As part of their COVID-19 mitigation protocols, an increasing number of employers are mandating COVID-19 vaccinations following the Food and Drug Administration’s full approval of the Pfizer vaccine. Adding to the exponential growth of employer vaccine mandates are President Joe Biden’s “Path Out of the Pandemic” COVID-19 Action Plan; the related Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, which requires that workers of certain federal government contractors be fully vaccinated against COVID-19; and the Emergency Temporary Standard (ETS) recently promulgated by the Occupational Safety and Health Administration (OSHA) that imposes, among other things, mandatory vaccine and testing requirements for companies with 100 or more employees.
In implementing preventive measures, employers must take into account evolving legal considerations and navigate compliance hurdles in the face of often inconsistent federal, state and local mandates and prohibitions. State and local agencies are layering their own mandates on top of the federal requirements and guidance, with some making vaccines mandatory (subject to legally required exemptions) and others allowing a regular testing option in lieu of the vaccine. Still other jurisdictions preclude vaccine mandates. As a result, employers must perform a balancing act, not only with their existing workforce, but also as they seek new employees. In this article, we outline considerations in hiring with respect to COVID-19 mitigation protocols.
Implementing and Updating Policies
If they have not already done so, employers would be well-advised to implement detailed written COVID-19 protocols that may—subject to applicable federal, state and local law—mandate vaccines and/or testing, as well as other safety measures, such as face coverings. These protocols should be disseminated to and acknowledged by current employees and should be regularly updated as applicable law and guidance change. It makes sense for employers to ensure that their policies regarding COVID-19 vaccines, testing and other protocols are made known to applicants and job candidates at the outset. How can this best be done?
Advising Applicants of COVID-19 Mitigation Protocols
Employers can take proactive steps to ensure that applicants and job candidates are aware of the company’s COVID-19 mitigation protocols and requirements, as follows:
Update Job Descriptions and Job Postings: Job descriptions and job postings should be updated to include current and regular job duties and requirements, including the employer’s COVID-19 mitigation protocols. During the height of the pandemic (and continuing to date in many sectors), it has been accepted that many essential job functions could not be performed in the same manner as pre-pandemic while working remotely or observing other safety measures, such as social distancing.
Employers should assess what essential job functions will be resumed going forward, as well as what may no longer be considered “essential” functions. Job descriptions should be updated accordingly and should include all essential job functions, including those that may be temporarily “on hold” but will be resumed when safe and reasonably practicable. If in-person/on-site attendance is a requirement, the job description should outline why that is important. Examples could be managing and collaborating with teams; providing hands-on support to customers; demonstrating product usage; greeting and processing visitors; filing, answering phones, sorting mail; and the like. These can be referenced in job postings as well.
Updating job descriptions and job postings to ensure ongoing accuracy will prove invaluable in responding to accommodation requests, which we expect will surge in the near future. In this regard, we anticipate an increase in claims that employers are failing to accommodate workers, for instance, where a health care provider indicates that the individual has a disability that requires that he or she work remotely. The argument will be that permitting remote work (or a hybrid of remote and in-person work) would be a reasonable accommodation, given how long many companies already have been working remotely; having accurate job descriptions can help assess requests for accommodation and defend against such claims by both current employees and applicants.
Employers also should consider including information regarding their COVID-19 mitigation protocols, whether legal requirements or internal policies, in job postings to ensure that applicants understand what will be expected of them if hired. Including such information can aid in a determination as to whether candidates would be able to perform the essential functions of the position, with or without a reasonable accommodation. For instance, if a candidate for a position involving frequent public contact is required to comply with certain protocols that include becoming vaccinated or wearing a face covering, and the candidate has a disability precluding him or her from complying with these protocols, that candidate may not be able to safely perform the essential functions of the role, even with accommodations.
For employers with vaccine mandates, language included in job postings might read something like this: “Candidates will be required to show proof of being fully vaccinated against COVID-19 upon commencing employment. Reasonable accommodations will be considered on a case-by-case basis for exemptions to this requirement in accordance with applicable law.” Where a front-facing position is involved, particularly those involving exposure to vulnerable individuals (e.g., in the health care context), additional language such as the following can be used: “Applicants should be aware that for external-facing roles, particularly those involving close contact with vulnerable individuals, accommodations that involve remaining unvaccinated against COVID-19 may not be deemed reasonable. The Company will engage in the interactive process on an individualized basis in light of each particular role.” This can assist applicants in assessing at the outset whether they believe they will, in fact, be able to perform the essential functions of the position, with or without reasonable accommodation.
Modify Offer Letters: Likewise, employers should consider building language into their offer letters describing any vaccine/testing mandate applicable to the position. This could be along the following lines: “Note that, pursuant to the Company’s COVID-19 mitigation protocols, individuals must be fully vaccinated upon commencing employment, subject to legally required exemptions (in other words, a medical condition, disability or sincerely-held religious belief)”). Such provisions should take into account applicable law, such as the recently created Texas exemption from vaccine mandates for reasons of personal conscience.
Employers who have not yet imposed a COVID-19 vaccine/testing mandate, but may do so in the future, could include language in their offer letters to the effect of, “although the Company is not currently mandating that employees be fully vaccinated against COVID-19, it is likely/possible that this will be a requirement in the future, subject to legally required exemptions.” Again, this should take into account applicable state and local law.
Defining what is meant by “fully vaccinated” is also important. Generally, “fully vaccinated” is construed to mean that the individual has received all required doses of a particular vaccine, and at least two weeks have passed since the last dose. Where permitted by applicable law, it is strongly recommended that the employer’s definition of “fully vaccinated” include a requirement that the employee has provided the employer with documentation evidencing the individual’s vaccination status. This is built into, for instance, Cal/OSHA’s Emergency Temporary Standard definition of “fully vaccinated,” and the concept is contemplated by other requirements and guidance (for instance, the OSHA ETS requires that if the employer lacks documentation as contemplated by the ETS, it must treat the employee as not fully vaccinated). It is important to note that “fully vaccinated” is not a static status; at some point, the efficacy of the vaccine declines, and a booster will be needed. The definition of “fully vaccinated” therefore should include reference to booster shots, assuming that they will, at some point in the near future, be required in order to continue to be considered “fully vaccinated.” (Remember, though, that until the booster shots receive full FDA approval, the legality of mandating them is questionable.) And, of course, information regarding vaccination status must be maintained as confidential medical information by the employer.
Permissible Inquiries of Applicants Regarding Vaccination Status
Many applicants are voluntarily disclosing their COVID-19 vaccination status, for instance, on resumes or job applications.
If not already voluntarily disclosed by applicants, can employers ask about vaccination status? Employers technically are permitted to make the inquiry, but cannot ask “why” or “why not” upon the applicant’s response. Rather than asking an open-ended question, employers would be better served by posing a “yes” or “no” question about fully vaccinated status and instructing the applicant not to provide any further information. Without such instruction, the employer may receive information it does not want to know at that stage (e.g., “my doctor indicated I should wait until after I have my baby to get vaccinated” or “because of my disability, I’m not able to get the vaccine”).
The safest course of action where vaccination status has not already been disclosed, however, is to wait to make the inquiry until after a conditional employment offer has been extended. If fully vaccinated status is made a condition of employment in the offer letter, and a prospective employee does not meet the requirements of a legally required exemption, the employer can rescind its offer on that basis. Where the prospective employee does claim a valid exemption under applicable law, the employer must then engage in the interactive process to determine whether reasonable accommodations can be made. In undertaking this process, employers should keep in mind that the analyses are different depending on the type of exemption claimed by the employee. Legal counsel can help in assessing whether claimed exemptions are valid and in working through the appropriate interactive process.
Note that information provided to an employer concerning COVID-19 vaccination status, as well as information regarding medical or disability exemptions, must be kept in a confidential medical file pursuant to the Americans with Disabilities Act.
Employers can—and should—take steps, within certain boundaries, to ensure that applicants understand the COVID-19 mitigation protocols to which they would be subject if hired. Employers must ensure that they are following the appropriate procedures, in compliance with a myriad of sometimes conflicting federal, state and local laws, in implementing protocols, considering requests for exemptions and assessing potential accommodations. Legal counsel versed in COVID-19 issues can assist employers in remaining within the bounds of the law in doing so.