Attorney David James, who specializes in labor and employment law for Association partner Nilan Johnson Lewis, offered members tips during a webinar last week on navigating workplace law in these late days of the pandemic.
Members can find the 30-minute session at FarmEquip.org/COVIDlaw.
James said the Equal Employment Opportunity Commission (EEOC) has taken a practical approach to workplace law questions during the pandemic, which has introduced some flexibility. Specifically, employers can ask employees questions that would not have been allowed before the pandemic because it recognized that employers play a critical role in mitigating the spread of the virus.
Still, there are guardrails. An employer can ask, for example, if an employee has been exposed to COVID-19, but the employer cannot ask about the origin of the exposure. Among issues James has discussed with his clients:
Can we mandate vaccines in the workplace?
Yes. The EEOC has blessed mandatory vaccinations. If you want to develop a policy that says folks cannot come back to the workplace unless and until they are vaccinated, you can do so.
You need to be mindful of potential accommodations if someone identifies a disability. If there is a risk that the vaccine could interact harmfully with their disability, for example, or if there is a religious objection, you have to be prepared to accommodate that.
Are most employers mandating vaccines?
I have had conversations with employers who decide not to do it. If you mandate it, you may have to take action against your top performers who have a vaccination objection. Because of the need for real consistency in this area, I think most employers I have spoken with have declined to go the mandatory vaccination route.
Others have said that philosophically, it really isn’t their place. They said, “We understand that, right or wrong, there is a political backdrop to some of this, and we really don’t want to enter that fray, and we don’t want to tell our employees what they can or can’t do in terms of their own health, so we are not going to mandate.”
If we do not mandate, how can we encourage vaccinations?
It is certainly fair game to offer education. Make sure it is factual, medical information to employees, but that is entirely fair game.
Employers are asking questions about offering incentives as well. That brings up the Americans with Disabilities Act, because the AARP, among other organizations, challenges this, arguing that those incentives can have a disparate impact on older employees and employees with disabilities.
The EEOC has adopted the de minimis test. An example of a de minimis incentive is a water bottle, which is absurd. I think it is fair to say that something as insignifant as a water bottle is not going to constitute a meaningful incentive to an employee who is disinclined to get the vaccine.
Two-digit financial incentives like $50 are probably OK. Or, some employers are considering raffles. If someone shows proof of vaccination, they are entered into a raffle to win a $500 prize.
I would say the most common incentive I have talked to clients about is personal time off (PTO). I think PTO is very likely fair game, especially if we include additional components, such as giving the day off on a vaccination day, or the day after the shot regardless of whether the employee suffers side effects. When there is a correlation between the vaccine and the PTO, it reduces risk.
You also can offer a day off at some other point in the year. It is not risk-free, but I think there’s a reasonable argument that a day of PTO is de minimis.
James also discussed what legal challenges may await employers post-pandemic, including more requests for work-from-home accommodations for employees who suffer from anxiety or related conditions. Learn more in the next issue of Shortliner.
Member companies are entitled to no-cost, confidential, 60-minute consultations on HR law questions with Nilan Johnson Lewis. Call the firm at (612) 305-7500.