In light of the confusing Covid guidelines from federal, state, and local governments, it’s important that employers enforce their policies consistently and fairly.
On January 13, the Supreme Court of the United States blocked the Biden Administration’s efforts to require private businesses, employing one hundred or more workers, to mandate that employees be vaccinated or, alternatively, undergo regular testing. The Supreme Court action has, for the foreseeable future, disabled the federal government from implementing a national policy to govern how Covid-19 should be managed in the workplace.
Also challenging for employers seeking guidance is trying to interpret the guidelines issued by the Centers for Disease Control (“CDC”). For example, although some commentators think that to be “fully vaccinated” should mean that one has also received a vaccine booster, the CDC definition only requires one to have received their “primary series of vaccines,” i.e., the Johnson & Johnson vaccine or the two-part Pfizer or Moderna vaccines. Critics have further pointed out that CDC guidance does not address emerging evidence that some who have recently contracted the Omicron variant of Covid-19 and are no longer infectious may well have more robust immunity against the virus than “fully vaccinated” persons who were vaccinated a year ago. In short, there is a lack of clarity concerning what constitutes a safe work environment and this has compelled employers, on their own, to balance health and safety concerns against their businesses’ economic interests.
In my last article on this subject, employers were advised to look to local and state regulations to guide them through the Covid-19 thicket. But, as I also discussed, the law is a patchwork. Businesses operating across state lines can anticipate confronting a myriad of contradictory rules. While certain states, like Florida and Texas, have resisted imposing any requirements on employees and employers, New York City recently enacted NYC’s Private Workplace Vaccination Order, which mandated that by December 27 all employees in the city needed to be vaccinated either with a single dose or double dose vaccine. NYC Employers, however, can impose even more severe restrictions on employees than the NYC rule requires, like requiring vaccine boosters, if the restrictions are not discriminatory or in violation of an employee’s right to seek an exception to vaccine requirements and obtain a reasonable accommodation.
So, what general advice exists for employers aside from being familiar with local requirements, which is a given? The following points may be helpful.
- Employers should assess their work forces to determine what types of positions can be performed remotely and what types of positions require an employee to interface physically with other employees or members of the public. Confronting contradictory standards, some employers may want to follow the path of least resistance and sanction remote work. Many tech firms and firms in the financial and legal sectors have, opted for this virtual employment model, at least during periods when infection rates are high. Some firms have opted to pursue the virtual employment model permanently, but the jury is still out on the feasibility and cost-effectiveness of remote working and whether it enhances or retards employee productivity.
- Employers operating in industries where certain employees can work remotely while others cannot, require a more nuanced approach. Work that can be performed remotely probably should be performed remotely. When jobs cannot be performed remotely, the employer must then assess how best to promote Covid-safe workplaces. Local rules may provide clear guidance, but in those jurisdictions that provide little direction, employers will need to decide whether and to what extent to impose vaccine and/or masking and testing mandates. The trick here is to consider that regardless an employer’s policy, it needs to be implemented in a consistent, non-discriminatory fashion that still provides health and religious exceptions to those who qualify for them. For example, if an employer is requiring its employees to be boosted, it cannot require certain workers to be boosted and not others similarly situated.
- Make sure that mandatory policies also contain well defined exceptions for those protected under the American with Disabilities Act or the First Amendment’s free exercise of religion clause. Local human rights law as well as Federal law should help define what these exceptions are, what giving a “reasonable accommodation” means, and the type of evidence required to support them, so employers should consult with legal counsel about developing a protocol to govern when and under what circumstances employees objecting to mandates should be accommodated.
- Document, document, document. In workplaces where vaccine and masking mandates are in place, employers need to make sure that they are being enforced consistently and fairly. If an employer is going to require its workforce to be vaccinated, then the employer is going to need to make sure that each employee has been vaccinated. To enforce rules of Covid engagement inconsistently could expose an employer to a lawsuit. So, it behooves employers to keep records that their requirements are being applied uniformly. On the issue of record keeping, it is instructive to consider New York City’s recently issued NYC’s Private Workplace Vaccination Order, which requires employers to keep the following types of records: (1) the worker’s proof of identity, (2) a copy of the worker’s vaccination records, (3) documents confirming that a vaccination has been scheduled if a worker is not fully vaccinated, and (4) the record of the reasonable accommodation (if any) provided, with supporting documentation, such as doctors letters, etc.
Another point of instruction worth making about the New York City Rule is that where an employer makes a reasonable accommodation by way of allowing employees to wear masks instead of being fully vaccinated, all workers, whether vaccinated or not, must wear masks indoors.
Confronting a patchwork of state and local requirements, and not able to rely on the prospect of national rules being implemented any time soon, employers must now fashion their own workplace Covid-engagement rules. Employers operating in jurisdictions where guidance is thin, have flexibility to develop their own rules of engagement, but should such employers decide that mandates are required, they need to enforce them consistently and fairly and keep records showing that is the case.
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