As Covid-19 cases appear on the decline and the vaccine rollout accelerates, many organizations are exploring how to safely bring both internal and contingent staff back on-site. Mask requirements, social distancing and sanitized work areas are likely on the blueprint, but what approach can — or should — contingent workforce managers take when it comes to Covid vaccinations? And are the rules different for contingents?
President Biden last month announced that all adult Americans will be eligible to get the vaccine no later than May 1, yet there is still no definitive answer as to what path contingent workforce managers should take when it comes to requirement policies.
“Most buyers are still in information gathering mode,” says Dawn McCartney, VP of SIA’s Contingent Workforce Strategies Council. Concerns include the lack of a mandate and variables such as availability; religious, personal and medical reasons to opt out; paying for the contingents’ time to get the vaccine; and possible liability should the contingent worker have a negative reaction to the vaccine. And that’s just the tip of the iceberg.
“We are waiting for guidance from the US Equal Employment Opportunity Commission on permitted incentives, but what the EEOC guidance now says is you have to advise employees of the consequences of not getting vaccinated, so it’s implicit that you could require it,” Eric Rumbaugh, a partner with law firm Michael Best & Friedrich LLP, told SIA. This applies to contingent workers as well as staff employees.
As it currently stands, the EEOC guidance leans toward allowing organizations to require vaccinations; however, there are a few things to consider when developing return-to-workplace vaccine policies.
Emergency use. The Covid vaccinations are currently authorized for emergency use and have not yet undergone all the testing necessary for full authorization by the US Food and Drug Administration. In the past, the rules for emergency use have been interpreted to say you can’t mandate the use of an emergency-authorized drug or vaccine, according to Rumbaugh; only future litigation will provide a clear answer.
“It is not clear how the emergency-use rules will play out,” he says. “I have seen the argument both ways — that you can and can’t require vaccination with an emergency-use authorized vaccine — and if you are going to require vaccination, you may get challenged.”
State laws. State laws also come into play. And with remote work likely to continue, contingent workforce managers will face the prospect that a person working remotely in their home state may be operating under different rules than those in which the organization is based. In addition, people working in the same roles (sometimes even the same project) may be based in different states; is it legal, or fair, to have different vaccine requirements for each of them?
Exceptions. An interactive dialogue with both contingent workers and staff employees regarding religious objections and disability accommodations is necessary when it comes to vaccinations, and organizations should be prepared to make exceptions. For example, a worker may be allergic to an ingredient in the vaccine or have an underlying condition that prevents them from safely taking the shot — or they may be opposed because of religious beliefs if the vaccine was developed with the use of embryotic stem cells. In these cases, an employer requirement could violate the Americans with Disabilities Act or the religious discrimination protections of Title VII of the Civil Rights Act of 1964.
Employers should discuss and consider whether an employee’s refusal to be vaccinated against the virus for medical or religious reasons can be accommodated (absent undue hardship to the employer) while maintaining the health of the workplace through other measures, Destyn D. Stanton of law firm Dunlap Bennett & Ludwig PLLC wrote in a JDSupra blog post. These measures could include:
- Allowing the employee to work remotely
- Providing a temporary leave of absence if the employee’s position does not lend itself to teleworking
- Requiring the use of personal protective equipment, social distancing and enhanced hygiene protocols in the workplace
- Utilizing alternative vaccine formulas
- Reassigning the employee to a job involving less interaction with the public and others
Incentives. Many employers are taking a carrot-and-stick approach, offering paid time off and other incentives to get workers on board. However, consider whether incentives could be deemed as coercive, violating federal anti-discrimination law, and whether providing bonuses discriminates against workers who can’t get vaccinated for medical or religious reasons.
The EEOC in February withdrew two proposed rules regarding the incentives employers can provide their employees as part of a wellness program without violating the ADA or Genetic Information Nondiscrimination Act, The National Law Review reported. The proposed rules had originally stated that, for the most part, employers could offer only “de minimis” incentives for employees participating in a wellness program — incentives that potentially could apply to employees receiving a coronavirus vaccine. With the withdrawal of those rules, employers have little guidance in terms of what incentives, if any, they may offer employees.
Treat CWs like direct employees. The World Employment Confederation, which represents the staffing industry globally, in March released guidance on applying Covid-19 health and safety protocols to workers assigned by staffing firms.
“WEC members follow the developments of governments closely with regards to rolling out the vaccination of the population, and specifically of the workforce,” it stated. “While the choice of taking a vaccine is ultimately an individual one, we require that vaccines are made available to agency workers in every premise where a client/agency work user company may apply the vaccine to its workforce.”
In addition, a Gartner Inc. survey of 227 HR leaders conducted last month found nearly half of large global organizations, 48%, will not track the vaccination status of their employees. Only 8% of survey respondents reported that they will require employees to show proof of vaccination.
Whichever path your organization takes, consult your legal advisor and consider the wider implications of your decisions.
“Ultimately, your strategy must balance employee health and welfare, legal requirements and operational considerations,” stated Joe Coyle, director, advisory, Gartner. “But like much of the pandemic response, your organization’s choices will telegraph your values and drive your brand as an employer, for better or worse.”