Management Counsel

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Paul Wehmeier

Arnett, Draper & Hagood

HESITANCY: TO MANDATE OR NOT

For more than a year, employers (including law firms and legal employers) faced the daunting challenge of operating their business, delivering for their clients, and maintaining the staffing levels necessary to accomplish their priorities. Businesses were forced to learn to operate in an economy where physical presence was discouraged. During 2020, health professionals searched tirelessly for treatment regimens and vaccines to bring back normality.

In late 2020 and early 2021, vaccines were approved for emergency use. In many workplaces, employers encouraged vaccination to bring people and customers back and restore an economy thwarted by lack of physical presence. But some employees remain skeptical about the safety of the vaccine or have reservations about their rights regarding vaccination.

Due to employee hesitancy, businesses are asking: can an employer mandate that an employee be vaccinated as a condition of employment? While the general answer is yes, provided the employer complies with the reasonable accommodation provisions of equal employment opportunity (“EEO”) laws, the legal rationale, compliance considerations, and the business realities of such mandates vary by industry and business circumstances.1

And, as an adjunct professor of labor law, I would be remiss to ignore that private, unionized workplaces must consider collective bargaining obligations which may exceed those otherwise required by federal, state, and local EEO laws. Workplace rules that mandate vaccination, in the union context, are likely a mandatory topic for bargaining, unless clearly waived by the union.2 The NFL faced this issue and was forced to abandon its proposed player vaccine mandate after the NFLPA opposed it.3 The lion’s share of private employers, however, are not engaged in collective bargaining relationships and have significantly more leeway to adopt vaccine mandates.

Therefore, businesses legal risks may center on: (1) whether the lack of vaccination of an employee presents a “direct threat” in the workplace; (2) whether any accommodation requested is reasonable; and (3) whether a requested accommodation presents an undue hardship to the employer. Under ordinary circumstances, where a reasonable accommodation exists, employers should accommodate the disability and/or religious beliefs.

Typically, the ADA requires an interactive process to determine what accommodations reasonably can be made for a disability. Akin to the accommodation of a disability, businesses also may be asked to accommodate “sincerely held” religious beliefs. To determine whether the employee presents a “sincerely held” religious belief under Title VII, employers must typically consider whether: (1) “the belief is one of “deep religious conviction, shared by an organized group, and intimately related to daily living;” or a personally held secular preference; and (2) the employee’s conviction is sincere. If the belief is a secular preference, it is not generally protected by Title VII. The sincerity of the employee’s belief has been held to be a “quintessential fact question.”4

The emergent qualities of the pandemic and changing nature of guidance being provided by health officials and governments render decisions about implementing a vaccine mandate and addressing exemption requests a fact intensive analysis. The prudent employer will consult counsel as it makes decisions related to implementation and enforcement of a vaccine mandate. A final consideration is the reality that businesses are experiencing one of the tightest labor markets in recent history.5 The labor market is creating conflicting priorities for employers: (1) a vaccine mandate to keep staff working and attract workers concerned by COVID-19’s risks; or (2) not mandating vaccination to make the business attractive to hesitant employees and applicants. These considerations are market driven and beyond the limited scope of this article. The prudent business faces these considerations head-on and makes a reasoned decision, given the legal considerations and the reality of its labor market.

1 On May 28, 2021, the EEOC issued technical assistance regarding vaccine mandates. See “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, available at https://www.eeoc.gov/wysk/ what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-othereeo-laws (last accessed Sept. 9, 2021). “The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII[,] the ADA [,] and other EEO considerations . . . .” 2 See generally, “Bargaining in good faith with employees’ union representatives (Sections 8(d) & 8(a)(5)),” available at https://www.nlrb.gov/about-nlrb/rights-weprotect/the-law/bargaining-in-good-faith-with-employees-union-representative (last accessed Sept. 9, 2021) (stating employers may not: “[m]ake unilateral changes in terms and conditions of employment during the term of a collective bargaining agreement, unless the union has clearly and unmistakably waived its right to bargain . . .) (emphasis added); see also Allen Smith, “Must Employers Bargain with Unions over Mandatory Vaccines?”, available at https://www.shrm. org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirusbargain-with-unions-vaccines.aspx (last accessed Sept. 9, 2021). 3 See The Athletic Staff, “NFL Proposed Vaccine Mandate; NFLPA Declined, Wants to Resume Daily Testing,” The Athletic, August 26, 2021, available at https:// theathletic.com/news/nfl-proposed-vaccine-mandate-nflpa-declined-wants-toresume-daily-testing/sF9OcdsOedSX (last accessed Sept. 9, 2021). 4 EEOC v. Publix Super Mkts., 481 F. Supp. 3d 684, 669-701 (M.D. Tenn. Aug. 20, 2020) (considering accommodation of a workplace grooming rule). 5 See generally, James Bullard, “An Assessment of the U.S. Labor Market, Federal Reserve Bank of St. Louis,” available at https://www.stlouisfed.org/publications/ regional-economist/second-quarter-2021/us-labor-market (June 3, 2021) (last accessed Sept. 9, 2021).

About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Caitlyn Elam at 546-4646.

Photo Ops Photo Ops

KBA Tennis & Pickleball Tournaments – August 20, 2021

The winners of the Tennis Tournament were: Luke Durham, Jeff Taylor, and Kevin Dean. The winners of the Pickleball Tournament were Wayne Wykoff and Matthew Horton.