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Q&A Topic: Employer COVID-19 Vaccine and Return-to-Work Policies

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Howard Schraginwith
Howard Schragin, Esq.

Can I make my employees get a COVID-19 vaccine?

Yes, employers can legally require their employees to get a COVID-19 vaccine. This right, however, is not absolute.  Employers must consider and provide reasonable accommodations to employees who are unable to get the vaccine because of a medical disability or a sincerely held religious belief. Employers who implement mandatory COVID-19 vaccine programs or policies must also be careful to comply with other restrictions of the Americans with Disability Act which restrict medical examinations and questioning of employees regarding medical conditions. Employers who have a unionized workforce should consult with and work with the union to implement any mandatory vaccine program. Many employers have taken the approach to “encourage” their employees to take the vaccine rather than mandate that they do.

Can I make employees who get the vaccine come back to work?

Yes, as long as the employer is following return-to-work guidelines of the CDC, OSHA and state and local health departments, you can require your vaccinated employees to come to work.  Employers may still encounter employee requests for reasonable accommodations to work remotely which should be dealt with on an individual basis.

What if an employee refuses to get a vaccine?

If an employee refuses to get the vaccine for medical or religious reasons, the employer must first consider whether a reasonable accommodation is available and appropriate.  Reasonable accommodations can include working remotely and changes to the work environment to ensure the safety of the employee and his/her co-workers. If no accommodation is available and the employer determines that the non-vaccinated employee poses a direct threat to the safety of individuals in the workplace, then the employee can be excluded from the workplace or have his or her employment terminated. Even then, the employer should consider whether remote work is possible before making a decision to terminate the employment of an employee who refuses to get vaccinated. If a person refuses to take the vaccine in the absence of a medical reason or sincerely held religious belief, then the employer can terminate their employment or consider whether there is a viable alternative to termination. I would caution any employer against jumping to termination without exploring alternate options such as working remotely.

What return-to-work policies should employers put in place?

Employers should comply with CDC, OSHA, state and local health department guidelines on returning to the workplace and the safety requirements necessary to ensure the safety of employees, customers, clients and vendors. Companies should consider the following: phasing return to work vs. bringing everyone back at once; capacity restrictions; social distancing protocols; staggering work schedules; whether to continue remote working; health screening procedures; cleaning procedures; providing appropriate PPE in the workplace, including masks, hand sanitizer, soap, disinfectants, and paper goods; limiting gatherings and meetings and restricting use of lunchrooms; changes to the physical environment (i.e., plexiglass barriers, designated walkways); business travel restrictions; compensation and benefits issues that have arisen in the wake of the pandemic (i.e., restoring employees to their pre-pandemic salaries), and, as discussed above, vaccination programs.

What’s on the legal horizon as people get vaccinated and return to work?

The first and most obvious issue is dealing with the reopening of business and the return to the office for a large majority of the workforce. Many employers will be implementing new policies and procedures to implement the return to work, and will be dealing with these issues as the country continues to get vaccinated and offices begin the process of returning to post-pandemic “normal.”  There are a whole host of issues associated with this process as discussed above. In addition, over the next year, I anticipate that we will see increased litigation in the following areas:  harassment and discrimination, including harassment and discrimination between vaccinated and non-vaccinated persons; wage and hour issues stemming from the pandemic; and reasonable accommodations as tensions between employers desiring their workforce to return the workplace and employees who still want to stay home continue. I have also seen an increase in client calls regarding review of employment agreements and non-compete agreements which signals that employee job movement is increasing.

The information provided in this article is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.

About Sapir Schragin LLP

Sapir Schragin LLP is an employment law firm that represents both employees and employers and handles every legal issue that occurs in today’s workplace. The firm has the distinct advantage of being one of just a few with expertise on both sides of employment issues covered under Federal and New York State law. Employee clients range from chief executive officers of major corporations to management and hourly wage earners. Employer clients include small to mid-size local businesses and non-profit organizations. Howard Schragin is a skilled employment law counselor and advocate with extensive experience representing individuals and management in trials and arbitrations and in settlement negotiations and mediations. Mr. Schragin is a member of the New York State Bar Association, Labor and Employment Law Section.  He has written and spoken for various organizations on employment law topics, including the Family and Medical Leave Act, Americans with Disabilities Act, separation agreements and restrictive covenants, employment hiring practices, genetic discrimination, pre-employment drug, medical and psychological testing, electronic and digital media in the workplace, and human resources best practices.

Howard Schragin, Esq.

Sapir Schragin LLP

399 Knollwood Road
Suite 310
White Plains
914.328.0366
hschragin@SAPIRSCHRAGIN.COM
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