Since the onset of the pandemic in March 2020, employers have been grappling with an ever-changing landscape of federal and state mandates and recommendations. The situation is further complicated by varying opinions about how the pandemic should be handled as well as the efficacy or safety of the vaccines. Employers are facing an unprecedented clash between ensuring their workplaces are as safe as reasonably possible while imposing mandates upon employees who feel that mandates have gone too far and infringe upon employee privacy rights and personal freedoms. This article seeks to dispel some of the confusion about the current state of employer efforts to combat the pandemic while balancing employee privacy concerns.
To Mask or Not to Mask, that is the Question. With certain exception for high-risk areas such as healthcare settings and public transportation, all mandatory mask, social distancing and other safety measures imposed by Governor Murphy were lifted in early July 2021 for both vaccinated and unvaccinated individuals. The CDC also lifted its mask recommendation for outdoor and indoor public spaces for all persons who were unvaccinated.
However, by mid-July the CDC and the Governor reversed course in response to the uptick in cases of the Delta variant. The CDC recommended that all individuals in counties with “substantial or high” transmission rate should mask up in indoor places, regardless of their vaccination status. In late July Governor Murphy followed suit, “strongly recommending” that the CDC guidelines be followed in crowded indoor settings where the vaccination status of individuals is unknown or there is an immunocompromised person.
Despite the absence of mandate from the Governor, businesses are still free to impose mask mandates for unvaccinated staff or all staff. While some employers continue to mandate masks for all staff, many impose the requirement only on the unvaccinated, a policy that could encourage reluctant employees to get the vaccination. Employers may require employees to show proof of vaccination to identify those individuals who must still mask up. Employees who refuse to comply with the employer’s mask mandates can be placed on a compulsory leave of absence or terminated. Alternatively, the employer could opt to accommodate the employee by permitting remote work if possible.
If a mask mandate is imposed, employers must nevertheless provide reasonable accommodations to individual who cannot wear a mask for medical reasons. Depending on the nature of the business, reasonable accommodation could include a segregated work area or remote working. If the accommodation is requested, medical documentation supporting the request should be provided by the employee.
What About Vaccine Mandates? The EEOC has given employers the green light to mandate vaccinations in the workplace. If employers choose this option, employees should be notified of the requirement and accorded ample opportunity to get the vaccination. However, employers must consider an exemption.
The rise in cases due to the Delta variant has seen a rise in mandatory vaccine requirements in all sectors. The federal government and several state and local governments have imposed a vaccine mandate upon certain groups of employees. In early August Governor Murphy announced a vaccine requirement for workers in health care facilities, developmental centers, correctional facilities and other high-risk congregate settings. These facilities will have until September 7, 2021, to come into full compliance.
Employers mandating vaccines should develop written vaccine policies that provide sufficient time for employees to be vaccinated and includes a carve out for legally protected individuals for whom vaccination is not recommended for medical reasons or those with religious objections (see discussion below). However, before imposing a mandate an employer should consider whether it wants to accommodate individuals who have other reasons for resisting the vaccine that are not legally protected, e.g., fear of a vaccine that has not yet been approved in ordinary due course by the FDA. An employer with a significant portion of employees who object on these grounds may be faced with having to enforce the policy and terminate these objectors or provide accommodations for these individuals as well.
Many employers are taking an approach that stops short of a mandate but is likely to encourage many employees to get vaccinated. These employers are requiring unvaccinated employees to get tested on a weekly or bi-weekly basis and continue to observe masks and social distancing requirements. Other incentives include paid time off and covering the costs of the vaccine.
The Medical and Religious Exemption to Vaccination. The Americans with Disabilities Act (ADA) obligates that employers to provide “reasonable accommodation” for a medical condition, which might include an exemption from the vaccination requirement. An employee claiming they cannot be vaccinated for medical reasons should submit documentation from a treating physician to substantiate the need for the exemption.
Title VII obligates employers to provide reasonable accommodation for an employee’s “sincerely held religious beliefs” unless it would pose an undue hardship for the workplace. The definition of religion is defined very broadly and includes little known religious beliefs and practices. According to the EEOC, an employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” However, “if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting documentation.”
These unvaccinated employees cannot be terminated or excluded from the workplace unless the employee poses a “direct threat” that cannot be adequately mitigated by reasonable accommodation, such as continued mask wearing and social distancing, a private office or workplace, remote working, a leave of absence or other accommodations. Caution must be exercised before determining that reasonable accommodation is not possible because exclusion of unvaccinated individuals may tend to screen out protected individuals with medical disabilities or religious objections. These determinations vary with each workplace and should be made with guidance from employment counsel.
Who pays the cost of the vaccine and COVID testing? For those employers who mandate the vaccine, the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA states that if an employer requires an employee it reasonably believes will pose a “direct threat” to the health and safety of themselves or others to be examined by a health care professional of the employer’s choice, then the employer must pay all costs associated with the test. In addition, travel time and test-taking time in connection with a mandated vaccine may also be compensable under the Fair Labor Standards Act.
For those employers who do not mandate the vaccine but require unvaccinated staff to undergo periodic COVID-19 testing may likewise have to cover the costs associated with this ongoing testing as well as compensate the employee for the travel and other time incurred in the testing process.
What if My Employees Refuses to Get Vaccinated or Tested? Subject to the medical and religious exemption, employees who refuse vaccination or mandated ongoing COVID-19 testing may have little legal protection and be subject to termination by employers seeking to protect other individuals in the workplace. However, even in these situations employers should consider the facts very carefully to avoid a wrongful termination claim. Statistically, individuals in certain minority groups are less likely to get vaccinated than non-minority groups and moving forward with terminations could lead to claims that the employer’s mandatory vaccination or testing policy has an unlawful adverse impact upon these minority groups. The pandemic has caused employers to enter uncharted territory and time will tell whether the employer’s concern for workplace safety trumps objecting employee’s concerns about the safety of the vaccine.