On the COVID-19 front, the last few months have brought us recommendations from public health officials about the importance of receiving the seasonal flu shot, some optimistic news about the approval and distribution of COVID-19 vaccines in coming months, as well as an increase in nationwide cases and stricter recommendations on safe travel. How does all of this translate to the workplace? Below are some questions and answers.
Can I require my employees to get a flu shot?
It depends. Generally, employers have the right to establish legitimate health and safety standards in the workplace, so long as they are job-related and consistent with business necessity. The current guidance from the Equal Employment Opportunity Commission (EEOC) avoids taking a firm position on mandatory flu vaccine policies and simply states, “Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”
Prior to the COVID-19 pandemic, employers that have implemented mandatory flu vaccines have typically been in the healthcare field, where employees are regularly exposed to vulnerable patients. Because of the clear relationship between vaccinated employees and patient safety, these policies have generally been upheld in the courts as consistent with business necessity. Indeed, more than a dozen states, including Massachusetts, have regulations that establish flu vaccine requirements for health care workers. Of note, though, even mandatory flu vaccine policies must account for potential exemptions raised by employees on religious or disability grounds. Lawsuits related to mandatory vaccine policies often relate to a dispute over a religious exemption or disability.
Ultimately, developing and implementing a flu vaccine policy is not a one-size-fits-all endeavor, and will involve both legal and business considerations, such as the nature of the business, how physically close the employees work with each other, the extent to which employees interact with high-risk individuals or the public, and the likelihood that employees are willing to cooperate and comply. In a unionized workplace, employers should review any collective bargaining agreements to determine if such a policy would be permitted, and address the topic with union representatives, if necessary.
In the end, while implementing a strict flu vaccine policy is possible, businesses should consult with counsel to ensure that its implementation is compliant with all state and federal anti-discrimination laws.
Can an employer mandate that employees obtain COVID-19 vaccinations?
Drafting and implementing a COVID-19 vaccine workplace policy remains premature because a COVID-19 vaccine has not yet been made available to the public. Broadly speaking, employers should think about this issue in the same way that they think about the flu vaccine issue.
It appears that there will also be multiple types of vaccines developed by different pharmaceutical companies. We do not yet know whether there are material differences between each vaccine in terms of side effects, effectiveness, cost, etc. For these reasons alone, it may not be pragmatic to implement identical workplace policies for flu vaccines and COVID-19 vaccines.
As the vaccines are rolled out to the general public, businesses should look for further guidance from federal agencies such as the EEOC, the Occupational Safety and Health Administration and the Centers for Disease Control about how to address it within their workplaces.
As COVID-19 cases continue to rise, can I ask my employees to avoid out-of-state travel, even if it is personal travel unrelated to work?
Yes, employers may implement policies discouraging travel, consistent with state and federal public health guidance. Employers may consider taking actions such as:
- Actively reminding and updating employees about CDC recommendations and Massachusetts guidance regarding travel, as well as the subsequent quarantine periods required;
- Requiring employees to disclose any out-of-state travel plans; and
- Requiring employees returning from travel to affirm in writing that they are currently symptom-free and have compiled with all state requirements.
As with all workplace policies, any personal travel policy should be applied uniformly, and should be consistent with business necessity. For example, if a business’s entire workforce has been working remotely for many months, with no plans to return the employees into a physical office space until the spring of 2021, an aggressive policy about personal travel may not be appropriate. On the other hand, it would be prudent for businesses that have ongoing interactions with the public or high-risk populations to provide their employees with clear guidance and expectations about personal travel during the pandemic.
Policies are most likely to be adhered to when they are clearly communicated to employees and are delivered as far in advance as possible so that employees can plan accordingly. For morale’s sake, it may be helpful to remind employees that personal travel policies are not meant to police but to protect employees, that these policies will not be in place forever, and that getting through the coming months safely demands a collective effort from the entire business.
Of note, whether a business has a formal travel policy or not, employees who are required to self-quarantine after travel and who are unable to work or telework may be entitled to paid leave under the Families First Coronavirus Response Act, depending on the circumstances. The act is presently scheduled to lapse at the end of 2020, so this may not be an issue for much longer. However, businesses should be attuned to this issue in the event an employee seeks paid leave per the FFCRA following out-of-state travel.
As always, the legal and business issues related to COVID-19 are myriad, complex, and often ambiguous. While the business community and employees in Massachusetts have done a remarkable job navigating challenge after challenge this year, I wish all of us a smoother and happier 2021.
Kathleen R. O’Toole, Esq., is a Centerville native, Dorchester resident, and attorney at the Boston law firm of Conn, Kavanaugh, Rosenthal, Peisch & Ford LLP. Send questions to firstname.lastname@example.org.
This column, which may be considered advertising under the ethical rules of certain jurisdictions, is intended as a general discussion of the topics covered, and does not constitute the rendering of legal advice or other professional advice by Conn, Kavanaugh, Rosenthal, Peisch & Ford LLP or its attorneys.