By Jason Resnick, Senior Vice President and General Counsel
It has been more than a year since our lives were first upended by the coronavirus pandemic. The flood of information about the virus, the ever-rising case and death counts, and constantly changing legal guidance has exacerbated the challenge for all employers—especially in food and agriculture and other essential industries. But the vaccines that have been developed in record time, though initially distributed at a snail’s pace, offer the promise of normalcy while causing frustration to those hoping to inoculate their workforces from COVID-19.
The good news is we are trending in the right direction. We have seen a sharp decline in the number of new COVID-19 cases reported since the peak of just over 300,000 cases on Jan. 2, 2021, to a seven-day average of just under 70,000 cases per day by end of February, according to the latest data available from Johns Hopkins University and the Centers for Disease Control and Prevention.
The declining case rate combined with introduction of the coronavirus vaccines is a promising confluence of events. But the United States rollout of the vaccines has been anything but smooth. President Biden has set a target of administering 100 million doses of the vaccine by April 29, which coincides with the 100th day of his presidency. As of late February, 75.2 million doses have been administered, or 78% out of the 96.4 million doses distributed, according to the CDC. The U.S. population is 328.2 million, so we have a long away to go before every American who wants a vaccine can get one. President Biden says he expects that to happen by the end of July. But for that to happen, the pharmaceutical companies must produce more vaccine, and we need to ramp up production and distribution of implements such as syringes, needles, and swabs, and enlist more people to administer the shots.
While the CDC has issued recommendations for who should get the vaccines first, the federal government has left it to the states to establish their own criteria. Most states have prioritized healthcare workers and long-term-care residents first; followed by residents over 65-75 years of age and people with health conditions that put them at high risk. California, for example, prioritizes food and agriculture workers among others identified in the current and next tier down, Phase 1B, Tier 1.
But demand far exceeds supply. Most states’ websites acknowledge the limited vaccine supply, and many of the websites and hotlines set up to schedule appointments are overloaded. Some employers are reaching out directly to their county health departments to help marshal rations of doses to their essential workers. Others are looking to their insurance providers such as Western Growers Assurance Trust, which is poised to administer the vaccine to covered employees once supplies become more widely available.
It is important that companies strongly encourage all employees to get the vaccine as soon as they can. The Moderna and Pfizer vaccines have proven to be about 95% effective. More importantly, these vaccines—and the newly-approved Johnson & Johnson vaccine—appear to be 100% effective at preventing serious disease and death.
To Mandate or Not to Mandate?
It may be tempting for some employers to require their employees to get the vaccine. For an employer to mandate the use of a vaccine, the employer must establish that the vaccine is job-related and consistent with business necessity. While this may not be difficult to do during a global pandemic, any employer mandating or encouraging vaccinations should have a policy articulating why the vaccine is job related and necessary.
At the end of 2020, the U.S. Equal Employment Opportunity Commission provided updated guidance for how businesses may adopt a vaccine requirement in compliance with Title VII of the Civil Rights Act and the Americans with Disabilities Act. The guidance discusses how employers should approach situations in which a worker refuses to be vaccinated because of an underlying disability or their religious beliefs.
According to EEOC, there should be a mechanism by which employees may request exemptions or accommodations, based on a medical condition or a sincerely held religious belief. Employers must be prepared to engage in, and document, an interactive dialogue with any employee who seeks to opt out under either of these exemptions to determine whether a reasonable accommodation would enable them to perform their essential job functions without compromising workplace safety.
The EEOC’s vaccination guidance also confirms that requiring an employee to be vaccinated is not an impermissible “medical exam” because it does not seek information about an employee’s health impairments or health status. However, pre-screening questions by the employer that ask an employee to disclose whether they have been vaccinated might reveal information about an employee’s disability. Therefore, employers should be prepared to demonstrate that the questions, like the vaccine itself, are job-related and consistent with business necessity. The issue is moot if the asking of the questions and the administration of the vaccine is outsourced to a third-party medical provider.
Keep in mind the guidance issued late last year could change under the Biden Administration, so employers should stay abreast of any potential changes. Moreover, even if an employer can mandate vaccinations, it doesn’t mean they should. Distrust for the COVID-19 vaccine remains high among segments of the farmworker population. Companies should consider first rolling out a voluntary program. Some employers are giving COVID-19 vaccine incentives. Managers should be out front publicly demonstrating to skeptical workers that they too are rolling up their sleeves. The message is clear—getting the shot saves lives, for fellow workers, their families, and the community. Employers should proactively address employee concerns explaining why the vaccine is required or encouraged and provide employees with the opportunity to address their concerns.
If the vaccine is required at any time, or voluntarily given during work hours, remember that time spent by an employee waiting for and receiving a vaccine, during regular work hours, is compensable work time.
No Relief from Regulations
While having a vaccinated workplace may keep your workers safe, it won’t get California employers out of having to comply with the Cal/OSHA Emergency Temporary Standard (ETS). As of this writing, employers must still require masking, physical distancing, extensive sanitation, and comply with housing and transportation limitations, regardless of whether workers are vaccinated. Future amendments of the ETS may ease up these requirements for vaccinated worksites, but that is not the case as of now. A lawsuit filed by Western Growers and industry allies challenging the ETS is still pending as of this writing. Simply put, employers that mandate vaccinations, or secure voluntary compliance in large numbers, are not automatically excluded from complying with state laws and regulations put in place to prevent the spread of COVID-19.