Andrew I. Bart in COVID-19 on January 19, 2021
The latest guidance. As COVID-19 vaccines start to become available to the general public, can employers now order mandatory vaccinations of their employees? The answer is not simple. Cooperatives and condominiums should be aware of the Equal Employment Opportunity Commission (EEOC) guidance issued last month on this topic. Whether an employer chooses to enact a mandatory vaccination policy or merely encourages its employees to get inoculated, many complex legal and personnel issues will arise.
Is there a direct threat? The EEOC guidance states that an employer can require mandatory workplace vaccination only if a worker poses a “direct threat” to the health or safety of others without being immunized. A “direct threat” exists depending on the duration of the risk, the severity of the potential harm, the likelihood of harm, and the imminence of the harm. If there is no “reasonable accommodation” that can be made for an un-immunized employee to perform his duties without the potential to spread the virus, boards can require vaccination.
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A doorman, whose duties include constant interaction with building residents, might fit into this category. A “reasonable accommodation” for a doorman may be mandatory wearing of personal protective equipment, along with social distancing and the installation of plastic barriers and shields. A board might also consider changing shift schedules to accommodate this individual. If an employee can perform his or her duties remotely, that is also considered a “reasonable accommodation.” A property manager, for example, might be able to work from home.
Special cases. There is currently no state or city law, guidance or regulation that would prevent an employer from requiring its employees to take a vaccine. But any mandatory vaccination must comply with all federal, state and local laws and, accordingly, must provide a “reasonable accommodation” based on an employee’s disabilities or religious beliefs – unless the accommodation poses an undue hardship to operations. Employers must also avoid implementing any vaccination policies that might be considered discriminatory on the basis of an employee’s race, national origin, sexual orientation or any other protected category. All employers should tread carefully in this area. If an employee is an anti-vaxxer as a matter of opinion, no reasonable accommodation needs to be provided. But an employee who is a devout Christian with sincerely held beliefs about vaccines would have to be accommodated.
Try the carrot, not the stick. Given that COVID-19 vaccines may not be readily available until the spring – and the fact that some people are concerned about the safety of the vaccines – is mandating vaccination worth it? The better option might be a campaign to encourage workers to get inoculated. This could include offering a vaccination education program, providing incentives to employees who get vaccinated and providing them with paid time off to get inoculated. Boards should consult an attorney before enacting a mandatory vaccination policy or an encouragement campaign.
Andrew I. Bart is an attorney at Borah, Goldstein, Altschuler, Nahins & Goidel. He specializes in real estate litigation and employment law.
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