Attorneys from a prominent workforce law firm told contractors that it is within their legal rights to compel workers to get vaccinated against COVID-19, during a webinar hosted Wednesday by the Associated General Contractors of America.
D. Albert Brannen and A. Kevin Troutman, both partners at Atlanta-based Fisher Phillips, compared requiring construction workers to get a coronavirus vaccination to existing rules for healthcare workers that make flu shots mandatory, in order to protect all patients and staff and keep the workplace safe.
The attorneys also recommended contractors set up programs to administer vaccines to workers on jobsites, during work hours and free of charge, in order to get the highest participation possible while ensuring projects continue to move forward.
“We do have a right to be aggressive, to keep the job flowing,” Brannen said. “We are a critical industry and we need to communicate that to our employees, as an explanation of why we expect you to take a vaccination when we make it available.”
Protect the workforce
The attorneys’ recommendations during the AGC webinar, which was attended by more than 900 participants, came on the eve of a scheduled meeting in Washington Thursday, which is the next step toward emergency use authorization for the first COVID-19 vaccine in the United States. The AGC webinar’s initial goal was determining whether contractors can make it a job requirement for workers to get the vaccine.
While Troutman pointed to reports that Dr. Beth Bell, a member of the Centers for Disease Control’s Advisory Committee on Immunization Practices, has said vaccines approved under the Food and Drug Administration’s emergency use authorization cannot be mandated, he said Fisher Phillips holds a different legal view.
“Based on what we've seen, that's an opinion,” Troutman said. “It does come from an authoritative source, but we actually believe these vaccines, once they're approved, even though it’s under the emergency use authorization, that they can be mandated.”
He said doing so must be job related and consistent with a business necessity, and that employers needed to make reasonable accommodations, under the Americans with Disabilities Act, for any employees who can’t comply for specifically allowed reasons.
Beyond those caveats, however, Troutman was unequivocal on whether contractors were legally covered to take such a step.
“Can employers require a COVID vaccine? We think so,” he said, pointing to the precedent of hospitals requiring healthcare workers to get flu shots.
“The idea there is to protect vulnerable patients, but it's also to protect the workforce. You can't operate a hospital with half your staff is infected,” Troutman said. “So there's a lot of reasons that that's been applicable, and under COVID, which has been more severe, why it may be more important to have vaccinations beyond the health care industry.”
Troutman and Brannen highlighted contractors’ obligations under OSHA's general duty clause, which requires employers to ensure safe working conditions. They also pointed to steps taken by the Equal Employment Opportunity Commission to allow employers to require testing and screening for the virus thus far during the pandemic.
“COVID-19 poses a significant risk of substantial harm. It's killed over a quarter of a million Americans,” Troutman said. “One of the reasons that the U.S. has allowed employers as much latitude as they have in terms of doing testing and temperature checking is because of this significant risk of substantial harm if they don't do it.”
At the same time, both Troutman and Brannen emphasized that there are areas where employees can legally decline to be inoculated. Those include medical grounds or sincerely held religious beliefs, or where state or local law prohibits mandatory vaccines.
But even in those cases, the attorneys said, employers have a right to ask for documentation to back up such claims.
“If someone strictly said, ‘I disagree with the idea of taking a vaccine,’ that's not enough,” Troutman said. “You have the right as an employer to have the employee explain to you what that sincerely held religious belief is” or to ask for a note from a doctor. In those cases, employers should offer reasonable accommodations, such as allowing employees to work from home if possible.
One area the lawyers cautioned contractors to be aware of was employees’ rights to protest being required to take a vaccine, as separate from whether they actually comply with any mandate.
“Let’s say you roll out a policy requiring, or strongly encouraging, vaccinations and you get an employee petition signed by a number of employees,” Brannen said. “Many people will say, ‘Well, we'll just fire those people.’ You can't do that under the National Labor Relations Act, even if they don't have a union representing them.”
Instead, he said employers should listen to employees' concerns and document any policies put in place to require vaccination. “If those scenarios come up, you’re going to have to be very careful and seek some advice,” Brannen said.
The pair also stressed that contractors are walking a fine line, because while requiring vaccination typically results in higher participation rates, doing so can incite pushback, as well as potential public relations issues. To address both, they recommend that contractors set up jobsite vaccinations clinics during working hours, that are paid for by employers.
“Come up with a policy that says we expect all of our employees to take the vaccine,” Brannen said. “Then, moreover, we're going to provide you working time to do it, at our site, and we're going to make it easy so there are no obstacles.”
The firm has made sample vaccine policies and procedures available on its website, as well as a 50 state chart on vaccines and exemptions via its Vaccine Resource Center For Employers on its website.