This article appeared in the May 2021 issue of MiMfg Magazine. Read the full issue and find past issues online.
Navigating the obstacle course of employer and employee rights has never been more challenging than it has been since March 2020.
Mandatory facility shutdowns. Shifting unemployment regulations. Managing layoffs and staff reductions. Determining when employees can come back to work. Implementing new health screening and medical testing policies. Rearranging work stations and workflow to maintain social distancing and limit contact.
These are just some of the COVID-19-related challenges Megan Norris and her team are helping employers with. Norris is the CEO of Miller Canfield, an international law firm headquartered in Detroit with a long history in employment law.
Vaccinations are a critical step toward getting back to business as usual. Although most experts agree that the workplace will never be the same, vaccinations have helped all but eradicate diseases before. With multiple COVID-19 vaccines now in circulation, we can hope that many of the challenges will soon be behind us.
But with vaccines available for nearly everyone and with job providers anxious to return the full complement of workers to in-person work, many employers are wondering if they can require employees to get vaccinated. While the answer is a cautious yes, the better question is should employers require their employees to get vaccinated?
“Employers usually don’t like to tell employees what to do medically. They won’t order an employee to have heart surgery, or get a flu vaccination,” Norris says.
According to the Equal Employment Opportunity Commission (EEOC), employers can implement mandatory COVID-19 policies, but there are certain religious exemptions, as well as the possible need to excuse an employee as an accommodation under the Americans With Disabilities Act (ADA). In addition, for unionized employers, a mandatory vaccine policy may require some additional agreements with the union before implementation. And all employers must be wary regarding possible consequences for employees who refuse to get vaccinated, and mindful of whether any corrective action issued to employees for engaging in opposition to their mandatory vaccination policy violates the National Labor Relations Act (NLRA).
Whether employers make vaccines mandatory or offer incentives, they must be aware that some exceptions exist. Laws protecting an employee’s privacy, such as the Health Insurance Portability and Accountability Act (HIPAA), the Genetic Information Nondiscrimination Act (GINA) and the ADA come into play. And, if an employer does nothing at all regarding vaccines, COVID-19 meets the EEOC’s definition of a “direct threat,” so employers must consider whether an unvaccinated employee could be considered a direct threat to the health of their workplace.
Perhaps the biggest firewall employers can have for protecting themselves against COVID-19-related issues in the workplace is their screening policy.
“You want to keep a written record of this. Because if you do turn someone away or someone says they can’t come in, you want to have a documented reason for that and that should be kept separate from their personnel file because it can include confidential medical information,” Norris advises.
Norris recommends that all employers have some legal guardrails as we continue to slowly but surely return to a new normal. “Every business is different. There are no one size fits all solutions,” she adds.
Miller Canfield is an MMA Premium Associate Member and has been an MMA member company since February 1989. Visit online: millercanfield.com.