Employers can prohibit workers who reject the COVID-19 vaccine from returning to work under certain conditions, according to guidelines recently issued by a federal agency.
The decision of the Equal Employment Opportunity Commission gives private employers the opportunity to request vaccinations. The matter is grim for workers covered by a union and for public sector workers who have additional rights that need to be addressed, said three labor lawyers.
The guidelines, issued December 16, have been eagerly awaited by employers across the country grappling with the pros and cons of essentially depriving an employee of the right to make personal decisions about health issues.
State and federal health authorities urge employees to get vaccinated, especially in high-risk occupations such as first responders, health care, and nursing homes. However, many people remain hesitant.
According to a Gallup panel poll conducted in November, only 58% of Americans said they had planned a vaccination.
It is not yet clear how many employers will try to prescribe vaccines, as it is believed that most Americans will not have them until the spring. Employers also need to consider the impact on their labor pool, as a mandate can lead to a mass exodus of workers.
On the spot, Scranton Mayor Paige Gebhardt Cognetti and Lackawanna District Court Administrator Frank Castellano said city and court officials are continuing to look into the matter. Brian Jeffers, chief of staff for Lackawanna County, said the county will follow instructions from the state and federal government on the matter.
The EEOC enforces laws that prohibit employers from discriminating against workers for a variety of reasons. The vaccination guidelines address a key issue related to interpreting the rules for COVID-19 vaccination under the Disabled Americans Act in the event an employee claims to have a medical disability that would exempt them.
The guidelines are not binding, but form the basis of how the EEOC would resolve complaints should an employee contest his employer’s decision, said Wilkes-Barre attorney George Barron. Under the guidelines, an employer can prohibit a worker from returning if he can demonstrate that there is a reasonable likelihood that the person will pose a risk to the safety of colleagues or the public and that there are no reasonable precautions they could take – for example, allowing the person who works from home. Similar guidelines apply to individuals seeking exemption based on a religious objection to the vaccine.
“If an employee cannot be vaccinated against COVID-19 because of a disability or a sincere religious belief, practice, or observance, and reasonable precautions cannot be taken, it is lawful for the employer to exclude the employee from the job.” according to the guidelines.
An employee’s ability to successfully challenge a mandate depends largely on whether they work in the private or public sector and / or are unionized, said Scranton attorney Jack Dean, whose firm represents multiple local governments and school districts.
Dean said that non-union private sector workers have the least power because Pennsylvania is an arbitrary employment state, which means that a private employer can fire you for any reason or not, as long as the decision isn’t based on gender, age, or sexual orientation based.
“If a private employer tells an employee that the vaccine is a required condition of employment, you will likely have a hard time finding an employee in Pennsylvania who will say no and keep his or her job,” said Dean.
Dean said the situation is different for workers protected by a private or public sector union. The union could argue that the vaccine commitment constitutes a change in employment conditions, which means the matter would need to be negotiated.
Dean said that employees working for state, local, or federal agencies would have an additional opportunity to challenge the mandate as they could assert a claim for violation of their constitutional rights – an option that is not available to non-government employees.
Barron and Kingston’s attorney Ray Wendolowski agreed that employers may find it harder to enforce the mandate for unionized and public sector workers. Both lawyers said they don’t believe the added protection is a sweeping ban on vaccination, especially for professions that deal with the public.
“I find it difficult to imagine an arbitrator or court ruling that a unionized workforce … is exempt from vaccination and that the employer must put patients or customers at increased risk,” said Barron.
Wendolowski said the main problem for some jobs will be whether the employer can make reasonable provision that would allow the person to continue working outside the employer’s physical location. Many employers allowed workers to do so during the pandemic and will find it difficult to change this rule in the future.
“Many employers have already set standards,” said Wendolowski. “If you can make this shelter before the vaccine, you can make it after the vaccine.”
All three attorneys agree that the problem is far from being resolved and is likely to lead to many legal challenges. While the EEOC guidelines contain some guidance, there is likely to be some dispute over how to interpret them.
“We’re in uncharted territory,” said Dean, comparing the situation to building an airplane while we were flying it.
To avoid this, the lawyers said they are encouraging their clients to deal with the issues now.
“It is important to have a dialogue as soon as possible to find a reasonable way to solve the problem and avoid litigation,” said Wendolowski.
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