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Law360 (Dec. 18, 2020, 8:54 p.m. EST) – Law firms and court systems are struggling to vaccinate attorneys and other employees before returning to work, even though new EEOC guidelines allow companies to not vaccinate workers from the Office in certain situations.
The US Equal Employment Opportunity Commission issued the updated guidelines Wednesday will outline how companies that have vaccine requirements should deal with workers who forego a shot because of a disability or religion.
“If an employee cannot be vaccinated against COVID-19 because of a disability or a sincere religious belief, practice, or compliance, and reasonable precautions are not available, it is lawful for the employer to exclude the employee from the job,” says the new guidance.
Giving vaccinations or requesting a proof of vaccination does not constitute a medical exam that would be prohibited or restricted under the Disabled Americans Act, the guidelines state.
However, labor lawyers should not expect law firms and court systems to make it easier for them to decide whether or not to require vaccinations for workers.
“Law firms, like all businesses, need to make an informed decision about what type of vaccination policy is right for their business,” said Michael Eckard, a shareholder and coronavirus task force member at law firm Ogletree Deakins Nash Smoak & Stewart PC.
The EEOC guidelines, which Eckard said were generally in line with his team’s recommendations to clients and the number of employers already approaching vaccination guidelines, are not blanket permits for businesses and businesses to prohibit employees from working if they do not get vaccinated against COVID-19 for health or religious reasons.
Rather, employers can keep workers out of office who do not get vaccinated because of an ADA-recorded disability or religious belief under Title VII of the Civil Rights Act after it has been determined that those workers pose a threat to the health of others and that there is none There are reasonable arrangements in place that could allow employees to keep getting to work, Eckard said.
“If a law firm, like any employer, decides to use vaccines, it should be ready to consider whether ADA or Title VII requires reasonable accommodation if an employee refuses the vaccine or requests an exception based on disability or religious belief.” Said Eckard.
Reasonable arrangements could include an employee wearing a mask or social distance, taking personal or sick leave law, or continuing to work remotely, said Chuck Mataya, a partner at Bradley Arant Boult Cummings LLP who specializes in labor law.
As long as a company is going through this placement process, “you’re probably fine if you ask.” [the vaccine] and if they don’t take it, they can’t come to work, ”said Mataya.
However, most law firms will not make the decision to implement a vaccine mandate because of the new guidelines, he added.
“I don’t think managers want to use it mostly for law firms,” Mataya said. “They may encourage it, but I don’t think they will mandate it in most situations.”
A vaccine mandate could be detrimental to morale, he pointed out, and the fact that so many companies have thrived that their lawyers could work from home means easy lodging for most employees who want to avoid it Shot is available.
Some law firms – especially smaller law firms that have not been as successful at remote working – will likely require their attorneys to be vaccinated before returning to work, said Beth Slate, owner and partner at law firm RJH Consulting.
Several lawyers she spoke to have seen productivity suffer in their law firms during the pandemic and will be in a rush to get people back to the office, even if it means getting a vaccine mandate, she said.
The vaccination guidelines that law firms weigh are “a mixed bag,” she said. “For small and medium-sized law firms, it’s anywhere from ‘yes, we’ll make it a requirement so you can get back to work’ to ‘no, we don’t feel like you need it. “If you want to come back, practice safe distancing. ‘”
As a result, there is great confusion among the attorneys she spoke to about what to expect when it is time to get back to the office, she said.
The courts are grappling with the same confusion and seem unsure whether they will issue vaccination mandates for employees, even given the new EEOC guidelines.
Setting up such a mandate could be particularly complicated because of the unique status of many court clerks, said Lucian Chalfen, director of public information for New York State Unified Court System.
“The vast majority of the 16,000 members of the New York State judiciary are either independently elected, appointed by state and local officials, or represented by collective agreements,” Chalfen said.
But court systems could require litigants and attorneys appearing in their courtrooms to be vaccinated, and labor laws would likely not apply in those cases, Mataya said, although he warned the ADA would still do so. Even if companies don’t tell their attorneys to shoot, some attorneys may still need to be vaccinated.
“I would think that the inherent discretion a judge has probably gives them the right to say, ‘I don’t want you in front of me if you haven’t had the right protection,'” Mataya said.
The New York court system is in contact with state health officials regarding the nationwide introduction of the vaccine, Chalfen said. The Connecticut Justice Department is working with the state health department and other agencies to develop protocols for the vaccine, according to a spokeswoman.
The Pennsylvania Courts Administration Bureau, meanwhile, said through a spokeswoman that it is reviewing federal and state guidelines on vaccination protocols. A North Carolina Justice Department spokesman said only that “no policy decisions have been made to require vaccinations for Justice Department employees.”
Such decisions could be withdrawn from corporate and judicial system leaders, at least in New York. At the beginning of December a bill was introduced in the State Assembly which “makes vaccination mandatory for all individuals or groups of people who, according to clinical data, are demonstrably safe to receive such a vaccine”.
This is a move that the New York State Bar Association endorsed. The House of Delegates passed a resolution in November recommending New York to order the vaccine if not enough people are taking it voluntarily. NYSBA spokeswoman Susan DeSantis said a bar task force is currently investigating whether law firms should prohibit unvaccinated employees from returning to the office.
In addition to the uncertainty, there is the possibility that the EEOC guidelines could be revised again, said Eckard, especially with the assumption of office of a new presidential administration in just over a month.
Therefore, like all employers, law firms and courts should act “cautiously” when dealing with workers who raise concerns about vaccination based on disability or religious beliefs, he said.
While the EEOC’s new guidelines appear to be in line with the long-standing principles of the ADA and Title VII, COVID-19 is a novel issue, Eckard said. Both he and Mataya believe there will be a steep learning curve and likely many legal disputes involving employees who refuse to be vaccinated for health, religious, and other reasons.
“It will be a learning experience for everyone when we go through it,” said Mataya, “and people who think they know exactly how it will come out will be in for a surprise.”
– Adaptation by Aaron Pelc.
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