With certain exceptions based on local law, such as in Tennessee and Montana, among others, an employer may lawfully require that their workers be vaccinated.4 As of the end of 2021, nearly half of organizations have vaccine mandates in place for their employees.5 And, employers must still engage in the interactive process and evaluate whether an employee must be reasonably accommodated and excused from a vaccination requirement due to their medical condition, sincerely held religious belief, practice or observance, or other qualifying reasons. If an employee refuses to be vaccinated due to a qualifying reason, employers should work with the employee to determine if there are reasonable accommodations that can be made, such as allowing the employee to work from home or take leave. Employers and their HR teams should develop an accommodation plan in advance of rolling out any vaccine recommendations.
An employee who refuses to become vaccinated and who is not eligible to be excused from that requirement under federal or local law, may lawfully be terminated. Employers should tread carefully in these circumstances and consult legal counsel before making any decision to terminate an employee for noncompliance.
Some employers are requiring that employees receive a booster shot if they are eligible. New Mexico, for example, is requiring that health care workers who were mandated to receive vaccines also get their booster.6 Employees should refer to their company policy for further information. Just as employers may, generally speaking, require an employee to become vaccinated, so too may they lawfully require an employee to receive a booster shot.
In November 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard that large employers with 100 or more employees must require workers to be fully vaccinated or test weekly for COVID-19.7 This mandate was blocked by the Supreme Court and OSHA has withdrawn the requirement effective January 26, 2022. However, OSHA is still recommending that individuals become fully vaccinated.8
Similarly, a federal district court in Texas has issued a nationwide injunction barring enforcement of the Biden Administration’s federal contractor vaccine mandate.
The Department of Health and Human Services has issued a mandate that health care workers who work at facilities that participate in Medicare and Medicare are required to be fully vaccinated.9 This mandate is in effect.
Mandates can quickly change, so stay up to date on legislation by visiting OSHA’s website.
Returning to the workplace can vary widely from one business to the next. Employers will need to consider job responsibilities and functions when determining if they will be able to support remote workers, adopt a hybrid model, or require employees to work onsite. While many employers had expected a return to the office — about half (51 percent) of employers anticipated that their firms would discontinue stay-at-home policies in the second half of 2021— 44 percent of firms have pushed back or changed their reopening plans as of December 2021 due to the surge of COVID-19.10,11
Employees should expect policies related to workplace health and safety, including personal protective equipment (PPE) and masks, temperature checks, COVID-19 testing, and COVID-19 vaccine disclosure. Employers are allowed to ask if an employee has received a COVID-19 vaccine, but they should be careful not to ask for or solicit any information related to an employee’s medical history or condition. A simple yes or no questionnaire can provide all the information that is needed.
Worksite arrangements may be altered, with staggered schedules, reduced capacity, or a hybrid remote/in-office set-up. Workspaces will likely be set up to accommodate recommended physical distance and walkways may be arranged to promote one-way traffic patterns.
Regardless of their policies, employers will need to be aware of ADA compliance and other Equal Employment Opportunity laws, and how to accommodate employees who are unable or uncomfortable returning to an office.12
If an employee is uncomfortable with the proposed workplace arrangement, it’s important to have a conversation with your employee and actively listen to their specific concerns. Employees may have a wide range of reasons for not wishing to return to the office — from a pre-existing medical condition to family considerations, such as additional responsibilities as a caregiver. If there is a medical or religious basis, there may be limits on what an employer can legally ask and what an employee is required to disclose.
If you’re able to, consider or continue remote work arrangements or explore alternative duties that can be performed remotely. Reasonable accommodations — which can include telework — must be made under the ADA for qualifying reasons.13 For individuals who do not have a reason for working from home under the ADA, employers are not required to permit them to work remotely.
In 2020, the FFCRA provided additional paid leave for COVID-19-related reasons to covered employees. This Act expired on December 31, 2020. Unless an employer is extending their policies, employee leave policies returned to the company’s original policy. COVID-19-specific laws at the state and local levels may still be in effect as well as state and local leave laws, so look to state and local resources with respect to COVID-19-related leave compliance.
While employers are no longer federally obligated to provide paid sick leave or emergency Family and Medical Leave for COVID-19-related absences, many employers are continuing to offer leave or flexible work arrangements. Guardian’s report Absence Management Redefined found that 80 percent of employers say that COVID-19 has increased senior leadership’s awareness of the importance of leave management and three out of four employers changed their paid leave policies in response to the pandemic.14