Vaccines & Sweatpants: Going Back to Work in the COVID Vaccine Era

Working from home and that work-from-home fashion staple, sweatpants have become the norm for millions of American workers since mid-March 2020. With the COVID-19 vaccine rollout finally picking up some steam, many employers are either gearing up to safely bring employees back to work or looking for ways to keep those already working onsite healthy. In both cases, the COVID vaccine is likely to be a big factor.

Can employers require employees to be vaccinated?

The short answer? It depends, but most likely, yes.

Generally, employers CAN require employees to be vaccinated in order to return to work at the employer’s brick and mortar job site – with some limited exceptions, of course (hello ADA and Title VII sincerely held religious beliefs). As it has been with all things COVID, there aren’t a lot of hard and fast rules and regulations for employers, but there is guidance that may provide a reasonable roadmap.

The general thinking right now is that employers can require employees to be vaccinated as a condition of going to work if the failure to be vaccinated constitutes a “direct threat” to other employees in the workplace. (Spoiler Alert – the EEOC has already determined that COVID-19 meets the definition of “direct threat” because of the transmissibility and severity of the virus). The more likely it is that non-vaccinated employees will put co-workers, customers, clients, or the public at large at risk (i.e., there’s a business necessity for the implementation of the vaccine requirement), the more compelling the case for an employer to have a vaccination mandate.

Since most insurance companies aren’t insuring for “business interruptions” due to COVID-related shutdowns, the vaccine becomes much more important to an employer’s survival. For example, most small businesses can’t absorb employee COVID absences like a larger employer can, making a vaccine mandate a vital tool to counter the “direct threat” COVID-19 poses.

Reasonable Accommodations

That said, covered employers under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”) generally will still have to engage in interactive discussions with, and ultimately provide reasonable accommodations to, employees with disabilities or sincerely held religious beliefs that prevent them from getting a vaccine.

Suppose an employee can’t or won’t get vaccinated (and ADA and religious accommodations don’t come into play). In that case, employers should consider whether that employee can work remotely instead of getting vaccinated and returning to work – especially if they’ve been successful at working remotely leading up to a vaccine mandate.  Employer vaccine mandates are more likely to pass legal muster if the vaccine requirement is tied to the ability to return to the worksite to work rather than tied to termination if the employee isn’t vaccinated. Obviously, some employers like grocery stores and healthcare providers don’t have that luxury, so the analysis is different.

The More You Know

Employment lawyers are currently waiting on the EEOC to issue guidance on whether employers can incentivize employees to get vaccinated. Incentivized vaccine mandates would likely constitute a wellness program – an employer-offered health promotion or disease prevention activity – like a COVID-19 vaccination – in which the employer asks the employee to provide information about their medical history.

Under current guidance governing wellness programs in the workplace, the EEOC says employers cannot offer more than “de minimis incentives” to encourage employees to participate in a wellness program. What does the EEOC consider “de minimis” you ask? Small low-value items such as “a water bottle or gift card of modest value” – which honestly, might not be enough to persuade those already skeptical about vaccines to get vaccinated.

Employers who don’t require employees to get vaccinated aren’t off the hook. The flip side to not requiring vaccinations is that employees may return to the workplace, contract COVID-19, and then claim their employer failed to provide a safe work environment as required by the Occupational Safety & Health Administration (“OSHA”). Just last week, both OSHA and the Centers for Disease Control and Prevention (“CDC”) issued guidance to help employers maintain a safe workplace.

The CDC even created a “Toolkit for Essential Workers” designed for employers of essential workers who perform duties across critical infrastructure sectors and maintain the services and functions that US residents depend on (think first responders, teachers, child care, grocery stores, etc.).

The toolkit offers both employers and employees information and education regarding COVID-19 safety protocols and the benefits of being vaccinated. It’s no surprise that this is an area of first impression (as everything COVID-related is) so, it’s really anyone’s guess as to what a COVID liability/tort-type case would look like. Stay tuned – we’re sure to find out soon enough.

Are Sweatpants Considered Business Casual? (asking for a friend…)

The short answer? It depends, but probably not. #sadness

Two Final (But Very Important) Points

Any employer developing a mandatory vaccine policy should consider vaccine availability – COVID-19 vaccines aren’t yet widely available and most states prioritize who gets vaccinated.   Even if employees get vaccinated (whether as part of a mandatory vaccine plan or not), employers should continue to require mask-wearing and social distancing in the workplace and enforce other safety protocols.

Need Answers?

Still have questions about the legal implications your business is facing? Please send us an email or give us a call. Lincoln Derr can help guide you through this unprecedented time.

Kathleen (Kathi) Lucchesi

Kathi Lucchesi regularly advises her clients in connection with all types of employment issues both in and out of the workplace. She works with employers in connection with the hiring, discipline and termination of employees, policy drafting and implementation, claims for wrongful discharge and discrimination, unemployment, FMLA and Wage & Hour violations, and EEOC, DOL, ESC, DOJ, and Title IX investigations.

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