In the wake of the Covid-19 pandemic and recent surge in infections and hospitalizations cases caused by the virus’ Delta variant, many employers have considered vaccine mandates to mitigate the severity of business interruption and promote workplace safety. The federal government has required its employees and those in federally regulated sectors (such as the military) to receive the Covid-19 vaccination. Many state and local governments have followed suit; however, some state governments have issued legislation prohibiting vaccine mandates. On August 25, 2021, Texas Governor Greg Abbott issued Executive Order GA-39, which prohibits state agencies or entities funded by the state government from mandating Covid-19 vaccinations. The order will be rescinded once the state legislature has considered the issue. Private businesses in Texas are free to decide whether or not to impose a vaccine requirement. President Biden has promised to support private companies and public sector leaders who choose to require vaccinations for employers. Notable companies which have implemented employee vaccine mandates include Microsoft, Walmart, Tyson Foods, Facebook, Google, Disney and Netflix.
On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated its technical assistance guidance, which states: “[F]ederal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for Covid-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.” Under Title VII and the ADA, employers must reasonably accommodate employees who decline the vaccine based on a disability or sincerely held religious belief, practice or observance, unless doing unduly burdens the employer’s operations (see our previous post for an in-depth discussion of reasonable accommodations). Additionally, employers must ensure that any such requests do not discriminate against any group of employees.
Reasonable accommodations include modifications to the job, leave from work, remote working, or reassignments. For example, Covid-19 testing requirements which require periodic testing and negative tests to enter the office, requiring an unvaccinated employee to wear a face mask or other PPE while at work, modified shifts, reassignment, and telecommuting. When considering reasonable accommodations, employers are permitted to factor in the risk of direct harm to other employees by considering whether the employee works alone or with others, protective measures available to other employees (e.g., PPE), available ventilation and whether available workspace allows for social distancing.
Alternatively, employers may choose to implement a voluntary vaccination policy and/or incentivize employee vaccination. Employers must keep all vaccine information confidential and should exercise care to ensure that any such policy is not coercive such that employees are pressured to disclose legally protected medical information.
Employers considering implementing a mandatory or voluntary vaccine policy should seek the advice of counsel to ensure compliance with federal and state law.
Kuiper Law Firm, PLLC understands the importance of maintaining a safe workplace. If you need assistance creating or reviewing workplace policies, or if you have any questions about the information in this article and its application to your business, do not hesitate to contact us.