How to manage a partially vaccinated workforce
Courtesy / Brann & Isaacson
Peter Lowe and Hannah Wurgaft are employment and labor attorneys with Brann & Isaacson, a Lewiston-based law firm.
Almost as quickly as the pandemic took hold last spring, our communities have gone back to “normal” again in the last few months. COVID-19 vaccines are now widely available and approximately 60% of Mainers have been fully vaccinated.
Consistent with CDC guidance, Maine repealed its mask mandate and ended capacity limits in public spaces. Now, many organizations are asking their employees to resume working in-person, and employers are grappling with vaccine mandates, incentives and accommodation requests.
Vaccine mandates
The Pfizer, Moderna and Johnson & Johnson vaccines are available to the public under the Food and Drug Administration’s emergency use authorization, which raises a tricky issue for employers. The FDA is expected to fully approve each COVID vaccine this fall.
In the meantime, under the FDA’s rules, individuals have an option to refuse “unapproved” products. Employees of Houston Methodist Hospital, the Los Angeles School District, a New Mexico detention center and a North Carolina sheriff's department have filed lawsuits challenging their employer’s vaccine mandates. Plaintiffs in these suits claim that the COVID vaccine is an experimental product and therefore they must be provided the option to refuse it.
For these reasons, many employers have postponed implementing mandates until after the FDA has fully approved the vaccines. We note that the Houston Methodist employees lost their case in federal court.
The Equal Employment Opportunity Commission updated its vaccine guidance on May 28, stating for the first time that under federal anti-discrimination laws, employers may require vaccines for all employees “entering the workplace,” provided appropriate accommodations are available. Closer to home, the Maine Human Rights Commission similarly states that employers may “condition” entry to the workplace on getting vaccinated. The EEOC and MHRC leave open whether employers can require full-time remote workers to get vaccinated.
Incentive programs
Many employers have implemented voluntary incentive programs. The simplest course of action for employers is to establish an incentive program that simply requires proof of vaccination. When an employer or their agent administers the vaccine themselves (or through an on-site provider), the incentive must not be too large, tipping the scale towards “coercive.” Modest incentives such as a free coffee or $50 gift card are less likely to raise legal risks. Employers should also consider whether employees who cannot receive the vaccine for medical reasons, which may include pregnancy, will be eligible for incentive programs.
Best practices and reasonable accommodations
Can employers tell unvaccinated employees to stay home? Can employers treat vaccinated and unvaccinated employees differently? Won’t it be obvious who isn’t vaccinated? Employers are understandably wary about treating groups of employees differently, particularly when medical or disability status is at issue. Vaccine information is confidential medical information. Copies of an employee’s vaccine card should not be kept in their personnel file.
Remember that some unvaccinated employees have disabilities, and you should consider reasonable accommodations. The EEOC states reasonable accommodations for unvaccinated employees might include wearing a face covering, using plexi-glass barriers, periodic COVID-19 testing or working remotely. Employers should be sure to approach each accommodation request individually, explore all options that will not result in an undue hardship on the employee or create safety and health concerns in the workplace.
The EEOC also notes several “best practices” for employers in the case of a mandatory vaccine policy. These include training managers and supervisors how to handle accommodation requests for vaccine exemptions, and in a vaccine policy, explaining that the organization will consider reasonable accommodations based on disability and sincerely held religious beliefs.
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