On December 14th, 2020, the first shipment of the long-awaited COVID-19 vaccine finally arrived at hospitals and clinics around the country. Its development surpassed all prior vaccine speed records; processes that usually take years were completed in only months. The next phase, distribution, will be no less challenging.
Employers, like all Americans, will play the “waiting game” too, hoping that eventually the impact of the vaccine will improve workplace safety. The actual time frame for reaching this goal may largely depend upon the attitude, age, and physical condition of their employees. For example, a young healthy employee may not be vaccinated until late spring, early summer, or even later, whereas an older one may get the shot in January or February. Others with pre-existing conditions that make them especially vulnerable to the effects of the virus may qualify even sooner.
With so much uncertainty, employers still should try to understand this unprecedented and complex situation to better prepare their companies for when the vaccine is readily available to all employees. By the time this day arrives, most of them should have already decided to be vaccinated or not. In the meantime, the question that many employers may have is “can I require my employees to be vaccinated if some refuse to do it voluntarily”?
Employment law experts believe the answer to this question is “yes” but with some conditions. The consensus is that adopting a vaccination policy must be justified as “business necessary.” This means the employer must show that non-vaccinated employees pose a “direct threat” to other employees, customers, and the public.
The Equal Employment Opportunity Commission (EEOC) has ruled that the COVID-19 epidemic meets the definition of “direct threat” but remains silent so far on how it will review mandatory vaccine policies implemented by individual companies. Its updated guidance (released on December 16th, 2020), however, does attempt to clarify its position by answering common questions that employers may have regarding their vaccine-related rights and responsibilities. Please click on the link below to access this information: (Note: Specific details may be found under Subsection K near the bottom of the page)
What other factors may contribute to how an employer will manage the vaccination issue?
Company Culture: Employers who are trusted and respected by their workers will be more likely to succeed when recommending that they voluntarily comply than employers who have a poor relationship with their employees. Also, many human relations experts urge using a “go slow” approach whenever possible by waiting to see if employees are choosing to be vaccinated on their own before issuing a mandate.
This tactic certainly promotes good relations but be aware that employee reaction to getting the vaccine voluntarily is difficult to predict, especially with a sizeable percentage of the population still very skeptical about its safety and effectiveness.
Legitimate Objections: Some employees will cite medical or religious reasons for not complying with a mandatory inoculation policy and are protected under the Americans with Disabilities Act (ADA) and the Title VII of the Civil Rights Act but employees who oppose being vaccinated for other reasons will have little leverage. “I don’t think an anti-vaxxer would have a good claim if they were fired for refusing to take a vaccine,” said Professor Stewart Schwab, an employment law scholar at Cornell Law School.
Union Considerations: Employers with union employees may have to review collective bargaining contracts to determine if there are any limitations or restrictions that affect imposing a mandatory vaccination policy. If so, they may have to negotiate and obtain the approval of the union before proceeding.
Moving forward to secure a vaccinated workforce can be complicated but employers should be aware of certain legal obligations and precedents that may be useful to support their decision to implement a mandatory inoculation policy. Historically, some employees have been required to be vaccinated as a condition of their employment and during the outbreak of the H1N1 virus in 2009 both EEOC and OSHA permitted compulsory inoculations. Also, employers have a responsibility to provide a safe work environment per OSHA regulations which a vaccinated workforce would arguably help to promote.
On the other hand, failing to institute a vaccination program could have consequences too. Employees who believe that their employer has not complied with OSHA regulations by not mandating inoculations may decide to file complaints with the agency. OSHA’s actual response to these types of complaints, of course, remains to be seen.
These are just a few factors employers may want to consider when deciding whether to initiate a mandatory vaccination policy or not. One option is for employers to consult with an experienced employment law attorney before making any decisions about this matter because events, advisories, guidance …etc. may change frequently as the vaccine rollout progresses. Legal counsel then will be able to monitor the situation and provide expert advice regarding the vaccination issue at the appropriate time.
Employee or Independent Contractor?
The increasing use of temporary, contract, and part-time workers in today’s complex Gig economy forces employers to stay informed about the laws that regulate these relationships. The traditional employer/employee status quo has been significantly impacted by this trend that adds speed and agility to business operations. By employing short term “as needed” staff, companies may adjust rapidly to changing competitive environments.
This new reality is not without its complications, however, as some unscrupulous employers have labeled employees independent contractors to skirt regulations and save money. For this reason, government agencies such as the US Department of Labor (D.O.L.) have become involved in an effort to eliminate misclassifications and other abuses related to these designations.
The D.O.L evaluates and determines under the Fair Labor Standards Act (FLSA) who qualifies to be designated an independent contractor and who does not. The court system plays a role too if civil disputes arise between two or more parties. When reviewing cases, judges apply one of three legal theories, the Economic Reality Test, the Common Law Test, or a combination of the two.
The DOL typically has favored using the Economic Reality Test when reviewing employer/employee/independent contractor/ scenarios but its use has never been made binding. However, in September of this year, the Department proposed rule-making that would amend the FLSA to include the Economic Reality Test exclusively. The comment period for this rule making ended October 26, 2020. Employers also should be aware that any state or local laws pertaining to the classification of independent contractors must be complied with even if the proposed changes become final.
According to the Washington Center for Equitable Growth, a non-profit organization, “Being classified as either an employee or an independent contractor can determine whether workers in the United States have access to reliable pay, benefits, and protection from discrimination. Intense fights are cropping up across the country as companies try to argue that their workers are just “independent contractors” and do not qualify for many protections under U.S. labor law.…”
Employers reviewing existing sub-contractor relationships, or considering establishing one, should become familiar with the following five key elements of the Economic Reality Test as proposed to be codified in the FLSA:
- The nature and degree of the worker’s control over the work (e.g., the worker’s ability to set a schedule, select projects and work for others).
- The worker’s opportunity for profit or loss (e.g., through the exercise of personal initiative, skill, or business acumen and through investments or capital expenditures).
- The amount of skill required for the work (e.g., whether the work requires a specialized skill or whether the worker depends on the employer for training).
- The degree of permanence of the working relationship between the worker and the potential employer (e.g., whether the work is definite or indefinite in duration).
- Whether the work is part of an integrated unit of production (or is segregable from the potential employer’s production process)
The Department of Labor’s website (https://www.dol.gov/agencies/whd/flsa/misclassification) includes a comprehensive list of related topics that should address most employer questions or concerns regarding this subject.
Please direct any questions or concerns to:
The Safety Division at Hamond Safety Management
Anthony Vacchio, avacchio@hamondgroup.com 516-762-4224