Hall Render recently hosted a webinar on July 12, Effectively Navigating the Changing Landscape: COVID-19 Vaccination Strategies for Health Care Employers. The following includes a selection of audience questions that our attorneys received during and after the webinar. We made a few additional modifications to avoid duplicate questions and responses and also decided to redact any identifying names/information within these questions and answers. Please click here for the full summary of all questions we received following the webinar and our responses.
Q: Can employers legally mandate the vaccine for all employees, even those who are 100% remote and not on-site?
A: The answer is a bit nuanced. First, check your state laws to determine if they speak to this issue and are more restrictive than federal law. Second, under federal law, the EEOC has clearly weighed in and stated that, subject to accommodation requirements (e.g., disability, religion) mandatory vaccines for all employees who are physically entering the workplace are permissible (due to business necessity and direct threat considerations). But there’s no specific guidance with respect to offsite employees, so it’s an open question. If, however, the employer determines that it’s possible for the offsite employee to physically enter the workplace at some point in time (or physically attend in-person work functions, such as a work retreat), then the argument in favor of mandatory vaccines for that group of employees is strengthened.
Q: If remote coworkers live in a state that prohibits employers from mandating vaccines, does that come into play or does only the state in which the employer is physically located come into play?
A: In that situation, the employer’s risk is increased somewhat, but it’s defensible to take the position that the EMPLOYER’S state of “residency”/incorporation is controlling, not the location from which the employees are traveling.
Q: Is ETS applicability all or nothing? For example, there is a screening policy for all visitors and those with COVID-19 are not permitted onsite, then someone slips through the screening process, has COVID-19 and is seen by a provider because of their underlying health condition (not COVID-19). Since it’s a one-off, would the ETS apply going forward?
A: It’s unlikely that this one-off “slip through” scenario would cause you to be covered by the ETS if your visitor screening process is undertaken in good faith.