Employment Law Alert – February 2021
On January 6, Gov. Ralph Northam announced that the Director of the Richmond City Health District, Dr. Danny Avula, will head Virginia’s COVID-19 vaccination efforts. Dr. Avula, who was a featured speaker at K&C’s Virtual 36th Annual Employment Law Update this past October, understands that he is embarking upon a huge task and has pledged to help streamline the state’s vaccination process to get more Virginians vaccinated. At a January 14 press conference, Dr. Avula announced that Virginia’s goal is to give 50,000 doses a day to reach herd immunity in Virginia, meaning vaccinating 70% to 80% of the state population.
At this juncture, employers and employees alike are anxious to see Dr. Avula and Virginia succeed in meeting these stated goals, but the vaccine supply is still ramping up. Dr. Avula was contacted for this article and he remains optimistic. In this regard, he wants Virginia employers to know: “Everyone is working together to get shots into arms so that we can move our Commonwealth forward from the pandemic, and Virginia’s employers will play a key role in this effort. By partnering with local health departments and educating employees on the safety and efficacy of the vaccine, employers have the opportunity to serve as a driving force behind the largest public vaccination campaign in modern history.”
While waiting for the COVID-19 vaccine supply to catch up with demand, many employers are looking forward to maximizing the number of employees vaccinated. This will ultimately protect community health and employees in the workplace while reducing costs of absences, lost productivity and long-run medical care. On the other hand, many employees have trepidation about the vaccine and some may even have health conditions or religious beliefs that may prevent them from receiving the vaccine. Accordingly, while employers have the legal right to strongly encourage or even require employees to get vaccinated, the law may require employers to accommodate employees’ medical conditions or religious beliefs in the process. Depending upon the industry and nature of the employment, some employers are opting to require all employees to get vaccinated, but more often than not employers are making vaccination optional while strongly encouraging employees to get vaccinated.
In addition to oral and written encouragement to employees, most commonly, employers are trying to minimize or eliminate out-of-pocket costs to employees related to their getting vaccinated, such as reimbursing administrative costs or providing paid time off to get a vaccination (if not provided in the workplace). To further encourage employees to get vaccinated, some employers have begun offering incentives for employees. Those incentives include additional benefits, paid time off, eligibility for drawings, and even cash or gift cards. Whichever way it chooses to go, an employer should not ignore medical and religious exemptions under the law.
When faced with an employee’s request for a medical exemption, employers should always engage in the interactive process required by the Americans with Disabilities Act in dealing with potential disabilities like severe allergies. This process is geared to exploring whether there is a “reasonable accommodation” that could potentially relieve the employee from having to get the vaccine. Regarding possible insincere requests for medical exemptions, employers always have the right to require reasonable documentation of the claimed disability. Under Title VII, which is the principal federal law prohibiting discrimination in the workplace, employers must also accommodate sincerely held religious beliefs or even philosophical “religion-like” beliefs. Title VII religious accommodation requests are easier to establish than medical exemptions with little documentation required. While an employer may make a limited inquiry into the facts and circumstances of the employee’s claimed religious belief or practice, an employee can provide sufficient proof of sincerity by a wide variety of means, including written materials or the employee’s first-hand explanation.
The COVID-19 pandemic has disrupted almost all workplaces and has created tension and stress for employers and employees alike. Effective vaccines appear to offer a path to return to normalcy, but this path will in all probability take longer than many anticipate. Employers should be mindful of the fact that getting employees vaccinated may create stress and potential legal liability if not properly handled. Our labor and employment lawyers have been working with employers to help reduce that stress by coming up with plans that suit their particular needs and ways to clearly communicate that plan to employees both in writing and orally.
The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2021.