Updated 4 months ago
Throughout 2021, companies were planning their COVID-19 “return to work” strategies. Then the Delta variant emerged. Employers and workers alike were left wondering how to navigate a landscape each thought they’d come to understand.
Many employers now are trying to find common ground that can help serve the interests of public safety, while addressing valid concerns of those who refuse to be vaccinated.
Given the variant’s severity, some employers are mandating vaccination. As an example of finding accommodation, the U.S. Courts for the Southern District of Florida in September began requiring that, with certain exemptions, all employees and on-site contractors are required to provide proof of vaccination, or submit proof of twice weekly COVID-19 PCR test results.
When planning your own strategy, company human resources and legal counsel should follow guidance from the U.S. Centers for Disease Control and Prevention (CDC), the Equal Employment Opportunity Commission (EEOC), and existing federal law, especially the Americans with Disabilities Act (ADA).
For example, employees with sincerely held religious beliefs or legitimate medical conditions may decline the vaccination under Title VII of the Civil Rights Act of 1964 and the ADA. Employers should always engage in an interactive discussion to determine if and what accommodation options exist. If, after interacting with the employee, an employer suspects the employee is not being honest in an effort to avoid the vaccination, they can request supporting documentation, like a note from the appropriate health care professional. Compelling disclosure of a disability, however, risks violating employee rights under the ADA.
If the employer agrees with the employee and the vaccine is not required, the employer can provide reasonable accommodation that would remove that worker from public contact, unless it would pose an undue hardship on the business. In this situation, be sure any accommodation is provided equally across the organization to avoid claims of favoritism by others in similar situations.
Our read of existing law is that employees who refuse vaccination simply for personal reasons, that is, without bona fi de religious or medical reasons, have no protection under the law. Employers are within their rights to require vaccination; such employees can be terminated without recourse.
Similarly, a private employer that follows CDC guidance regarding safety and hygiene can require masks be worn by employees, vendors, visitors or others on their properties.
The battle against the pandemic has lasted longer than many expected; fatigue is setting in. Common sense and good judgment should be used in alignment with prevailing guidance from the CDC and other organizations. Consult with human resources or legal counsel for the most current information and for assistance in navigating this constantly changing landscape.
For more than 50 years, Tripp Scott has played a leadership role in issues that impact business such as employment law.
Catalina Avalos is a director with the law firm Tripp Scott, PA. She practices in labor and employment and complex commercial litigation. A former county court judge, she currently is co-chair of the Broward County Bar Association Labor & Employment Section.
Learn more at TrippScott.com.