Are US employers that don’t mandate vaccines now at risk?
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Covid masks
Robin Samuel
Robin Samuel (pictured) is a partner, Stephanie Priel is an associate, and Autumn Sharp is a knowledge lawyer at Baker McKenzie

With the delta variant rampaging across the US, more employers are requiring their employees to be vaccinated against covid-19 before they can return to the worksite. For the most part, and subject to state and local law, they can do so legally. But what about companies that are not requiring employees to be vaccinated? What risks do they face?

Duty to provide a safe and healthy workplace

The Occupational Safety and Health Act (OSHA) (and most state OSHA counterparts) requires employers to provide a safe workplace free of known safety and health hazards. In light of the potential health implications associated with contracting covid-19, companies that are not mandating vaccines for their workforce could be at a higher risk of facing safety-related complaints from employees and resulting in government agency workplace safety inspections.

In addition, filing a safety-related claim generally constitutes “protected activity,” an employer who takes any adverse employment action against an employee who has filed a safety complaint is likely to face whistleblower and retaliation claims. So, what are some of the ways employers can protect against such claims?

To maintain a safe and healthy workplace, employers should make their best efforts to follow all federal, state, and local health and safety standards. Companies that do not plan to implement mandatory vaccination policies have even more incentive to implement both required and recommended safety standards, as doing so will assist in defending against employees’ safety-related complaints.

Federal guidance

OSHA’s most recent covid-19 guidance for non-healthcare workers suggests that employers should consider adopting policies requiring workers to either get vaccinated, or undergo regular covid-19 testing – in addition to mask-wearing and physical distancing – if they remain unvaccinated. Both OSHA and current CDC guidance further recommend that all individuals, regardless of vaccination status, wear a mask indoors in areas of substantial or high transmission.

OSHA also recommends a multi-layered combination of engineering and administrative interventions to protect unvaccinated and at-risk workers, including maintaining ventilation systems; adopting safe work practices like social distancing and cleaning/disinfection; and providing/requiring personal protective equipment, especially for those who are unvaccinated or otherwise at-risk.

State and local recommendations and mandates

Employers looking to maintain a safe and healthy workplace should also stay current on state and local laws. For example, the Cal/OSHA Emergency Temporary Standards (ETS) require covered California employers to follow a comprehensive set of workplace health and safety rules, in some instances imposing different requirements for vaccinated and unvaccinated employees. In addition, several California counties – including Los Angeles, Sacramento, San Francisco, and Alameda – now have mask mandates requiring employees to mask up indoors, regardless of vaccination status.

Meanwhile, Chicago recently introduced an indoor mask mandate (effective 20 August 2021) covering all businesses in the city, requiring employees who work in settings not open to the public to wear masks indoors unless they can maintain at least six feet of social distancing. Employers should follow the stricter of any applicable guidance/mandates in their jurisdiction to have the best defence against employee claims.

Employees refusing to return on safety grounds?

As a rule, employers can discipline workers for violating a company attendance policy, but there are exceptions:

  • Under OSHA, employees can refuse to work if they reasonably believe that working will pose a threat of death or serious physical harm that is likely to occur immediately or imminently. For this rule to apply, employees must have a specific fear of covid-19 infection based on fact (not just a generalised fear of contracting coronavirus in the workplace), and the protection is lost if the employer is able to address the employee’s fear in a manner designed to ensure a safe working environment.
  • Under the National Labor Relations Act, employees (whether unionised or not) can generally engage in protected concerted activity without facing discipline, including by joining together to refuse to work in unsafe conditions. The refusal to work must be reasonable and employees must have a good-faith belief that the worksite has unsafe working conditions.
  • According to the EEOC’s guidance on covid-19 and the Americans with Disabilities Act, if employees with conditions making it more likely for them to get severely ill from covid-19 request a reasonable accommodation, employers must provide one, unless the accommodation would pose an undue hardship (significant difficulty or expense for the employer). Prior to the pandemic, employers had a great deal of success arguing that remote work was not a reasonable accommodation based on the general belief that many jobs had to be performed in person. Now that most workers have been performing remotely for over a year, those arguments are facing new scrutiny.

As a general point, employers should have a conversation with concerned employees to find out whether their concerns are reasonable, and whether concerns can be alleviated by flexible work accommodations.

Increasingly, employers are mandating vaccines to meet their obligation to provide a safe and healthy workplace. Companies that decide against mandatory policies can help meet their workplace obligation by following all health and safety standards, and working with reluctant employees to determine whether an accommodation is necessary (and exists). These practices will help employers not only provide a safe workplace, but also defend against safety-related employee claims as the pandemic continues to evolve.