Bloomberg Law
Aug. 17, 2021, 8:01 AM

Survival Guide to Avoid Shutdowns From the Covid-19 Delta Surge

Walter M.  Foster
Walter M. Foster
Eckert Seamans Cherin & Mellott LLC

As the Covid-19 delta variant spreads faster than the wildfires of the West, business owners once again face the prospect of keeping the doors open for business while weathering the firestorm of health risks and new mask mandates.

Everyone hoped for a return to business as normal with the offering and widespread availability of vaccines, which appeared at the onset to have the desired effect of alleviating the lockdown. This second onslaught, however, poses more questions than it answers and the legal landscape has shifted once again.

The reality that a large portion of the workforce has not yet decided to take the vaccine presents a quandary: how to keep returning employees and customers safe while gearing back up to meet client needs. On this front there is no one easy answer.

For instance, recently CNN, along with others, decided to mandate vaccines for all employees. According to reports, CNN fired three employees who decided not to abide by the new policy. The company stated that they have a “zero tolerance” policy concerning unvaccinated employees.

Other major companies have followed suit, including United Airlines and the Washington Post. Not every company, however, has the luxury of firing its employees in light of the dearth of potential new hires and one of the strongest employees’ markets in decades.

‘At-Will’ and EEOC Employer Guideposts

There are some guideposts businesses can follow.

First, most companies employ workers on an “at-will” basis, which simply means that they—or the employee— can terminate their relationship at any time (with the important exception that an employer cannot terminate their employee for any illegal reason such as discrimination).

Second, employers are permitted to exercise their best judgment for the company in light of competing interests, especially where safety issues are presented.

Third, the EEOC issued some guidance, updated in May, that permits mandatory vaccine policies with certain conditions to avoid any discrimination violations. That guidance highlighted that employers can offer incentives to workers to voluntarily present documentation that they are vaccinated. They can also offer the vaccine on-site and offer incentives to do so, as long as they are not coercive and they keep all medically related information confidential.

Some states and employers have used this carrot approach to coax those hesitant off the sidelines and to grow the vaccinated team. Massachusetts, for instance, has launched its “Massachusetts VaxMillions Giveaway,” which gives five fully adult vaccinated residents the opportunity to win $1 million in cash, and children between 12 and 17 years of age may enter for the chance to win one of five $300,000 scholarship grants. Many other states have done similarly.

In addition, the EEOC guidance permits employers to provide education about the current health risks and advantages to a safe and healthy workplace and getting vaccinated. Given the information wars, even a year and a half into the pandemic, such input by a trusted employer may have the power of persuasion necessary to convert those contemplating getting a vaccine. The EEOC guidance, however, must be considered against the backdrop of other legal considerations.

Conflicting Mandates Complicate Responses

As the importance of stopping the virus in its tracks grows, municipalities, states and the federal government contemplate taking additional steps to mount the societal defense of this raging disease. Against this backdrop, business owners face the prospect of conflicting recommendations and emergency regulations.

As the battle of Covid-19 plays out on the local front, businesses could follow the mandatory approach and face some legal uncertainties, or choose other paths. Most businesses recognize the importance of avoiding additional disruptions and keeping their loyal and hard-working employees safe, and want to take steps to meet both challenges. They often adopt a carrot-and-stick approach.

Some have opted to mandate vaccines while requiring all non-vaccinated employees to be frequently tested and to follow all masking guidelines while at work. Still, others have opted to suspend employees who, after notice, are not vaccinated and then provide them additional time to come into compliance with a mandatory policy. Some contemplate an approach to suspend unvaccinated employees who can then return to work after the health risks have passed.

Safety and health precautions in the workplace weigh heavily in these considerations to protect all workers and clients, especially where infection rates remain high.

As concerns over the spread of the delta variant grow, more companies will be looking to avoid another shutdown and do the best they can for the employees who have returned to work in order to avoid imposed shutdowns and disruptions.

In the last 18 months, businesses and workers have found a way to work remotely (some had never even attempted this before) and remake the workplace as we know it, dousing the immediate fires of the pandemic and in the process finding a way together to face Herculean challenges. That “can do” attitude is needed now, more than ever.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Walter M. Foster is an attorney with Eckert Seamans Cherin & Mellot LLC. He is a commercial litigator who maintains an extensive practice in employment, municipal and pension law, and business litigation, providing counsel to both private and public sector employers on the legal and regulatory standards that govern the modern workplace.

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