Like you, we had hoped COVID-19-related issues would have waned by now and we could all move forward with a return to “normal.” Not so fast, apparently, as the disease’s delta variant has surged, and tensions between the pro- and antivaccination contingents have heightened. More employers are taking charge of the coronavirus narrative at work, for instance, by mandating vaccinations and/or requiring masking. The challenge for employers is to evaluate the scope of their rights in dealing with the infection and the impact on employee morale.
How to address workplace policies in virus’ new phase
May I require employees to get vaccinated or else face termination? Yes. The only exceptions are if an employee can’t be vaccinated for a disability-related reason or has a sincerely held religious belief against getting the shots.
If I terminate an employee for refusing to be vaccinated, will she become eligible for unemployment benefits? Maybe, which is of course the classic lawyer’s answer. We believe refusing to get vaccinated should be treated as insubordination for unemployment compensation purposes and thus disqualify the (former) employee. It remains to be seen, however, how the situation will play out in practice.
Be sure the vaccination requirement is communicated in writing, including a specific date by which it must occur and the consequences for failing/refusing to take the shots. That will enhance your chances of success in opposing an unemployment claim. Also be mindful that appeals through the unemployment process provide opportunities to record sworn, transcribed testimony, and the tribunals’ findings may have preclusive effects on later litigation claims.
May I require some employees to become vaccinated but not others? Yes, you could focus the policy on employees who deal in person with third parties. The distinction, however, should make business sense. Also, evaluate the approach’s overall impact on morale: Would workplace tensions be lower if you required everyone to become vaccinated?
Would requiring proof of vaccination violate the Health Insurance Portability and Accountability Act (HIPAA)? No, not at all. The vaccine proof would be analogous to the report you receive after a required drug test. It’s a medical record you have the right to receive, but be sure to maintain it confidentially with other health information.
May we disclose positive COVID-19 test results to other employees and relationship partners? Only if there’s a need for others to know, e.g., they work directly with the infected employee. Even in those circumstances, the preferred approach would be to avoid naming the individual.
May we require testing on-site? Yes. For wage and hour compliance purposes, the testing is consider working time. Furthermore, we suggest asking employees to sign a simple consent form, same as they would for drug testing. If they withhold consent, then as with drug testing, the refusal may be a basis for termination.
May we require unvaccinated employees to wear a mask until they get the shots but not set the same rule for those who are vaccinated? Yes, it is permissible. We tend to think, however, the approach isn’t an overall best practice with respect to logistics, safety, and employee morale.
If an employee is required to take a COVID-19 test off-site, must we pay for the test, and is the time considered working time? Yes, the time is considered working time for wage and hour purposes. Whether you must pay for the test depends on state law. Keep in mind some states prohibit such a requirement without the employee’s written consent.
If we provide cash incentives for employees to become vaccinated, will the amount have to be included in overtime pay calculations? No, we don’t believe that’s required. The legal analogy is if you provide an incentive or bonus for employees submitting to preventative medical screening. Those types of health incentives don’t have to be included when calculating overtime payments.
If employees are unionized, must we bargain with the union before implementing a vaccine mandate? The first step is to review the labor agreement: What language may apply to the situation? How have you handled medical/safety policy changes in the past?
One (often successful) method is to give the union notice of the announcement before distributing it to the workforce and invite the union to discuss. The approach usually fulfills a “bargaining” requirement by giving the union notice. It also avoids blindsiding the group. If you announce the policy to the workers first, they would then contact the union, placing it in the stance of needing to oppose your position.
Are we required to pay for COVID-19-related absences, and, if so, is the tax credit still available? You are no longer obligated to treat a COVID-19 absence in a unique way. As with any other medical absence, you may require employees with coronavirus-related absences to use paid time off (PTO), sick leave, or vacation pay.
If you choose to treat COVID-19 uniquely, you may do so and take the payroll tax credit until September 30, 2021. Apart from the credit, some employers are choosing to treat the virus differently for vaccinated employees who contract the infection.
Richard I. Lehr is an attorney with Lehr Middlebrooks Vreeland & Thompson, P.C., in Birmingham, Alabama. You can reach him at rlehr@lehrmiddlebrooks.com. This was originally published in Alabama Employment Law Letter.