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Construction employers advised to consider legal impacts of mandatory vaccination policies

PMG: FILE PHOTO - Signage outside OCPD. Oregon workers may have to get vaccinated against Covid-19 to continue to work on the job.

As the development and distribution of a COVID-19 vaccine edges closer to becoming a reality, some employers are asking whether they should implement a mandatory vaccination policy for employees, particularly in light of flu season taking place during the pandemic.

A webinar being presented Wednesday by Associated General Contractors of America addresses construction employers specifically and is intended to help them understand the current legal landscape that is relevant to the vaccine issue and assess their options.

Webinar presenter Kevin Troutman, a partner in Fisher Phillips' Houston office and a member of the firm's COVID-19 Taskforce, said construction employers should first evaluate and prepare to explain how and why a vaccination requirement relates to their employees' duties.

"For example, if an employee's duties require little or no contact with other people, is a vaccine necessary? This may help an employer decide whether to require or simply encourage employees to take the COVID vaccine," he said. "Considering these questions early will also help better prepare the workforce to understand and support the company's decisions. In an essential industry like construction, most employees will likely have contact with others at least part of the time, which obviously requires precautions to help prevent spread of the virus."

PMG: FILE PHOTO - Oregon workers may have to get vaccinated against Covid-19 to continue to work on the job.

Brian Chenoweth, managing partner at Chenoweth Law Group in Portland, advises employers to be careful of employees' religious and belief-based objections to vaccinations. Requiring an employee to get a vaccination when they have a religious reason to deny it could run afoul of anti-discrimination or religious liberty laws.

"Employers should allow employees to present belief-based excuses to the vaccination. However, the employee needs to provide evidence of a 'sincerely held religious belief' under Title VII in order to claim an exemption," he said.

To show a sincerely held religious belief the employee must make a case that a bona fide religious practice conflicts with an employment requirement, according to Cloutier v. Costco Wholesale Corp. Courts look at the person's conduct and her professed religious beliefs and look for consistency. Inconsistencies are not fatal, though, as shown in EEOC v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico.

"An employer can deny an exemption if it presents an 'undue hardship' to others, but that's a high bar. When considering whether an exemption causes an undue hardship, courts consider factors like 'an assessment of the public risk posed at a particular time, the availability of effective alternative means of infection control, and potentially the number of employees who request accommodation,'" Chenoweth explained.

He cited the U.S. Equal Employment Opportunities Commission Informal Discussion Letter dated March 5, 2012, and Leontine K. Robinson v. Children's Hospital Boston, which discuss undue hardship in the context of the hospital's policy requiring a mandatory flu vaccine for nurses.

Under the Americans with Disabilities Act, Chenoweth added, vaccines are considered a medical procedure and the employer should have a legitimate, job-based reason for requiring vaccination.

"For example, nursing home employees or COVID floor nurses are the quintessential examples of occupations that should be required to receive the vaccination," he said. "Working outside on a construction job site presents a much less compelling reason to require a COVID vaccination, whereas workers sharing an enclosed space such as a job site trailer or performing construction work in an occupied hospital may present a compelling reason."

PMG: FILE PHOTO - Construction workers at Ogden conduect a stand down meeting. Oregon workers may have to get vaccinated against Covid-19 to continue to work on the job.

Another consideration under the ADA is whether an employee has a disability that prevents them from taking a vaccine. In the event of either a religious or ADA-based objection to the vaccine, the employer should engage in a dialogue with the employee to see if they can reach a reasonable accommodation.

"Because we're in a pandemic, the federal EEOC has recognized that employers can ask more questions of their employees to corroborate claims than they normally would be allowed to ask," Chenoweth said.

In cases where employees are subject to a collective bargaining agreement through a union, there may be aspects of that agreement that constrain employers on these issues. He questioned whether employers are going to provide paid sick or medical leave to employees to allow them to get a vaccination, and noted that they probably should.

In terms of both the COVID and flu vaccines, Chenoweth said that if an employer is going to pay for employees' vaccinations, they should talk with their CPA to determine how to treat that payment in terms of its deductibility or a taxable benefit to an employee.

Fisher Phillips' Troutman said that, from a legal perspective, the reason for an employee's refusal to be vaccinated is vital to determining how the employer must respond. Companies must also ensure compliance with state and local laws that may be applicable.

"If employers take these steps on the front end, they will be well-positioned to accomplish their goals, which is to implement a policy that maintains a safe and effective workplace," he said.

In an article posted Monday, the National Law Review noted that the EEOC updated its Pandemic Preparedness in the Workplace guidance on March 19 to address COVID-19, and is likely to update it again soon to address the issue of mandatory vaccination requirements in the workplace. The article also suggests that mandatory vaccination policies may actually have a negative impact on employee morale, retention and recruitment and that a voluntary policy may be more effective.

Melody Finnemore (This email address is being protected from spambots. You need JavaScript enabled to view it.) is a contract writer who regularly contributes to the Business Tribune.

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