BOP Newsletter Winter 2021

BOP NEWSLETTER • Winter 2021

Mandatory Vaccines: To Do, or Not to Do? That is the Question!

by Tim Twigg & Rebecca Boartfield

We’ve all been tracking the news updates about COVID-19 vaccines. And the bottom line is: the race to cure the world of this awful pandemic is on its way.

It’s no surprise that many people are itching to get the vaccine and, understandably, are happy about this news. To be able to move freely in our nation and world, to be close to people again, to not have this black cloud hanging over our head all the time, well, it all sounds lovely! Hurry up, vaccine!

For employers, this news could be especially good. Won’t it be nice to go back to business-as-usual? To worry only about regular day-to-day operations and employee issues? To put this COVID-19 related burden behind them? If we could take a poll, we’d bet the overwhelming majority of employers would be ridiculously happy to be in that place again!

To be fair, the vaccine is not a cure-all. It will take time to roll out. It won’t solve everything right away. There could be set backs along the way. We still have a long way to go before COVID-19 is squarely in our rearview mirror.

But all of this does beg the question: do you institute a mandatory vaccine policy in your workplace?

This makes sense, right? Everyone wants to work in a safe environment, and vaccines will help achieve that goal. It is understandable that employers would want to apply every tool possible to keep people safe as well as keep the business operating successfully.

As with so many aspects of employment compliance, it’s not really a question of can employers do this; it’s more about should an employer do this, how does an employer do this, and what are the potential risks involved?

Can I implement a mandatory vaccine policy, COVID-19 or otherwise?

In simple terms, yes, you can. Employers can have a policy making vaccinations a condition of employment. 

Before you get too excited, know that there are exceptions to this rule and accommodations that you may have to make, so it’s not that simple in the long run.

Religious Accommodations
In a nutshell, Title VII of the Civil Rights Act of 1964, as well as other state laws, prohibit employers from discriminating against employees and applicants on the basis of religion. An employee may be entitled to a religious accommodation based on a “sincerely held religious belief” unless an accommodation would present an “undue hardship” to the employer. 

For a more detailed analysis of religious accommodation, please read our article on this subject: https://bentericksen.com/2017/03/21/religion-in-the-workplace/

Medical/Disability Accommodations
Similarly, under the Americans with Disabilities Act (ADA), as well as other state laws, employers are prohibited from discriminating against employees and applicants on the basis of a medical condition or disability. An employee may be entitled to a disability accommodation based on their medical issue. 

How do these accommodation issues impact a mandatory vaccine policy?

Employers with mandatory vaccine policies may be confronted with a backlash from employees for any number of reasons. Everything from being an “anti-vaxxer” to something more serious like a medical condition is potentially going to come up. In each case, the concern must be carefully considered and managed by the employer. In other words, the employer must consider whether or not the employee is entitled to an exemption from the mandatory vaccine rule that is in place and can get an accommodation.   

A “sincerely held religious belief” is a prerequisite to establishing an entitlement to a religious accommodation. The concept of a “religious belief” can be interpreted broadly in some jurisdictions and narrower in others. In general, personal or ethical objections are typically insufficient. Furthermore, in general, personal anti-vaccination positions will not support the legal requirement of establishing a sincerely held religious belief in order to obtain an exemption from a mandatory vaccination policy.

In the context of an employee asking for a religious accommodation and, therefore, an exemption from the vaccine requirement, it’s the employer who either makes the call that the religious belief is not sufficient, or that it creates an “undue hardship” (more on that later). 

Religious beliefs are very personal and fraught with potential problems among groups of people just in general. Do employers want to be making these calls? Telling employees that they don’t truly have a “sincerely held religious belief” and, therefore, denying the request? If that happened, then someone who continued to refuse the vaccine could be terminated, which could then lead to allegations of discrimination against the employer. Is it worth the risk? 

Likewise, an employee requesting accommodation under the ADA must establish that they have a covered disability which would prevent them getting the vaccine. 

Right now, the courts throughout the U.S. are mixed on what constitutes a disability for vaccine purposes. On one hand, courts have held that alleged chemical sensitivities and allergies did not qualify. While on the other hand, some courts have concluded that allergies and anxiety do qualify. 

If that’s the case, how does the employer make this determination? If the employer makes the determination that the condition is not a medical issue and forces the vaccine or ends the employee’s employment, then that could be cause for liability. Who will win? It would seem that it would depend on which court the employer ends up in. That’s a BIG risk!

Types of accommodations
While the easiest, and most obvious, accommodation is to simply make an exception and allow the employee to forgo the vaccine, there are potentially other options as well. Here’s a couple more to consider:

  • providing alternative vaccine agents (e.g., a vaccine that does not consist of ingredients at issue with an employee’s disability or religious objection)
  • requiring additional mitigation measures, such as increased social distancing, continued use of face coverings, or reassignment to a different position or area of the workplace 

The process of reviewing an accommodation request is called a “good faith interactive process.” The process is fact intensive and is done on a case-by-case basis. It should also involve documentation throughout, which should be kept safe and confidential in case a lawsuit is filed against the employer. At the end of it all, the employer has either made an accommodation or not, and the employee is either happy with the outcome or not. Thus, even when done right, the result could still be that of an employee filing a disability or religious discrimination claim against you. 

Undue Hardship
In both cases, employers do have the ability to consider someone’s accommodation request to be undue hardship. What is “undue hardship”? In general, it is significant difficulty or expense. 

In terms of religious accommodations, it can include consideration of harm to the employer, its employees, and third parties, such as patients. Here, again, we have courts that are split in regards to whether or not speculative harm (i.e. one employee not getting the vaccine causes harm to others) is enough to conclude undue hardship. 

Establishing undue hardship on the disability side of this is perhaps much more difficult. 

In the Supreme Court of the United States, the case US Airways, Inc. v. Barnett set the standard for establishing undue hardship in the context of mandatory vaccinations. It said an employer generally “must show special (typically case-specific) circumstances demonstrating undue hardship.”

Ultimately, what constitutes undue hardship is fact-specific and will likely to depend on the employer’s industry and the employee’s role in question. For example, a hospital versus a bank; a nurse versus an administrative staff member. 

And, again, at the end of the day, a determination of undue hardship and a denial of an accommodation request can all lead to a claim against the employer. Is it worth it? 

Any chance the COVID-19 vaccine will be an exception to accommodation requirements?

The uniqueness of the pandemic has resulted in several exceptions being made to some rules. For example, the ability to take an employee’s temperature when entering the worksite is one such area. The Equal Employment Opportunity Commission (EEOC) has weighed in on the issue already. Here’s the main takeaway from their press release:

    1. Employers can require vaccinations, but they should be “job-related and consistent with business necessity.”
    2. Employers can require proof of vaccination.
    3. Be prepared to accommodate employees with disabilities and religious objections, as explained above.
    4. Be careful with health pre-screens. They implicate the Americans with Disabilities Act (ADA) and possibly Genetic Information Nondiscrimination Act of 2008 as well.

For more information on the EEOC information, please visit the following website: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

What about the cost of a mandatory vaccine policy?

Putting all of the above aside, employers who want these types of policies should take other things into consideration as well, starting with cost implications. 

At this time, we do not know how much a COVID-19 vaccine will cost. Whether it’s $5 or $100 or more, the employer will need to bear the expense with a mandatory vaccine requirement. Generally, it is not legally allowable to put that expense on the employee. Employees with health insurance could not be required to use it. The full expense is on the employer. 

What about the vaccine side effects?

Early reporting seems to indicate that those who receive the vaccine experience some side effects immediately after. These effects are mild to severe and generally last about 24 hours or so. How will employers handle employees’ time off needs to recover from the vaccine? Right now, it appears this happens in two doses. Is the employer prepared to manage time off in both cases? 

Leaving aside the scheduling problems that happen with absences, what about paying for their time? As a mandated program, is it fair to require them to take the time off without pay? Is it right to force them to use their other benefits such as sick leave or vacation? Are employers going to pay them anyway? If so, that makes this requirement a scheduling problem and more costly to administer. 

If some of you are thinking you could simply require them to get their vaccine on Saturday, a non-work day, in order to recover on Sunday so that they can return to work on Monday, think again. As a required activity, you must pay for their time getting the vaccine. Employers cannot put the burden all on the employee. So, a Saturday vaccine requirement is possible, but you’re still on the hook for payment of wages during that time. 

One final note, severe reactions to the vaccine could very well lead to a workers’ compensation claim and possibly other lawsuits.  

How will employers handle the new burden of administering this program?

A mandatory vaccine program like this is not as simple as, “go get a vaccine and report back.” The requirement to get a vaccine is treated like a medical exam, which is protected by the laws already mentioned, as well as others, and will need to be carefully managed. An inconsistently applied program will run afoul with these laws and only create liability. 

The following is partial list of some administrative protocols that would need to be implemented:

  • vaccine scheduling 
  • managing absences
  • tracking employees’ progress; ensuring both doses are taken (if applicable)
  • verifying and documenting the vaccination for each employee
  • establish medical information protocols; ensuring compliance with all laws related to this (i.e., the ADA, HIPAA, etc.)
  • documenting and managing accommodation requests
  • setting up appropriate discipline policies

What will employees think of their employer?

If you had to choose between keeping your job and getting a vaccine, how would you feel? Valued and appreciated? Or, would you feel resentment, anger, and like you don’t matter at all? If a simple vaccine can get someone fired, how much can you say you value them? 

Truth is, the concept of getting a vaccine has become an issue that drives wedges between people. Even people who support the vaccine may have concerns about safety, how quickly it was rushed to production, and how much it may be effective. They may choose to wait until there is some further assurance, even if they’re not in the “anti-vaxxer” camp. Are you really going to end someone’s employment for that? 

Do you have the resources available to hire replacement employees? If you fire your staff for not getting vaccinated, have you shot yourself in the foot by not having the staff you need, or the quality of staff that you desire? Given the number of complaints employers have these days about finding staff, good quality staff in particular, it seems unlikely that replacing staff regularly who decline a vaccine will work well for employers. 

If I choose to not make vaccines mandatory, what’s a good alternative?

A comprehensive program that involves education, encouragement, and support. Some of this could include:

  • suggest, encourage, and recommend getting the vaccine, especially after you have been vaccinated!
  • onsite education pamphlets and other publication materials regarding the value of vaccines
  • hosting a vaccine event for employees, maybe even the greater community
  • reward/incentives for those who opt-in rather than punishment for those who opt-out
  • creating a safe place where someone can discuss their concerns about getting the vaccine and helping them work through it in a supportive, non-judgmental way, even if that means they still refuse to get vaccinated 

Conclusion
The bottom line is that no program, whether mandatory or not, will ensure 100% of your employees will end up being vaccinated. It is not a guaranteed fix to the problem of diseases in the workplace. The choice to mandate any type of vaccine is yours to make. Bear in mind the risks and hoops you will have to jump through if you make vaccinations mandatory. It’s really a matter of the kind of environment you want to create and whether the so-called benefit of mandatory vaccines outweighs the potential consequences that could ensue. Only you can be the judge of that!

YOU ASK, WE ANSWER

Q: We had an employee ask us if she could say a small devotional at our morning meetings. We weren’t sure if we should allow this. Is there anything wrong with allowing her to do this?

A: In general, it is best to keep religion out of the workplace as much as possible. While the laws generally would require an employer to consider reasonable accommodation for certain religious beliefs and practices, such as praying at work during breaks or wearing certain clothing, they do not require allowing someone to impose their religion on the whole group, even if it is meant as a good gesture.

Allowing this to occur could create issues. One such issue would be others in the group that don’t share the same religion or have religious beliefs at all. This could be negatively viewed and create conflict or complaints with those who don’t want to be party to these devotions. Another issue could be that other religious people would want to do the same thing, or something similar, as part of their beliefs. Creating a space for all interested parties to partake in this would be difficult, if not impossible. Choosing one over the others could then create an issue of discrimination.

It would be our recommendation that you deny this request. In doing so, you could simply say that you appreciate the thought, and she’s welcome to take a minute or two of her own time to do this before she starts work, but you wouldn’t be able to include this in the morning meetings.

Q: We are looking to let an employee go very soon. We have found out she has a history of retaliation against her employer after being fired (e.g., reporting incidents to licensing boards that somehow didn’t rise to the level of needing to be reported while she was employed). Is there anything we can do to minimize the risk of retaliation of this nature?

A: Unfortunately, there’s not much an employer can do to prevent someone from making these claims post-termination. A disgruntled individual is going to do what is in their nature regardless of what an employer does or doesn’t do prior to termination.

The only thing an employer can do is prepare for the worst-case scenario and give themselves the things they need to defeat those allegations should it occur. What an employer needs in order to defend themselves will vary based on the allegation. If it’s an allegation against an employer for OSHA violations, the employer will need proof that they’ve handled OSHA appropriately. If it’s an allegation against an employer for dental license violations, then the employer will need whatever documentation is appropriate for that. If it’s a concern about payment of wages, the employer will need proof the person was paid appropriately. Thus, this means keeping good records, as required by various laws, throughout the life of the employment relationship. It is this that helps you defeat these allegations.

Ultimately, prior to termination, an employer should have documentation of the job performance problems they were having with this individual. This can be performance review forms, counseling write ups, and other documents that show there was a legitimate reason that was based on performance that caused the termination to occur. Depending on how long the person is employed, there should be several counseling documents before termination occurs. This will help an employer in particular with claims regarding discrimination and/or retaliation.

These types of things help employers defend their actions and limit liability when claims are brought against them, but it will not necessarily prevent those allegations from occurring if an ex-employee is inclined to go that direction.

Q: We have an employee who has been with us around 6 years. She has always been very dramatic, but over the past few months her mood and attitude have gotten worse. I have had a few employees come to me and tell me that they are unhappy working with her, and that they are ready to quit. I don’t want to lose some of my good employees due to this person. I have had conversations with this employee regarding her attitude before. We don’t have anything in writing. It has come to that point where I think the only way to go is to terminate her employment. Before I do that, are there any HR considerations?

A: To your concerns about your employee…our HR concerns always land in the area of protected classes and whether someone has the ability to cause liability. While we can’t predict or control liability, we can at least look at it from the perspective of low to high risk. At the very least, employers should know what level of risk is being taken by terminating an employee. We look at this from several perspectives:

  • Wage & hour: has anything come up between this employee, other employees, and the employer about wages and being paid? For example, that it’s not equitable in some way, or they’re not getting paid for all hours worked, or not getting paid overtime?

 

  • Protected classes: does the person land in any category protected by federal or state law such as, race, religion, age, disability status, and so on? Depending on the state you’re in, protected classes can vary and be numerous. The more categories that apply, the more risk involved.

    If any categories are applicable, has it come up in the working relationship? Like, for example, someone’s need to accommodate religion, or a medical issue that has been mentioned that is causing problems for them? If so, then termination when this kind of thing is in the mix can be cause for someone to claim discrimination.

 

  • Retaliation: has this person complained about anything recently? For example, that OSHA requirements aren’t being followed, or harassment or discrimination has occurred, or that something else is being managed illegally? If so, then termination in the midst of this can be cause for a claim of retaliation.

 

  • Documentation: does any exist that will adequately demonstrate, if challenged later, that there was a performance issue that was being addressed, that the person was properly warned of consequences (i.e. termination), and failed to correct the problems? If not, then if liability does occur, then the employer is vulnerable to losing even if the termination was legitimate. 

The bottom line for all employers is to assess each situation based on the above. The fewer checks in the square the lower the risk. Also, think about anything else that has come up with this employee that might be a red flag. You already mentioned there is nothing in writing, so that’s a vulnerability upon termination. Is anything else of concern? If not, then you could probably proceed as planned. If so, then you should consider addressing the issue again and establishing some documentation prior to taking the step to terminate.

Q: I have an employee who is in the process of closing on a house an hour away. I’m concerned about whether she intends to continue employment after the move, or if she plans to continue with the long commute. Are there any limitations around what I am allowed to ask or discuss with her? If I need to be looking for a replacement, I’d like to start sooner than later. She’s a wonderful employee. I would have no intention of replacing her if she plans to continue employment with me. Please let me know what I should consider from an HR standpoint.

A: Nothing prevents you from engaging in a conversation with this employee about your concerns and what her plans are. You can express happiness for her new home and, at the same time, recognize the distance and new commute. Share with her that you value her and want to have her remain working and ask if that’s her intention. If she says it is, great. You could then state that if that ever changes, you’d like to know sooner rather than later so that you can make arrangements for her replacement as efficiently as possible. Otherwise, you’re happy she’s staying on with you.

Did You Know?

Pennsylvania’s Medical Marijuana Act Provides A Private Right of Action?

PA’s Medical Marijuana Act (MMA) provides the following:

  • No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.

In the case Hudnell v. Jefferson University Hospitals, Inc., Civil Action No. 20-01621 (E.D. Pa. Sept. 25, 2020), an employee was a medical marijuana user who was fired for testing positive on a drug screen. While the facts of the case are interesting, ultimately, it boils down to the fact that the employer tried to get the claim tossed out due the MMA not having a private right of action. 

After applying the Pennsylvania Supreme Court’s three-part test for determining whether a statute implies a private cause of action, the court refused to dismiss an employee’s claim for violation of the MMA. The case will move forward. 

Bottom line for employers: this decision signals the risk of liability for employers under the MMA. Before taking any adverse action against an employee due to testing positive on a drug test, employers must be sure to carefully manage the situation and take into account the MMA. 

Pennsylvania is increasing the salary threshold for exempt employees? 

The Pennsylvania Department of Labor and Industry (DLI) published its final rule to substantially increase the salary threshold for qualifying exempt employees under the Pennsylvania Minimum Wage Act (PMWA). The regulation increases the salary threshold under Pennsylvania law to:

  • $684 per week ($35,568 annually) effective October 3, 2020;
  • $780 per week ($40,560 annually) effective October 3, 2021; and
  • $875 per week ($45,500 annually) effective October 3, 2022.

Effective October 3, 2023, and each third year thereafter, the salary threshold would reset automatically to the 10th percentile of Pennsylvania workers who work in exempt classifications. 

The final regulation also makes modest revisions to the duties test for exemption. 

PA employers will need to ensure compliance with both the federal and state exemption rules, which vary slightly. It is advised that employers seek advice from a compliance specialist before making exemption classification decisions with their employees.

WHAT’S NEW in Employment Compliance

Wisconsin

Separation Notice Requirement

Wisconsin employers are now required to notify workers at separation about the availability of unemployment insurance (UI) benefits pursuant to an emergency rule recently issued by the Department of Workforce Development (DWD).  

The notice only needs to advise the worker that they can apply for UI benefits. DWD has posted suggested notice language on its website. BE&A clients will find this form on the HR Director website. 

A few key points:

  • Provide the notification for any and all employee separations. The rule does not distinguish between different types of employee separations.
  • The rule does not define “at separation.” It is to the employer’s benefit to issue the notice sooner rather than later.  
  • The DWD rule specifically permits the notice to be sent electronically including by email or text, as well U.S. Mail.

There is no monetary penalty for failing to provide the notification, however, a separated worker who does not receive the notice and later applies for UI benefits may be permitted to backdate their claim.

Arizona, Mississippi, Montana, New Jersey, and South Dakota

Marijuana Ballot Initiatives Passed

Arizona: The Smart and Safe Arizona Act legalized recreational marijuana. Now, both medical and recreational marijuana are officially legal in the state of Arizona. 

Mississippi: Initiative Measure No. 65 will amend the Mississippi Constitution to create a state medical marijuana program. The program, which reflects a traditional medical marijuana law, lists over 20 qualifying conditions for medical marijuana cardholder status. The program will allow physicians to certify medical marijuana treatment for individuals who suffer from qualifying conditions. The deadline for the program to be operational is August 15, 2021.

Montana: Statutory Initiative 190 (I-190) and Constitutional Initiative 118 (CI-118) legalized the possession, purchase, and use of 1 ounce or less of marijuana or 8 grams or less of marijuana concentrate by persons over the age 21. 

New Jersey: Public Question No. 1 on the ballot, which was overwhelmingly supported by voters, asked whether they approved of amending the New Jersey Constitution to legalize the possession and recreational use of marijuana for adults aged 21 and older. 

South Dakota: Two separate laws passed. Constitutional Amendment A, the Marijuana Legalization Initiative, allows for the recreational use of marijuana for individuals 21 years and older (and for possession of up to 1 ounce). South Dakota residents who do not live in a jurisdiction containing a licensed, retail marijuana dispensary may grow up to three marijuana plants in a private residence. Initiated Measure 26 will establish a medical marijuana program for individuals with “debilitating medical condition[s]” and allow for possession of up to three ounces of marijuana. Initiated Measure 26 mandates that “qualifying patient[s]” who are prescribed medical marijuana be afforded the same rights that they would have under state and local law if their prescriptions were for, instead of marijuana, a “pharmaceutical medication”—including with respect to “[a]ny interaction[s] with [their] employer[s]” and “[d]rug testing by [their] employers.”

Adverse employment action not needed for claims involving accommodation under the Americans with Disabilities Act 

In the case Exby-Stolley v. Bd. of Cty. Comm’rs, the 10th Circuit court has opined that an employee alleging disability discrimination does not need to show that the employer fired them or took similar adverse employment action in order to prove that an employer failed to accommodate an employee’s disability, which is a violation of the ADA. 

Summary of the case: Laurie Exby-Stolley was a health inspector for the Board of County Commissioners of Weld County in Colorado. While on the job, she broke her right arm, requiring prolonged treatment. Because she had to use makeshift devices to perform her tasks, it took her longer to complete inspections and she did not complete the number required of her position. Ultimately, Exby-Stolley’s employment ended and she sued. Exby-Stolley alleged that the county violated the ADA by failing to reasonably accommodate her disability, failing to engage in the ADA-required interactive process to find an accommodation, and terminating her because her physical restrictions did not allow her to perform all the duties that her original job description included. 

The 10th Circuit court explained that the phrase “adverse employment action” does not appear in the ADA. It went on to state that the county was failing to differentiate between disparate treatment and failure-to-accommodate claims. Disparate treatment claims assert that an employer took adverse employment actions because of an individual’s disability. On the other hand, the court said, failure-to-accommodate claims assert that the employer failed to take reasonable steps to accommodate an employee’s disability.

According to the court, the former requires a showing of an adverse employment action and the latter does not. This is because, based on the text of the ADA, Congress has already determined that a failure to offer a reasonable accommodation to an otherwise qualified disabled employee is unlawful discrimination. 

The 10th Circuit’s decision demonstrates the proper elements plaintiffs are required to satisfy when they allege that their employer discriminated against them because of their disability – at least in the 10th Circuit (encompassing cases from Colorado, Kansas, New Mexico, and other nearby states). An employer’s failure to reasonably accommodate — by itself — may result in liability.

Fines for COVID-19 safety violations reach nearly $2.5 million, says OSHA

OSHA announced on November 6, 2020 that as of October 29, 2020 the agency has cited 179 worksites for coronavirus-related violations and proposed a total of $2,496,768 in penalties since the pandemic began.

OSHA has cited employers for failing to take the following coronavirus-related actions:

  • Implement a written respiratory protection program
  • Provide a medical evaluation, respirator fit test, training on the proper use of a respirator and personal protective equipment
  • Report an injury, illness or fatality
  • Properly record an injury or illness
  • Comply with the general duty clause

Rejecting hearing-impaired applicants can get employers sued

The U.S. Equal Employment Opportunity Commission (EEOC) sued a Subway sandwich shop franchise in Bloomington, Indiana for rejecting a qualified, hard-of-hearing applicant for a sandwich-maker position by citing “a communication concern” due to the applicant’s “hearing and speaking.” The agency said that conduct violated the Americans with Disabilities Act (ADA), which prohibits employment discrimination based on disability.

In another case, Dollar Tree Distribution, a subsidiary of retailer Dollar Tree, Inc., was sued by the EEOC for failing to accommodate or hire a deaf applicant for an entry-level warehouse job in Ridgefield, Washington. According to the lawsuit, a supervisor deliberately “conducted the job interview in a manner in which the applicant could not fully understand the supervisor, even though the applicant had clearly identified himself as deaf and wore visible hearing aids. The supervisor also failed to respond to questions from the applicant about potential accommodations that would enable him to do the work if hired.”

Under the ADA, it is illegal to ignore a deaf or hearing-impaired applicant’s request for an accommodation or to refuse to hire an applicant because of a disability.