It was only about a year ago that our pre-pandemic world changed, and employers everywhere sat up and took notice. Before March of 2020, going to work used to mean having a cup of coffee with a colleague and talking about the day. Good employees made every effort to get to work on time and do their job well. Good employers ensured their employees were safe and treated fairly. This was according to the brick-and-mortar business model we all took for granted. Then, Covid -19 hit the world.
At that point, all the rules seemed to change. A lot of confusion ensued about what was allowed and what was required. Vaccines became available and with them, a myriad of information. What was right to do? What was safe to do? What was legal? One of the biggest questions was about rights surrounding the vaccine. Did an employer have the right to require the vaccine for its workers? If an employer did not require it, could they face legal ramifications?
While this situation seemed uncertain and chaotic, the answer to this question was straightforward. Federal law states that employers do not have to require their workers to receive the Covid-19 vaccine because the vaccines are not licensed by the Food and Drug Administration. This means that employers can encourage employees to get the vaccine, but everyone has the option to accept or decline so they cannot require it.
Although this answer was straightforward, the issue of employer responsibility in the midst of Covid-19 is complex and multi-layered.
For example, while employers do not have to (and are not legally allowed to) require the vaccine, they do have to provide a safe working environment for all their workers. Employers have to show proof of providing reasonable accommodation for their employees such as remote work, protective gear, and social distancing. If these accommodations are not provided when there is a “direct threat”, then there could be legal trouble for the employer.
Under the Equal Employment Opportunities Commission (EEOC), the Americans with Disabilities Act (ADA) describes the pandemic as a “direct threat” which is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Evidence of providing reasonable accommodations is required and protects the employer. On the other hand, if reasonable accommodations present an undue hardship on the employer to run the business, then the employer can require the vaccine of its workers instead. This is where things get multi-layered.
This exception to the rule stands unless the employee has a medical reason not to have the vaccine. In this case the employer is required to provide reasonable accommodation for the employee and allow their employment to continue. In addition, religious beliefs preventing an employee from having the vaccine is a valid circumstance to not have it. In this case, the employee is protected by Title VII.
For an employer, liability exposure could come under ADA, Title VII, OSHA, or Tort Liability. With the ever-changing pandemic landscape, employers need to be constantly aware of new and evolving laws. The truth is this is not simple. Everything is still changing. It is also true that despite the world’s current situation, employers are not alone. There is help. For current guidance to employers, please read this CDC page.
* * * * * *
Speak to a JUSTLAW attorney today to initiate your first consultation and receive immediate advice as to whether to hire an employee or an independent contractor.
This post is not legal advice. It is for general informational purposes only. No reader should rely on this information in any way whatsoever without first seeking legal advice.