The COVID-19 delta variant has forced employers to rethink return-to-the-office plans as well as vaccine mandates, while employees continue to push back on both.
Gov. Ralph Northam announced in early August a mandate that certain state employees receive the vaccine by Sept. 1 or receive weekly testing, impacting about 122,000 employees.
In the announcement, the governor noted that 54% of the state’s population is fully vaccinated.
“In order to protect the safety of Virginia’s workforce and the people we serve, it is necessary to require state employees to be vaccinated and to encourage other employers to do the same,” according to the governor’s order.
Capital One Financial Corp. and Genworth Financial, two of the Richmond region’s largest private employers, said workers will be required to be vaccinated in order to work in its offices.
CNN reportedly fired three employees who came to the office unvaccinated.
Earlier this month, a George Mason University law professor sued the university over its vaccine mandates.
The professor argues that he has natural immunity after testing positive for COVID-19 and therefore claims that the university has no compelling interest in the mandate. He also argues that no vaccine has received full FDA approval.
No lawsuit has been successful in arguing against the vaccine mandates, and the rapid shift by employers to mandate vaccines has been remarkable.
In a recent poll on LinkedIn, unvaccinated participants were asked what it would take to be vaccinated. Of the 167 responses, about one-third said FDA approval would change their mind to be vaccinated, 16% said an employer mandate would change their mind, and 2% said the $100 incentive suggested by President Joe Biden would change their mind.
About 50% of respondents indicated that nothing would change their minds, as they would not or could not be vaccinated.
If this small sample is an indicator, employers are up for a challenge in retaining staff, reviewing and evaluating religious and medical exemptions, and keeping the workforce safe.
Employers who are mandating vaccinations need to brush up on the requirements for reasonable accommodations under the Americans with Disabilities Act, Title VII of the Civil Rights Act and the new Virginia law, which will include reasonable accommodations for pregnancy, childbirth and related medical conditions. Employers with as few as six employees must provide reasonable accommodations unless doing so would create an undue hardship.
Employers need to understand the difference between reasonable accommodations, undue hardship and direct threat.
Accommodation requests from some employees are being rejected under the guise of “undue hardship,” which is a different and potentially more complex analysis than reasonable accommodations and direct threat. Mere inconvenience and preference do not amount to “undue hardship.”
All of these considerations are not one-size-fits-all and require an individualized assessment.
For most employers other than health care and those working with elderly populations, employers should be able to reasonably accommodate unvaccinated workers by requiring that they receive regular testing, wear a mask and social distance. Employers should also consider whether proof of a positive antibody test can be a substitute for the vaccination.
For religion, employers cannot question the reasonableness of the religion, but can require documentation as to the sincerely held religious belief. Employers must consider not only traditional religious exemption requests, but also nontraditional religions that may prevent an individual from receiving a vaccine.
Employers are also inquiring as to whether they can require an applicant to certify vaccination status in the recruitment process.
Asking an applicant before an offer is made could trigger a disability-related question because some applicants cannot be vaccinated due to a medical condition.
Instead, employers should identify in the recruitment process that all employees will be required to demonstrate that they are fully vaccinated or produce documentation for an exemption due to a religious belief or medical reason, and have the applicant certify that the person can meet this requirement.
In doing this, the applicant will not be required to disclose his or her need for an exemption before an offer is made.
After a conditional offer is made to the applicant, the employer can then require proof of vaccination or engage in the interactive process to determine if reasonable accommodations can be made. If so, the applicant can be hired, and if not, the offer can be withdrawn.
Certain employers such as nursing homes will unlikely be able to accommodate any employee who is unvaccinated as their presence in the workplace would likely be considered a direct threat to the populations they serve.
In a 100-year pandemic, information changes rapidly, and employers need to remain vigilant in carefully assessing their needs as well as the rights of their employees.