By Julie Pace, David Selden, Heidi Nunn-Gilman, & Demetra Makris

 

Can your company mandate COVID-19 vaccinations to protect employees and customers and try to keep a business open?

The Equal Employment Opportunity Commission (“EEOC”) issued a highly anticipated update to its publication, “What You Should Know About COVID-19 the ADA, the Rehabilitation Act, and Other EEO Laws.”  The new guidance addresses whether employers can require employees be vaccinated before returning to work and how such COVID-19 vaccinations interact with the legal requirements of the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, and the Genetic Information Nondiscrimination Act (“GINA”).

Companies May Require Employees to Get a Vaccination, But Must Engage in Interactive Dialogue and Consider Reasonable Accommodations for Employees with a Disability

Under the EEOC Guidance, a company generally may require at-will employees to be vaccinated.  Exceptions exist.   If employees have a disability or religious objection that they cannot receive the vaccine, the company then would engage in an interactive dialogue and address whether a reasonable accommodation can be implemented that can allow the employee to perform required job duties.  Employees still would need to meet performance expectations.  If a company issues a mandatory vaccination policy, the company should be flexible to comply with the ADA and Title VII.

Under the ADA, employers may institute a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace. If an employer mandates employees to get the COVID-19 vaccination, but an employee cannot do so because of a disability, the employer must determine whether the unvaccinated employee would pose a direct threat to others due to 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.

Employers must conduct an individualized assessment to determine whether an employee poses a direct threat, including:

1. 1. The duration of the risk;
   2. The nature and severity of the potential harm;
   3. The likelihood that the potential harm will occur; and
   4. The imminence of the potential harm.

The EEOC provides that if an employer determines after conducting an individualized assessment that an employee who cannot be vaccinated due to a disability does pose a direct threat, the employer cannot exclude the unvaccinated employee from the workplace “unless there is no way to provide a reasonable accommodation (absent an undue hardship) that would eliminate or reduce the risk so the unvaccinated employee does not pose a direct threat.” Employers should exercise caution when determining whether to exclude an employee from the workplace and should consult with legal counsel before taking adverse action.

Employers should engage in a flexible, interactive process to identify workplace accommodation options.  When determining whether reasonable accommodations can be made, employers and employees should evaluate factors that include, but are not limited to:

1. 1. The employee’s job functions;
   2. Whether there is an alternative job that the employee could do that would make a COVID-19 vaccination less critical; and
   3. How important it is to the employer’s operations that the employee be vaccinated.

Reasonable accommodations may include remote working, wearing a mask, social distancing, or leaves of absences. Companies generally do not need to lower the required performance or conduct standards.

Reasonable Accommodations May Be Required for Employees with a Religious Objection

After an employer is on notice that an employee has a sincerely held religious belief, practice, or observance that prevents them from receiving a vaccination, the employer then engages in the interactive dialogue to determine if a reasonable accommodation can be implemented unless it would pose an undue hardship under Title VII of the Civil Rights Act.

Under Title VII, undue hardship means having more than a de minimis, or very small, cost or burden on an employer, which is a significantly lower standard than undue hardship under the ADA.  The EEOC states that because the definition of religion is broad and employers may not be familiar with an employee’s particular beliefs, practices, and observances, employers should generally assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, however, the employer may be justified in requesting additional supporting information.

If Reasonable Accommodation is Not Available, Exclusion from the Workplace May be a Last Option

According to the EEOC Guidance, it generally is lawful for employers to exclude employees from the workplace if an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible that can work and is acceptable to the employer.

It is important to note, however, that excluding a worker from the workplace does not necessarily mean termination.  Employers should determine if there are any other rights that apply under the EEO laws or other federal, state, and local authorities.  Again, consult with legal counsel before taking adverse action against employees who refuse to be vaccinated.

Unionized Employers Need to Review the Terms of Collective Bargaining Agreements Before Implementing a Mandatory Vaccination Policy

Employers with a unionized workforce must review the terms of applicable collective bargaining agreements to see if there is a clause that provides the employer with the right to mandate COVID-19 vaccinations with its workers. If there is no specific provision in the collective bargaining agreement that addresses vaccinations, then unionized employers may need to bargain with the union over mandatory vaccinations.

Conclusion

Companies that want to require employees to be vaccinated for COVID-19 can create a new policy that allows reasonable accommodations for individuals with a disability or religious objection that would prevent them from getting the COVID-19 vaccination. Companies are advised to engage in an individualized assessment for employees who state that they cannot receive the vaccine and determine if reasonable accommodations can be made for the employee.

Companies that wish to require employees to be vaccinated for COVID-19 should have their handbooks and policies updated to address mandatory vaccinations while maintaining continued compliance with other laws. It is imperative that employers stay informed with the continued changing guidance provided by government agencies and state laws.

Many employers may choose to not implement a mandatory vaccination policy, and instead choose to let their employees make their own choices and use a positive approach to encourage employees to get vaccinated. This option de-escalates conflict.

Customers may require your employees to be vaccinated before allowing your company’s employees to physically work at the customer’s job sites. Proof of vaccination may be needed to work at such job sites.

Even with a fully vaccinated workforce, during these pandemic times, companies should continue to mandate wearing masks and practicing physical distancing.  At-will employees can be let go for violating safety rules.  Remember that the current vaccinations require two shots and then after the second vaccination, it does not become effective for several weeks.  And, even if vaccinated, the individual can transmit Covid-19 so the safety precautions will continue indefinitely.

For guidance on how to navigate the rapidly evolving EEOC guidance on COVID-19, how to move forward with COVID-19 mandatory vaccination policies, and how to continue navigating these unprecedented times, please contact Julie Pace, David Selden, Heidi Nunn-Gilman, or Demetra Makris for more information.

In the past few weeks, labor unions and their allies on the Phoenix City Council have made two efforts to advance an ordinance that would require a prevailing wage and benefits be paid to all employees working on a covered project within the City of Phoenix.  While no draft ordinance was produced, the white paper circulated by the unions outlined a proposal that would apply to all city-funded construction projects. More troubling, the language was sufficiently vague that it may have covered privately funded construction projects as well.

We joined a large coalition comprised of other non-profits representing the construction industry, the Phoenix Chamber of Commerce as well as individual firms to oppose this effort.  Our side prevailed on both the June 23rd and July 1st vote, but the fight is far from over.  Two of our ‘YES votes’ are not running for re-election in November: Thelda Williams and Michael Nowakowski. A third ‘YES vote,’ Debra Stark, faces a well-funded opponent.  Obviously, the outcome of these three races will have a huge impact on whether a prevailing wage ordinance is adopted by the City of Phoenix.

One talking point that seemed particularly effective was that prevailing wage ordinance would make it even more difficult to create affordable housing within the city limits. In addition to speaking to members of the city council about the many problems created by prevailing wage laws, The Arizona Builders Alliance also obtained a legal opinion from Holden|Willits which makes a very strong case that the city lacks the statutory authority to enact a prevailing wage ordinance.

Summary of Prevailing Wage White Paper

1. Wages and benefits shall be determined by the Labor Compliance Department
2. Employers will pay an amount into an apprenticeship program approved by the Department of Labor
3. Employees cannot be fired without cause
4. Fifteen percent of labor force on a job must be apprentices
5. No contractor shall mis-classify workers
6. Workers must be paid at least weekly
7. Administrative compliance will include:

a.  Certified payrolls will be provided to the Labor Compliance Department bi-weekly
b.  Weekly report will be provided to the Labor Compliance Department of all independent contractors
c.  The Labor Compliance Department will have broad authority to promulgate policies and procedures and investigate firms to ensure compliance with all aspects of this ordinance

On Tuesday afternoon, Governor Ducey held a press conference to announce the end of his Stay Home, Stay Safe, Stay Connected Executive Order as of May 15 and the implementation of his superseding Stay Healthy, Return Smarter, Return Stronger Executive Order. Prior to the new executive order, retailers, cosmetologists and barbers were permitted to re-open on May 8^th and restaurants were permitted to resume dine-in service as of May 11th.

The initial order’s end means that significant restrictions on Arizona business will be lifted, allowing them to resume full operations so long as they follow guidelines regarding hygiene, disinfection, physical distancing, illness monitoring and reduced crowd size to 10 or fewer, where possible. Businesses that are able are also encouraged to facilitate continued teleworking and phased work hours to limit contact. The re-opening comes in response to Arizona having met the White House’s criteria for re-opening. At the press conference, Governor Ducey and Department of Health Services Director, Dr. Cara Christ, emphasized that Arizona’s hospitals are prepared and have capacity for an increase of COVID-19 cases. The Governor’s office continues to advise that vulnerable individuals continue to stay home and engage in safe practices to protect their health.

At the legislature, things are a little less clear.  Both the House and Senate have announced on more than one occasion in the past month that they would wrap up session for the year – leaving all the unfinished legislation to die.  For most of the day on May 7^th that was the plan, but then Speaker Bowers changed his mind.  The Senate went ahead on May 8^th and voted 24-6 to end the session.  However, the Arizona Constitution requires the House and Senate to give each other permission before wrapping up for the year.  So, without House permission to adjourn for the year, the Senate remains in session. This puts the legislature in limbo with no clear direction.  All this could change very quickly so we continue to speak with members of the House and Senate to try and stay ahead of any changes to this stalemate.