The Good News will provide a monthly column with important content having to do with topical subjects from the legal community. We hope our readers enjoy the perspective offered. This month’s legal opinion is provided by Paul Lopez, Esq., a director and COO with Tripp Scott, PA.
ASK BILL: As the COVID-19 vaccine becomes more widely available, can I legally require my employees to receive it as a condition of coming to work?
P. LOPEZ: Well, as is often the case in workplace (and other) law, the answer depends on your circumstances.
The most important consideration is the requirement under Occupational Health and Safety Administration (OSHA) regulations to provide a safe workplace, though that requirement has to be balanced against worker rights overseen by the Equal Opportunity Employment Commission (EEOC), which makes things a little trickier – and naturally, less clear.
It makes sense that under guidance from the two agencies, “public-facing” businesses such as restaurants, hotels and retail stores are on the strongest legal ground in mandating vaccine compliance.
But even in those businesses, legality of a requirement may differ according to employees’ roles. Clearly, frontline workers such as waiters, servers, front-desk staff, retail clerks or other front-line workers are most likely to spread the virus to the public and coworkers.
But back-office staff who don’t regularly interact with other workers, clients or customers – and in particular, employees who worked remotely pre-pandemic or have switched to permanent offsite status (a growing trend) – can reasonably claim an exemption.
ASK BILL: Speaking of worker rights: what about employees with medical conditions or other reasonable objections?
P. LOPEZ: Employees with medical conditions may indeed “just say no” to vaccination under Title VII of the Civil Rights Act of 1964, with the employer entitled to ask for information to support the objection if you reasonably suspect it is insincere. But watch out: forcing employees to disclose a disability may run afoul of the Americans with Disabilities Act (ADA). Employees with sincere religious objections may also opt out.
In both situations, the employer can be asked to provide reasonable accommodation distancing the worker from the public, if it does not pose an undue hardship on the business.
ASK BILL: Should my business consider offering the vaccine on-site in conjunction with a mandate?
P. LOPEZ: Probably not a good idea, as the ADA again rears its often troublesome head. Vaccination requires pre-screening, and even innocent inquiries about employees’ medical histories may violate confidentiality rights. The better course: ask employees to provide proof of inoculation from a doctor’s office or publicly-run facility.
ASK BILL: What about non-employees, such as vendors or contractors who visit our location and interact with staff or customers?
P. LOPEZ: Once again, you’re on rock-solid ground to demand proof of vaccination or negative test results, and that these visitors wear masks and maintain social distancing.
ASK BILL: When it comes to vaccines, mask mandates, work requirements and more, what’s the best way to make sure my business has a “clean bill of health” when it comes to COVID compliance?
P. LOPEZ: First and foremost, follow guidelines issued not just by OSHA and EEOC, but also by local and state public health authorities. When in doubt, there’s nothing wrong with picking up the phone and calling your local office.
Second, develop clear and consistent written policies applying to every employee position, from senior leadership down. You must steer clear of even appearing to discriminate against any protected class, and have good reasons for every rule.
Third, two-way communication is always key: maintaining an open dialogue with employees improves your chances of charting and navigating such uncertain terrain on friendly terms, while protecting your company, customers and business partners.
And of course, if you or your company’s human resources team needs additional guidance, you shouldn’t hesitate to reach out to a law firm with specialists in employment law. While we’re all learning together, such area specialists have longstanding experience in applying the law to new and evolving situations, a description that certainly applies to this stubborn and still dangerous pandemic.
Finally, the Florida legislature has just acted and the Governor on March 29, 2021 signed into law SB 72 which provides COVID-19 liability protections for health care entities, businesses, educational institutions, governmental entities and religious institutions. The law is effective immediately and provides protection if the entity acted in good-faith to comply with applicable health guidelines. Therefore, it is important for employers to implement some of the reasonable measures we have discussed and to document the same in order to mitigate against their exposure and to obtain the protection that this law provides.
If you have any topics you think may be of interest to our readership, we encourage you to email us at [email protected]
William “Bill” C. Davell, Esq., is a director with Tripp Scott, PA. For more information, visit http://www.trippscott.com/
For more business-related content, read: Can I legally make my business a Christian workplace?