Vaccine Skeptics, Remote Employees, And The 2021 Workplace 

Ed. note: This is the latest in a series on the changing practice of law, and the second focused on employment. Click here for the first. 

As the first anniversary of the worst public health crisis in living memory approaches, companies are turning to their labor and employment attorneys to cope with an ever-evolving assortment of issues.

Arguably topping the list: the rise of the work-at-home employee. 

“One of the big questions for 2021 and beyond is how much telecommuting is here to stay,” said Nicholas M. Reiter, partner and co-chair of the labor and employment group at Venable LLP in New York. “Now, what happens when an employee insists on performing his or her job remotely? We’re going to see what happens as the vaccine becomes more widely available, the infection rate slows down, and employers ask employees to come back to work.”

Gabrielle Wirth, a partner in the California and Montana offices of Dorsey & Whitney LLP, shares Reiter’s concern. 

Speaking at a webinar her firm conducted on COVID-19 liability, Wirth noted that “with many, many employees working remotely, it’s going to be harder to claim that you cannot provide remote work when people have successfully worked [that way] for a year.”

Of course, it’s a different story for essential businesses where workers have had to be on-site all along, “but the whole environment has now changed as to whether or not a reasonable accommodation for any disability would be the provision of remote work,” Wirth said.

Telecommuting can also drag employers into a thicket of reimbursement issues.

“An employee may have to use his or her own computer and their own internet,” Wirth said. “They may be on cellphones exclusively and so their cellphone bill now is . . . a hundred percent attributable to the employer.”

While not all states require companies to reimburse their employees, it’s the case in California, Illinois, and others, Wirth said. Such expenses may include something as obvious as office supplies to mileage for errands related to the job, like trips to the post office.“That’s become very widespread,” Wirth said, “claims for failure to reimburse for expenses.”

Wirth also said she’s seen a lot of wage and hour claims, although not necessarily related to telecommuting. For example, she’s seen lawsuits for failure to pay wages for the extra hours employees spend on security screenings like temperature checks.

COVID Leave

Lawsuits stemming from employers’ failures to provide paid sick leave have been common, according to Wirth, as has litigation related to the Expanded Family Medical Leave Act, a 2020 federal law.

“Many employers did not have policies in place,” Wirth said. “Now that we’re in a voluntary period under federal law, it’s become a state-by-state issue. Many states have gone ahead and extended that paid leave to go into 2021.”

She also noted that municipalities might have ordinances “as to how much leave you have to give for COVID-related exposure.” Companies may need to turn to labor and employment attorneys to revise their policies and make sure they comply with applicable laws.

According to written materials from the Dorsey & Whitney COVID liability webinar, healthcare providers face especially acute difficulties related to employee leave. The firm suggested they implement “a system for recording employees’ requests for leave and the reasons supporting those requests, i.e., an employee’s symptoms and the date for a test or doctor’s appointment.”

Like all employers, healthcare providers need to avoid personnel actions that could trigger discrimination or retaliation lawsuits filed by workers who asked for or availed themselves of COVID-related time off. “As always,” the materials said, “providers should properly document their termination decisions.”

Of course, companies have had to navigate federal economic stimulus programs as well as new rules regarding leave. 

“We advised a lot of our clients on payroll protection issues,” Reiter said. “We worked really closely with our legislative affairs and government affairs departments to advise our clients on eligibility for payroll protection funding and to be more forward-looking regarding what they’re going to do to make sure they remain eligible.”

The Vaccine

Probably the stickiest situation for employers vis-à-vis the vaccine is their duty to accommodate two groups of people, according to Wirth. 

The first group comprises those with a condition or a disability that makes the vaccine unsafe, and the second comprises those who refuse to take the vaccine for other reasons. 

For employers who want to make vaccination a condition of employment, Wirth recommends engaging in interactive processes with the two groups. Openness and documentation are key.

“If somebody has a medical reason, you not only have to go through the interactive process, but you have to take further steps, including [to examine alternatives] to having someone in the office,” Wirth said.

As for the non-medical vaccine refusers, Wirth points out that termination may not be necessary. 

“Just because you’re not letting them come back to work doesn’t mean you have to fire them,” she said. “Because this vaccine came about so fast, people are suspicious. It was an emergency use authorization, not the normal FDA procedure. One of the things you can do is keep them on a leave of absence, equal to family leave, while all of the evidence comes out as to how well the vaccine is working.” 

Douglas S. Lang, former state appellate judge and of counsel in the Dallas office of Dorsey & Whitney, said during the webinar that employers must reasonably accommodate people with religious objections to the vaccine — “and that has to be a real ethical or moral belief, not just somebody’s political belief.”

However, Lang wouldn’t rule out having to make allowances for these people as well. His colleague, Shevon D.B. Rockett, a partner in the New York and Philadelphia offices of Dorsey & Whitney, said at the webinar that employers and their attorneys should start to think through whether personal and political preferences regarding the vaccine have to be accommodated.

“The short answer is, if they refuse to take the vaccine for their own personal reasons, then you can terminate them,” Rockett said, although the statement comes with caveats.

“In some states, such as New York,” Rockett continued, “employees have a right to speak freely and engage in political activity.” 

This means debates related to civil liberties and vaccine mandates may be on the horizon. Vaccine refusal could very well become a protected political activity.

“That’s the nuance that we’re all looking at, and we’ll see how that unfolds in the coming weeks,” Rockett said. 

Employers may be able to protect themselves from claims of harassment or a hostile workplace by instituting clear protocols and making sure they are uniformly enforced.

“Of course, anyone can claim anything,” Rockett said. “But it will be a lot more difficult to be successful in that claim if [the employer shows] that uniformly, it is terminating people who are not taking the vaccine and that they are in positions that require the vaccine for safety and there are no other accommodations.”

One thing is certain: The fact that employment law intersects with civil liberties at the COVID vaccine illustrates the complexity of the issues. Employment attorneys may find themselves drawing on many areas of the law to properly serve their clients.

“We have a great practice at Venable with a lot of resources,” Reiter said. “That’s the beauty of being with a full-service firm.”

“Unprecedented” is sponsored by Practising Law Institute, which features a variety of timely offerings on employment law topics. These include the programs Understanding Employment Law 2021 and Employment Discrimination Law & Litigation 2021, as well as the publications “COVID-19 and Other Pandemics: Business and Legal Challenges” and “Employment Law Yearbook 2020.”

---

Elizabeth M. Bennett was a business reporter who moved into legal journalism when she covered the Delaware courts, a beat that inspired her to go to law school. After a few years as a practicing attorney in the Philadelphia region, she decamped to the Pacific Northwest and returned to freelance reporting and editing.