Vaccines And Getting People Back to Work

New CDC Guidance Paves The Way For A Return To Normal, But Hurdles Remain

Recent guidelines from the CDC make it easier than ever for employees to go back to work and businesses to reopen or get closer to normal. But that’s easier said than done in many cases, with lingering COVID-19 hotspots, vaccine hesitancy, and employee reluctance.On May 14, the CDC said that people who were fully vaccinated could gather indoors. But confusion remains and there are many unanswered questions.

 How Do We Know Who Has Been Vaccinated 

The simple answer is, there is no way to know. Still, some retailers said they were ditching the mask rule, such as Trader Joe’s, while others, like Walgreens, said they will review their policies. After a brief review, Target dropped their mask rule.

How Do We Get People Back To Work?

“The biggest challenge for many clients is finding people who are qualified and want to work,” said Advisor HR’s Ava D. Greene, SPHR, VP HR & Compliance. Bonuses (both production and retention), recruiting bonuses, incentives tied to tenure and production are being evaluated. If it is the right fit, then a well-thought-out process of implementation is done. It is imperative that any bonus or incentive structure used for hiring and retention is done with profitability and ROI as the primary focus. Working with an expert can make this a reality.

Who Can Require Proof Of Vaccination?

Officials in the U.S. are divided about the idea of a “vaccine passport.” Some businesses and organizations are making their own vaccination requirements, including many schools for students and employees. Arguments against vaccine requirements are broad and include the technical distinction that current vaccines are distributed under an Emergency Use Authorization, not a full license.

It’s important to note that this is new ground for everyone. The FDA has never before granted an Emergency use Authorization for a vaccine for an entire population, although many employers in the past have required vaccines for staff, such as at hospitals.

 I have found that this CDC COVID-19 vaccine guidance is informative for clients who want to have a vaccine program. Interpretation and application of the guidance related to requiring employee vaccinations are constantly evolving as the vaccine becomes more readily accessible.

Vaccine Requirements And Discrimination: A Fine Line To Walk

EEOC guidance says employers may require employees to get the vaccine; however, there are potential opportunities to unintentionally discriminate under the ADA. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related injury?

No. There are many reasons why an employee has not been vaccinated. Simply requesting proof is not likely to pit you against disability rules. But follow-up questions, such as asking “why,” could elicit information about a disability and run you up against the ADA standard that they be “job-related and consistent with business necessity.”

If you require your employees to provide proof that they have received a COVID-19 vaccination, consider warning them to not provide any medical information.

 Vaccine Requirements And Disability Claims  

Then, you have to consider how to respond to employees who say they are unable to get the vaccine due to a “disability.” The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” If that standard, however, precludes or tends to preclude people with disabilities, then the employer must show that an unvaccinated employee would pose a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

 Direct threat determinations include:

●       Risk duration

●       Nature and severity of the potential harm

●       Likelihood that harm will occur

●       Imminence of the potential harm

 If you can satisfy those requirements, then you need to provide reasonable accommodation.

 What if the refusal to receive the vaccine is due to a sincerely held religious belief? Again, according to EEOC rules, you need to provide a reasonable accommodation unless it poses an undue hardship. Because the definition of “religion” is broad and protects beliefs, practices, and observances — including some you may have never heard of before — you should start with the assumption that any religious accommodation request is indeed sincere, although it is fair to ask about it.

 BOTTOM LINE:

 ●       The law allows employers to set a requirement that “an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” So yes, they can be fired for refusing – but at what risk?

●       There are exceptions to this rule if employees have a disability or “sincerely held” beliefs.

●       Requiring employees to get the vaccine does not violate the ADA because people do not need a “medical exam” to receive the vaccination.

●       Before termination, the employer must determine whether "any other rights apply."

●       An employee has the right to request an accommodation.

●       If an employee requests an accommodation, the employer has to see if accommodation is possible – including the option to work from home.

●       If no accommodation can be made and the employee's job requires that they be in the physical workplace – and they pose a direct threat to the safety of the workplace or others – then yes, they could be terminated.

 Also worth noting: I recently learned that new guidance from OSHA has caused some employers to only “recommend” – not “require the vaccine.” And it seems this is not being received as well as hoped.

 So: this is not a success story, per se, but I know at least one client who offered employees the opportunity to return to work at the office and made the vaccine mandatory for those who did. So far, I have not heard of any objections or negative consequences. ????