Employers play a key role in protecting the health and safety of their employees during a pandemic outbreak. A “pandemic” is a global epidemic. There have now been five such pandemics in the last century:
As many employers are now experiencing first-hand, a pandemic can have a major impact on business operations. For example:
These and other potential effects underscore the importance of disaster planning, making it crucial for employers to have a pandemic preparedness plan to minimize the risk and panic of employees and, at the same time, provide continuity in business operations. Employers should:
The Department of Health and Human Services (HHS) and the Centers for Disease Control and Prevention (CDC) have developed guidelines to assist businesses in planning for a global outbreak of influenza and other comparable catastrophes. The mantra for such plans, as noted by the Obama Administration during the 2009 outbreak of H1N1 and currently being exhibited by the Trump Administration through the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security Act (CARES Act), encourage employers to “be flexible and non-punitive” when dealing with pandemic outbreaks.
A successful pandemic preparedness plan includes a variety of measures to protect workers and ensure that the business operations can continue. Specifically, a plan should consider:
A pandemic preparedness plan should identify, at a minimum, the following steps to keep employees from getting sick:
In addition to steps referenced previously, employers should take additional steps to prevent the spread of viruses if the conditions become more severe. These additional steps include:
There are currently no federal or state laws preventing an employer from requiring all employees – physically entering the workplace – to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII of the Civil Rights Act (Title VII) and the Americans with Disabilities Act (ADA) and other equal employment opportunity (EEO) considerations discussed herein.
In some circumstances, Title VII and the ADA require 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 for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) or for religion.
An employee who chooses not to get vaccinated because of a disability (covered by the 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.
An unvaccinated employee entering the workplace might:
• wear a face mask
• work at a social distance from co-workers or non-employees
• work a modified shift
• get periodic tests for COVID-19
• be given the opportunity to telework
• accept a reassignment.
To determine if an unvaccinated employee poses a “direct threat” in the workplace, an employer first must assess the employee’s present ability to safely perform the essential functions of his or her job. The factors that make up this assessment are the:
• duration of the risk
• nature and severity of the potential harm
• likelihood that the potential harm will occur
• imminence of the potential harm.
The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Such medical knowledge may include, for example, the level of community spread at the time of the assessment. Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s healthcare provider, with the employee’s consent, also may provide useful information about the employee. Additionally, the assessment of direct threat should include factors such as:
• whether the employee works alone or with others or works inside or outside
• the available ventilation
• the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees
• the number of partially or fully vaccinated individuals already in the workplace
• whether other employees are wearing masks or undergoing routine screening testing
• the space available for social distancing.
If the assessment demonstrates that an unvaccinated employee with a disability would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Potential reasonable accommodations could include:
• requiring the employee to wear a mask or work a staggered shift
• making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees )
• permitting telework if feasible
• reassigning the employee to a vacant position in a different workspace.
As a best practice, an employer introducing a mandatory COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination status should notify all employees that it will consider requests for reasonable accommodation based on disability on an individualized basis.
If an employee is choosing to be unvaccinated due to his or her sincerely held religious belief, practice or observance and communicates his or her inability to be vaccinated for any of these reasons, the employer must provide a reasonable accommodation unless it would pose an undue hardship. Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available. Such requests should be processed according to the same standards that apply to other accommodation requests.
Under Title VII, some employees may seek job adjustments or may request exemptions from a COVID-19 vaccination requirement due to pregnancy. Such employees may be entitled (under Title VII) to adjustments to keep working if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion.
If an employee seeks an exemption from a vaccine requirement due to pregnancy, the employer must ensure that the employee is not being discriminated against compared to other similar employees in regard to their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees. Employers should ensure that supervisors, managers and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.
As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on – or disproportionately excludes – employees based on their race, color, religion, sex or national origin under Title VII – or age under the Age Discrimination in Employment Act (ADEA).
Because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement than others.
It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age or genetic information, unless there is a legitimate nondiscriminatory reason.
The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination. Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.
The legal issues surrounding companies choosing to levy surcharges on the unvaccinated rather than imposing vaccine mandates on all of its employees were addressed in specific guidance from the Department of Labor (DOL), Health and Human Services (HHS). The guidance confirmed that employers can incentivize employees by offering discounts on monthly insurance premiums for those who have been vaccinated for COVID-19 or impose insurance “surcharges” for those who choose not to be vaccinated (for reasons other than due to a medical condition). However, there are certain protocols, of course, that must be adhered to:
The guidance does not require an accommodation for religious or other non-medical reasons. There is also no prohibition against allowing employees to meet the vaccination criteria at any time during the year.
The creation and implementation of a Pandemic Preparedness Plan (PPP) should consider the overlap of several employment related statutes.
The Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with up to 12 weeks of unpaid leave during a “12-month period,” for various qualifying reasons. Qualifying reasons include:
In certain circumstances, workers or their family members who contract an illness similar to the H1N1 virus may be eligible for FMLA leave. To make this determination, the degree of illness needs to constitute a serious health condition. Employers who become aware of an employee's need for FMLA leave must notify the employee of his or her eligibility, either orally or in writing.
The Families First Coronavirus Response Act (FFCRA) has expanded the FMLA to include family and medical leave in the event of a “public health emergency.” Under this new law employers with fewer than 500 employers are required to provide leave for employees to care for children due to school closures or the loss of a caregiver due to COVID-19. For more information see the Families First Coronavirus Leave Act chapter.
Under Occupational Safety and Health Act (OSH Act), employers have a general duty to provide their workers with a safe workplace. This duty implies potential liability if an employer flagrantly allows a serious ill employee to remain at work. As such, employers should identify possible work-related exposure and health risks to your employees and in the event of pandemic, employers should send employees home if they display virus symptoms. See the Safety and Health chapter for more information.
The Americans with Disabilities Act (ADA) prohibits employers from discriminating against “qualified individuals” with a disability. Generally, an employee who suffers from a one- or two-week bout with H1N1 would not be considered disabled, however, employers should take care not to make inquiries about work availability that are disability related. For those employees who have a disability, an employer is required to provide reasonable accommodations, absent an undue hardship, however, regardless of disability status, employers must be prepared to accommodate sick employees and should be cautious of caregiver discrimination.
The ADA also regulates an employers’ disability related inquiries and medical examinations for all applicants and employees, including those who do not have an ADA disability. ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat.” Factors used to consider whether an employee poses a “direct threat” include:
The ADA is further relevant to pandemic preparation in at least three ways:
The “direct threat” standard is the most important concept during a public health emergency. Whether a pandemic flu or virus rises to the level of a direct threat depends on the severity of the illness.
During a pandemic, employers should rely on the latest CDC or state or local public health agency recommendations as to their recommendations for the workplace. Based on the guidance of the CDC and other public health agencies as of March 2020, the COVID-19 pandemic meets the direct threat standard. This supports a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time. Such assessments could change over time.
If an employer becomes aware that one its employees has tested positive for a pandemic illness, such as COVID-19, it may not share the name of the infected employee with other employees. Instead, an employer should simply inform fellow employees of their possible exposure to the pandemic illness, but maintain the confidentiality of the employee with the confirmed illness. Employers should advise employees exposed to a co-worker to refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
The ADA’s regulations state that any medical information regarding the medical condition of an employee shall be treated as a confidential medical record, except:
The Genetic Information Nondiscrimination Act (GINA) prohibits the use of genetic information in employment decisions and requires that genetic information be maintained as a confidential medical record, with strict limits on its disclosure. Employers need to take care about how they treat medical information voluntarily disclosed during an employee’s illness.
Under many state workers’ compensation statutes, to be compensable, an occupational disease must be related to a “special risk” or hazard of employment beyond the risk ordinary people are exposed to. Thus, if the employees work environment and specific responsibilities may increase that workers’ exposure to a virus or bacteria, the worker could potentially argue that the disease is compensable. This creates a further incentive for the employer to create or update a PPP and keep employees well informed of its policies and procedures.