Employment Law Attorneys Ponder a Post-Pandemic Workplace
June 10, 2021
On June 8 employment law experts offered insight into the tough questions facing employers as they prepare for a post-pandemic return to the workplace. The three-hour D.C. Bar CLE class discussed the interplay of ever-changing, competing restrictions and the struggle to respect individual rights and privacy.
On the legislative front, panelists pointed out the speed of change and variety of requirements imposed by various jurisdictions for workplace reentry. In May, the U.S. Equal Employment Opportunity Commission (EEOC) announced that employers could require workers to be vaccinated against COVID-19 as long as they do not violate the Americans With Disabilities Act (ADA) or the Civil Rights Act. Nonetheless, many states and localities have proposed laws prohibiting businesses from requiring vaccination as a condition of work.
Diane Seltzer Torre, principal of the Seltzer Law Firm, called attention to a National Academy for State Health Policy tracker illustrating the bewildering array of obligations and limitations an employer might need to consider before crafting a policy. “It’s a really, really fast-moving area,” Seltzer Torre said. “As soon as you think you know what you’re doing, some new regulation or guidance comes out.”
Seltzer Torre summarized the current tension as one between individual rights and the right of the collective to stay safe from a potentially fatal illness. “Not everyone has a right to their particular job if they don’t comply with employer requirements,” she said. “It’s not that we don’t care about individual people or what they believe their rights are; it’s just that, in this particular situation, it really has to be balanced against the bigger picture. And employers have [always had] an obligation under OSHA to maintain a safe workplace.”
One attendee pointed out that companies requiring employees to be vaccinated still have persistent concerns regarding the vaccination status of third parties that enter the workspace, such as clients and vendors. Joanne Waters, founding partner of Verma & Waters, LLP, cautioned that while some businesses have begun to require that visitors show proof of vaccination, doing so may necessitate a public accommodation analysis to ensure that no ADA or state law violation occurs.
One significant factor impacting employers’ ability to compel vaccination is the fact that current COVID-19 vaccines have not received full U.S. Food and Drug Administration (FDA) approval. The drugs, at present, have been granted emergency use authorization (EUA) with the condition that individuals are informed of the option to accept or refuse the vaccine. This opens up the possibility that being fired for refusing vaccination could be characterized as a wrongful discharge. There are already two cases pending relating to vaccine requirements by employers.
“It’s going to be interesting to see what happens,” Waters said. “Actually, I think [it] will become a moot point once the vaccines are no longer under EUA. Once they’re actually authorized by the FDA, I think the wrongful discharge argument will go away and you’ll be in the same place health care providers are already in when they require workers to get flu vaccines or measles vaccines.”
The CLE event also included discussion of exceptions for medical and religious reasons, employer incentivization of vaccination, and accommodations for those who cannot be vaccinated for a protected reason. The EEOC guidance states that the existence of a medical condition or a sincerely held religious belief are reasons that a person may choose not to be vaccinated and must receive accommodation, provided it does not create an undue hardship for the employer. These carveouts include some potentially complicated analyses.
Seltzer Torre said protections extended to those with a sincerely held religious belief relate to individual rather than doctrinal religious beliefs. “Generally, if an employee says, ‘this is my belief,’ the fact that the rest of the religion doesn’t necessarily agree with that doesn’t mean it’s not a sincerely held religious belief,” Seltzer Torre said.
The accommodation obligation may impact other vaccine-related employer programs. Employers who offered a cash inducement for vaccination, for example, addressed this obligation by permitting those with religious or medical exemptions to attend a course on safety to qualify for the payment as an accommodation.
Alongside legal considerations, the panel also proffered advice on how to address vaccine hesitancy among workers, apply masking requirements to the unvaccinated, preserve the confidentiality of medical information, and navigate the complicated social landscape surrounding these issues.
In addition to the changing regulatory environment, Seltzer Torre said the lifting of restrictions creates a different set of challenges for employers. “When the CDC changed its position [on mask wearing], it gave us, on one level, a lot less to talk about, but it also gave us more because there’s so much now that’s discretionary.”