Employers can encourage their workers to be vaccinated against COVID-19, but they should not necessarily require it, even if they can do so legally, say employment experts.
Although the US Gender Equality Commission issued guidance on vaccine needs last month, employers should still proceed cautiously in cases where workers oppose being vaccinated due to medical problems or religious beliefs.
In such cases, organizations must participate in an interactive process to seek affordable housing under either the Disabilities Act with the Disabilities Act or Section VII of the Civil Rights Act, experts say.
The EEOC guidelines state that employers can only exclude workers who refuse to be vaccinated from the workplace if they are unable to provide a reasonable adjustment that ensures that the unvaccinated worker does not pose a direct threat to others.
Before an employee is fired because of the issue, employers must also determine if any other rights apply under equal opportunities laws or the guidance of other federal, state or local authorities, experts say.
The EEOC guidance was largely unsurprising, says Mario R. Bordogna, a member of Clark Hill PLC in Morgantown, West Virginia.
"They really stood for the idea that these vaccines could be something that the employer prescribes if it chooses to do so," provided companies follow disabilities and religious housing principles under equal employment opportunities, he said.
Experts say, But in part because of the politicization of the issue, many workers are nervous about getting the vaccine. And employers may be reluctant to issue an ultimatum on the vaccine.
"It will depend on the work environment," says Robin E. Shea, a partner with Constangy, Brooks, Smith & Prophete LLP in Winston-Salem, North Carolina.
In addition, studies have shown that a certain minority of group members may be more reluctant to be vaccinated due to historical abuses during medical research, which may create an environment for allegations of racial discrimination.
“How do you handle a situation where 30 to 40% of your workforce will easily refuse to take the vaccine? Said Jeff Nowak, a shareholder in Littler Mendelson P.C. in Chicago. This is "a real, practical dilemma for employers as we move forward," he said.
"Employers really need to put a lot of effort into encouraging and educating," says Nicole Stockey, a partner at K&L. Gates LLP in Pittsburgh.
If workers refuse a vaccine without debilitating circumstances with disabilities or religious beliefs, employers may choose to terminate, transfer, offer telework where possible or place employees on temporary leave.
An important consideration is not to allow some workers to ignore a mandate while firing others "to treat people differently is a prescription for legal claims," said Brett E. Coburn, a partner with Alston & Bird LLP in Atlanta.
Policies should also be industry specific. "The calculation is very different" between an office and a manufacturing environment, says Coburn.
Employers in the healthcare sector, where workers have daily contact with patients, would probably find it easier to prescribe vaccinations, but they will still have to comply with the prescribed exceptions, says Kevin O & # 39; Connor, co-chair of work and employment practices. at Peckar & Abramson PC in River Edge, New Jersey.
“The conclusion is a size that does not suit everyone. Each employer must have an individual assessment of the best program for them based on industry, employee size and character, ”said Melvin J. Muskovitz, senior advisor to Dykema Gossett PLLC in Ann Arbor, Michigan. [1
"Take a step back, take a deep breath, and let us reasonably find out how we can approach this," he said.