According to new CDC vaccine guidelines, vaccinated individuals can now safely gather indoors without a face covering. This is an exciting development after more than a year spent at home. Employers and employees alike are sorting through the implications. What does it mean for employees who are unable to get vaccinated or choose not to get vaccinated? Or those who feel uncomfortable gathering without masks, regardless of their vaccine status? What does it mean for employers when employees decline vaccination or push back against health and safety measures?
The CDC vaccine guidelines are the beginning of a much anticipated, albeit slow, reopening of the country. However, they also present employers and HR departments with more complicated scenarios to navigate. The legal and scientific landscapes continue to evolve. Because of this, employers find themselves hitting a gray area regarding how to handle these new guidelines in tandem with the needs, beliefs, objections, and safety of their workforce.
Companies around the country are eager to open their doors and welcome employees back in. But as more organizations consider lifting mask mandates and implementing vaccine passports and COVID-19 tracking programs, there are several key issues for employers to keep in mind.
Encourage or mandate COVID-19 vaccines
Business leaders and HR departments must determine if and how to mandate vaccination. The CDC vaccine guidelines encompass only those who have been fully vaccinated as safe to congregate. While most experts agree that employer vaccine mandates and subsequent potential passport programs are lawful absent state or local bans, there are specific employee rights to consider. For example, employers must make necessary accommodations for those unable to get a vaccine for reasons such as disability or a sincerely held religious belief. Any employer vaccine program up for consideration must fully comply with anti-discrimination laws. This is to ensure that accommodations are provided to those who need them under federal, state, and sometimes even local law.
In addition, we are starting to see more legal challenges to vaccine mandates. As of this writing, none have been successful. Many of them cite the emergency use authorization status of the vaccines available in the U.S. They also cite a portion of the Food, Drug, and Cosmetic Act that requires that recipients be informed about benefits/risks/unknowns, their right to refuse, and the consequences of refusal. However, there is no private right of action authorizing employees to sue employers under that statute. Also, there is no specific provision that prohibits termination as a consequence for those who refuse.
Although the litigation challenging vaccine mandates seems likely to fail, a successful legal defense is costly all the same. Moreover, even without litigation, vaccine mandates present legal complications in wage and hour, workers’ compensation, and other areas. As a result, most employers are strongly encouraging vaccination rather than imposing a mandate.
Know your audience and communicate properly
Whatever approach an employer takes, considering where employees are based––including remote workers––is critical. Because federal law and regulations concerning the pandemic provide limited guidance, state and local law may have a major impact on specific employer obligations and employee rights. Moreover, because some states and cities have been more successful than others at curbing the infection rate, a uniform solution across state lines may not be the best tactic.
Employers must recognize that jurisdictions have varied in their approach to vaccine mandates. For example, Montana now recognizes vaccination status as a protected class under its anti-discrimination laws. Employers cannot refuse to employ or otherwise discriminate against employees or applicants on the basis of vaccination status or possession of a vaccine passport. In addition, employers cannot mandate vaccines that have only obtained emergency authorization status or are subject to ongoing safety trials. In other words, mandatory vaccination policies are unlawful in Montana. Conversely, Santa Clara County, California has issued an order under which all businesses and governmental bodies must determine the vaccination status of all personnel as of June 2, 2021, and maintain relevant records. Those who are unvaccinated or who refuse to provide proof of vaccination must wear masks and remove themselves from the work location in the wake of COVID-19 exposure.
Having determined the best approach in light of legal risks, employers should focus their attention on getting the word out in a way that works for the corporate culture. There is no escaping the fact that the issue is sensitive and highly politicized. For some, continuing to require masks for vaccinated individuals despite CDC vaccine guidelines runs the risk of negatively impacting the way employees view their employers. This is especially true in states that may have opened up more than others.
Ensuring ultimate safety and success
HR managers should develop an intimate understanding of how different populations may respond to certain regulations and effectively communicate down the line. They should offer opportunities to ask questions and obtain additional information. Thoughtful, accessible, and regular communication about vaccine requirements and health and safety protocols can be helpful. Employees will be able to better understand why decisions are being made and have greater confidence in the company overall.
Obviously, employers are faced with unique and complicated questions about vaccination and health and safety measures as we navigate out of the pandemic. Whatever strategy an employer adopts, they must consider state and federal law, possible risk, and employee morale. Employers should consider their reopening goals and ask the following:
- What am I hoping to achieve as employees come back into the workplace?
- Is the best approach to get to 100 percent in-person operations as soon as possible?
- Is my aim to continue some portion of a remote workforce for a more staggered and safer return to work?
- Am I ready to completely reimagine expectations for a hybrid remote/in-person workforce?
Employers need to determine what the goals are upfront and include stakeholders from across the business. From there, they need to familiarize themselves with legal requirements. Then create a comprehensive program to achieve those objectives. Also, they need to adopt a functional and sensible means to communicate it to all relevant parties. Employers are excited to safely reopen their doors and welcome their workforce back in. But as they do so, it’s essential to understand possible risks and adjust to a changing legal landscape. They also need to take steps to ensure that the employer’s approach protects the business and employees alike.
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