Americans with Disabilities Act. The guidance discusses how employers should approach situations in which a worker refuses to be vaccinated because of an underlying disability or their religious beliefs. According to EEOC, there should be a mechanism by which employees may request exemptions or accommodations, based on a medical condition or a sincerely held religious belief. Employers must be prepared to engage in, and document, an interactive dialogue with any employee who seeks to opt out under either of these exemptions to determine whether a reasonable accommodation would enable them to perform their essential job functions without compromising workplace safety. The EEOC’s vaccination guidance also confirms that requiring an employee to be vaccinated is not an impermissible “medical exam” because it does not seek information about an employee’s health impairments or health status. However, pre-screening questions by the employer that ask an employee to disclose whether they have been vaccinated might reveal information about an employee’s disability. Therefore, employers should be prepared to demonstrate that the questions, like the vaccine itself, are job-related and consistent with business necessity. The issue is moot if the asking of the questions and the administration of the vaccine is outsourced to a third-party medical provider. Keep in mind the guidance issued late last year could change under the Biden Administration, so employers should stay abreast of any potential changes. Moreover, even if an employer can mandate vaccinations, it doesn’t mean they should. Distrust for the COVID-19 vaccine remains high among segments of the farmworker population.
Companies should consider first rolling out a voluntary program. Some employers are giving COVID-19 vaccine incentives. Managers should be out front publicly demonstrating to skeptical workers that they too are rolling up their sleeves. The message is clear—getting the shot saves lives, for fellow workers, their families, and the community. Employers should proactively address employee concerns explaining why the vaccine is required or encouraged and provide employees with the opportunity to address their concerns. If the vaccine is required at any time, or voluntarily given during work hours, remember that time spent by an employee waiting for and receiving a vaccine, during regular work hours, is compensable work time. No Relief from Regulations While having a vaccinated workplace may keep your workers safe, it won’t get California employers out of having to comply with the Cal/OSHA Emergency Temporary Standard (ETS). As of this writing, employers must still require masking, physical distancing, extensive sanitation, and comply with housing and transportation limitations, regardless of whether workers are vaccinated. Future amendments of the ETS may ease up these requirements for vaccinated worksites, but that is not the case as of now. A lawsuit filed by Western Growers and industry allies challenging the ETS is still pending as of this writing. Simply put, employers that mandate vaccinations, or secure voluntary compliance in large numbers, are not automatically excluded from complying with state laws and regulations put in place to prevent the spread of COVID-19.
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MARCH | APRIL 2021
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