COVID-19 vaccination mandates are raising tricky questions for employers and workers alike.
To help navigate the new rules, Newsday Live hosted a question and answer session Thursday with two experts on employment law who addressed issues including religious exemptions, who should bear the cost of weekly testing and more.
The virtual session, moderated by Newsday columnist Joye Brown and reporter Victor Ocasio, featured Brian S. Conneely, a partner at Rivkin Radler, and Domenique Camacho Moran, a partner at Farrell Fritz.
Questions and answers have been edited for length and clarity.
Q: How should employers decide whether to accommodate requests for religious exemptions?
Conneely: The Equal Employment Opportunity Commission has issued guidelines on what you can and cannot ask people who claim they need a reasonable accommodation because they have a sincere religious belief. There’s an interactive process where the employer can ask certain questions to verify the belief or the sincerity of the belief.
Moran: The question, ‘Is there an accommodation that can be granted?’ is much more straightforward. Employers may be better off just trying to figure out, ‘Can we do anything here? Or is there just too big a risk?’
Q: Why aren’t we talking about testing everyone, vaccinated as well as unvaccinated?
Moran: From a business perspective, it would be really difficult for an employer to justify testing absolutely everybody, every single week. That would be an expense both in time and money that probably is not warranted, based on the risk.
Conneely: The federal Occupational Safety and Health Administration has basically said the vaccinated don’t necessarily have to be tested. OSHA is going to come out with a new standard because of President Biden’s directive that all private employers with over 100 employees begin [requiring vaccination or] testing. So this is all evolving.
Q: Can an employer ask an employee to cover the cost of a COVID test?
Conneely: If it’s weekly testing or daily testing, that cost would be too prohibitive to put on an employee and would probably violate some of the Affordable Care Act requirements. There are some companies that are going to wellness initiatives, such as Delta [Air Lines, which said workers will pay $200 more a month for their company-sponsored health insurance if they choose not to be vaccinated]. Whether you call it a surcharge or a wellness initiative, all of those are subject to all sorts of computations to see if they’re affordable, under the Affordable Care Act.
Moran: If the burden gets shifted to the employer to pay for every test, the likelihood is they’ll impose a vaccine mandate.
Q: What if an employee refuses to even answer a question about whether they have been vaccinated?
Conneely: Asking someone if they’ve been vaccinated or unvaccinated is not, under the guidance from the EEOC, a medical disability-related inquiry, and it’s not a medical exam. So if somebody chooses not to engage in an interactive process with the employer, they could be subject to discipline.
Q: What legal standing would an individual have if they got the shot as required by their employer and years from now it is discovered that the vaccination caused them health complications?
Moran: Early on in the process, that was a very large concern for employers. With the fact that we’ve now established so many government mandates, I think the risk of liability to the individual employer is less.
Q: Can an employer decline to pay time off to an unvaccinated employee who gets COVID?
Moran: New York state law does provide mandated paid time off, separate from other sick leave, for those who are suffering from COVID. An employer with 100 or more employees has to provide 14 days of COVID leave.
Q: Are those who refuse the vaccine eligible for unemployment benefits?
Conneely: If they have a sincere religious belief or a medical disability, they can probably get unemployment. But if they choose not to get it because they don’t like vaccines, they’re probably not going to be eligible for unemployment. If the employer has adopted a rule or a policy in writing, and the employee declines to follow that rule, then that’s potentially a grounds for denial of unemployment.