The Big Vaccine Question

The vaccine is, of course, a game-changer, but one of the key questions is whether employers can require employees to get it before returning to the office. Before the vaccination rollout, Lexion, a contract management software company, surveyed its team and found the majority of staffers weren't comfortable returning to the office. The company plans to poll workers again to get a handle on the amount of office space it will need later this year.

"I envision that I will take a first crack at writing the [return] plan and policies, then sharing it with the leadership team, for their input," said Jessica Nguyen, Lexion's chief legal officer. Her company does not have a chief HR officer. "Luckily, everyone's thinking about this. So there's no need to start from scratch."

Nguyen knows of several tech companies in the Seattle region that plan to have a vaccine mandate for employees. At this point, Lexion isn't taking that route. Instead, Nguyen expected the company's employees will sign a waiver acknowledging that they're agreeing to return to the office and are aware of the risks involved.

"I empathize with some of the discomfort employees might have, even if they're not high risk, with taking a new vaccine," she said.

Requiring employees to be vaccinated before they step foot in the office is likely to generate pushback for a variety of reasons, including from staffers who refuse to get vaccinated for personal or religious reasons, and for potential privacy concerns under the Health Insurance Portability and Accountability Act.

"Does that violate HIPAA, because you're asking people to confirm if they got the vaccine or not?" said Jean Lee, president and CEO of the Minority Corporate Counsel Association. "There's now some judgement around people who are or are not vaccinated. It's very private and personal information."

Jonathan Segal, a partner in the employment, labor, benefits and immigration practice group at Duane Morris, has noticed companies have begun to shift their thinking over whether they will require staff to get a vaccine.

Companies are also situated differently, noted ACC's McDonald. "Could United Airlines mandate a vaccine? I can see them taking that risk," because of the extent to which their employees interact with the public. "But other organizations are going to be looking at it in a different way," she said.

'Let's Revisit This in May'

Guidance is slowly emerging from state legislatures. An employer can indeed require that employees be vaccinated in California, as long as there is a path for exemptions, according to guidance from the state's Department of Fair Employment and Housing. Segal said that in itself is a shift in thinking, considering that California is one of the strictest states in what it allows employers to do. A bill in Wisconsin that would have barred companies from mandating vaccines, was vetoed in February. In Pennsylvania, Republicans have also put forward a bill to ban companies from mandating vaccines.

"Employers want to make that decision on their own," Segal explained. "More employers who were thinking 'no way' on the mandated vaccine are now saying 'let's revisit this in May.'" The religious exemption is broader than many employers think it is, Segal said.

There is little that can be done to get around the religious exemption, Segal said. Employers, at their own risk of violating privacy rights, could ask if an employee has been given other vaccinations in the past.

If so, employees who are claiming a religious exemption may not qualify for the exemption if they admit that they received other vaccines in the past, and are simply mistrustful of the COVID-19 vaccine.

Scott Nelson, a partner at Hunton Andrews Kurth, emphasizes that an employer cannot take adverse action against an employee who refuses to get vaccinated if they have a disability or religious objection to the vaccine. These employees require a reasonable accommodation, he said. "Paid, remote work from home is a reasonable accommodation." Ironically, he added that could incentivize employees not to get vaccinated, so they could work from home as a permanently perk.

Focus on the Undue Burden

Carol Goodman, a partner at Herrick, Feinstein in New York and chair of the firm's employment practice, said companies should be less focused on an employee's religious objections, and more vigilant about whether the exemption creates an undue burden for the employer. An example of a nonvaccine undue burden would be if a teacher needed to leave for one hour during the day for a prayer service, and the school could not get coverage. In that case, the company would not have to provide a religious exemption. In the context of COVID-19, Goodman said, an employer would have to weigh the burden of having an employee who is not vaccinated coming into work against the potential risk posed to others.

"You should ask fewer questions about the sincerely held belief, and focus more on an undue hardship," Goodman said.

An undue hardship is largely dependent on the industry, and whether the position is customer-facing, she explained. Then there has to be a question of whether an employer will allow an employee exempted from a vaccination requirement to work from home.

While many legal departments and their organizations are weighing the benefits of mandating vaccinations, they are also weighing the pros and cons of incentivizing employees to get the vaccine.

Making Incentives

Right now, Goodman said, the EEOC is advising against giving monetary incentives to employees who opt to get the vaccine. There is little guidance beyond that.

Large law firms have offered various carrots to employees. Dechert and Norton Rose are both offering up to eight hours paid leave for workers to get vaccinated during the workday. Hogan Lovells's policy is that, if employees have an appointment for a vaccine, they don't need to take PTO to receive it. Same for Robinson & Cole. Furthermore, Robinson & Cole is giving employees four hours of additional leave in New York and two hours in its offices in other states to get vaccinated.

Davis Wright Tremaine announced in January that it will require vaccinations for those who want to return to the office, but few firms appear to have followed suit.

ACC's McDonald said education is as critical as incentives. "You're going to make sure they have facts about the vaccine from credible sources," she said, mentioning employees who are vaccine-hesitant. Some members of minority communities have long been overlooked or poorly treated by the medical establishment, she noted. She recommends acknowledging their concerns and eliminating obstacles to getting a vaccine. "Bring medical personnel to your work site, so people can get the vaccine at their workplace," when it becomes as available as the flu shot, McDonald said.

"Some organizations are giving employees extra paid time off or adding PTO and incentives to go out to get the vaccine," she noted.

Segal said one of his clients has offered a gift card for employees who get the vaccine, but created an alternative path for employees exempt from the vaccine to obtain the gift card. "You have to come up with something that is just as easy as going out to get the vaccine," Segal said.

However, from a risk perspective, Segal said he is not a fan of coming up with an alternative method for employees to receive incentives. He said it looks as the company is trying to create a burden on the unvaccinated employees. If an employer fired an employee at a later date for something unrelated to vaccination, he imagined the employee's attorney might say that the reason offered for the dismissal was merely a pretext, and the real reason for termination was the vaccine.

The Mask Mandate

As for mask-wearing requirements, most companies appear to be following local guidelines. One in-house lawyer, who declined to be identified, reported that employees were not wearing masks while working at their desks, but were required to mask up in hallways and public spaces. "People cannot or will not wear masks eight hours a day," they said.

Nelson, of Hunton Andrews, observed the paradoxes. "You want to draw people into work," he said. "The office is important for building relationships and fostering collaboration."

Yet the open-office plan, which was widely loathed, he said, will keep employees away. "Private offices are a way to get people back to their offices," and people can take off their masks, increasing their comfort level. Thus, employees will likely expect more private or isolated offices. Ironically, he added, people did like the common areas offered by many establishments, such as the break rooms, kitchens or even office supply and photocopy centers, but many people will be reluctant to use them, for fear of infection.

Hoteling might rise, Nelson said, "But again, people will expect private offices," he said, even if their office is not permanently assigned to them, as in hoteling.

Before corporations can decide on whether vaccinations, masks and private offices are a required part of employment, they have to decide if coming back to the office will happen at all. Kevin Meek, the general counsel and chief financial officer of Z2 Comics in Los Angeles, said his company has not yet identified a plan for coming back to work.

He said the pandemic has shown that employees can work efficiently from home. Thus, some corporations started to move away from the idea that employees must be in the office at all. Some companies have asked Herrick's Goodman if they can stagger employees' return, requiring those who have already been vaccinated to return first. However, many of those who have been vaccinated are older, or health compromised. Corporations need to be careful to treat everyone equally in that situation.

"I think it does depend on industry," Goodman said. "Whether remote work is going to be the norm, as opposed to a company that is going to need the majority of employees to come back to operate."

The ACC's McDonald said the new normal will involve many people working from home more often. "It used to be one day a week," before the pandemic, she said.

Post-COVID, "We will see more flexible workweek schedules, more hybrid models of people working remotely," with an emphasis on employee wellness as well as productivity.