Can public safety employers mandate COVID vaccination?
Employment lawyer Scott Moore Esq., addresses frequently asked questions
Surveys show our nation is divided about COVID vaccination. The Kaiser Family Foundation (KFF) reports 62% of adults have received at least one dose of a COVID-19 vaccine and 41% of parents of children ages 12-17 say their child has received at least one dose. KFF statistics also indicate that around 13% of those surveyed do not plan to get a COVID vaccine.
Preservation of an infection-free and healthy workforce is an essential requirement to deliver services, particularly for those working in the public safety sector, and attention is now turning to the difficult question of whether vaccines can be mandated as a requirement of employment. While the vaccines still sit under an Emergency Use Authorization (EUA) category and are technically not FDA-approved, mandatory requirements are emerging across the country.
Houston Methodist is the first hospital system in the country to require its employees to get vaccinated and, after months of warnings, placed more than 170 of its 26,000 employees on unpaid suspension for not being vaccinated. Staff were told they will be fired if they are not vaccinated by June 21. More importantly, a lawsuit brought by staff hospital employees who declined the COVID-19 was overturned in the first federal ruling on COVID vaccine mandates, with the ruling citing that federal law does not prevent employers from issuing a mandate. [Update: As of June 23, 2021, more than 150 Houston Methodist employees have resigned or been fired as a result of non-compliance with the COVID vaccine mandate.]
Meanwhile, in New York, Goldman Sachs ordered employees to report their vaccination status as the investment bank orchestrates a return to the office. These cases may be the tip of the iceberg as employers seek to return to face-to-face work while understanding who has been immunized and who hasn’t. With this news, there are many questions to be answered. Employment lawyer and HR advisor to the American Ambulance Association, Scott Moore Esq., recently sat down to address vaccine mandate issues for the public safety community.
Are the employers that are now starting to mandate COVID vaccinations within their rights to do so?
Under OSHA guidelines, employers must furnish a work environment that is safe and free from known hazards or hazards that one should have known. So in this instance when we're talking about COVID, that threat is real.
The EEOC re-released guidance in May saying an employer has the right to mandate employees are vaccinated. This applies except for two instances. One would be an employee who has a medical condition that would qualify as a disability under the Americans with Disabilities Act (ADA). The other instance would be under Title VII, where an individual has a sincerely held religious belief for which becoming vaccinated would offend that religious belief. In both of those instances, employers are obligated to engage those employees in what is called the “interactive process” to identify if there is a reasonable accommodation, basically some form of a job modification they can furnish to that individual that would allow them to perform the essential functions of their role.
In an ADA-related case, the reasonable accommodation is one that does not involve great expense or great difficulty. In a Title VII case, a reasonable accommodation is one that would involve more than a de minimis costs to the employer. In both instances, employers need to engage these employees in a discussion to determine if there is an accommodation that would allow them to continue to have a safe workplace.
The EEOC guidance has been very clear, even as recent as two weeks ago, that this is something within the right of the employers to do provided they make accommodations for those two categories of people.
Can a department make a non-vaccinated person wear a mask?
Employers must create a work environment that is free from known hazards. So, an organization must protect employees, which includes protecting employees from themselves.
We see this often when companies that operate motor vehicles require the wearing of seatbelts or practice certain safety practices within the workplace. Regarding masks, the EEOC came out with guidance that you can require those who are non-vaccinated to wear masks. The only caveat here would be if you have someone who has a medical condition that would qualify as a disability under ADA for who wearing a mask would potentially create problems for that medical condition.
As for religious exemptions, if we're just talking about an ordinary surgical mask, that shouldn't be offensive to any religion. If we are talking about a filtering face mask or a tight-fitting respirator as is under the OSHA guidelines, there may need to provide an accommodation. For example, you had a religion that prevents or prohibits individuals from having cleanly shaven faces. In those instances, you would go through the interactive process to determine if an alternative mask might be allowable and still permit you to protect that worker. The law is very clear, sometimes we have employees who don't want to follow safe procedures, but we still have an obligation to enforce them.
How do we confirm that an individual has a religious objection or even a religion?
I've seen that question come up a few times where people ask if it must be a stated religious belief before the pandemic. As a matter of law, an individual can find their faith at any time. However, under Title VII it must be a sincerely held religious belief. If someone is going to request an exemption or an accommodation, in some states, the law requires that you document not only the request but also the interactive process, which is that dialogue between the employer and the employee. I would suggest that a person submit their accommodation request in writing citing the basis of the religious belief and the accommodation they're seeking.
If my partner isn't vaccinated, can I elect not to go on shift with them?
If the reason that the individual is not vaccinated is because of that legally protected religious belief or medical disability, then it would be discriminatory to refuse to work with that individual. But what I would say, outside of those protected statuses, would it be appropriate? Certainly, we've seen people refuse to work with all kinds of different partners and what we always say is that you need to be careful about what's called disparate treatment discrimination. This occurs when an individual is treated differently because of a protected status, such as gender or race. You also must monitor for disparate impact discrimination. This when a policy exists that on its face is neutral, but its resulting impact is discriminatory. An example of disparate impact is a policy that requires all police officers to be at least six feet tall. While this policy is neutral on its face, it will likely disparately impact women.
In the case of vaccinations, an employer must monitor for both disparate treatment and disparate impact discrimination. If employees refuse to work with anyone who is not vaccinated, this will likely disparately impact those with sincerely held religious beliefs or ADA-protected medical conditions. Employers can choose to mandate those vaccinations and the accommodation can be that some employees are permitted to take longer periods of leave until the risk is abated.
Houston and Goldman Sachs are suspending, threatening to fire and demanding the vaccination status of their employees. Is that legal?
Employers are permitted to request the vaccination status is of employees. What employers are required to do though is maintain that information in the same manner as other medical and confidential information. There should not be a publicly available list of those who are vaccinated and those who are not. In the instance of Goldman Sachs, they're just demanding to understand who is and who is not vaccinated and presume they are taking the steps necessary to safeguard that information.
How do unions and collective bargaining agreements impact vaccine mandates?
If you are in a workplace where there is a union and an active collective bargaining agreement in place, it will likely be viewed as a condition of employment, and one that the employer would be obligated under the National Labor Relations Act (NLRA) to negotiate with the union. This is one of those instances in which it will be hard for a union to take the position against mandatory vaccination. The union should understand or recognize that the employer is trying to eliminate the hazard in the workplace.
If employers are mandating vaccinations, they are required to not only furnish that vaccination but also pay employees for the time spent getting vaccinated. In this instance, it is something that would be subject to the requirement to collectively bargain, and I would recommend that employers seek and start engaging in discussions with their unions or collective bargaining agents.
I caution employers that while there is federal law, there are 50 individual states out there and that each one of those states often has its own laws addressing these issues as well. You need to research to see if your state has more restrictive requirements.
Any closing thoughts?
This issue is evolving quickly. If you are not on any of the listservs for OSHA, the EEOC, or the Department of Labor, then my recommendation is you sign up. Important information is disseminated by these agencies that is relevant for employers. They often outline these obligations for employers to prevent finding out down the road that you have violated the law.