by Stephen Wagner

The COVID-19 pandemic has made itself at home in the U.S. for a year now. Michael Miller, a labor attorney with Eckert-Seamans, discussed how COVID is impacting the workplace in a virtual presentation through Penn State Extension. Insofar as vaccine distribution, Miller reminded us that there are three phases to that process. Phase 1a is dedicated to long-term care facility residents and professional medical personnel. The same is true of Phase 1b; people aged 75 and older are the main focus in this group, as well as first responders, correctional officers, postal workers and grocery store workers. Those ages 65 – 74 and 16 – 64 with high risk conditions are the main targets of Phase 1c, as of this writing.

“The Biden Administration has given OSHA until March 15 to determine whether or not an emergency standard for workplace safety in COVID is going to be published or not because things are developing quickly,” said Miller.

Different entities have say in dealing with COVID vaccines on the job. “The Equal Employment Opportunity Commission is one. The EEOC is the federal rule-making body which has the power under federal statute to affect employers,” he said, adding that “COVID is a direct threat to employee health and safety and to the health and safety of the workplace. That means that the old rules about what you’re allowed to ask or not ask are relaxed to a certain degree during the pandemic.” The Americans with Disabilities Act, which applies to any employer with 15 or more employees, also has input. Each state’s Department of Health (among other entities) have input as well.

“Under the ADA, if somebody doesn’t want to take the vaccine, some kind of request has to be made that they be exempted from the vaccine requirement. There is no magic language that is required,” Miller said. Disability may include allergies or sensitivity to an ingredient in the vaccines, other medical conditions or mental issues. If an employer determines that an employee poses a direct threat, the employer cannot exclude that employee from the workplace, or take any other action. “The employer cannot say ‘You’re fired’ … You have to go through that reasonable accommodation rubric. I’m not saying this; the EEOC is saying this.” However, if there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not necessarily mean automatic termination.

Where the employer can get into trouble, for example, is if they inquire “Why didn’t you get the vaccination?” “That is an impermissible inquiry,” said Miller, “because it may reveal somebody’s medical status that they don’t have to require. You can say ‘Show me your card. Have you been vaccinated?’ If the person says no, you can simply ask ‘Is there anything that prohibits you from performing the job’s essential function?’” With this particular pandemic situation, it’s safe to say that no two employees will be alike. Responses and combinations of responses will run the gamut.

“If you’re going to discuss vaccinations and someone’s religious beliefs,” Miller said, “this is another circumstance where you should be talking to your business lawyer or your employment lawyer or your special counsel because this is a significant issue,” as defined by the Civil Rights Act of 1964. Title 7 of that act puts forth that discrimination on the basis of religion is prohibited.

“Isn’t it enough that the EEOC says you have to get the shot? Someone who suffers an adverse job action, who gets fired or who loses their ability to do overtime, or loses X, Y or Z, by virtue of not being able to have the shot, could potentially go to court under the ADA, and file a lawsuit against their employer,” Miller said. “In that federal lawsuit which takes two years to get from filing to trial, generally speaking in most circuits, that person can seek back pay, front pay, compensatory pay, punitive damages and attorney’s fees. So let’s say you fire somebody because they can’t get a shot. You may think you’ve done it right but that person files the lawsuit anyway. What are the chips that are pushed to the middle of the poker table? It’s two years of back pay. If that person makes $40,000 a year, that’s $80,000 on the middle of the table before you get to a judge or a jury. Attorney’s fees after litigating a case for two years is somewhere between $75,000 and $100,000. You’re talking about a lot of money and a lot of risks. However, we are judged retroactively on what we said six months ago. So documentation matters. Ergo, sincerely held religious beliefs, observances and practices must be accommodated when requested.”