As COVID-19 vaccines become more widely available to workers across the state, Florida employers are planning for thousands of people to start heading back to the workplace.
But the process is easier said than done. Many employers are hoping to get their workers inoculated. In turn, they face an array of legal considerations. Where will employers go from here?
We reached out to four experts in the labor and employment field to assess key legal questions for navigating the vaccine landscape. They are attorney Nathan Adams of Holland & Knight; attorney Donna Ballman of Donna M. Ballman P.A.; attorney Joe Santoro of Gunster; and Jay Starkman, founder and CEO of the Miami-based human resources firm Engage PEO.
Here’s what they see happening.
Can an employer force an employee to get vaccinated as a condition for returning to the office? What is the trend now?
Donna Ballman: Yes, employers can force employees to be vaccinated, with exceptions. Some exceptions that come to mind are religious, disability and pregnancy. I haven’t heard from any clients that this is happening yet.
Jay Starkman: The trend today continues to be a very small percent — 5% to 10% of the companies — that are actually mandating that their employees get vaccine.
Joe Santoro: As with any medical or physical job requirement, an employer always has to demonstrate those conditions are job-related and consistent with some business necessity. You have to demonstrate it’s needed. For the most part, most people are of the opinion that because of the direct threat created by COVID, most employers can establish a policy of vaccination provided they can demonstrate it’s needed.
Some workplaces fear legal challenges if they were to require vaccinations. What is the consensus on the legal concerns?
Nathan Adams: I don’t know there is yet a consensus. I was surprised by the Biden administration when they came out against the public vaccine passport. Whether this administration is going to take a different turn on mandatory vaccinations — that’s important — which is the reason a lot of private-sector employers are in limbo right now. What is the administration going to say? A lot of industries are in a situation where they are planning. You have to begin somewhere. I’m sure all of their attorneys are sharing with them the state of the law.
Can a worker be fired for refusing to get vaccinated?
Donna Ballman: Yes, employees can be terminated for refusing to vaccinate, unless they fall within a legal exception. If they do fall within an exception, then the issue will be whether there is a hardship on the employer. If the employer can prove there is a hardship, they may still be able to terminate, even with an exception.
Jay Starkman: If it is not a refusal where [the employees] are taking steps to show a religious belief or a bona fide medical reason, then the answer is yes, as long as the policy is uniformly enforced. You can’t say these three employees are going to be fired, but this fourth one is essential to the business — we’re going to keep them on. You can’t do that.
Can businesses refuse to consider hiring candidates who haven’t gotten vaccinated?
Donna Ballman: Employers aren’t going to be allowed to ask employees if they are vaccinated during the interview process. I believe this will play out similarly to any other medical issue. What I think will happen is the employers will be able to make a conditional offer of employment, and then the employee will have to disclose whether or not they were vaccinated, and whether or not there is an exception.
Joe Santoro: There is going to be a lot of litigation on this issue, I can assure you of that. There is always going to be a middle ground. Then you have somebody who comes to you and says, “I have cancer or pulmonary disease.” Well, you just can’t fire them. You can accommodate that person by letting them work from home, or with physical barriers or alternative shifts so they’ll be able do their job with less contact with the public.
Nathan Adams: Disability-related inquiries and medical exams are generally prohibited. They are permitted between the time of the offer and when the person starts work. The EEOC states an employer may screen applicants … after a conditional job offer as long it does so for all employees in the same job type.
If employees are vaccinated, can they still be required to practice other safety protocols such as wearing masks, submitting to temperature checks and social distancing?
Joe Santoro: At least for now, yes, although I think people would like to have the vaccine replace all of the other things that businesses are doing. I think for the time being, what you are going to see is those stay in place until the community infections are low enough where it’s not necessary. One thing employers can’t do is treat people who are vaccinated differently from those who aren’t.
Donna Ballman: Vaccinated employees can still be required to comply with CDC protocols on masks, social distancing, etc. It will be a while before we can go back to anything resembling normal.
Nathan Adams: It’s all dependent still on there being a direct threat. As long as there is a direct threat, employers may require protective gear and infection control practices. Temperature checks are a little bit different. They are treated like medical exams. And again, to the extent the direct threat dissipates, so will the argument for them.
Are most employers implementing safety protocols?
Jay Starkman: A lot of employers right now are defaulting to letting people to continue to work from home, so they’re not getting to that issue. The ones that do have employees returning to work — a very large percentage of them are indeed enforcing safety guidelines. I believe in today’s society it is sort of expected. Let’s assume you’re starting to eat at restaurants again. You go and none of the staffers are wearing masks, the ventilation is poor, and the tables are close together. A lot of people are going to turn around and leave. If an employer set up that kind of environment, rest assured, some of the employees are going to leave. It makes sense to have that in place.
Joe Santoro: Yes, in most cases they are required to by local administrative orders. Pretty much everybody that’s open has been using masks and social distancing and cleaning protocols — all the things the CDC recommends. There is another reason for that: Those are all of the things that employers and businesses in general are going to be evaluated on in the event there is a workplace infection. Right now, that is the standard.
Donna Ballman: As to whether most employers are implementing safety precautions, I only hear about the bad ones. I would hope that most employers are trying to do their best to keep employees safe. If they aren’t, they could be violating [Occupational Safety and Health Administration] requirements.