Attorney: Talk to employees about vaccinations

By Brice Wallace 

When it comes to dealing with the COVID-19 pandemic, companies thinking about vaccinations should be heavily involved in conversations.

That the suggestion of Michael Menssen, an employment law and business litigation attorney at Stoel Rives who recently had an online chat with the Utah Manufacturers Association (UMA) leader about COVID-related issues in the workplace.

Much of the discussion focused on ways to decrease the likelihood of surprises. And that’s where employers talking to employees comes in.

“One important thing to do while considering whether to [mandate] a vaccine is to communicate with the employees, solicit feedback,” Menssen said. “In today’s world, vaccines have become a very touchy subject. They’re politicized, people have strong opinions, and it’s fair for employers to get a feeling of what their employees want and how they will react.

“I don’t think that it’s wise to come out with a mandate and be surprised by what the reaction is. When considering a mandate, I think you want to know what the reaction will be ahead of time and plan for it. So I would encourage a nice solicitation process on that.”

While the time since last March “has been a tough year,” with many questions for employment lawyers, Menssen said the most common ones now are focused what employers can require their workers to do about getting vaccinations. Menssen said perhaps half of companies are in “the watching and the considering stage” when it comes to mandating that employees get them.

“At this stage, no, not a lot have,” he said. “The ones that have, I think, are ones that you would expect at this stage: nursing homes, healthcare, places where the need for it is quite apparent. But a lot of our clients haven’t yet decided. They’re still considering. They’re still looking at it.”

Earlier this year, a national survey by Digital.com indicated that half of workers would feel uncomfortable going back to work until all employees were vaccinated, and that more than half of employers say they would require the vaccine to return to work.

In March, a study by Qualtrics indicated that most employees supported vaccine mandates, two out of three workers support their employers requiring vaccinations before returning to in-person work, and only about a quarter say their employers have or will make that mandate.

And in late April, a national poll by New Eagle Hill Consulting showed that 49 percent of working Americans believe that employers should require vaccination proof for those employees returning to the workplace, 48 percent of workers agree that employers should require vaccines, and 53 percent believe employers should offer vaccine incentives to their employees. More than one-third of workers say non-vaccinated employees should not be permitted to work in-person with coworkers.

Melissa Jezior, Eagle Hill Consulting’s president and chief executive officer, also emphasized the need for companies to talk to their people.

“The bottom line for employers: They have to keep the lines of communication open with employees and really listen and respond to their concerns,” she said in releasing the company’s survey results. “Employees know their workplace will be different, but managing any type of change is often met with resistance. The stakes are even higher when workplace changes involve employee health and safety.”

The law is relatively clear that employers can require workers to get a vaccination, although some people believe there is “a little uncertainty while the vaccines are in the emergency use authorization only,” Menssen said.

Employees who balk do have options, with laws allowing for exceptions due to health, religious and a few other reasons. Those claiming hardships may be required to provide documentation to their employer, and the employer needs to be able to make reasonable accommodations for them. It can be as simple as requiring that the employee wear a face mask or maintain social distancing from other workers, or reassigning duties, or some sort of temporary situation until society reaches herd immunity.

Menssen stressed that the accommodations need only be “reasonable.” “You don’t need to go to the moon to try to find a solution,” he said, adding that COVID may have changed what is considered an undue hardship on a company.

“If it has created financial difficulties that the company didn’t experience before and they’re no longer in a position to expend as many resources as they had beforehand, the law allows you to take those things into account,” he said.

Companies also can track whether employees have had vaccinations, he said. But he urged companies to be careful with information they receive from employees and ensure that any documentation they get does not contain private medical information. He suggested a simple yes-or-no form.

“We don’t want to be in a situation where we’re asking them why they didn’t get vaccinated, because that’s a question that’s likely to elicit medical information that will trigger ADA standards and get into a different world,” Menssen said.

Companies deciding against mandates may consider using incentives to get workers vaccinated. The most common type is extra paid time off, with gift cards of $50 to $100 also an option. Large incentives are no-no’s because a court might consider the company to be coercing workers to action.

Looking back, Menssen and Todd Bingham, president and CEO of the UMA, said many companies have struggled with the impacts brought on by COVID-19. Bingham said social distancing has been tricky.

“Six feet of space in a manufacturing facility that may not be highly automated can be a real challenge,” he said. “Product is moving from one end to the other end and there’s that interaction, and we’ve seen some incredibly creative solutions from our companies to protect their employees — even as far as hanging Plexiglas from the ceilings to separate employees and controlling air flow and all kinds of things to get through this crazy time.”

“It’s been impressive this year,” Menssen added, “to watch the ingenuity of different companies as they deal with this and try to come up with creative solutions.”

Looking forward, the two suggested planning.

“The light at the end of the tunnel is there; we can see it,” Menssen said. “Most companies, I think, either are or should be developing their opening-up plans, what the ‘new normal’ is going to look like.”

He recommended that companies be flexible and consider two scenarios: one where herd immunity is reached quickly and a return to normalcy takes place, and the other which “isn’t quite so optimistic,” where herd immunity is not reached, COVID remains an issue and precautions remain in place for high-risk individuals. In any case, talking with employees makes sense.

“I think that’s good advice,” Bingham said, “because relating that and communicating that with your team members and your employees of what your plan is, can be a very positive thing in helping those employees know, ‘Hey we’re anticipating coming to the end of this and here’s what we’re going to be doing,’ and help them get their arms around that things are getting back to normal a little bit.”