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As employers begin to implement return-to-work policies, frequent questions being asked include:

  1. Can employers legally ask their employees whether they have received the Covid-19 vaccination and ask for proof of vaccination?

  2. Can employers legally terminate employees for refusing to get vaccinated by a certain date?

The short answer to these questions is ‘yes’, as recent cases, federal guidance and high-profile employer decisions demonstrate. Here’s what you need to know.

Employers and employees alike are now facing the reality of having to potentially transition from a virtual work environment back to the traditional brick and mortar office environment in the near future.

Questions are now being raised by employers: are there precautions in place to protect employees? What steps need to be taken to protect the workplace environment? Should we mandate vaccinations before employees can return to work? Should we strongly recommend vaccination of all employees, but not mandate it, and provide incentives to those who decide to do so?

Employees, on the other hand, may be asking: why can’t things stay as they are until Covid-19 is completely under control? Will unvaccinated employees be permitted to work virtually while I am forced to return to the office? Can my employer mandate vaccination and return-to-office policies as a condition of my continuing employment?

With the highly contagious Delta variant now the dominant strain in the United States, comprising more than 90% of new cases, the federal government and certain state and local governments, such as New York and California, have issued mandates to address some of the questions above in an effort to boost vaccinations. The mandate is that governmental workers must get vaccinated or submit to regular testing. Importantly, they have done so in their capacity as public employers and under public safety rationale.

For instance, New York City has issued a mandate to all its city workers, including its teachers, that they must get vaccinated by the time schools reopen or get tested weekly in their own personal time in order to report to work. Several large private employers have also issued vaccine mandates, such as Walmart, The Walt Disney Company, Google, Facebook, Tyson Foods, Uber and United Airlines.

As we opined and predicted in our piece Yes, employers can force you to get the Covid-19 vaccine, but here’s what they need to consider in early June, mandatory programs are generally lawful (as long as employers consider the need for any accommodations, such as for qualified individuals with a disability or sincerely held religious belief that prevents them from taking the vaccine).

Since our article was published, there have been several high-profile cases challenging vaccine mandates. The resounding consensus is that they are legal.

In mid-June 2021, a federal judge in Texas dismissed a lawsuit filed by Jennifer Bridges, a nurse, and 116 other employees against Houston Methodist Hospital challenging a Covid-19 vaccination mandate. Bridges argued that the mandate violated state and federal law because she was “being forced to be injected with a vaccine or be fired”.

The federal judge held: “This is not coercion. Methodist is trying to do their business of saving lives without giving them the Covid-19 virus. It is a choice made to keep staff, patients and their families safer. Bridges can freely choose to accept or refuse a Covid-19 vaccine; however, if she refuses, she will simply need to work somewhere else.”

The following month, the US Department of Justice issued an opinion concluding that the Food, Drug and Cosmetic Act does not prohibit public or private entities from mandating Covid-19 vaccination, even if the vaccines only have emergency-use authorization.

In August, a federal judge in Florida temporarily blocked Governor Ron DeSantis’s state law prohibiting vaccine passports. Siding with Norwegian Cruise Line Holdings, the judge ruled that the cruise could require passengers to show proof of vaccination before boarding the ship.

On August 12, the US Supreme Court held that Indiana University could require its students to be vaccinated against Covid-19. The university mandated all faculty, staff and students to “be fully vaccinated or have an approved exemption before returning to campus” in the fall. Eight students sued, arguing that the mandate (and the additional safety protocols that applied for those that qualified for an exemption, e.g. masking, testing and social distancing) violated their constitutional rights. The students appealed to the US Supreme Court to temporarily block the mandate, after losing with the district court and US Court of Appeals for the Seventh Circuit. Justice Amy Coney Barrett unilaterally denied the students’ request without referring the matter to the other justices, suggesting that similar policies likely will pass legal muster.

In summary, to date, Covid-19 vaccination mandates are being enforced throughout the US, and notably by the nation’s highest court. But even though employers can legally require vaccinations, should they?

What employers deciding to mandate Covid-19 vaccination should consider

Whether mandatory vaccination policies are warranted given their industry, workplace set-up and culture. For example, employers should consider the level of interaction between employees and the public and each other. Employees may be at heightened risk of transmitting and contracting Covid-19 in a healthcare or warehouse facility than in an office with designated workspaces. Similarly, a mandatory vaccination program may not be necessary if employees largely telework.

Whether employees must be compensated for time spent getting the vaccine. Under the American Rescue Plan Act of 2021 (ARPA), employers with less than 500 employees are able to take advantage of tax credits through September 30 2021 for voluntarily providing leave to get vaccinated for Covid-19. Additionally, state or local law may require paid leave. For example, in New York employers are required to provide private employees and certain public employees with up to ‘four hours per vaccine injection’. Relatedly, sick leave may be required for any employee who is unable to work due to vaccine side effects.

Whether certain employees may need accommodations. The Americans with Disabilities Act (ADA) and the Title VII of the Civil Rights Act of 1964 (Title VII) may require covered employers to provide reasonable accommodations to qualified individuals with a disability or sincerely held religious belief, unless providing an accommodation would pose an undue hardship. An employee’s pregnancy or other underlying health conditions may also require accommodation depending on applicable law.

What actions they are prepared to take if an employee refuses to get vaccinated. Employers should consider what actions they are prepared to take if an employee refuses to get vaccinated, and there is no accommodation available. For example, CNN recently made headlines when it fired three employees for coming to the office unvaccinated. Before terminating an employee who refuses to get vaccinated, employers should also consider whether the employee has protections under other applicable laws, and whether there are practical considerations, such as potential staffing issues and workforce morale. There is also a public image aspect and perception to the decision-making process.

Whether to require proof of vaccination or rely on the honor system. The US Equal Employment Opportunity Commission (EEOC) has said that asking whether an employee obtained a Covid-19 vaccine from a third party (such as a pharmacy or healthcare provider) is not a disability-related inquiry under the ADA. However, employers should keep any documentation or other confirmation of vaccination confidential.

Whether state or local law restricts or prohibits mandatory vaccination programs. Although mandatory vaccination programs do not violate federal anti-discrimination laws, some states have passed laws restricting businesses from requiring vaccination as a condition of employment or entering the premises. For example, under a Montana law, employers are prohibited from refusing to employ or otherwise discriminate against individuals based on their vaccination status.

Other issues relating to Covid-19 vaccination. Employers should also evaluate other potential legal issues, such as privacy, confidentiality, workers’ compensation, unemployment and National Labor Relations Act issues.

Promoting voluntary vaccination

Employers deciding to strongly encourage Covid-19 vaccination without requiring it should consider:

How to promote confidence in the decision to get vaccinated. There are many reasons individuals are hesitant to get vaccinated. Educating employees about the benefits of Covid-19 vaccination helps promote confidence in the decision to get vaccinated. Employers should direct employees to where they can find more information about the benefits of vaccination, as well as the side effects and risks.

The degree to which the employer’s workforce is already vaccinated. Under the federal Occupational Safety and Health Act (OSH Act), employers have a general duty to provide a healthy and safe work environment. According to the Centers for Disease Control and Prevention, receiving a Covid-19 vaccine is a safe and effective way of preventing and protecting against severe illness from Covid-19. Employers may consider taking a more assertive approach to vaccination if their workforces have low vaccination rates.

Whether to offer incentives for vaccination. Employers may consider offering incentives to employees who get vaccinated (on top of any compensation for time spent getting the vaccine), such as cash bonuses, additional paid time off, gift cards or corporate gifts. Employers should consult employment counsel prior to offering any incentives. For example, a cash bonus could be considered a non-discretionary bonus under the Fair Labor Standards Act, which must be included in a non-exempt employee’s regular rate of pay.

Whether any state or local law or industry regulation or guidance requires or recommends vaccinations for any or all of the employer’s workforce. For instance, New York City recently announced that it will require employees working at locations offering indoor dining, fitness, entertainment and performances to be vaccinated.

The status of Covid-19 vaccines and related guidance is rapidly evolving. Employers are reminded to continue to monitor the latest information and recommendations from governmental and administrative agencies, and consult employment counsel prior to implementing any vaccination program and if an employee raises concerns about a vaccination requirement.

Marisa Sandler, employment lawyer and litigator at Tannenbaum Halpern Syracuse & Hirschtritt LLP. Maryann Stallone, a partner at the firm, also contributed.

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