The year 2020 upended nearly every aspect of society and affected our personal and professional lives due to the novel coronavirus (“COVID-19”). No business industry was immune to COVID-19’s impact as a significant number of businesses moved employees to remote work, furloughed employees, or laid off employees entirely. As the job market recovers and strategies to combat COVID-19 develop, including testing and vaccines, employers are transitioning employees back to commercial office spaces. In doing so, however, each employer must consider the effect COVID-19 may have on in-person work and must realize that it may need to accommodate various employees due to legitimate health or religious concerns associated with COVID-19 or the vaccines associated with the virus.

AT-RISK EMPLOYEES, COVID-19, AND POTENTIAL REASONABLE ACCOMMODATIONS FOR IN-PERSON WORK

Generally, at-risk individuals for COVID-19 are classified by the Center for Disease Control as individuals with immunocompromised diseases or conditions such as diabetes, high-blood pressure, obesity, cystic fibrosis, and liver disease. “At-risk” individuals also include those with a high risk mental condition, such as depression and anxiety brought on by COVID-19. Though the Equal Employment Opportunity Commission (“EEOC”), one of the leading federal workplace discrimination enforcement agencies, has not commented on whether contracting COVID-19 qualifies as a “disability,” various state and local laws broadly construe what is defined as a “disability” which would likely include COVID-19.[1] As such, an individual at high risk for COVID-19, or someone who has already contracted COVID-19, could qualify as disabled and require reasonable accommodations if an employer requires the individual to return to work.

Under 42 U.S.C. § 12102(1)(A) (Equal Opportunity for Individuals with Disabilities), federal law provides that an individual is entitled to a reasonable accommodation at his or her place of employment if he or she has a “disability” defined as a physical or mental impairment that “substantially limits” a major life activity and that impairment is not transitory or minor. Though COVID-19 is not specifically referenced in section 12102, an employer must likely make a good-faith effort to “reasonably accommodate” the impacted employee under section 12102’s broad “disability” definition. To the extent that individuals who are at high risk for COVID-19 or who have contracted COVID-19 and are entitled to reasonable accommodations, examples of these accommodations may include telework, modified work schedules, job restructuring, and greater accessibility to work facilities (i.e. spaced out work spaces). 42 U.S.C. § 12111 (9); 19 C.F.R. § 1630.2(0)(2). Although teleworking became the norm due to the pandemic, it is not currently a required reasonable accommodation by the EEOC. However, this is likely to change as multiple states have confronted civil suits by terminated employees who opted for remote work due to health concerns associated with contracting COVID-19. EEOC v. Gentiva Health Services, Inc., No. 1:20-cv-03936 (N.D. Ga. Sept. 22, 2020); Peeples v. Clinical Support Options, 2020 U.S. Dist. LEXIS 169167 (D. Mass. Sept. 16, 2020). If an employer reasonably accommodates its employees affected by COVID-19 by allowing them to work remotely, an employer should also protect its own interests and request its employees execute a teleworking agreement that includes set standards on timekeeping, availability during the work day, work location for tax purposes, and an employer’s right to require periodic in-person reporting to a worksite. In short, an employer should strike a balance to accommodate an impacted employee which will insulate it from potential liability and also ensure the impacted employee conforms to the employer’s work policies and procedures as practically as possible.

VACCINES, TESTING AND RETURING TO THE OFFICE

Can an employer mandate an employee get vaccinated before returning to the workplace? Yes, but it must make a reasonable accommodation for those who refuse the vaccine even if mandated by federal or state government.

Understandably, the most critical question for employers as they transition to in-person working is whether they can obligate employees to receive a COVID-19 vaccine before returning to work. On December 16, 2020, the EEOC issued a technical assistance publication entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.” [2] Based on the EEOC’s guidance, employers can mandate vaccination without any showing that it is required and necessary for employment and can require proof of vaccination before employees are allowed to return to work. This gives significant power to an employer to place requirements on an employee’s return to work and insulates the employer from possible liability for vaccine mandates before returning to work.

More recently, effective June 17, 2021, the Division of Occupational Safety and Health in California (“CAL OSHA”) enacted new regulations for return to workplaces and employer requirements. In summary, CAL OSHA’s regulations require employers to document that employees are fully vaccinated and the regulations further instruct that employers can accept a self-attestation as proof of vaccination. Vaccinated employees do not have to maintain social distancing and can shed masks indoors or outdoors (subject to local or county mask mandate policies). On the other hand, unvaccinated employees must still wear face coverings indoors and maintain social distancing. The new regulations also place additional burdens on employers to provide masks to employees upon request, provide free testing in the event of a workplace COVID-19 outbreak, and temporarily exclude employees from the workplace if they experience COVID-19 symptoms, regardless of vaccination status.[3] Similarly, President Joe Biden also announced that all businesses, public or private with more than 100 employees, must ensure that employees are vaccinated or provide weekly testing to unvaccinated employees, though this is being challenged in federal court.[4]  As such, employers should be prepared to document its employees’ vaccination status or provide weekly testing to unvaccinated individuals.

In general, an employee is not obligated to get vaccinated even if his or her employer mandates vaccination as part of its return to work policies. Under EEOC protections, if an employee refuses the vaccine, an employer cannot retaliate or single out the employee and must ensure that the employee is not subject to adverse working conditions for refusing the vaccine.  See 29 C.F.R. § 1630 et seq.; Ruggiero v. Mount Nittany Medical Center, 736 Fed. Appx. 35 (3d Cir. 2018). The employer should first make a “reasonable accommodation” for the employee in the workplace, such as a modified work schedule, altering their workspace, or offering remote work. If the employer determines a reasonable accommodation within the physical work space would constitute an “undue hardship” on the employer’s business and the employee’s presence in the workplace constitutes a “direct threat”, then the employer may exclude the employee from the workplace altogether and instead offer the employee a remote work accommodation. The employer must make the following showing to demonstrate the employee constitutes a “direct threat:” (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. 42 U.S.C. § 12111.

It is important to note that even if an employer determines that the employee’s presence in the workplace constitutes a direct threat, the employer may not immediately terminate the employee; it can only exclude the employee from the workplace. This determination would generally lead most employers to offer remote work as a means of “exclusion” from the workplace; however, for some industries remote work is not feasible. After exhausting all viable accommodation options, and after the employer carefully considers the employee’s rights under federal, state or local laws, such as providing medical leave or temporary disability, the employer may then determine if termination is the appropriate final step to end the employment relationship.

CONCLUSION

Employers must take precautions when their employees return to the workplace in the wake of COVID-19. While new federal and state guidelines mandate vaccines or weekly testing, employers must honor an individual employee’s decision to refuse the vaccine, for medical based reasons or for religious reasons, and try to reasonably accommodate that employee. Employers should consider a variety of reasonable accommodations, such as remote work/teleworking, modified work schedules and changes to its physical workspace before deciding whether it is necessary to take exclusionary action against the subject employee.  In the event that an employer cannot reasonably accommodate an employee and if the employer determines the employee is a “direct threat” to the workplace, then it may exclude, but not immediately terminate the employee. Though an employer may have grounds to ultimately terminate an employee for refusing the COVID-19 vaccine, it must exercise extreme caution in view of protections offered by federal, state, and/or local laws before terminating the employee. It is critical that employers implement coherent return-to-work policies that include well-defined vaccination protocols, indoor social distancing requirements, policies that clearly articulate reasonable accommodations for employees impacted by COVID-19 and for unvaccinated employees.

[1] Various localities in New Jersey, Pennsylvania, New York have issued protections that actual or perceived infection with COVID-19 is a protected disability, while COVID-19 could likely qualify as a disability under a state’s expansive definition.

[2] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

[3] For various state COVID-19 “return-to-work guidance,” please see: https://crownworkspace.com/us/knowledge-base/us-state-by-state-return-to-work-covid-19-guidelines-and-employer-resources/

[4] https://www.whitehouse.gov/covidplan/