Initially, vaccine mandates were the exception. Now, they increasingly are becoming the rule as the data demonstrate that vaccines are highly effective against hospitalization and death.
The question becomes how do you respond to an employee who refuses to be vaccinated as mandated. You know the answer: “It depends.” Let’s discuss on what “it depends” means.
Some state and local jurisdictions mandate vaccines. These mandates focus primarily on health-care providers, teachers, and law enforcement.
The federal government also has announced various vaccine mandates, for example:
- A defined but large group of employees who work for certain federal contractors and subcontractors; and
- Employees who work for nursing homes, hospitals, and other health-care providers (broadly defined) covered by the Centers for Medicare & Medicaid Services (CMS).
In some cases, the mandates specifically reference medical and religious exemptions. Even if such exemptions are not specifically referenced, or at least not yet, employers most likely need to interpret and administer government mandates with such exemptions in place.
In the absence of such exemptions, a state or local mandate would appear to conflict with federal laws (namely, the ADA and Title VII).
Absent from the list of vaccine mandates is the promised, but not yet released, Occupational Safety and Health Administration emergency temporary standard (ETS) for employers with 100 or more employees. Contrary to many summaries of it, the OSHA ETS as presaged is not a vaccine mandate. Employers will have the right to provide employees with the option of either being vaccinated or tested for Covid-19 at least weekly.
Many employers have issued mandates independent of government mandates. This includes the growing number of employers that have issued mandates in anticipation of the OSHA ETS.
From what we know now, nothing in the OSHA ETS will require that employers offer employees Covid-19 testing as an alternative to vaccination. Covered employers still could mandate vaccines, subject to religious and medical exemptions.
Video: Covid-19 Vaccine—Can Your Employer Make You Take It?
Let’s begin with the likely assumption that all mandates, imposed by the government or discretionary on the part of employers, will include religious and medical exemptions. With regard to these exemptions, there is a two-step process.
The first question is whether the employee falls within an exemption. The second question is whether the employer can make a reasonable accommodation as required by law.
It is important not to conflate the two steps. Some employees may qualify for an exemption but that does not necessarily mean there is an accommodation that would enable them to continue working. Avoid making a decision on an exemption based on the accommodation analysis.
On the issue of analysis, let’s run through some scenarios.
Refusal Scenario 1
Let’s assume that the employer mandates vaccines and an employee has neither been vaccinated nor applied for a religious or medical exemption. The employer is on strong legal grounds to terminate the employee.
The employer’s position is stronger if its vaccine policy addresses this scenario and makes the consequences clear to the employee. The clarity of consequences also may make less likely this scenario will apply.
In the case of union employees, employers minimize the likelihood of a challenge by giving the union prior notice of the mandate and working with the union, even if there is a strong management rights clause. This can be done in a way that does not concede a duty to bargain.
Refusal Scenario 2
Let’s assume that the employer mandates vaccines and an employee has applied and been approved for an exemption but the employer concludes, after engaging in the reasonable accommodation interactive process, that there is no reasonable accommodation that would enable the employee to work remotely or safely on site. This is not a refusal, but some employers treat it as though it were by terminating the employee.
At a very minimum, and at least initially, the employee should be placed on unpaid leave. However, the leave should not be indefinite. Circumstances may change; plus, indefinite leave sets a bad precedent.
Consider granting leave for some specified period of time, for example, 30 days. Upon conclusion of the time period, additional leave may be reasonable. It is also possible that another job will become available that in the employer’s judgment, and consistent with any applicable law, the employee could perform without a vaccine.
Refusal Scenario 3
Let’s change the facts again. Virtually all employees agree to be vaccinated or fall within an exemption. But two key employees critical to a project are not vaccinated and have not applied for an exemption. Can you allow them to work anyway?
It is not illegal to make exceptions (as opposed to exemptions) to your policy, but such exceptions carry with them legal and employee relations risks. By way of example only, let’s assume the two employees for whom you want to make exceptions are white women.
One can see equal employment opportunity and other claims when exceptions are not made for women of color or men. Also, what is the message to your workplace if the safety risks are handled differently based on the perceived importance of an employee?
And that leads to the last issue.
Are You Really Able to Mandate?
Unless vaccines are mandated by law, employers should consider whether a mandate is practical for its workforce. While a mandate may be desirable in the abstract, in some workplaces, it may result in a loss of the person power an employer needs to meet its obligations, let alone goals.
In these situations, testing coupled with enhanced safety precautions to reduce the transmission risk, may be an advisable alternative. In developing the enhanced safety precautions, an employer benefits by relying on a health-care/infection control professional. Enhanced safety precautions may include, for example, double masking, relocating an employee’s primary work area and/or prohibiting the employee from participating in meetings in conference rooms or other enclosed areas.
One may not prefer this option. But having to close a location, division, or department or stopping sales, service, or delivery is not a great option either. No one size fits all and no answer is risk free.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jonathan A. Segal is a partner with Duane Morris LLP. A former litigator, his practice focuses on maximizing legal compliance and minimizing legal risk with an eye on culture. Areas of concentration include: Covid-19; diversity and inclusion; harassment and civility; wage and hour compliance; workplace investigations; pay equity; and employment, severance, and business protection agreements.