As the world is starting to get a grip on COVID-19, companies are already making efforts towards a form of normalcy. However, moving forward in today’s global climate means having to consider implementing vaccine mandates. Employment attorney Daniel Klein says, “getting your population vaccinated is going to help you avoid problems down the road.”
Daniel Klein is an employment attorney that deals with employment litigation and counseling. He is currently a partner at Seyfarth Shaw LLP, an international law firm headquartered in Chicago. He specializes in several areas, including wage and hour law, contract issues, discrimination, harassment, wrongful discharge, and more.
We recently had the opportunity to chat with Dan about the current state of things regarding COVID-19 vaccination policies and how companies are addressing policy implementations. Check out the full video interview here and highlights from the conversation below.
The current state of COVID-19 and the Workplace(2:23)
When the pandemic hit, the world came to a halt. Companies had to switch to a remote setup where everyone carried out their responsibilities from the safety of their homes. However, the situation drastically evolved upon the arrival of the vaccines. When they started rolling out, some companies had already begun to explore the potential of workplace vaccination requirements.
“As summer started getting to the later months, a number of companies started to trend towards a vaccine policy of either encouraging or requiring the vaccine,” Dan says. “Early on, we started to see some vaccine incentive approaches.”
At that time, most companies were not looking to mandate the vaccine to their employees; nor were companies required to. Thus, the small percentage primarily looked at incentivizing workplace vaccinations in their employees as they were planning to reopen their offices.
“A number of companies were exploring incentives, although it was still the minority, and that incentive really ranged from a $50 coupon to a $500 cash incentive to paid time off that wasn’t otherwise charged to their bank for getting the vaccine or having symptoms or recuperation from the vaccine.” Dan emphasizes that at that time, very few companies were looking into incentivizing the vaccine and even fewer were considering mandating the vaccine.
Over time, the trend started to shift. Towards the late end of summer, more companies were looking at and rolling out a mandatory vaccine policy. At that time, the shift in vaccine opinion was caused by the rising concerns for the delta variant and the possibility of reopening offices on the horizon. This was all before federal mandates were in place.
On September 9, 2021, President Biden signed a federal contractor mandate that essentially requires federal contractors to have their employees vaccinated and provide their vaccination status.
“It generally requires that if a company is a federal contractor or subcontractor [with contract value…], those companies will have to have all of their employees vaccinated,” Dan explains. “Now, there still are exceptions for accommodation for disability or religion. In that situation, where folks have a bonafide exemption, you may need to provide other accommodations….”
On the other hand, people are still waiting for Biden’s mandate for private employers. The rule has already been sent to the White House, and the final word is expected soon.
“Now the other piece of the Biden plan, the private employer mandate, that is going to be rolled out literally any minute. We found out last week that the emergency temporary standard from OSHA, which is the plan that’s coming for private employers with a hundred or more employees, was submitted to the White House for approval last week.”
OSHA, or the Occupational Safety and Health Administration, is the regulatory agency of the US Department of Labor.
“If the White House approves it, it will then become published in the Federal Register, and it will become effective essentially immediately.”
Although the mandate is not yet available, it is speculated that it will be in lieu of the originally announced Biden public health plan that will require employers with over a hundred employees nationwide to have their unvaccinated employees vaccinated for the coronavirus.
“It will allow for accommodations as well for disability or religion. Unlike the federal contractor mandate, there will be the option to have the testing option for people that don’t fall in the accommodation reasons,” Dan says. “A lot of this still needs to be elaborated on by the government when we see the actual rule, but what that means is that companies will have the choice to either require the vaccine or provide at least once a week testing to those who don’t get vaccinated.”
Lastly, Dan adds that the private employer mandate will also include some form of paid time off for the unvaccinated employees to get vaccinated or deal with the recovery from the vaccine.
Pushback is anticipated (9:57)
Dan says that once the mandate is released through OSHA, there might be multiple lawsuits filed.
“We know that 20-something Republican governors have already vowed to file litigation to stop it. They’re waiting for it to be released. It would have to probably be the day or the next day, we’ll see – either a collective action filed by all of them as one or several different actions filed. Most likely, they’ll be for an injunction or a temporary restraining order to stop implementation while it plays itself out in the courts.”
The Republican National Committee has also expressed their intentions of filing lawsuits against Biden’s vaccination mandates. Then, as of November 5th, 11 states did sue the Biden administration.
“There is going to be a real potential for litigation to put a halt on it before it even takes effect. What that means for employers essentially is that if there’s an injunction right away, employers could sit tight and wait. If there’s not an injunction, but there’s a fight, then employers will have to proceed as if it’s in effect and get into compliance by whatever dates are part of the rule.”
Dan adds that while the rule itself will not have an incentive piece, companies can really benefit from increasing the workplace vaccination rates in their employees as it creates higher workplace safety.
“If your company hasn’t yet rolled out a mandatory policy, which many have, getting your population vaccinated is going to help you avoid problems down the road,” he advises. There are several ways companies can increase their workplace vaccination rates, such as encouraging, educating, and even incentivizing. “If you’re not ready yet to roll out the policy, those things can definitely help reduce the pain a few weeks from now, a few months from now.”
Understandably, there are a number of reasons why people are opposed to the vaccine. These reasons range from religious, medical, philosophical, political, and concerns of side effects to name a few. There is also a contingent that is just really offended by being forced to get vaccinated to keep their jobs.
Who’s going to pay for the testing option? (14:42)
Although the answer is yet unclear in terms of the Biden rule, Dan believes it could be different treatments for different situations in terms of people who fit the criteria for accommodations versus people who are just objecting to the vaccine on philosophical or personal grounds.
“We anticipate that at least for the accommodation situations where you are accommodating someone’s disability or religion, and part of that accommodation is asking him to test, most likely the employer is going to have to pick up that cost,” Dan says. “For those that are just objecting based on personal or political or other reasons, we certainly understand employers passing that cost on the employees – but we don’t know what OSHA is going to say in the rule.”
Vaccine exemption thresholds are low but at a cost (16:11)
It should be noted that the thresholds for getting exemptions are set low. For example, the standard for religious accommodation is a sincerely held religious belief that has some conflict with some work requirements – such as vaccine requirements. The EEOC (Equal Employment Opportunity Commission; the body responsible for overseeing religious accommodation) has long set the threshold for religious accommodation low.
The situations are also highly individualized to the point that the individual belief does not even have to be in line with the institutional belief.
“We’re seeing a lot of individuals who are Catholic and have various reasons pointing to either stance on abortion or other things within their Catholic religion that they find a basis that they can’t get vaccinated. That can be sincerely held by the individual even though the Catholic church and the Pope have come out in support of the vaccine.”
However, Dan explains that even if people can get themselves within the criteria for accommodation, the company has to then assess whether those individuals can be reasonably accommodated without undue hardship to the business or without an unsafe situation.
“You may have more reason to push back depending on the job, depending on the business. If that person [unvaccinated] can’t work remotely, for instance, can they return to the workplace with maybe testing, masks, physical distancing, self-screening? Can that be done safely without undue hardship to the business? These are standards that the company could use to deny accommodation,” he says. “There are some cases where that can be denied but it’s really specific to the job, the level of contact the employee has with others, especially others who might be vulnerable, because that may give a business more ability to deny an accommodation or not return the person to the workforce.”
Dan shares that they have already observed some companies pointing to their customer base as a potential risk for undue hardship when customers don’t want to interact with a company whose people are unvaccinated.
Do vaccine exemptions apply to contractor workers?
While federal contractors are required under the federal contractor mandate to be in compliance with the Biden rule, private contractors may be treated differently for the time being.
“In terms of most private employer vaccine policies, it usually does not encompass contractors, but they may have a component that affects visitors or others coming on site. Maybe they’re requiring proof of the vaccine for anyone coming on-site,” Dan says. “For the OSHA ETS standard, technically, that only covers employees because it’s coming out of OSHA, but it does encompass providing a safe workplace to employees. There may be a component of that similar to the federal contractor mandate that does put some requirements in for anyone coming on-site such as contractors, visitors, and others who could put employees in danger.”
What is the role of unions in all of this? (23:50)
Unions aim to represent the workforce by making decisions that affect them and their work. Understandably, policy changes during the pandemic imply significant change.
“The issue with any time a workplace issue comes up that an employer may make a change to a policy, the question becomes: is it a mandatory duty of bargaining? Is it a subject that affects the terms or conditions of that unionized workforce? You have to notify the union of this contemplated policy or change and then bargain with the union over what it’s going to look like.”
The discussion allows employers and employees to come up with a policy they can agree on. If ever the employer and the union are at an impasse, then the employer has legal grounds to impose the rules as they see fit if they cannot come to an agreement.
“So really throughout COVID, anything that an employer was going to roll out that affected those unionized workers was most likely going to be deemed as a mandatory subject of bargaining. Certainly, rolling out a mandatory vaccine policy— pointing to the government if you’re subject to any of the government requirements— helps. Saying, ‘look, we don’t have a choice. We have to do it.’”
Small companies are following suit (26:54)
The government mandates have been targeted towards companies that have over 100 employees nationwide. Thus smaller companies are unaffected. However, Dan says that they have seen smaller companies follow the trends.
“We’re seeing a lot of smaller companies instituting requirements, putting in mandatory vaccine policies. Certainly, you have to accommodate for disability or religion, but the trend does include smaller companies, and I think that part of that is going to be specific to the company culture, it’s going to be specific to how much contact people have [whether it’s coworker with coworker or coworker with client] or business travel.”
Dan explains that companies roll out vaccine policies depending on their company culture. Some companies are more flexible than others, a trait that can be observed in how they structure their policies. These policies can either be hard mandates or soft mandates: hard mandates require employees to get vaccinated (unless they have a reason for accommodation) or else they will be terminated, while a soft mandate provides other options such as COVID-19 testing or allowing employees to stay working from home and only requiring the vaccine for those who want to go back to the workplace or meet with clients.
“It’s all over the map in terms of that cultural comfort level that a business has. Some are getting enough employee feedback that they feel compelled to do it, and then others, on the other hand, are getting so much pushback from the unvaccinated folks that they feel it would really cause some significant turnover and just overall employee morale issues.”
What are the risks of letting people go due to the vaccine mandate? (30:22)
Dan explains that denying certain people accommodation and terminating them can open the company for liability.
“If somebody had a religious reason or a medical reason and got denied the exemption [maybe you didn’t feel it was sincere or it didn’t meet the criteria or maybe it did] but you couldn’t accommodate, and they couldn’t work remotely, and the company didn’t feel they could return safely, so they end up terminating them – those could certainly create liability risks for failure to accommodate that disability or that religion,” he says. “For that population, there’s definitely a risk unless you really feel strongly that they didn’t come close to meeting the criteria or couldn’t be accommodated.”
However, everyone else outside that population does not pose a discrimination risk for the employers unless the employer happened to terminate a segment of the population tied to a particular protected class such as racial minority.
“Even though your vaccine policy isn’t intended to terminate those folks [so it’s not intentionally discriminatory], there’s a small risk of what we call a disparate impact discrimination claim. That means you have a neutral policy or requirement like a vaccine policy, but it has a disproportionate impact on a certain protected group.”
Dan gave an example of how disparate impact discrimination can happen. “For instance, your population was 10% Hispanic. You applied your policy, and then 90% of the people you terminated were Hispanic.” In that example, the company becomes liable for such a discrimination claim.
Companies can still defend themselves and point that the vaccine policies are in accordance with the government mandates, but there are still grounds for disparate impact discrimination if such a situation arises.
Dan explains that most employees can be terminated for any legal reason, making it a hard case for them to file a lawsuit if ever they were terminated for not complying with the company’s vaccine policies.
A huge risk that companies face when rolling out their vaccine policies is a high turnover rate. It is estimated that the vaccine mandates will cause companies to lose 2-8% of their workforce. Losing 8% of the workforce can prove highly detrimental to a company, especially if that number is concentrated in one department. Understandably, companies are hesitant to roll out any policies that can cause them to lose employees in the midst of a labor worker shortage.
Are companies using tools for vaccine-related data? (37:27)
“Certainly, a number of companies are relying on their HRIS systems to collect the proof of vaccine and store it in a confidential way,” Dan says. “HR is controlling who has access to that because it is confidential medical information that must be kept separate from other HR records and limited access to need-to-know basis only.”
Dan also points that many companies have rolled out apps for screening if someone is going to come to work. These apps, known broadly as vaccine management systems, allow employees to declare their symptoms or temperatures for the past few days before gaining access to the workplace.
“If you’re not already using those types of programs or apps, you definitely should explore it because it’s so easy and much more effective than having some HR person having to stand at the front door every morning,” he says. “It also avoids some of the wage-hour issues that could come up if people are standing in line, spending significant time to get through a safety check or to fill out safety questions.”
Any last thoughts? (40:13)
Dan advises that getting feedback from the workforce before implementing a vaccine mandate can be helpful.
“Just feel the pulse of your employees, even if it’s anonymous. You may find a contingent that is really strongly saying that they refuse to get vaccinated and that they would quit or die on their sword before ever they do,” he says. “But you may also get a feel for a significant part of your population who are vaccinated and are greatly concerned about the unvaccinated people coming into the workplace. Unfortunately, you’re probably going to have a little bit of both.”
However, such feedback from the workforce can be key to tailoring an immunization policy that can work for everyone involved.
“We’re obviously at interesting times right now with people on two different extremes on a lot of issues and the extent you can soften the blow, so to speak, no matter how hard your policy may be, but really try to be empathetic. Listen to your people. Be as equitable as possible. That’s really going to avoid the pushback, the potential lawsuits, and all of that. A softer approach is going to be key to minimizing problems.”
Dan adds that whatever policy a company plans to roll out, it should come from the top, whether it is the CEO or some other senior executive. Having that voice will be key to the success of the program.