EMPLOYMENT IN THE TIME OF COVID

September 4, 2021 | Written By N’kia

Pfizer’s COVID vaccine

Addressing 3 Common Covid-Related Questions for Employers and Employees

The FDA recently approved Pfizer’s COVID vaccine and more employers are now contemplating requiring their onsite employees to be vaccinated.

Nowadays, there’s certainly no shortage of social commentary on COVID, especially when it comes to the vaccines. However, despite the plethora of information now available a year and a half into this pandemic, most of us can agree that there is still one thing lacking: Answers. Employers and employees are no different. Both have been struggling to come to terms with how COVID affects their employer-employee relationships and, more recently, with how the FDA-approved Pfizer vaccine may affect their company policies.

You’d probably think that more information would equate to more answers. But part of the problem is that the overwhelming quantity of information can make everything about COVID feel like a moving target. A question arises, the answer leads to more questions, and the vicious cycle continues. Even worse, several questions about COVID vaccines circulating since before the vaccines were even available seem to have remained unanswered, and the answers for other questions have changed over time.  

A few frequently asked questions regarding COVID and its role in employment relationships have remained in circulation. But even from a legal perspective, the answers to some of these questions are constantly evolving. Now, at least for some employers, the approval of the Pfizer vaccine has answered some underlying questions regarding the safety of vaccines. So many employers who were previously hesitant to do so are currently leaning more toward the possibility of requiring that their employees be vaccinated. This makes it more important than ever to try to address certain legal questions related to employer-mandated vaccination policies.

Below are some (hopefully) up-to-date answers for three of the most common questions related to employer-mandated COVID vaccination, as well as a few tips for both employers and employees.

  1. Can an employer make COVID vaccination mandatory for employees?

YES, generally.

For the most part, unless the law requires or prohibits a certain type of company policy, an employer has discretion in the matter. Most adults have the right to decide what to wear, what to eat, whether to own certain weapons, and whether to own a car or use public transportation. But at the same time, most employers have the right to implement a dress code or require uniforms, ban peanuts or seafood at the office, prohibit guns on the premises, and require employees to have a valid driver license and “reliable transportation” (usually code for “your own vehicle”).

Additionally, employers generally have a duty to provide safe work environments for their employees. Depending on the circumstances, an employer’s safety policies might require things like hairnets, earplugs, gloves, steel-toed boots, hard hats, or goggles. Typically, that employer evaluated the facts, weighed the risks, and determined that requiring those things can help create a safer work environment for its employees. Fortunately, there’s usually a lot of information already available to help that employer make decisions about safety.

But how does is work for something that’s considered “unprecedented,” like COVID? Once a potential threat to safety arises, an employer is responsible for using the information available to make the best decision for the businesses’ needs. Because the needs of businesses vary, so too will the employers’ conclusions about what is “best.” In essence, absent the government dictating otherwise, an employer is not only entitled to, but is also required to use its own best judgment on issues like mandating COVID vaccinations for its employees.

Tip for Employees.  Noncompliance with your employer’s policies may jeopardize your employment, as well as potential unemployment benefits.

Tip for Employers.  Be consistent with enforcing your policies, document changes in your policies (especially the reasons for the changes), and take extra precautions whenever needed.

  1. Can an employer require employees to provide proof of vaccination?

YES, generally.

To be honest, most people don’t ask “Can an employer require employees to provide proof of vaccinations?” Instead, the more common question is “Doesn’t it violate HIPAA when an employer asks an employee for proof of vaccination?” Those people are usually surprised to learn that HIPAA does not apply to most employers. This is because HIPAA is really intended to apply to specific types of business (and their “business associates”), namely those who communicate private health information (“PHI”) electronically/digitally. So, while it is possible for HIPAA to come into play in the employment context but, technically, it’s not a law that you’d want to think of as an employment law or to rely too heavily upon in the employment context.

For what it’s worth, when it comes to COVID vaccines, HIPAA doesn’t really help or hurt either employees or employers much. For starters, it isn’t very likely that asking a person to disclose their own PHI will actually violate HIPAA. Further, an employer who is found liable for a HIPAA violation faces a variety of potential consequences, like the possibility of having to pay fines to the government. But the law does not allow an individual whose PHI was affected by a violation to sue the responsible business or person and recover money.

So where does this leave employers who are considering requesting proof of vaccination and employees who want to know whether those requests are lawful? Well, you’ve probably heard that some jurisdictions have prohibited employers from collecting information about employees’ vaccination status, while others have actually required tracking. Currently, those areas are exceptions. Outside of circumstances where the law prohibits doing so, collecting and tracking vaccination information will generally be considered permissible for the purposes of enforcing a mandatory vaccination policy.

Tips for Employees. With the help of your medical provider, you can usually provide your employer with the requested information quickly and without disclosing additional medical information that you may not wish to disclose.

Tips for Employers.  Safeguard your employees’ medical information by storing it somewhere that is not easily accessible to others.

  1. Can an employer request medical information when an employee wants to opt out of mandatory vaccination for medical reasons?

YES, generally.

There are various reasons why an employee might opt out of getting immunized against COVID. Even when an employer is requiring vaccinations, an employee may be entitled to opt out for medical/health reasons. Once an employee notifies their employer that they will not be inoculated due to medical reasons, it is not uncommon for the employer to request medical records. On the surface, it could appear as if the employer is attempting to avoid granting the request. In reality, the employer is following protocol under these circumstances.

When an employee’s request to be treated as an exception to a vaccination policy is based on the employee’s medical conditions, that employee is more than likely seeking reasonable “accommodations” under the Americans with Disabilities Act (“ADA”). But when an employee informs the employer of a medical condition, the ADA does not require an employer to just take the employee’s word for it. The ADA allows the employer to collect sufficient evidence to determine what accommodations it can provide, if any. In fact, under the ADA, a medical provider usually needs to be involved to “certify” that the employee actually has a medical condition that warrants an exemption.

But here’s an important factor to remember. While the ADA requires employers to provide “reasonable” accommodations to an eligible employee, it does not require employers to provide the exact accommodations that the employee requests. The law leaves it up to the employer to decide what’s reasonable under the circumstances, at least until an employee challenges the decision in court. In theory, that means an employer may be able to reassign the employee to different duties, relocate the employee, allow the employee to work remotely, reduce the employee’s hours, or take various other measures. Lastly, if all the employer’s options would be too burdensome, then those options would not be “reasonable.” Therefore, the employer might not be required to provide any accommodations at all.

Tips for Employees.  When you ask your employer to make an exception for you, the burden is on you to demonstrate that you are actually eligible for the exemption you are requesting. To avoid delays and increase your chances of being approved for an ADA exemption, be sure to get your medical provider involved sooner than later.

Tips for Employers.  Take every request for exemptions very seriously and enforce your policies consistently.

In this new COVID era, a wealth of information combined with a lack of answers has left many employers and employees in a constant state of confusion – about where to find the most accurate information, but more so about how any of the available information applies to them. For employers, you may want to focus on information that helps you to evaluate the business necessity of mandating vaccination and helps you to comply with all relevant laws when implementing and enforcing your COVID-related company policies. For employees, you may want to focus on information that helps you to understand the rights and responsibilities of each party to your employment relationship and helps you to comply with all relevant laws when exercising your individual rights. For both, keep in mind that general information such as this provides answers to basic questions, but that the best approach for you will be determined by your specific circumstances.

Employer-employee rights during the time of COVID can feel confusing, but that doesn’t have to be the case. Whether you are an employer or an employee, feel free to contact N’kia to speak with her about your employment law needs. She can be reached at: nkia@parlatorelawgroup.com or 919-335-6399.

N’kia is Partner with Parlatore Law Group and dedicates her practice primarily to business law concerns, including business formation and development, employment, board licensure, anti-competition, contract formation and disputes, and intellectual property. She also handles a variety of general civil litigation matters, with her special interest being defamation (libel and slander). Her well-rounded legal background makes her well-equipped to meet her clients’ diverse needs. To learn more about N’kia, click here.

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