Masks and vaccines: To mandate, or not? As workplaces reopen, employment lawyers kept busy

Reopening the country has slammed employment law attorneys, who are busy advising clients on best practices to follow during these unusual times.

“Workplace policies continue to be a hot topic for employers, especially questions related to mask mandates and vaccination policies,” said Chriesman-Green, who practices employment law and employee benefits law as senior counsel with Foster & Foster Consulting Actuaries Inc. in Coppell, Texas.  She previously served as vice president and employee benefits counsel of USI Southwest’s southwest region and worked for AT&T Services in employee benefits and litigation.

Employment lawyers are now devoting up to 20 to 25 hours of their week answering employers’ questions about how to minimize risks and get workers safely back to the office, said Nikki Chriesman-Green

To mandate, or not to mandate?

Chriesman-Green discussed an issue many employers are dealing with, around developing a COVID-19 vaccine policy for employees. She said employers should consider many factors before issuing such a mandate:

1. Workplace environment. This may include the industry of the employer, the proximity of employees to one another-=-for example, their ability to social distance—risk of exposure in the office for clients or patrons, an employee’s job function, the type of work necessary for the office to function normally and office culture.
2. State and local municipal laws pertaining to COVID-19. For example, mask mandates and prohibitions against mandatory vaccination policies.
3. Reasonable accommodation. Ability to provide a reasonable accommodation for those employees who are unable to receive the vaccine or who object.
4. Risk for litigation. Employer’s risk for litigation brought by employees who suffer an adverse reaction from the vaccine.
5. Issues and possible consequences. Is the employer going to pay for the vaccine? Will they allow time off work to receive the vaccination? What consequences, if any, where an employee fails to comply with the mandatory vaccination requirement?

Hot topics for employers keeping employment attorneys busy

BenefitsPRO’s sister publication, Texas Lawyer, asked Chriesman-Green via email about a vaccine mandate, as well as what other issues employers want help with from employment attorneys.

Here are her answers, edited for news style and brevity:

For businesses that want a COVID-19 vaccine mandate, what should employment law attorneys advise clients about writing policies to accommodate certain employees?

Nikki Chriesman-Green: Employment law attorneys should advise clients that mandatory-vaccination policies should provide an exception for those employees who have a disability that prevents them from being vaccinated, or have a sincerely held religious belief or practice where being vaccinated would create a conflict to that belief or practice, or are covered by a collective bargaining agreement where such policies may be prohibited.

Reasonable accommodations may include keeping the mask mandate or personal protective equipment requirements in place for these workers, telework arrangements, or alternating or rotating shifts.

Employers will want to ensure that written policies do not permit or encourage retaliation against those workers who do not want the shot.

What are the worries you get from employers about whether they can do anything to address potential liability if some workers have the COVID-19 shot, and some are unvaccinated? What advice do you give them?

One of the worries is whether an employer may be sued by an employee exposed to COVID-19 in the workplace.

Employers are asking whether they can have an employee sign a liability waiver as additional protection against such risks. Generally, liability waiver agreements purporting to exonerate employers on a prospective basis from employees’ workplace injury claims are unenforceable. The special nature of the relationship between an employer and employee typically render any such waiver void. Certain states have additional rules prohibiting such agreements.

The sole remedy for a workplace injury is typically worker’s compensation.

Can you explain why companies are debating mask requirements in the office, and share your advice about what they should do?

Companies are debating mask requirements in the same way as state and federal legislators. The laws across the states and within local municipalities are inconsistent. As a result, employers with employees in multiple states, and in some case counties within the same state, have to adopt several policies that may conflict.

Employers and employees are itching to get back to some type of normalcy in and outside of the office. Once you factor in the vaccinated and unvaccinated employees in the workplace, the debate grows even more.

Employers faced with making a decision on the mask requirements in the office need to identify and mitigate potential hazards and risks to safety that could impact their ability to provide a safe and healthy workplace.

If the employer has a large percentage of employees who have obtained the vaccine, it may be reasonable to consider lifting the mask mandate if the state or local municipality does not otherwise require it. However, if there are a large number of unvaccinated employees working within the office, it may be necessary to keep the mask mandate in place.

In any case, the employer should review their state and local municipal laws to ensure their mask mandate does not run afoul of any of the legal requirements.