Employers continue to navigate the COVID-19 pandemic changes due to vaccines, variants, and the prospect of vaccine boosters. Even with many Americans fully vaccinated, employers require updated recom- mendations moving forward. Can COVID-19 vaccinations be made mandatory for con- struction employees? Under federal OSHA rules, employers must provide "employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” Now that the Pfizer vaccine has been FDA approved, employers are deciding whether worksites should be staffed only with vaccinated workers. OSHA is developing an Emergency Temporary Standard requiring employers with 100 or more employees to ensure employees are fully vaccinated or require the unvaccinated to have a negative test on a weekly basis before coming to work. The Equal Employment Opportunity Commission (EEOC) previously announced that employers may implement mandatory vaccination pro- grams, but if employers implement a mandatory vaccination program they must take care and consider accommodations for employees. President Biden has also signed two executive orders mandating vac- cination for executive branch employees and for some employees of some federal contractors. What is the current CDC guidance for fully vaccinated employees? The Centers for Disease Control (CDC) provided updated recommen - dations for the fully vaccinated: • Resume the activities as prior to the pandemic. • Reduce risk of being infected with the Delta variant and spreading it to others by wearing a mask indoors in public if in an area of high transmission. • Wear a mask regardless of the level of transmission for those with a weakened immune system or increased risk for severe disease, or if a household member is at increased risk for severe disease, or is unvaccinated. • If a vaccinated person has close contact with someone who has COVID-19, they should be tested 3-5 days after exposure and wear a mask indoors in public for 14 days following expo - sure or until a test result is negative. One should isolate for 10 days if the test result is positive. Assessing the Risks and Benefits of COVID-19 Vaccine Mandates for Employees By Donald A. Velez
Has there been litigation to challenge employers’ ability to mandate vaccination? In Bridges v. Houston Methodist Hospital, a U.S. District Court in Texas dismissed a suit by private hospital employees to prohibit the hospital’s mandatory vaccination policy and to prevent termination of employees who refused to comply. However, each state has different rules. The Texas case required workers to prove that receiving vaccina- tion was a crime. Litigation is ongoing in multiple states, and employ- ers should seek legal counsel to keep up with developments. Are there risks involved with implementing a mandatory vaccination program? Employers implementing mandatory COVID-19 vaccination programs should prepare for increased sick days, extended sick leave, worker’s compensation claims, and lawsuits from employees who may experi- ence side effects or complications. Employers should be aware that many are vaccine-hesitant. Employers should communicate with employees about concerns and provide cur- rent information about the vaccines. Are there additional considerations for unionized workforces? Under the National Labor Relations Act (NLRA), typical state laws and most collective bargaining agreements (CBAs), employers must provide notice and an opportunity to bargain changes in working conditions. Mandatory vaccination or testing for COVID constitutes a change in working conditions, prompting the duty to bargain. Em- ployers should provide notice of a proposed mandatory vaccination program and time to allow a union to bargain. Existing articles within a collective bargaining agreement, such as health and safety or compliance with governmental regulations or law, may provide employers an argument to impose a vaccination program. Alternatively, past practice between the parties may allow an employer to implement a vaccination or testing program. Where a COVID-19 vaccination is required as a condition of enter- ing the workplace, employees who refuse to be vaccinated and can't work remotely would be subject to discipline. Many unions are bracing against such discipline and would grieve the imposition of discipline. In one case, Teamsters, Local 743, sued in federal district court in Il - linois and alleged violation of a CBA by implementation of a manda- tory vaccination policy. The Teamsters allege a failure to bargain for a reasonable period about the policy and by refusing to arbitrate whether the unilateral implementation violated the CBA. Is the administration of a COVID-19 vaccine a “medical examination” under the ADA? Administering the COVID-19 vaccine is not considered a “medical ex- amination” for purposes of the Americans with Disabilities Act (ADA). Are employers permitted to ask pre-vaccination screening questions? Employers’ screening questions should be related to an employee’s job and consistent with business necessity. Based on objective evidence
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october 2021 csengineermag.com
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