Covid-19 Vaccine In The Workplace

Hey town, what a delight to see you all the way from across the office. We are here today to discuss a very hot topic that's going on, and that is the COVID-19 vaccine and its impact on employers. And that is why I brought in our resident expert, Ms. Amanda Voles, Senior HR Business Partner with ERG Paralegal. How are you doing today, Ms. Amanda?

I'm doing great. It's sunny and 70 outside and we're talking HR and COVID vaccines. So I'm doing great. I get to be here.

What more could you ask for in life, right?

I know.

I like it here. Beautiful weather finishes with COVID vaccines, which definitely, you know, just to start it off with is such great news for so many people. I mean, we just had one of our teammates who has not been able to see family members for this entire thing last year because of everything going on. And she got the vaccine today and is going to be able to make a trip to go see her father. So really really exciting personal thing is happening for people. But what we want to talk about today is a little bit of how this impacts employers, their employees, getting back into the workplace for people that haven't come back to the workplace yet, and just all the different things that come with that. Because I know people have a lot of questions, but let's start with kind of the most obvious one, and that's, uh, that we're getting already, and is, is, can I require my employees to actually get the vaccine? Can I make that required? Is that something I can do, Amanda?

So actually, this is something that we're going to get into another gray area, as always with HR. So as many of you know, most states in the country, with the exception of Montana, are what you would call at-will states. So technically, yes, you can terminate someone or require someone to get, you know, if they don't get the vaccine. However, as with all other areas of HR, there are some gray areas in terms of legal ramifications and litigation. So just to kind of take a look at what's been done in the past, the vaccine itself this time is a little bit different from, from what companies have been dealing with. So, you know, historically there have been companies and industries that require vaccination, and that's been allowed. Water waste management, where a hepatitis vaccine is required, or certain healthcare industries where they're required to get a TB shot or something. So, so it's not unheard of. However, what's different this time, of course, everything's different with COVID It's unprecedented. We've heard that word a thousand times, but a typical vaccine approval process takes years and years to get approved from preclinical testing and clinical trials. And then it goes through all the different FDA approval chains and for final review. But since we're in a global pandemic, the vaccine has actually been put under an expedited process called called the emergency use authorization for public health emergency. So at this point, it's still a point of contingency for a lot of employment attorneys. They're kind of split as to whether or not an employer can require a vaccine until a vaccine gets the full FDA approval. So the law is unclear on that and is yet to be tested in court. And I'm sure that's going to be around the corner. You know, an employee, I'm sure, will— if somebody gets terminated, for not getting the vaccine, they could challenge as a wrongful termination due to the emergency status of the vaccine and the fact that it's not fully FDA approved. So that hasn't been argued in court yet, but I'm sure that's around the corner. So that's something we're all going to want to look out for.

Yeah, those are great points. And you're bringing up something, as I'm listening to you say the word legal multiple times, I'll go ahead and throw in the disclaimer and that nothing that we're going to discuss today should be considered as legal advice or guidance. We are talking about this with the information we have available. And obviously, as Amanda said, There is a, it's just a lot of unknowns with this situation. You have to give our least favorite answer to give in HR, but one that we have to give all the time. And that's, it depends. And you know, like I said, as much as we hate to give that piece of advice or that response to anyone, it is just very real, particularly right now, because, you know, while, while maybe not unprecedented to your point, that that's been an overused term over the last year, because when you look at it, look at America's history, much worse and much crazier things happened. Every 5 to 10 years. And I don't want that to sound as if I'm minimizing the issue, but in history, certainly we've seen much more challenging situations. So let's talk about that. So if I do want to require my employees to get the vaccine, what should I do if they don't want to get the vaccine?

So if you do require it, there are still some exceptions that employees can claim if they do not want to get it. So there are 3 exceptions: ADA, religious belief, and if you have a unionized workforce. So under the Americans with Disabilities Act, an employee can claim a reason under the ADA that they can't take the vaccine. So this could be something due to, like, extreme allergies, maybe to any of the chemicals or ingredients in the vaccine. Pregnancy could be another one. Basically anything that an employee can provide from their doctor saying that, you know, it would be detrimental to my health to receive the vaccine. And then the second one, which is going to probably be the most used and the most litigated is going to be the religious reason and religious belief. And this is another gray area, another area where employment attorneys are interpreting the word religious belief different ways. So I've seen some attorneys say, you know, a religious belief doesn't necessarily mean you have to be a member of an established church because it's only defined as a sincerely held religious or moral belief. So again, some people will interpret this more broadly. To include more of those legal loopholes, and then others can be more critical of that. So one of the things that I started looking into as I started getting into the, the back and forth on the religious belief loophole is what should you do as an employer if an employee comes to you with that? And so again, the definition of religion is broad, and it protects religious beliefs and practices that might be unfamiliar to you as an employer. So therefore, the Society of Human Resource Management, or the SHRM Foundation, has put a statement out that says that employers should ordinarily assume that the employee's request for religious accommodation is based on sincerely held religious beliefs, and unless there is an extenuating circumstance, they kind of advise against poking holes and arguing back against the employee whether or not it's a sincerely held religious belief. But again, there are some other attorneys that say that it can be scrutinized a little bit more. So one more gray area. And then third of all, you know, unionized workforces. We're here in South Carolina, so there's not a whole lot of unionized unionized labor, but unionized labor is a whole different ballgame altogether. Anytime you have to— you want to pass a regulation or a requirement, that has to take place with some negotiations and things like that.

So let me make sure I understand all this right so far. So I have the option to mandate if people can— if I want to require people to get the vaccine, is that correct?

Correct.

Still some potential liability there though.

Yep. And then those 3 reasons I just outlined would be acceptable for the employee not to get the vaccine.

Okay.

All right. So you could not terminate employees based on those reasons.

So now I've mandated the vaccine. I've got some folks that aren't going to get the vaccine and I'm not going to make them get the vaccine for the reasons you just outlined. So now what should I do with these folks that don't get the vaccine?

So according to the EEOC, any individual that refuses to take the vaccine, the employer, as a response can refuse to let the employee return to the workplace until that happens. So, you know, we live in an age where remote work is kind of a part of our world now, so refusing to let them return to the workplace doesn't necessarily mean that they'll be terminated, but certainly it is— that would be the case for any industry or any employment where the employee has to be physically present for that. Most likely that would be terminating people in industries like serving at restaurants, you know, manufacturing, retail, any job duties where they aren't able to fulfill them actually at the physical location.

So what do you think? What would you recommend if you're an employer on whether or not they should mandate the vaccine? Um, put you right on the spot, A-town, put you right on the spot. What do you, what would you recommend? Because that's what And that's what our clients would come to us for. And I just want to preface this with— it's the whole reason we wanted to start making this podcast was just to share if you're not a client of ERG, or even if you are a client of ERG and you haven't picked up the phone and made this call over to us, what is the advice, what is the guidance that we would give one of our clients in this circumstance if they came to us with this question?

So certainly weighing the pros and cons, the complications and potential risks of imposing a requirement is probably going to be more trouble than it's worth. So potential backlash, you could get is, you know, one, being forced to fire talented workers who you might not have anticipated refusing to get their vaccine. So you could lose some talented folks on your team, damaging employee morale if there's a large portion of your workforce that doesn't want to get the vaccine. And then of course the legal ramifications. And one thing that I always like to say when it comes to kind of testing the waters with HR, it's great to be on the bleeding edge, shall we say, with a lot of things in, in, in terms of your business, but when it comes to HR and in legal issues, you want to make sure that somebody else is the guinea pig before you step in. So my advice would be to strongly encourage employees to get the vaccine, but until some of this is litigated in court, you don't want to be the employer in court with the fines. We'll, you know, save that for the people who are ready to jump out first and then take it from there.

Yeah, I heard somebody once say, be conservative early so you can be liberal later, when not to put those into the It's not meant in the political terms, but just more meant in the fact of, you know, these are the types of situations where you do, like you said, you don't want to be on the bleeding edge of this whole thing. And I do think that's great advice. And I think that you hit on a really important point there, because if you're going to make the decision to require the vaccine, are you willing to deal with— it's going to set a precedent at some point, right? So if there's an individual that is not willing to get the vaccine, how you treat them, you can't treat them differently than how you're going to treat somebody else with who's not willing to get the vaccine. And now you could get into potential discriminatory issues because you've got an A-player who doesn't want to get the vaccine, but you don't want to lose them. So you're treating them differently than Susie who doesn't want to get the vaccine, but you'd be happy to let her go. So definitely setting precedent is always something we're looking to in the HR world. And what are we doing? What is this policy going to set as a precedent with what are these actions going to set as a precedent? So that's great stuff. So, I mean, are there any industries or types of companies that you think that it's necessary that maybe they look at the vaccine a little bit harder than others?

So, of course. So anytime you're dealing with these public health crisis, the context matters. So when you're deciding whether or not to mandate the vaccine, you want to look at the nature of your business and make sure that you have a business case that calls for the vaccine Vaccinating your employees. So this, this would be employees who are at risk and present a risk to others and are also at risk themselves. And businesses that would have a reason to be pro-vaccine or to require the vaccine would be things like people in the healthcare industry, the travel industry, where you've got people coming in and out, essential workers, certain retail businesses, grocery stores, certainly. Anytime you're in close contact with another employee. So things like manufacturing, meatpacking, when you're on a manufacturing line. So when you're trying to look to see if you're to determine whether or not your employees are at risk and would benefit, you got to think about the spread of the virus. So the CDC also recommends or states that, you know, the spread occurs within 6 feet over a 15-minute period. So if your employees are spread apart, if they're in their own offices, you know, if they are not really around other— in close contact with other employees, you're obviously not going to be as highly at risk as some other industries like a hair salon where you're in close contact for a prolonged period of time.

I think anybody's going to ever look at 6 feet the same way again, right? I know this whole thing, and my brain is completely broken to the point where when I'm watching television and I see people close to each other, I'm like, oh, why are they so close to each other? They're in for trouble. Hopefully that goes away here over the next 12 months as quickly as it got into my brain over the last 12 months. So here's a question I think I know the answer to, but do I have to pay for my employees' vaccines if I start suggesting or mandating they get the vaccine?

So most insurance companies or health insurance policies are going to cover the vaccine for free. So even if you require it and the employee is on another insurance plan, if that insurance plan covers it for free, obviously there's no need to pay for it. And the federal government, it hasn't come out with all of the guidelines yet. Of course, they put out statements, and I don't have the exact resources at the moment. I was trying to scour, but the federal government is also claiming that the vaccine will be free for uninsured individuals. So even if you have some employees on your team that are uninsured, you can go to your local state health department to see what programs they have available, because the Fed has not, to this point, to my knowledge, released a clear statement on that. Other things to consider would be time off. You know, if an employee wants to get the vaccine, at this point, there's not a federal or a state requirement that says you have to allow them to leave. However, If that's something that you're requiring the employees to get, then certainly you would want to allow them to take time off to go get the vaccine.

Wonderful. And what if I don't want to mandate it, but maybe I just want to encourage everybody to get the vaccine? What are some ways that I can think about it from that perspective and just maybe suggesting the vaccine instead of making it mandatory?

So we all love the carrot approach versus the stick approach, and it's certainly a great way to incentivize employees and reduce the exposure risk risk to your entire workforce and all your staff. So larger companies have started to come up with incentives, obviously giving them paid time off in order to get the vaccine. So Target have come out with policies that say they're giving employees 4 hours or 2 hours to go, um, of time off to get the vaccine. You know, obviously it's a little bit more enticing if the employees don't have to use that from their normal PTO accrual. So if it's a different category and they're not having to use their personal time off, some employers are giving free rides to the actual vaccination clinics or hosting the vaccinations on-site. Of course, that's something that you have to arrange with DHEC to be able to do that. Then even further, larger employers are giving employees incentives like bonuses, like $100 or maybe a gift card. Other things could be additional days of PTO. So if you get vaccinated, I'm going to add 2 more, 2 more days of PTO to your accrual balance for the year. So there's different ways to incentivize employees, and that's a good way to make sure that you're doing whatever you can. You can to keep your work population healthy.

Awesome. So how about, I know for a lot of folks, and this depends on age, geography, all sorts of different things, but what do we do if the vaccine's just not even ready yet for, or available yet to the people who, you know, we can't mandate it across the board if not everybody can get the vaccine or even suggest it for that matter. How do we handle that?

So exactly. A lot of these considerations, as far as requirements, won't become applicable until the vaccines are ready. So we have started rolling them out in South South Carolina in particular, they've got a 4-phase approach and anyone who's listening to this podcast can go to South Carolina DHEC, or if you're from another state, your state health agency should have the rollout requirements if they're doing it in phases. So we're already through phase 1 with 65 and over and healthcare workers in South Carolina. We just entered phase 2 at the beginning of March where individuals 55 and over, and then people under 55, if they have COVID risk factors, can get the vaccine as well as frontline and essential workers. And then by mid-April, anyone 45 and over and essential workers as defined by the CDC are eligible for the vaccine. And then finally by May of this year, and this is of course a projection by DHHS, this could change, but by May they're thinking that anybody over the age of 16 who wants the vaccine should be eligible.

That's great. Well, a lot of good things happening over the next few months. And now what about if I have an employee who thinks that this whole thing's a conspiracy theory and that it's just an injection that's going to connect to 5G and is going to maybe have some sort of impact on sort of a global government? How do I handle folks with big-time conspiracy theories?

You know, you give them their spaceship and let them, um, just Give them a tinfoil hat and send them home for the day, right?

That's good. That's good stuff, Amanda. Anything else you'd like to share with everybody related to vaccines and things to look out for?

No, I just wanted to kind of review some of the resources that we used for this podcast. Bloomberg Employment Law, South Carolina DHEC, and of course, that's also a great resource for anyone with vaccine questions. That's where you can go also if you're interested in hosting a vaccination clinic at your place of business. Sometimes there's a minimum requirement. But DHEC has a lot of great resources.

Those are all great resources, Amanda. We'll, and we'll link to all those in the show notes. And as well, we'll turn this, all the resources that we listed here and all the question and answer into a blog post that you'll be able to access on the website. If there's anything that you want to go back and visit, just go to the ergparole.com, go to COVID resources page, and you'll find all the notes typed up right there. So Amanda, thank you so much for dropping all those value bombs on us today and for doing all the research so that the rest of us can just listen to it in 30 minutes and have all the information that we need from your hours and hours and hours of work. We greatly appreciate you here. And I know our clients do as well. I hope that everybody listening has a great day. And if you enjoyed this, please make sure that you go ahead and give us 5 stars on your podcast player of choice and subscribe and check out the next episode as well. Thanks again for your time, Amanda.

Thanks.