Episode 2

Related Links

• https://www.osha.gov/seasonal-flu
• https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
• Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace | Occupational Safety and Health Administration (osha.gov)
• Client Alert: OSHA Issues New Significant COVID Guidance

Transcript

Chris Koehler: Welcome to the next episode of Frantz Ward's podcast series, Shoveling Smoke. I'm Chris Koehler, a partner at Frantz Ward, and I'll be hosting today's discussion. We are trying to stay timely with our topics and there probably isn't a topic more timely than today's, employment issues related to the COVID-19 vaccine. Here with me today to help navigate this topic is my colleague, Megan Bennet. Hi, Megan. Thanks for joining us.

Megan Bennet: Hey, Chris, thanks for having me.

Chris Koehler: A little background on Megan first. She practices exclusively in the employment law area and focuses on advising and defending clients on a variety of employment issues, including discrimination, retaliation, and harassment claims. She also handles workplace investigations and specializes in assisting federal contractors and compliance with the complicated federal regulations. She's a native Clevelander, a proud Dayton Flyer. She enjoys running and cooking, although there's no evidence of that because she didn't provide us with any treats today. And she serves on the west side Catholic Center's Board of Directors. What's the west side Catholic Center?

Megan Bennet: So Chris, this is an organization on the west side of Cleveland that is responsible for providing hot meals, clothing, and other household goods and other emergency services to the homeless and the hungry in Cleveland. The center also operates a family shelter, which is always at capacity, as well as a workforce training program and a transitional housing program, which is designed to help the clients transition from the shelter and get back on their feet. It's really a great organization and I'm really grateful to be a part of it.

Chris Koehler: It sounds like, particularly today, really needed, so great.

Megan Bennet: Yes, yes.

Chris Koehler: Megan, many businesses see the arrival of the vaccine as the light of the end of the tunnel, but it won't be without issues for employers, I suppose? So as we move away from this initial wave of vaccines, or vaccinations, into more widespread vaccinations, what type of issues are employers faced with?

Megan Bennet: Well, Chris, I think we all know that this has been a complicated year for employers. They're constantly trying to learn the right thing to do. And now that the COVID-19 vaccine is here, they're faced with a whole new set of challenges. They need to consider whether they're going to mandate employees to receive the vaccine or whether they're going to just encourage their employees to receive the vaccine. And then they also need to address if certain employees refuse to take the vaccine. Finally, employers need to consider that there are state and federal discrimination laws to keep in mind, as well as OSHA regulations, workplace safety, and then last but not least, employee morale is really important, especially during a pandemic.

Chris Koehler: So the big question, I guess then is, can employers mandate their employees get vaccinated?

Megan Bennet: This seems to be the golden question right now, and the answer is yes, a policy to mandate vaccinations is, on its face, legal. However, there are some limitations to that and, because of that, some employers are opting to encourage their employees to receive vaccinations rather than mandate that they do so.

Chris Koehler: What are the limitations on these employer mandates?

Megan Bennet: Well, the first thing that employers need to consider is that employees who have either a religious objection or a disability may need to be excused from the mandate. Also, if employers have a unionized workforce, the employer might need to bargain with the union prior to mandating that their employees receive the vaccine.

Chris Koehler: Let's go a little deeper into those first exceptions you mentioned. How is the ability to require a vaccination impacted by an employee's disability?

Megan Bennet: So if an employee has a disability, as defined by the ADA, he or she may request that their employer exempt them from the vaccination mandate. This process isn't that much different from any other request for an accommodation. The employer can request medical documentation from the employee and the employer can then review that documentation to see if the employee really is unable to be vaccinated. If the employee is unable to be vaccinated, the employer needs to engage in interactive process, just like any other request for an accommodation and determine if there are other ways that the employer can accommodate the employee's disability.

Chris Koehler: What are some examples of that?

Megan Bennet: So at some point we may not all have to be wearing face masks. So having an employee requiring them to continue to wear a face mask may be that reasonable accommodation. Or, maybe more advanced PPE, putting Plexiglas around an employee's work station, asking an employee to work in a more secluded area, so they're not around other coworkers. Even changing an employee's work schedule or even their work position so that they don't have as much customer contact or coworker contact. And then, obviously, a lot of people have been doing telework during this, and that's also a reasonable accommodation.

Chris Koehler: So some of the steps that employers are currently taking could be extended even after the vaccine is finally kicked in, extended to people who don't take the vaccine?

Megan Bennet: Correct.

Chris Koehler: You also mentioned an exception based on religion or religious beliefs. Could you flesh that out a bit?

Megan Bennet: Yeah. So this is a little bit different from disability and that's because the law defines religion very broadly. So unless an employer has an objective reason for questioning that the employee has a sincerely held religious belief, the employer should assume that the request for accommodation is based on religion. An employer really shouldn't be asking for evidence or proof that an employee practices a certain religion. And so if an employee has a religious reason for not wanting to take the vaccine, the employer must provide a reasonable accommodation for that. However, just like non-pandemic times, an employer doesn't have to provide an accommodation if it would pose an undue hardship. An undue hardship gets a little complicated in terms of the pandemic, because the EEOC has said what may have been an undue hardship in 2019 is different today. It's difficult to get certain supplies for employees. Companies are struggling financially, so the cost may be different. So companies can take that into consideration when considering if an employee's accommodation is truly an undue hardship.

Chris Koehler: If question one is, can an employer mandate a vaccine, I assume question one-A then is, can an employer terminate an employee who refuses to be vaccinated?

Megan Bennet: Yes, employers can do so. Employees in Ohio are employees at will, so unless an employee has a specific employment contract with their employer, they can be hired and fired for any reason. So therefore, if an employer does make a policy mandating vaccination and an employee who refuses to be vaccinated does not have a religious or a disability-related reason for refusing the vaccination, the employer can terminate because that is a violation of their policy.

Chris Koehler: So an employer can terminate. Might there be reasons why an employer shouldn't or should think twice before doing so?

Megan Bennet: Sure. I've mentioned, this has been a tough year on everyone. Employers have had to deal with a lot of new legal restrictions and issues, but employees have had to deal with this too, and even on a personal level. So in addition to those with legally protected reasons, some employees may have other reasons why they object to the vaccine. They might be scared, they might not be ready, and they might just not want to be forced by their employer to make this decision. So what a lot of employers have been doing is they've been opting to encourage their employees to be vaccinated, rather than forcing them to be vaccinated. Some of the things that employers might do is provide time off for their employees to get the vaccine or even time off to recover from the vaccine, as I think we know there may be some side effects. Or, even providing some of the costs towards the vaccine.

Chris Koehler: What about the fact that the vaccines were approved very quickly and that they're considered to be experimental by the FDA? Does that affect an employee's ability to object or whether an employer should force the vaccines on employees?

Megan Bennet: Yes. So like I mentioned, some employees just may not be ready to take this vaccination and there has been some legal chatter about because this is technically still considered experimental, whether mandating employees to take an experimental vaccine and then terminating them when they refuse to do so, whether this could trigger the public policy exception to the at-will doctrine for a wrongful termination and violation of public policy, which is a valid claim in Ohio. So this is definitely a risk that employers need to take into consideration.

Chris Koehler: Is that finding its way through the courts now, or do you just anticipate that coming?

Megan Bennet: It's really just anticipated at this time. We haven't seen any claims filed yet but, again, we don't know what's going to happen down the pike.

Chris Koehler: Are there different rules under state and federal law or even among different states that apply to this issue?

Megan Bennet: Yes. So the guidance that I provided today is really based on federal anti-discrimination laws and the Ohio anti-discrimination laws mirror, Title VII and the ADA in all of the relevant respects that I discussed today. It is interesting because we're seeing in a couple of states, Florida, Kentucky, Missouri, a couple more, state legislatures attempting to pass laws aimed at preventing schools, government agencies, companies, from forcing their employees and students to get the COVID-19 vaccine. These are all brand new bills, so we have no clue how much traction they will get, but it is interesting to see that there may be more legislation along this lines.

Chris Koehler: What states have this been happening in?

Megan Bennet: Florida, Kentucky, Missouri, New York, New Jersey, South Carolina. I believe Tennessee, as well as Washington state.

Chris Koehler: Is there guidance available to employers to help navigate through these issues?

Megan Bennet: Yes. So a lot of what I've discussed today is outlined in the guidance that was provided by the EEOC back in December. Also, it's important to note that OSHA has not provided much updated guidance. They do have some helpful hints and tips based on the flu vaccine; however, President Biden in his first week of office signed an executive order, mandating OSHA to issue new COVID-related guidance, so there should be more guidance from OSHA on the COVID vaccine, hopefully in the very near future.

Chris Koehler: Thank you, Megan. And in wrapping up, can you give our listeners a couple concrete takeaways on this issue?

Megan Bennet: Sure, Chris. So I think that there are probably three main things that employers need to remember when considering the COVID-19 vaccine. The first is yes, you can mandate that your employees are vaccinated and then you can terminate your employees if they fail to receive the vaccine. However, there are some risks. Like I mentioned, there's risk of these public policy claims that we're not quite sure if those are going to be coming soon. There's also employee morale issues. So a lot of employers are considering encouraging their employees to receive the vaccine, rather than mandating that they do so. And then the third thing is just whichever option you choose, whether it's mandating employees or encouraging them, I always tell employers, draft a written policy, communicate that policy to employees, and then just like any other policy, you really need to enforce it consistently.

Chris Koehler: Thanks, Megan, very helpful. Just so you know, we will be putting on our website, which is www.frantzward.com, links to some of the regulations and guidance that Megan mentioned today. So to recap what she said, as with nearly all employment related laws, just because you can, doesn't mean you should, so think carefully about it. And whatever you do, communicate clearly with your employees and be uniform in your enforcement of whatever guidelines you put in place. So that's it for this episode of Shoveling Smoke. Thank you for joining us and we look forward to our next discussion with you.

Megan Bennet: Thanks, Chris.

Chris Koehler: Shoveling Smoke is a production of Evergreen Podcasts. Our producer and audio engineer is Sean Rule-Hoffman. Thanks for listening.