A mandate is legal, but encouragement is likely the more prudent course of action.
Now that COVID-19 vaccines are being distributed nationwide, it’s only a matter of time before credit union employees will be going back to their offices, where they will once again come in close contact with customers and co-workers. This presents a potential problem for credit union employers, because if their employees are not vaccinated, their staffers could contract COVID-19 and would likely have a greater chance of infecting others. Therefore, credit unions are now asking whether they can require their employees to get the COVID-19 vaccine.
Yes, Employees Can Be Required to Get the COVID Vaccine
On Dec.17, 2020, the Equal Employment Opportunity Commission issued written guidance that states that employers can, as a condition of employment, require employees to be vaccinated. The EEOC said that having a mandatory COVID-19 vaccination policy would not violate the Americans with Disabilities Act because vaccinations were not considered “medical examinations” or “inquiries” under the ADA.
Potential Exemptions to Mandatory Vaccination Policies
If credit unions make COVID-19 vaccinations a requirement, they need to be aware of the following two potential exemptions:
1. Medical Exemption
Employees may be exempt from mandatory vaccination policies if they can demonstrate that they have a medical disability recognized under the ADA that prevents them from taking the vaccine. Credit unions can require employees who want to claim this exemption to provide supporting evidence, such as a letter from a health care provider.
Once a disability is substantiated, credit unions must excuse employees from getting the vaccine if the employers can adopt reasonable accommodations without incurring any undue hardship. An undue hardship would exist if unvaccinated employees pose a direct threat due to a significant risk of substantial harm to the health or safety of others that cannot be reduced by reasonable accommodation.
To determine what reasonable accommodations might be appropriate, credit unions would have to engage in what is called the “interactive process,” which is basically a dialogue with the affected employees to determine what would enable them to continue performing their essential job functions without compromising the safety of others. Potential accommodations might include additional personal protective equipment (e.g., masks, face shields, sanitizers, etc.), moving the employees’ workstations, temporary reassignment, teleworking or a leave of absence.
Additionally, the EEOC recommends that credit unions consult guidelines from the Centers for Disease Control, National Institution for Occupational Safety and Health, and the Occupational Safety and the Health Administration when considering what types of reasonable accommodations to adopt.
2. Religious Exemption.
Employees may also avoid complying credit union’s mandatory COVID vaccination policy by indicating that such a vaccine is against their religion. To do so, employees would have to demonstrate that taking the vaccine would violate their sincerely held religious beliefs, practices or observances. This is known as the “religious accommodation” provision of Title VII of the Civil Rights Act of 1964. Importantly, non-religious beliefs—even if they are sincerely held—would not trigger Title VII’s protections. Therefore, employees could not avoid getting the vaccine based on their political affiliation. This is important given the number of Americans that are still expressing generalized concerns about the vaccine.
In the event employees are able to demonstrate that their sincerely held religious views prevent them from getting vaccinated, credit unions will have to engage in the same interactive process of accommodation as discussed above in the medical exemption.
Additional Issues When Handling Exemption Claims
Unfortunately, it is not easy to process and handle exemption claims. This can be a huge trap for the unwary—the stakes of which, if the employer gets it wrong, can be extremely expensive. And to complicate things further, credit unions need to consider several other issues when dealing with COVID-19 and the vaccine, including,
- Potential liability if credit unions fail to follow safety protocols to protect their customers and employees;
- Employee privacy rights (including those protected by Health Insurance Portability and Accountability Act, or “HIPAA”);
- How to best inform and advise employees about third-party vaccinators’ pre-shot health screenings (any information regarding genetics, disabilities or any other protected information is not collected); and
- Making sure that all employees are treated the same, especially those that claim any of the exemptions.
‘Encourage’ Employees Get the COVID-19 Vaccine
All of the above speaks to whether credit unions can require their workers to get vaccinated. They can. A different question, however, is whether they should require vaccinations. Some employers are hesitating because of the relatively “experimental” or rushed nature of the current COVID-19 vaccines.
Due to the risks associated with having a mandatory vaccination policy (including the exemption-processing demands noted above), credit unions may wish to simply “strongly encourage” their employees to take the vaccine.
Alternatively, credit unions can try to incentivize employees to be vaccinated by offering them a one-time monetary bonus if they get vaccinated. For example, Dollar General Corp. is now advising its workers that if they get the COVID-19 vaccine, they will receive an additional four hours of pay.
If credit unions adopt mandatory-vaccination policies, it is vital that they:
- properly identify exemption claims;
- funnel them to appropriate human resources personnel;
- troubleshoot specific accommodation requests; and
- know how to handle difficult and potentially litigious situations.
The laws and regulations regarding COVID-19 are constantly in flux, with momentous local, state and federal rules and orders sometimes changing by the day or week.
Robert Rosenthal and Mark Gardberg are partners at Howard & Howard, a national law firm. Rosenthal and Gardberg regularly advise clients throughout the United States regarding their employment, litigation, transactional and corporate needs.
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