As the effect of COVID-19 on the workplace continues to evolve, employers are facing more questions than answers in the new year.
One “big-ticket item” is mandatory vaccination, Adam Childers of Crowe & Dunlevy said Thursday during the Oklahoma City Human Resources Society’s annual legal seminar.
The State Department of Health reports 242,329 Oklahomans had received the first dose of a COVID-19 vaccination as of Jan. 22 and 35,822 had received both shots.
While Oklahoma doesn’t have enough vaccine yet for employers to require immunization, “within a matter of months we’ll be in a position where they are going to be making those decisions,” said Childers, co-chair of the firm’s Labor and Employment Practice Group.
The initial response to the pandemic was that workplaces should enact mandatory vaccination programs for employees, he said.
“That still may be the prevailing wisdom, but there’s a little more to the story than what everyone originally thought,” Childers said.
There is much to consider to avoid the pitfalls.
If a company with a mandatory vaccination policy takes action against an employee who refuses to be vaccinated because of health or safety concerns, that could be grounds for a retaliation claim under the Occupational Safety and Health Administration.
Another wrinkle is that the current vaccinations are being given under an emergency use authorization. Food and Drug Administration rules for EUA-products require disclosing that people who have health and safety concerns don’t have to take it.
“As you can imagine, that would throw a giant curveball into a mandatory employee vaccination program,” Childers said.
An employee who refuses to take it and is terminated could file a public policy discharge claim. Both federal and state public policy states you don’t have to put an experimental drug into your system before full FDA approval, Childers said.
“And now you have a retaliatory discharge claim on your hands,” he said. “Those are easy to bring and hard to defend.”
Anyone who says mandatory vaccination is easy and approved is wrong, Childers said. “Now if the EAU is lifted, if the FDA gives final approval, some of these problems go away.”
The Biden administration may address the issue through rules or legislative action, he said, “but unless or until that’s done I don’t believe the 100% answer right now is that mandatory vaccination can happen.”
Employees also may request accommodation to a vaccination policy based on religious or medical reasons.
The test for religious accommodation is, Childers said, “Is it a sincerely held religious belief or just a cover for something that sounds more like a political statement or just not wanting to have the vaccination given.”
Law allows employers to ask for certain information in support of the request for accommodation – like the name and type of religious or information on the faith’s teachings.
“You don’t have to take an employee solely on their word. There is information you can request of them,” he said.
In the same way, you can ask for information in support of a request for medical accommodations.
Perhaps a physician states the employee cannot take the vaccination, but that’s not the end of story, Childers said.
An employer may need to make counter accommodations for the safety of the other employees, such as an increase in personal protective equipment, a temporary reassignment or requiring the employee to telework.
“Think of it as a two-way street,” Childers said. “The accommodation requested by the employee is not necessarily the one you have to provide. You just have to provide a reasonable accommodation under the circumstances.”
Shifting rules on the length of quarantine also has employers wondering what to do.
The ideal is still 14 days, but new rules from the Centers for Disease Control and Prevention allow for a more speedy return to work.
Quarantine of someone who tests positive for COVID-19 or who is exposed now can end after day 10 if they aren’t showing any symptoms. The CDC says the chances of them transmitting the virus is 1% to 10%, Childers said.
Employees can return to work after Day 7 if they have a negative within the prior 48 hours. The chances of transmittal are 5% to 12%.
“This is big news for (companies) that have had dozens and dozens of people go out at once,” Childers said. “These quarantine rules changing can be the difference between keeping your doors open or not.”
Employers don’t have to use the relaxed standards and still can insist on a 14-day policy.
Required emergency sick leave and extended paid family leave for companies with 50 to 500 employees expired Dec. 31 but the tax credit is available through March for companies that choose to continue it, Childers said.
“What comes next? Wait and see. We might very well see a resumption of (the required leave). We might see something completely different put in its place,” he said. “I fully expect that there will be impacts to the workplace in terms of new legislation or a resurrection of some of this old legislation. So stay tuned.”