Pandemic Protection – More Than a Mask is Needed for the Workplace
COVID-19 changed everything for many U.S. workers and businesses. While our society has faced serious illnesses before and the U.S. has pushed out large scale vaccination plans (think smallpox and polio), COVID-19 became the first virus to threaten U.S. and world populations since computers and Internet became workplace staples. It has also become the first virus to result in a concerted worldwide response, with many nations implementing unprecedented vaccination programs.
While many faced uncertainties at work, large numbers of Georgia’s workforce saw their homes transition to their office space. With the rollout of vaccination programs, approximately 22% of our population having been fully vaccinated and 36.4% having received at least one dose (as of 6:00 a.m. on April 12, 2021; see https://covid.cdc.gov/covid-data-tracker/#vaccinations), many businesses are contemplating resuming normal or modified in-person operations. So, what does this new normal mean for Georgia’s workers?
One important thing to remember is, while COVID has changed – and will continue to change – how we work, it has not changed employees’ basic legal rights. Whether you are working at an office, a factory, or your kitchen table, you have the same rights to be free from illegal discrimination and harassment that you had before COVID. You have the same rights to reasonable accommodations for your disabilities that you had before COVID. You have the same rights to overtime pay if you are covered by the Fair Labor Standards Act: overtime work is overtime work, no matter whether you work the extra hours at a desk in your office or on your couch with a laptop.
But, as more and more employers resume normal operations, or implement new procedures for the new normal, employees will face a new and unique set of questions. What happens if I refuse to be vaccinated? Can my employer terminate me? If I return to work in a traditional office setting and then contract COVID-19, is my employer responsible?
Many questions exist and the fact is, and many of them do not have simple answers. It can often take years for the law to change and evolve. For instance, the Families First Coronavirus Response Act (“FFCRA”) and related laws provided some employees with paid sick leave for COVID-19 illness. However these pieces of legislation are not one-size-fits-all. Sadly, not all employers applied the provisions of the FFCRA the way the Act intended. Lawsuits have been filed and will require time to make their way through the court system. Legare, Attwood & Wolfe has a number of clients with FFCRA and Covid-related ADA claims, including the recently filed Varnadoe v. Golden State Foods Corporation (NDGA 1:21-cv-00964-ELR-RDC). The outcomes of cases like this one are likely to become the basis for pandemic-related employment law and will help define how workers are protected – or not protected – in America’s future. But where does that leave the American worker today?
Can an employer mandate its employees be vaccinated against COVID-19? There is no easy answer. In an at-will employment state like Georgia, an employer has wide latitude to terminate an employee, probably including for the employee’s refusal to get vaccinated. But what if the employee’s objection to the vaccine is based on a strongly held religious belief? Federal Courts in recent years have been increasingly willing to create and expand religion-based exceptions to federal laws, and they have struck down several State measures aimed at curbing the spread of the virus on the basis that such restrictions violated religious rights. See, e.g., Tandon v. Newson, 593 U.S. __, Case No. 20A151 (U.S., April 9, 2021) (granting injunctive relief to worshipers challenging California’s COVID restrictions). On the other hand, employers have a duty to provide a reasonably safe working environment for their employees. O.C.G.A. § 34-2-10(a) (“Every employer shall furnish employment … reasonably safe for the employees therein … and shall do every other thing reasonably necessary to protect he life, health, safety, and welfare of such employees”).
And what balance should employers, and the law, strike between one employee’s religious objection to the vaccine and his or her coworker’s right to a reasonably safe working environment? Whether or not a vaccine issued under an Emergency Use Authorization can be mandated is another potential gray area of law. It is likely the answer to this question will only be known several years from now – and it is easy to foresee that there will be more than one answer, depending upon factors like whether you work for a public or private employer, the nature of the business, the risk of the position, etc. For example, it is easy to predict that a frontline healthcare worker has an elevated potential for workplace exposure and infection over that of a fulltime remote worker. Individuals may face circumstances where they are asked to take measures that make them uncomfortable. A seasoned employment attorney can help you understand the potential outcomes of decisions that impact employees.
Another question we have seen often is: what if an employee refuses to take the vaccine because a doctor advises it isn’t safe given the employee’s disability? In some circumstances, an employer may be required to allow the employee to pass on the vaccine as an accommodation for the disability. In others, waiving a vaccine requirement may create an undue hardship on the employer, absolving it from the obligation to provide such an accommodation. The facts related to one person’s employment conditions often differ enough to make it difficult to apply a single response. When faced with COVID-related work concerns, it is imperative that the employee locate legal counsel who can apply a holistic approach to the problems. COVID-related employment claims are highly situational and require individual review and consideration.
While it may take state and federal legislatures and courts a long time to work out the answers to these and other COVID-related questions, many employers have teams of attorneys advising them and helping them plan and prepare. As an employee, you face your own challenges and uncertainties, and, if you feel like your employer has violated your rights, a good lawyer on your side can make all the difference. To see if we can help, contact LAW.
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