A complicated decision
As an attorney focused on labor and employment law, Edward Easterly has been busy for the past 13 months. And since the state recently relaxed the rules on remote work, his business clients have had plenty of questions as they prepare to open back up.
Among the hottest inquiries: Can employers require its employees to be vaccinated before they can return to the office?
In general, the U.S. Equal Employment Opportunity Commission has indicated employers can mandate the vaccine because a person with the virus poses a “direct threat” to the health of others, said Easterly, a founding member of Hoffman Hlavac & Easterly in South Whitehall Township. However, he said, employers should be aware there are certain exceptions under the law to mandatory vaccinations, including closely held religious beliefs or medical reasons that would affect a person’s ability to receive the vaccine.
In those cases, Easterly noted, employers may be required to provide a reasonable accommodation to those individuals to perform the essential functions of their position, unless that accommodation “would cause an undue hardship to the employer.”
While private employers can mandate the vaccine, Easterly said not many of them are doing so at this time, instead strongly encouraging or recommending that workers get vaccinated. Among the issues, at least right now, is that it’s difficult to require a vaccine that not everyone can get quite yet, he noted.
Easterly said the only court case he knows of challenging COVID-19 vaccine mandates is one filed in February in district court in New Mexico, in which a corrections officer is arguing a requirement forcing county employees to get vaccinated violates federal law because the vaccines are not yet fully approved by the U.S. Food and Drug Administration. The complaint focuses on how the vaccines have received emergency use authorization, noting that manufacturers are still undergoing clinical trials to obtain additional safety and effectiveness information to pursue eventual approval.
Another hot topic is whether companies can ask employees whether they’ve been vaccinated.
“That answer is 100% yes,” Easterly said.
But again, employers must tread carefully. For example, a follow-up question such as, “Why didn’t you get it?” should be avoided, as that could open the door to information pertaining to medical reasons or religious beliefs.
And if an employee refuses to disclose whether they’ve been vaccinated, Easterly said it’s acceptable to assume they’re not vaccinated and have them follow the precautions in place to prevent the virus’ spread.
Questions about vaccination policies, especially from public-facing businesses, have been filtering in regularly to myHR Partner Inc., a Lehigh Valley human resources outsourcing firm with clients in 34 states.
“Everybody wants to know what everyone else is doing,” President and CEO Tina Hamilton said, “because there isn’t a set of rules that come with pandemic issues.”
While some of her firm’s clients in New York are requiring employees to come back to the office by a certain date, Hamilton said a majority are being flexible as they plot a return.
At her business, Hamilton has been surveying her 31 employees about every eight weeks to see how they feel, and most of them have become very comfortable working from home. But still, they miss people, she said.
Hamilton said that, as of April 4, she has given her employees the option to start coming in to the company’s Upper Macungie Township office, with safety guidelines in place. The firm also set up a QR code that allows employees to scan when they come in, so the company can keep track of who is there.
In the first week, Hamilton said the office hasn’t seen much traffic, just one or two people occasionally trickling in.
“I think over time we’ll see people come back, but it won’t be what it once was — at least not this year,” she said.
A one-size-fits-all approach is not the way to go as employers craft their plans to return to the office, said Ozias Moore, a Lehigh University management professor whose research spans organizational behavior, human resource management and team effectiveness.
Employees have been operating in an ambiguous and uncertain environment amid the pandemic, experiencing a number of “false-starts” where they thought things were returning only for those plans to be uprooted by another surge or by schools going back to remote learning, Moore pointed out. Not every employee is the same, he noted, and the pandemic has created an opportunity for companies and leaders to “rethink the way we work.”
“It’s important for organizations not to create an environment that disenfranchises those who choose not to come back or cannot come back,” he said. “It puts them in a position where they’re seen as less-loyal employees.”
While mandates can lead to backlash, Moore said the successful companies are the ones that use incentives, rewards and a clear vision to help establish why something is important, such as being vaccinated against COVID-19.