As we approach the two-year mark of the COVID-19 pandemic, employers large and small continue to struggle with the legal and practical challenges of running a business in a pandemic.  This article discusses the current status of the law and offers some practical pointers for managing 
COVID-19 in the workplace.

In an attempt to improve vaccination rates around the country, the Biden administration implemented several rules requiring different populations to get vaccinated. The rule most relevant for AFS membership was the “shot or test” rule adopted by the Occupational Safety and Health Administration (OSHA). Under that rule, employers with 100 or more employees had to require employees to get vaccinated or be tested weekly. In January, the U.S. Supreme Court rejected the OSHA shot or test rule, ruling that OSHA exceeded its legal authority in implementing the requirement.  

Even though the Supreme Court invalidated the OSHA shot or test rule, all employers, regardless of size, remain subject to OSHA’s General Duty Clause, Section 5(a)(1), which requires employers to provide their workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. The most effective way to comply with the General Duty Clause as it relates to COVID is to adopt and comply with the Centers for Disease Control and Prevention (CDC) COVID guidelines and recommendations, including social distancing, masking, quarantine, and isolation, among others.  
Employers who want to take a more aggressive stance to prevent COVID in the workplace are not limited to requiring masks and social distancing in the workplace; they may require employees to be vaccinated, subject to limited exceptions. In some circumstances, federal law requires an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. An employee who does not get vaccinated due to a disability (covered by the Americans with Disabilities Act (ADA)) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.  

The ADA imposes additional COVID-related obligations on employers.  An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks—with no other consequences—will not have an ADA disability that could make someone eligible to receive a reasonable accommodation. In some cases, however, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability. Depending on the specific facts involved in an individual employee’s condition, a person with COVID-19 has an actual disability covered by the ADA if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.” An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances. 

Not surprisingly, employers are facing a variety of COVID-19 related lawsuits from their employees:

• Employees claiming their employer terminated their employment because they complained about an unsafe workplace.
• Employees claiming their employer refused to reasonably accommodate a disability related to COVID-19.
• Employees alleging their employer terminated their employment because they had COVID-19 or missed work due to COVID-19 symptoms.
• Employees alleging their employer failed to give them an exemption for a sincerely held religious belief or medical condition that prevented them from getting a mandatory vaccination.  

Of course, managing COVID-19 in the workplace is not the only challenge facing employers these days. Many, if not most, companies are facing a severe labor shortage, and the way in which an employer manages COVID-19 could directly affect whether people are willing to work there. For example, a good percentage of people oppose mandatory vaccinations for a variety of reasons, including religious, social, political, and medical, among others. Requiring all employees to be vaccinated inevitably will cause some employees to quit and other people not to apply for employment. Conversely, other people are primarily concerned about their safety and health and do not want to be around other people who are not vaccinated. Such people are unlikely to want to work for an employer that does not require its employees to be vaccinated.  

Ultimately, each employer must decide for itself how best to manage COVID-19 in its workplace, considering its industry, business needs, employee relations strategy, legal considerations, and financial condition, among other relevant considerations. (Some states and local units of government have additional COVID-19 related laws and rules that may affect your workplace. Be sure to consider any state or local laws when evaluating your workplace strategies.)  Regardless of the approach, employers should communicate clearly, honestly, and directly with their employees about their COVID-19 policies.  And, as with all policies, employers must consistently and fairly apply the rules to everyone.     

Tony Comden is an employment law attorney in Grand Rapids, Michigan.  He may be reached at comdent@millerjohnson.com. 

Click here to read the column in the March 2022 digital edition of Modern Casting