For our latest roundtable, I hosted Devjani Mishra, shareholder at Littler Mendelson, P.C., the world’s largest dedicated employment and labor law practice. Devjani brings a wealth of practical and strategic experience, as she advises employers on how to navigate workplace continuity while businesses begin returning to an increasingly in-person reality fueled by the promise of widespread COVID-19 vaccinations.
Here are some of the key takeaways from my conversation with Devjani:
Employers should recommend their staff get vaccinated
Although employers may mandate (with some exceptions described below) that their workers receive COVID-19 vaccinations, Devjani adopts a softer suggestion, and “recommends to recommend” the vaccine. Acknowledging practical considerations, all the more poignant following a recent pause for the Johnson & Johnson vaccine, Devjani cautions that it still may take months before the majority of working-aged Americans have completed the vaccine process.
In the meantime, Devjani noted that employers can certainly encourage and incentivize employees to get vaccinated. While some geographies have state or local leave policies that apply specifically to COVID-19, employers can provide employees with paid leave to allow for vaccination (and any potential reactions to vaccination). But even after vaccines become widely accessible, some employees may have legally protected considerations that prohibit vaccination and require accommodation.
If you require, make room for accommodations
Because the U.S. Food and Drug Administration has approved the COVID-19 vaccines only for emergency use, employers who mandate vaccines should expect to encounter workers with protected objections under the Americans with Disabilities Act or similar state and local statutes. This includes people with medical conditions or disabilities and sincerely held religious sentiments, such as:
- pregnant and lactating women
- people with disabilities
- individuals with allergies to vaccine components
- religious denominations that have theological objections
Employers should treat requests for a waiver from a vaccine mandate as they would any other request for reasonable accommodation: don’t over-engineer your response and accept the same type of documentation you would collect for different health or religious accommodation.
Note: An employee’s general anti-vaccination position is not --without more-- protected speech or a protected category that requires accommodation.
Requiring vaccination may create liability for related health complications.
Requiring, as opposed to recommending, vaccination also creates other potential risks for employers. For example, if an employee opts to get vaccinated and, as a result, either becomes sick or manifests a side effect, the employee may be eligible to receive benefits under the federal Countermeasures Injury Compensation Program (CICP).
However, if an employer mandates workers get vaccinated as a condition of returning to work and term of employment, if the worker suffers a vaccine-related illness or injury, the employer may find themselves on the hook for a workers' compensation claim that falls.
Employers may collect proof of vaccination
Since we do not yet have federal public health guidance on vaccine status, Devjani stressed that employers may ask employees to provide proof of vaccination.
Requesting an employee to provide proof of vaccination does not implicate the Health Insurance Portability and Accountability Act (HIPAA). Employers, however, must protect such information as they would any other private employee data. That is, even if they don’t fall under HIPAA, photos or records indicating vaccine status may fall under other data privacy laws (e.g., the California Consumer Privacy Act and similar statutes). For this reason, employers should take care to:
- clearly convey their intent for collecting and using vaccine-related information
- separately store and protect the information from an employee’s personnel folder, where its inclusion might bias an employee assessment or other employee-relations matter.
Note: Businesses that use Instawork to post and fill staffing needs can benefit from offloading these tracking requirements for their contingent workforce. As our COVID-19 response evolves with vaccine availability, Instawork can collect and protect vaccine-related information for the Professionals who use our platform.
To be clear, protecting and tracking a vaccinated workforce can help employers begin to return to a pre-pandemic work environment. For example, an employee who completes a full course of vaccination (including waiting two weeks after the final dose) doesn’t need to quarantine if they are exposed to someone who tests positive for COVID-19. Similarly, an employer can more confidently allow vaccinated employees to relax social distancing within the workplace.
Vaccines and contingent workers
Devjani shares that businesses can include vaccine status as a preference for contingent workers. However, she cautions that in the near-term, as with corporate employees, businesses should consider balancing the benefits of a vaccine “mandate” for contingent workers against practical factors such as vaccination adoption rates. For example, as of April 2021, only one-third of health workers and the military have been fully vaccinated. It would be difficult to expect non-essential agencies to have an adequate number of people who are both qualified and vaccinated to do the work.
Lean on your staffing agency. Because of potential consumer privacy risks associated with hosting vaccine-related information, for contractual workers, Devjani recommends relying on your service providers (like Instawork!) when implementing vaccine preferences. Companies that provide staffing solutions, whether through convenient software platforms or as more traditional staffing companies, already function to filter workers according to basic skills, education, certifications, and availability. Adding vaccine status, and offloading the record-keeping, streamlines the onboarding process.
Note: As with other pre-placement screening, businesses using contingent workers should not expect to receive worker-specific vaccine details from their staffing partners. Similar to background checks and, where applicable, drug screening, companies will simply confirm that a worker has met any business-specific requirements. That is, rather than providing copies of vaccine confirmations or “passports,” businesses will simply set their vaccine preferences and receive a “passed” or “didn’t pass” notice for potential workers.
Ensure employee safety without a vaccine mandate
Even when available, vaccine policies don’t provide employers with a “silver bullet” to knock out the risks associated with COVID-19. As mentioned above, accounting for accommodation, vaccine-related complications, and the potential long-term efficacy of vaccines means that our coronavirus challenges will likely persist well into the foreseeable future.
As a result, irrespective of vaccine policy, Devjani recommends that employers continue to follow established safety guidance from the CDC and OSHA, like wearing masks and practicing social distancing.
Note: The regulatory response to COVID-19 does not stop with federal agencies; state and local bodies have increasingly issued a patchwork of guidance and regulation. Because there’s so much information, and our understanding of the impact of the virus and vaccines continues to evolve, Devjani recommends regularly checking the COVID-19 websites created by the Department of Health and the Departments of Labor for your state. Also, check out Littler's COVID-19 resource center.
Another piece of valuable workplace guidance
How Instawork manages workplace expectations
At Instawork, the independent workers, or “Professionals,” who use our platform can submit photographs of their vaccination cards to demonstrate when they are fully vaccinated. We’ll safely store this information and ensure that they comply with your specific staffing requirements, whatever they may be or how they develop.
For the independent Professionals who use Instawork to provide their services as independent contractors, we provide access to occupational accident insurance as a resource for covered work-related injuries. And every Professional who accesses Instawork as a W2 employee of AWS is covered by a workers’ compensation policy.
Furthermore, every Professional who fills a work opportunity through Instawork must complete a health safety checklist and take a health safety quiz before each gig to confirm they are not experiencing COVID-19 symptoms.
We’ve also implemented contact tracing amongst Professionals for any known COVID exposure, and we pull any impacted Professionals from shifts within 24 hours unless they can share a negative test result.
Instawork is a leading flexible staffing solution located in over 20 metro cities, including California (SF Bay Area, LA, San Diego), Texas (Austin, Dallas, Houston), Boston, Chicago, Las Vegas, Miami, NJ/NYC Metro, Phoenix, and more.