Earlier this year, the nationwide COVID-19 vaccine rollout and declining case numbers had U.S. employers hoping to bring workers back to the office after Labor Day. But the spread of the highly-contagious delta variant has forced many of them to rethink their workplace reopening plans – and in some cases postpone those plans until at least October (November?) or even next year.
In a recent poll of HR leaders by the research firm Gartner, the percentage of companies saying they would reopen workplaces in the third quarter of 2021 fell by more than half from when they were asked in late April to late July. BlackRock and Wells Fargo are among the latest large employers to push back fall reopening plans to early October rather than early September, and Amazon has delayed its plans for bringing back corporate staff to January 2022.
Many companies that have brought back employees are taking more stringent precautions. In New York City, larger Wall Street banks including JPMorgan Chase & Co. are mandating masks in common areas. Morgan Stanley and Citigroup Inc. are requiring vaccinations to enter offices, and the New York Stock Exchange is mandating shots for people on its trading floor.
Throughout the pandemic, big companies including Walmart, Target, American Airlines and McDonald’s have encouraged employees to get the vaccine with incentives like paid time off and cash bonuses, and that is continuing. However, concerns about the fast spread of the delta variant have led more big companies, including Facebook, Google, Microsoft and COVID vaccine maker Pfizer, to mandate vaccination for returning workers.
While companies with name recognition are making headlines, businesses of all shapes and sizes are grappling with how best to protect their workforces as well as their customers, clients and vendors. Rules vary, but the most common directives include asking employees to show vaccination proof or submit to weekly COVID-19 testing, wearing masks and keeping physically distant from other workers and visitors.
Public health experts continue see employers as playing an important role in containing the pandemic. But questions continue to be raised – in offices, schools, healthcare facilities and government agencies – about whether or not an employer can lawfully require its employees to mask up and/or be vaccinated.
Many states and localities have mandatory face-covering requirements due to the pandemic that employers are obligated to enforce. In the absence of a legal obligation, employers can require face coverings as company policy when there is a legitimate business need, such as a genuine concern about employee health and safety. An employee who has a disability that interferes with the ability to wear a face covering may request a reasonable accommodation under the Americans with Disabilities Act (ADA).
The Equal Employment Opportunity Commission (EEOC) has provided guidance that answers some workplace vaccination questions. For example, federal anti-discrimination laws do not prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. Based on current guidance from the Centers for Disease Control and Prevention (CDC), vaccine mandates can include employees who have been infected with and recovered from COVID-19.
However, employers that encourage or require vaccinations as a condition of going to work must be prepared to exempt employees with disabilities and religious objections or in the case of pregnancy. Employers must offer a reasonable accommodation to these employees – such as working remotely, being reassigned or taking a leave of absence – as long as the accommodation does not cause the employer undue hardship.
Employers and employees should work together to determine whether a reasonable accommodation can be made. If this is not possible, an employer could exclude the employee from physically entering the workplace. But this does not mean an individual can be automatically terminated. Employers need to determine if any other rights apply under the employment laws or other federal, state and local authorities.
Any employer that plans to require its employees to get a COVID-19 vaccine should develop a written policy. The vaccination mandate must be job-related and consistent with business necessity. For instance, under the ADA, an employer’s workplace policy can include a requirement that an individual cannot pose a direct threat to the health or safety of individuals in the workplace.
Companies have the legal right to require employees to be vaccinated. However, each employer must decide what’s best for their workplace: implementing mandates that could lead to difficult decisions or encouraging and incentivizing employees to get the vaccine. If you are an employer or an employee with questions or concerns regarding COVID-19 mandates, please contact us at 973-707-3322. or LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.