Assessing the Risks and Benefits of COVID-19 Vaccine Mandates for Employees

By Donald A. Velez

Employers continue to navigate the COVID-19 pandemic changes due to vaccines, variants, and the prospect of vaccine boosters. Even with many Americans fully vaccinated, employers require updated recommendations moving forward.

Can COVID-19 vaccinations be made mandatory for construction employees?

Under federal OSHA rules, employers must provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” Now that the Pfizer vaccine has been FDA approved, employers are deciding whether worksites should be staffed only with vaccinated workers.

OSHA is developing an Emergency Temporary Standard requiring employers with 100 or more employees to ensure employees are fully vaccinated or require the unvaccinated to have a negative test on a weekly basis before coming to work.

The Equal Employment Opportunity Commission (EEOC) previously announced that employers may implement mandatory vaccination programs, but if employers implement a mandatory vaccination program they must take care and consider accommodations for employees.

President Biden has also signed two executive orders mandating vaccination for executive branch employees and for some employees of some federal contractors.

What is the current CDC guidance for fully vaccinated employees?

The Centers for Disease Control (CDC) provided updated recommendations for the fully vaccinated:

• Resume the activities as prior to the pandemic.
• Reduce risk of being infected with the Delta variant and spreading it to others by wearing a mask indoors in public if in an area of high transmission.
• Wear a mask regardless of the level of transmission for those with a weakened immune system or increased risk for severe disease, or if a household member is at increased risk for severe disease, or is unvaccinated.
• If a vaccinated person has close contact with someone who has COVID-19, they should be tested 3-5 days after exposure and wear a mask indoors in public for 14 days following exposure or until a test result is negative. One should isolate for 10 days if the test result is positive.

Has there been litigation to challenge employers’ ability to mandate vaccination?

In Bridges v. Houston Methodist Hospital, a U.S. District Court in Texas dismissed a suit by private hospital employees to prohibit the hospital’s mandatory vaccination policy and to prevent termination of employees who refused to comply. However, each state has different rules. The Texas case required workers to prove that receiving vaccination was a crime. Litigation is ongoing in multiple states, and employers should seek legal counsel to keep up with developments.

Are there risks involved with implementing a mandatory vaccination program?

Employers implementing mandatory COVID-19 vaccination programs should prepare for increased sick days, extended sick leave, worker’s compensation claims, and lawsuits from employees who may experience side effects or complications.

Employers should be aware that many are vaccine-hesitant. Employers should communicate with employees about concerns and provide current information about the vaccines.

Are there additional considerations for unionized workforces?

Under the National Labor Relations Act (NLRA), typical state laws and most collective bargaining agreements (CBAs), employers must provide notice and an opportunity to bargain changes in working conditions. Mandatory vaccination or testing for COVID constitutes a change in working conditions, prompting the duty to bargain. Employers should provide notice of a proposed mandatory vaccination program and time to allow a union to bargain.

Existing articles within a collective bargaining agreement, such as health and safety or compliance with governmental regulations or law, may provide employers an argument to impose a vaccination program.  Alternatively, past practice between the parties may allow an employer to implement a vaccination or testing program.

Where a COVID-19 vaccination is required as a condition of entering the workplace, employees who refuse to be vaccinated and can’t work remotely would be subject to discipline. Many unions are bracing against such discipline and would grieve the imposition of discipline.

In one case, Teamsters, Local 743, sued in federal district court in Illinois and alleged violation of a CBA by implementation of a mandatory vaccination policy. The Teamsters allege a failure to bargain for a reasonable period about the policy and by refusing to arbitrate whether the unilateral implementation violated the CBA.

Is the administration of a COVID-19 vaccine a “medical examination” under the ADA?

Administering the COVID-19 vaccine is not considered a “medical examination” for purposes of the Americans with Disabilities Act (ADA).

Are employers permitted to ask pre-vaccination screening questions?

Employers’ screening questions should be related to an employee’s job and consistent with business necessity. Based on objective evidence and/or data, employers must have a reasonable belief that an employee who does not answer the questions and does not receive a vaccination will pose a direct threat to the health or safety of themselves or others.

Employees can be asked screening questions that do not satisfy the “job-related and consistent with business necessity” requirement in two situations.

First, an employee’s decision to respond to the questions is voluntary if the employer offers employees vaccination on a voluntary basis. An employer may decline to administer the vaccine if an employee refuses to answer the questions.

Second, employees receiving the vaccine from a third-party should be required to sign forms authorizing release of information.

How should the employer handle objections to being vaccinated because of existing medical conditions?

Employers who screen individuals with disabilities must show that an unvaccinated employee presents a “significant risk of substantial harm to the health or safety of the individual or others that cannot be reduced by reasonable accommodation.”

Whether a direct threat exists may include considerations of: (a) duration of risk; (b) nature and severity of potential harm; (c) likelihood of potential harm; and (d) whether potential harm is imminent. A determination that an individual presents a direct threat would “include a determination that an unvaccinated individual will expose others to the virus at the worksite.”

If the risk cannot be reduced to an acceptable level, the employer may exclude the unvaccinated employee. However, the right to exclude the employee from the workplace does not mean that the employer can terminate the employee, as he/she may be entitled to accommodation, or to take leave provided by law or under the employer’s policies.

Can employees object to receiving a vaccine on religious grounds?

Employers considering mandatory vaccination programs should inform employees early and seek notice from employees who will refuse vaccination based on religious beliefs and/or practices. Employers should document attempts to accommodate those employees who express religious objections.

Qualified employers under Title VII of the Civil Rights Act of 1964 (Title VII) must provide reasonable accommodations for employees, whose sincerely held religious beliefs prevent them from receiving a COVID-19 vaccination, unless it would cause undue hardship on the employer. “Undue hardship” suggests the accommodation would impose more than a de minimis cost or burden on the employer.    

Must an employer provide paid time off for employees to receive the vaccine?

Under the Fair Labor Standards Act and any equivalent state laws, if an employer mandates vaccines, the time employees spend obtaining these injections (including the travel time) count as “hours worked.”

Must the employer pay for vaccination?

If an employee incurs any costs associated with the vaccine, employers may be required to cover such costs.  Employees who refuse to be vaccinated and cannot work remotely may eventually be subject to discipline for failing to report to work unless they need a disability-related or religious accommodation.

Paid Leave Under Extension to FFCRA, the ARPA

The American Rescue Plan Act of 2021 (ARPA) extended tax credits to employers who voluntarily choose to provide paid leave benefits under the Families First Coronavirus Response Act (FFCRA). The ARPA extends employers’ eligibility for tax credits through September 30, 2021.

The ARPA also expanded the list of qualifying reasons for taking paid leave.

ARPA Additional Qualifying Reasons for FFCRA Leave

Additional qualifying reasons for FFCRA leave under ARPA include:

1. The employee is obtaining a COVID-19 vaccination.
2. The employee is recovering from an injury, disability, illness, or condition related to a COVID-19 vaccination.
3. The employee is seeking or awaiting the results of a COVID-19 test or diagnosis because either the employee has been exposed to COVID-19 or the employer requested the test or diagnosis.

The ARPA also resets the allotment of 80 hours (10 days) of Emergency Paid Sick Leave (EPSL) per employee beginning on April 1, 2021. However, FFCRA leave was limited to 80 hours. If the affected employees took part of the 80 hours, they only have the remainder of the 80 hours available under ARPA.

Donald “Dino” Velez, Of Counsel, is an attorney with Smith, Currie & Hancock LLP, in the firm’s San Francisco, California, office. Practicing for three decades as a career litigator, Dino Velez advises clients on labor and employment; construction and contract matters, and general civil litigation. Smith Currie is a nationally recognized law firm focusing on Construction Law and Government Contracts. Contact Dino at davelez@smithcurrie.com. Learn more: www.smithcurrie.com.