LAW

Employers and the Pandemic

Two years later, lessons learned

By Michael J. Volpe, Allison B. Gotfried, and Jacob W. Goodman, Venable, LLP, Venable, LLC

As we approach the two-year mark since COVID-19 permeated every aspect of the world, employers in every industry are all too familiar with the tough decisions that have transformed their day-to-day considerations and operations since March 2020: Should we mandate vaccines? How can we accommodate remote work while maintaining full operations? How can we help our employees return safely to in-person duties? This article will serve as a refresher on best practices for all of these important issues and highlight some important things to consider from both legal and practical perspectives as the world—and your business—begin to move toward a post-pandemic normal. Vaccine Mandates It has long been the case that the Equal Employment Opportunity Commission (EEOC) has declared that vaccine mandates are permissible under the Americans with Disabilities Act (ADA). However, over the past several months, there has been widespread lawmaking at the federal, state, and local levels concerning vaccine mandates. For example, private sector employers in New York City are currently required to adhere to a local vaccine mandate for all employees. In contrast, in some states and cities across the country, vaccine mandates are generally impermissible. Understanding which laws and regulations apply to your company is vital to mitigating risks, ensuring employee buy-in and compliance, and creating an enforceable policy.

In determining whether a vaccine mandate is appropriate for any particular business or industry, employers should be prepared to think about the following: (i) whether employees will cooperate with the mandate; (ii) whether the mandate will lead to untenable staffi ng shortages; (iii) the extent of the mandate (i.e., whether it will involve booster doses); (iv) the administrative and fi nancial costs associated with implementing a vaccine mandate; and (v) how to prepare for the inevitable requests for exemptions from the mandate, which will vary by jurisdiction.

The fi rst two considerations are closely related, as non-compliance will likely result in unsustainable shortages. Employers should consider informally discussing with or surveying employees on the possibility of a mandate to get a sense of how compliant their workforce would be and to better understand the reactions to the prospective rollout. Vaccine mandates also carry certain costly or time-consuming administrative burdens, such as creating processes for collecting proof and ensuring the confi -

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