by Randall Sutton, Partner – Employment Law & Litigation Practice Group
As the Delta Variant continues to keep COVID-19 at the forefront of employer’s minds, I’ve received a lot of calls about the legality of vaccine mandates and issues for employers to consider. Viewpoints on the merits of mandatory vaccination policies vary dramatically. This article will not wade into the social, moral, medical, religious, political, or other reasons why one may be for or against employer vaccination mandates. Rather, the goal of this article is to discuss the legality of mandates and issues to consider in the context of employment law.
Is a Vaccination Mandate Illegal Under State & Federal Employment Laws?
As a general rule, requiring employees to vaccinate does not per se violate workplace anti-discrimination laws such as the Americans with Disabilities Act (ADA), the Genetic Information Nondisclosure Act (GINA), and Title VII of the Civil Rights Act of 1964.
With narrow exceptions, a person’s refusal to vaccinate is not legally protected under the federal and Oregon employment laws.
For healthcare workers, an Oregon statute preexisting the coronavirus pandemic provides that healthcare workers cannot be required to vaccinate as a condition of employment. Compliance with this rule is reflected in the recent statewide order to require that healthcare workers either vaccinate or submit to regular COVID-19 testing.
Are there Exceptions Based on Religious Beliefs or Disability?
Employers must provide reasonable accommodations for any worker who refuses to vaccinate on the basis of religion or disability reasons unless the accommodation poses an undue hardship to the employer’s operations. The employer is entitled to verification of disability or religious belief. Whether an accommodation can be granted depends a lot on the particular job the worker is doing. For example, an accommodation may not be possible for an employee who must work in very tight quarters with others and who cannot work from home. On the other hand, an employee who works in an office environment, can work remotely, or can effectively socially distance, may need to be accommodated. The decision about accommodations, undue hardship, and threats to the health and safety of the worker and others must be made on a case-by-case basis, ideally in consultation with your legal counsel.
Can Vaccinations of Employees be Mandated given that the Vaccinations have not Received Full FDA Approval and are Administered under the Emergency Use Authorization (EUA)?
Under the EUA, individuals are not required to receive the vaccine under federal law and are informed by the healthcare worker that they are entitled to refuse immunization for COVID-19. That said, the EUA does not prevent an employer from conditioning employment on being vaccinated. There are a number of lawsuits pending where workers in other states have sued arguing that the lack of full FDA approval prevented the employer from mandating that all workers be vaccinated. To date, some of those cases have been dismissed and others are still pending. The U.S. Department of Justice has taken the position that EUA status does not prevent employers, schools, and other entities from mandating COVID-19 vaccinations.
Can the Employer be Held Liable for Requiring an Employee to Vaccinate if the Employee Suffers Side Effects or Downtime?
Employers should avoid putting themselves in the position of administering vaccinations on their own.
Vaccinations should be administered by a healthcare provider independent of the employer. If an employee is required to vaccinate and suffers adverse reactions, any medical impairment should be covered by the employers’ workers’ compensation policy. In other words, the employee should not be able to sue the employer under negligence or other tort theory, and instead is limited to the remedies provided under the workers’ compensation system.
Can the Employer be Held Liable to Employees or Customers for Failing to Mandate Vaccinations for its Workforce?
Liability to Employees: As to employees, if an employee is COVID positive and blames the work environment for the exposure, any impairment should be covered under the workers’ compensation system, even if another employee or a customer was responsible for transmitting the virus.
Liability to Customers: As to a customer or other member of the public who is infected through exposure to one of your employees, the question is more difficult.
As non-employees, the workers’ compensation remedies do not apply, and the customer may be able to assert a negligence claim against the employer for not maintaining a vaccinated workforce or for exposing the customer to an unvaccinated employee. Proving causation may be difficult, as the customer would need to show that exposure to the employee caused the infection. But that proof may be available based on timing and documented close contact between the employee and customer. The customer may argue that he or she should have been warned that the employee was not vaccinated or argue that only vaccinated employees should be placed in a customer contact role. Of course, it appears that vaccinated employees are also likely to spread COVID-19 as they may be infected without realizing it. In the case of a vaccinated employee transmitting the virus to a customer, it would be difficult to prove that the employer’s lack of a mandatory vaccination policy was negligent.
The law in this area is still developing, but just as with any other negligence case, it is important for the employer to prove it took every reasonable precaution to avoid the risk of harm. That may include restricting unvaccinated employees from close contact with customers and others. Of course, when it comes to proving a negligence case, the burden of proof will be on the person claiming injury.
Is Getting Vaccinated or Suffering any Vaccination-Related Side Effects Compensable?
An employee who suffers side effects and temporarily cannot work after receiving the shot is entitled to take sick leave under the Oregon Sick Time law and would also be able to take other employer-provided paid sick leave. However, there is no other legal requirement to provide compensation to the employee for lost time due to the vaccination.
However, there are other wage and hour considerations to keep in mind. If the employer requires that the employee obtain the vaccination during working time or on company premises, the employee should be paid for the time expended in getting vaccinated. If the employee is simply required to provide proof of vaccination by a particular date, the employee need not be compensated for going to get vaccinated.
Considerations if Imposing a Mandatory Vaccination Policy
Who Should be Vaccinated?
Employers must evaluate why they will require their employees to be vaccinated. Mandating the vaccination of a portion of the workforce may be more defensible in some cases. In evaluating whether to impose mandatory vaccinations, employers should consider how closely together employees work, how often employees are in close contact with customers or members of the public, and the effectiveness of other mitigating measures.
How will Mandatory Vaccinations Impact Operations?
Evaluate how a mandatory vaccination policy will impact the availability of workers and workforce morale overall. How will the decision be received by your employees, customers, and business partners?
Receipt of Requests for Accommodation
Employers should set up a mechanism for employees to apply for religious or disability-related accommodations. The process for evaluating these requests should be published to your workforce and the requests must be objectively evaluated. The employer should consider implementing policies and forms for making requests for accommodation and have a written procedure in place for objectively evaluating whether to grant requests for accommodation.
This process should be well documented with the understanding that an adverse decision may result in the employee being terminated and filing a lawsuit against the employer.
As with all things COVID, there are many challenges, reasonable minds will differ, and the playing field is constantly changing. We recommend contacting legal counsel to help navigate these issues and minimize liability, while hopefully still maintaining a productive and profitable workforce.
Randall Sutton is a partner in the Employment Law and Litigation practice groups. Randy is also a member of the Health and Wine & Vine industry groups. The information in this article is not intended to provide legal advice. For professional consultation, please contact Randy at firstname.lastname@example.org at Saalfeld Griggs PC. 503.399.1070. © 2021 Saalfeld Griggs PC