vaccination and address common questions and concerns. However, an employer will need to consider the ADA and Health Insurance Portability and Accountability Act (HIPPA) rules applicable to wellness programs and tax considerations under the Internal Revenue Code if it chooses to offer cash payments or gift cards in exchange for employee vaccinations.
Going over these options with your executive staff and having open discussion about the implications of either of these first two tactics for your return to work action plan is going to be key for a successful rollout. While not everyone will agree with every decision you will make, having people feel heard is generally best practice.
OPTION #3: Stay Silent
Some employers not covered by the coming mandate rules may opt to neither mandate nor incentivize vaccinations for employees. While not taking a definitive stand on the topic of employee vaccinations eliminates the need to develop a formal policy, an employer’s choice to stay silent may lead to allegations that the employer failed to take steps to protect its employee’s health and safety. However, employers with 100 or more employees and any relationship with the federal government may lose this option under the final rules related to the White House September Executive Order. Finally, aggressive plaintiffs’ employment counsel may use this against employers under 100 employees as an OSHA or federal safety standard as part of potential negligence or workers’ compensation claims. These parameters and the application of them really remain to be seen.
Protecting yourself from liability is an important part of business operations, so ensuring that if dialogue is had regarding this subject, that conversation must be documented and disclosed to ownership or the executive staff.
If employers decide to mandate or incentivize employee vaccinations, such employers should develop a written policy. When deciding whether and how to implement such policy, employers must make sure their decision process is reasonable, thoughtful, and calculated to balance business and legal considerations. Obtaining legal guidance from a trusted advisor can help employers navigate the decision making process, design a policy that is legally compliant, and avoid the pitfalls that result from failure to comply with federal and state laws.
We have the unique opportunity to serve privately held businesses across the county and especially here in Cincinnati. This experience lends itself directly to this topic of concern, as we have had to work through this topic and many other federal and state mandated issues with many of our clients.
BHMK has a team of lawyers dedicated to helping clients navigate the complex employment law issues caused by the COVID-19 pandemic. To learn more, visit their website, or contact a BHMK attorney to obtain individualized direction and advice for your business.