As we continue to navigate our world some three years after COVID-19 first affected nearly every facet of life, employers and employees continue to monitor best practices when considering work from home, COVID-19 vaccine and booster requirements, and other policies and considerations. The following is a first in a series of employment considerations in this new world.
Working from Home
Generally speaking, in an at-will employment state such as Illinois and Michigan, an employer has the right to determine where employees must perform their work. Therefore, an employer has the right to ask employees who had been working from home during the COVID-19 pandemic to return to the office. However, exceptions also apply.
Under the Americans with Disabilities Act (ADA), employers are required to provide reasonable accommodations to employees and job applicants who have or had an impairment that substantially limits a major life activity, unless doing so would cause undue hardship for the employer. For example, for an employee with an underlying medical condition that qualifies as a disability under the ADA, the employer might be required to provide a reasonable accommodation of work from home, modified work schedule that would limit interactions with other coworkers, or work in a more secluded area; however, a general fear of COVID-19 is not considered a sufficient health reason requiring accommodation.
State law should also be considered when an employer considers the return of employees to the workplace vs. the work from home consideration. These considerations include disability laws; local, state and federal tax implications; and the nature of the employer’s business and how these options impact its business, its customers and its employees.
COVID-19 Vaccine laws still vary by state and geographic location. States such as Texas have made it unlawful for any employer (except if exempted by federal mandate) to compel any employee to be vaccinated if the employee objects to vaccination. Accordingly, non-Federal Texas employers cannot lawfully terminate an employee for refusal to be vaccinated.
In other states, such as in Illinois and Michigan, in most circumstances an employer can terminate an employee who refuses vaccination largely because they are at-will employment states, which permit an employer to terminate its employees for any reason at any time. Of course, there are exceptions to that including public policy concerns and/or laws that prohibit such terminations. For example, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees because of race, color, religion, sex, or national origin. Similar anti-discrimination laws are also found at the state level. Though vaccination status does not fall neatly into one of these protected categories, there are grey areas with employees who believe either (a) getting a vaccine would violate a sincerely held religious belief, practice or observance; or (b), the employee has a medical condition that prevents that employee from getting vaccinated.
For employees that fall into the above two categories, the employer could avoid violating Title VII by providing a reasonable accommodation outside of vaccination. Such accommodations could include working remotely, periodic COVID-19 testing, or modified scheduling.
An example of an Illinois vaccination policy that allowed modification through periodic testing is the policy the City of Chicago began enforcing on October 25, 2021. Under the City’s policy, employees, contractors, and vendors needed to be either vaccinated (meaning two weeks past the second dose of a two-dose mRNA vaccine - Pfizer or Moderna, or two weeks past a single dose of the Johnson & Johnson vaccine) or be required to undergo COVID-19 testing twice weekly with tests separated by three to four days. Employees subject to this policy could apply for a medical or religious exemption to full vaccination, which if approved would still require those exempted individuals to undergo regular COVID-19 testing.
COVID-19 vaccine laws appear to address the initial COVID-19 series (i.e., a single Johnson and Johnson shot or the two series Moderna or Pfizer) but there is less discussion surrounding the COVID-19 booster (bivalent) vaccinations. Employers can also terminate an employee who refuses a booster vaccination in most circumstances, with the exception of healthcare workers who are required to receive booster vaccinations in addition to the initial series to maintain employment.
NEXT UP: The Pros and Cons of a Work from Home Business Model