Tag Archives: covid-19 workplace

Employers’ COVID Update: To Mandate Or Not To Mandate?

Coronavirus, COVID-19 December 22, 2020 Leave a comment
Employers' COVID Update: To Mandate Or Not To Mandate?

Employers are growing accustomed to facing unprecedented decisions in every phase of this pandemic. As with many of the other situations employers have confronted over the past several months, whether to require employees to get the COVID vaccine as a condition of working on site presents novel issues that differ from mandates for the flu or other approved vaccines. 

Before we get into the specifics of the COVID vaccine, it is important to note, generally, employers are permitted to mandate employees are up to date on vaccinations in the interest of maintaining health and safety in the workplace.  Employers who opt to mandate vaccinations must also make reasonable accommodations for employees who cannot be vaccinated due to certain health conditions or deeply held religious beliefs. Mandatory vaccine programs must follow carefully coordinated protocols to comply with anti-discrimination laws and mitigate risks to employers arising from potential bias and retaliation claims. These steps include developing a system that limits pre-screening requirements to avoid conducting a medical examination, evaluating the risks of an employee’s opt-out, and determining whether alternate work assignments are available. 

In addition to these general rules, the COVID vaccine adds another layer of complication because it is not currently FDA-approved. Unlike a mandatory flu vaccination program, a COVID vaccine mandate requires an employee to receive a vaccine that is only available to the public under an Emergency Use Authorization, a less stringent standard than full FDA approval. As a result, employers who impose vaccine mandates before FDA approval open themselves up to a range of potential liabilities. In particular, employers may put themselves at risk if they terminate employees or refuse to hire candidates who raise public health concerns about the vaccine or a mandatory vaccination program, when the FDA has not approved its use. 

Additionally, current polling suggests up to 35% of the U.S. population may be unwilling to be vaccinated for COVID under the current circumstances, and certain workers are not authorized to receive it (e.g., workers under the age of the applicable Emergency Use Authorization for a specific vaccine formulation).  Those operational impediments to implementation of a mandatory vaccination program might hinder recruitment and retention efforts, and, on top of the legal risks described above, pose additional challenges for employers who want to adopt a COVID vaccine mandate.

Savvy employer takeaway:  For now, employers should, at a minimum, conduct vaccine education programs, encourage vaccination of employees, and, where possible, facilitate vaccination.  Employers who are considering implementing a vaccine mandate should do so only after careful consideration and consultation with counsel and after adopting protocols for vaccination.

The attorneys at Flaster Greenberg are following developments related to the COVID-19 Pandemic and formed a response team and to work with businesses to keep them up-to-date on developments that impact their business. If you have any questions on the information contained in this alert, please feel free to reach out to Adam Gersh, or any member of Flaster Greenberg’s Labor & Employment Practice Group. 

What Employers Can Learn From Early COVID-19 Employee Lawsuits

Coronavirus, COVID-19 April 13, 2020 Leave a comment

Business solutions, success and strategy conceptJust as businesses are beginning to face the initial wave of COVID-19 impacts, lawyers are seeing the first wave of employee lawsuits.  It is premature to even call these the tip of the iceberg, but the lessons from these early cases can prove meaningful and help businesses mitigate risk.

Ordinarily, workplace injuries and illnesses are handled through each state’s workers’ compensation system, but most states have exceptions that allow employees to bring a direct lawsuit for pain and suffering damages if certain conditions are met.  The standards to bring such claims vary state-by-state, but, generally, an employee must show the employer engaged in something more than ordinary negligent conduct (often gross negligence), such as removing a safety guard from machinery.  Certain states allow employees to bring direct claims if the injury occurred under circumstances where an employer knew or should have known with substantial certainty that the injury would occur and those circumstances deviated from standard industry practice.  These claims, especially if there are other similarly injured employees, create significant risk for businesses and may not be covered by insurance.

As it relates to injuries from COVID-19, we are seeing employees claim that they contracted the virus in their workplace because their employers failed to take necessary, industry-standard precautions under circumstances in which injury was substantially certain.  It remains to be seen whether employees will be able to show their COVID-19 complications were workplace injuries and how courts will delineate what employer lapses extend beyond ordinary negligence, but there are important lessons from these early cases that may help businesses limit risk.

In one recent example, the estate of a former Walmart employee brought an action against the retailer in Illinois state court after the employee died from COVID-19 complications.  In the suit, the estate alleges Walmart knew or should have known COVID-19 was present and active in the store, but failed to protect its workers in accordance with industry standards.  According to the employee’s estate, management knew several workers and individuals had symptoms of COVID-19, however, it did not (i) cleanse and sterilize the store in order to prevent COVID-19 infection; (ii) implement, promote and enforce social distancing guidelines promulgated by governmental entities; (iii) provide the employee and other workers with personal protective equipment such as masks, latex gloves, and other devices designed to prevent COVID-19 infection; (iv) warn the employee and other workers that various individuals were experiencing symptoms at the store and may have been infected by the coronavirus; (v) address other workers at the store who communicated to management that they were experiencing COVID-19 signs and symptoms; (vi) follow COVID-19 guidelines issued by OSHA and the CDC, including providing employees with antibacterial soaps and wipes and other cleaning agents; and (vii) implement policies and procedures to promptly identify and isolate sick people as also recommended by the CDC.

Of course, at this stage these are only allegations and we do not have the benefit of Walmart’s response, but the allegations are instructive as they are guideposts to the kind of conduct that may give rise to liability. Paying attention to them will allow employers to implement policies and procedures that will protect employees and mitigate the risk of claims that the employer’s conduct is sufficient to support a claim that seeks recovery beyond that available under through the workers’ compensation system.

Savvy employer’s takeaway: While it presents a unique challenge for employers to meet new and changing guidelines for maintaining operations, it is vital that employers stay abreast of all current federal, state, and local guidance, including guidance from the CDC and OSHA, and maintain and enforce policies consistent with that guidance. 

The attorneys at Flaster Greenberg are following developments related to the COVID-19 Pandemic and formed a response team and to work with businesses to keep them up-to-date on developments that impact their business.  For more information on what employers can do to comply with the changing law and manage risk, we invite you to contact Adam Gersh, or any member of Flaster Greenberg’s Labor and Employment Practice Group.

%d bloggers like this: