The current COVID-19 pandemic continues to pose unprecedented challenges for the construction industry. Over the past 18 months or so, the industry as a whole has been faced with endless twists and turns. Now the availability of safe and effective vaccines has been added, including a vaccine fully approved by Pfizer / BioTech.
To complicate matters even further, some companies are required by state or federal ordinance to implement vaccination mandates for employees, while others simply view a mandate as a health and safety issue. And, at the time of writing, new OSHA guidelines are due to be released that would set a temporary emergency standard for employers with 100 or more employees and require employees to be vaccinated or subject to an exemption. With such a mandate come a number of legal and practical issues that employers must be prepared to address. Most of the issues employers face relate to reasonable accommodation under the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) and denial of permission. vaccine. These three questions are briefly addressed in turn below.
The ADA prohibits employers from discriminating against an employee on the basis of a disability and requires employers to reasonably accommodate disabilities if they can do so without undue hardship. This means that, in the context of COVID-19, if an employee has a disability that prevents them from obtaining the COVID-19 vaccine, including, a contraindication, an employer must provide reasonable accommodation for that employee. in the absence of a direct threat or undue hardship. A direct threat means a “significant risk of substantial harm to the health or safety of the individual or other persons which cannot be eliminated or reduced by reasonable accommodation”. To determine whether an unvaccinated employee poses a direct threat, an employer should conduct an individualized assessment that considers the duration of the risk, the nature and severity of the potential harm, the likelihood of the potential harm to occur, and of the imminence of the potential Damage. If there is a direct threat, the employer does not have to reasonably accommodate the employee under the mandatory vaccination policy.
Otherwise, if there is no direct threat, the employer and employee must engage in the interactive process to determine reasonable accommodation, if any. In the context of COVID, reasonable accommodations may include (i) wearing a face shield; (ii) work at a social distance from colleagues or non-employees; (iii) work a modified or staggered shift; (iv) obtain periodic testing for COVID-19; (v) teleworking, if possible; or (vi) reassignment. At this point, the employer must accommodate this employee in the absence of undue hardship, which is a high bar.
According to the Equal Employment Opportunity Commission (“EEOC”), whether housing constitutes undue hardship depends on several factors, including: the nature and cost of housing; the overall financial resources for achieving reasonable accommodation; the number of people employed; the effect on the employer’s expenses and resources; the overall financial resources, size, number of employees and type and location of employer; the type of operation of the employer; and the impact of the accommodation on the employer’s functioning.
Ultimately, any request for accommodation under the ADA to a mandatory vaccination policy will be very specific to the facts and each request must be made on a case-by-case basis – some employees can be accommodated, others not.
Title VII Accommodation
Title VII prohibits discrimination in employment based on religion. According to the EEOC “[t]The law not only protects people who belong to traditional and organized religions, such as Buddhism, Christianity, Hinduism, Islam and Judaism, but also others who genuinely hold religious, ethical or moral beliefs . Therefore, employees who subscribe to an “anti-vaccination” philosophy that is not rooted in sincere religious belief do not benefit from the protections of Title VII.
Similar to obligations under the ADA, under Title VII, employers are required to provide reasonable accommodations to employees claiming that their sincere beliefs conflict with vaccination, in the absence of undue burden. Under this law, employers must first examine whether there is a sincere religious belief. Generally, employers should take responsibility for this. However, if there is an objective good faith basis for questioning sincerity, then an employer may request more information, such as a letter from the clergy or whether an employee has been vaccinated against other illnesses. The EEOC has identified four factors that can create an objective basis for questioning the sincerity of the employee’s belief, including:
- If the employee has acted in a manner that is inconsistent with the claimed belief;
- If the employee seeks a benefit or an exception that is likely to be requested for non-religious reasons;
- If the timing of the request is questionable (for example, because it closely follows the request of the same employee for the same benefit for different reasons); and
- If the employer has other reasons to believe that the employee is seeking the benefit for secular reasons.
This is important because no accommodation should be made in the absence of a sincere religious belief, and the employer is otherwise free to apply the compulsory vaccination policy. Not to mention, at this point, that there are very few religions that have belief systems that actively advocate against receiving the COVID-19 vaccine.
That said, if an employer concludes that the employee’s objection to the retainer is based on an honest religious belief, then the employer and employee must engage in the interactive process to determine what reasonable accommodation, if any. , can suit both employee and employer. If there is reasonable accommodation, the employer must allow it in the absence of an excessive burden. Under Title VII, undue hardship is hardship that would require more than de minimis the cost or burden to the employer or the employer’s business operations.
Generally, determining whether an employee is exempt under Title VII of a mandatory policy must be done on a case-by-case basis. However, in light of the COVID-19 pandemic, employers may have strong legal grounds to deny employees requests for Title VII exemptions.
Refusal to comply
Overall, the EEOC has made it clear that employees may be required to take the vaccine as a condition of employment, subject to ADA or Title VII. As a result, employees may be terminated or otherwise sanctioned for failing to adhere to a mandatory vaccination policy. Recently, a Texas federal court upheld a policy requiring employees to get the COVID-19 vaccine or be laid off. In that case, the judge found that the employer had not violated the law or public order of the state or the federal government. With state and federal ordinances developing, more courts will likely rule in the same way.
Of course, with that in mind, employers must ultimately decide whether and to what extent a follower should be issued if an employee refuses to comply with a warrant. For some employers, termination may be necessary, especially in light of certain state or federal ordinances, while other employers may prefer to impose progressive discipline. Applicable collective agreements may also dictate how and what disciplinary measures may be imposed. Therefore, employers should consider their workforce, the nature of their business, and any applicable state or federal mandates, when determining how to respond to an employee refusing to obtain the vaccine in accordance with their mandate.
As this demonstrates, with any mandate for COVID-19 vaccination, employers must consider many legal and practical issues. However, despite these issues, the industry should receive much needed relief due to the increase in vaccination mandates.
Originally appeared in the CCIA CONNstruction Journal here.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.