The return to work raises critical questions

Reported covid cases in America are at an all-time low. Vaccinations are rising. Return to work plans are in place and ready to be implemented and many jobsites and schools are ready to open or have already re-opened. Many state government employees are returning to the workplace. It won’t be long until federal agencies will be looking for all its employees to return to their offices rather than telework. And that includes the government contracting workforce. Some are already forgetting about CARES Act Section 3610. All will be well now that the pandemic is subsiding.

Not so fast.

Among other complications that will arise, consider this one in the post-covid world of government contracting: many contractor employees were co-located with their government counterparts during the pandemic. As these contractor employees return to customer sites, the agency may demand the contractor prove that employees received their vaccinations.

Can the government do that?

Can the contractor (or any employer) require its employees to be vaccinated?

Can it require a vaccinated employee to return to work onsite if agency employees (or fellow employees) are refusing to be vaccinated?

I don’t think the government, its vast bureaucracy, the legal or the business community — and certainly Congress — have fully tackled these questions.

Here’s the first question: can an employer legally mandate that an employee provide proof of vaccination? Generally, yes – but that is not entirely clear. In December 2020, the federal Equal Employment Opportunity Commission (EEOC), which enforces federal workplace discrimination laws, published updated guidance that addresses (or at least tries to address) covid-19 vaccinations. The guidance is available in full here (see section K). While the guidance doesn't expressly endorse or prohibit mandatory vaccinations, it states that simply requesting and requiring an employee to show proof of vaccination is not a disability-related inquiry that may otherwise be prohibited in most cases under the federal Americans With Disabilities Act (ADA). But this comes with one caveat and two exceptions.

The caveat is that employers should be careful about asking why an employee didn’t receive the vaccination as such a question may elicit information about a disability and would be considered impermissible under the ADA. Also, the EEOC has advised that an employer should not request or require any other medical information that may be related to the vaccination. Thus, an employer should inform employees under this scenario that they should not provide any medical information as part of the proof of vaccination.

As for the exceptions, the first is that there may be ADA-related issues if the employee (or an applicant for employment) indicates that he or she is unable to receive the vaccination because of a disability. For example, there may be health-related issues preventing the employee from receiving the vaccine such as an allergy, pregnancy or a history of serious vaccine side effects. In such cases, the employer would be required to provide the employee a “reasonable accommodation” in the form of exempting that employee from showing the proof or allowing the employee to continue working remotely, or some other accommodation. This may be especially true if the employee is medically high risk along with being informed that his or her co-employees, not to mention government counterparts, may not be vaccinated. But there are limits to providing such accommodations if the employer can show that such would constitute an “undue hardship” through some significant difficulty or an unreasonable expense. And in case you don’t believe the employee’s disability claim, the employer is permitted to request medical certification of such disability that prevents the employee from receiving the vaccination.

And for those anti-vax employees insisting on returning to the workplace, excluding that employee gets more complicated as the ADA requires that the employer show that allowing the employee to return without a vaccination (or at least social distance to include wearing a mask) would pose a “direct threat” to the workplace. Although under the ADA and EEOC’s guidance the employer would meet standards in allowing it to require that an employee not pose a “direct threat” to the health or safety of other individuals at the workplace (to include potential covid transmissions), the employer would still need to demonstrate that such a direct threat could not be eliminated or reduced by providing the employee those reasonable accommodations. 

The EEOC has stated that the risk of transmitting covid in the workplace qualifies as a direct threat, and of course it’s logical that a direct threat would include that the unvaccinated employee could expose others to covid. Keep in mind, however, that such guidance was issued last December. With all the vaccinations to date, and with so-called herd immunity close at hand, the prospect of supporting such a direct threat theory may be more remote.

In any case, given the complexity and fact intensive nature of determining reasonable accommodations, undue hardship and direct threat as those terms are used under the ADA, applying this exception is not as simple as it sounds. And further don’t rely on the at best implicit EEOC guidance as binding precedent as it is not a court and can be overturned by one.

Under the second exception, employees may be unable or unwilling to provide proof of vaccination because their religious beliefs prevent them from receiving the vaccination. Under federal (and most state) anti-discrimination laws, once an employer is on notice that an employee’s sincerely held religious beliefs prevents the employee from receiving the vaccination, the employer must show that such beliefs are unfounded or else the employer must provide (here we go again) a reasonable accommodation for such beliefs.

One potential way of doing this is to ask the employee to show independent proof of such religious beliefs, practices or observances. Again, an invitation to numerous complex rabbit holes.

And here’s another vexing question. So far, the vaccination was approved by the FDA under the more limited emergency use authorization, or EUA, as opposed to a full and formal authorization process. Until that authorization converts to a full FDA-issued license to use the vaccine, there is an argument that the vaccination issued under the EAU cannot be mandated. For example, the federal statute governing EUAs requires the government to inform recipients of the option to “refuse administration” of the vaccine. The EEOC guidance muddles through this issue by mentioning the vaccine’s EUA status but not answering the question of how that status affects an employer’s right to mandate vaccinations. The good news is that once the vaccine is fully approved it seems (or at least one would hope) this argument will go away.

Here’s another even more vexing question: can we expect federal agencies to require contractors to prove that their employees have received the vaccinations? Will such be included in future government contract representations and certifications? Will the government amend the Federal Acquisition Regulation (FAR) to include a covid vaccine certification? Will that include a requirement to disclose employees not in compliance with contractor or agency vaccination requirements? And if not, then will an employee refusing vaccination but still willing to wear a mask all day in the workplace be a sufficient compromise? So far there are no solid answers to these questions. Only more questions: What would be the EEOC’s position on this issue? What if such a mandate conflicts with state laws having softer or no vaccination mandates? (Note 36 states to include Virginia and Maryland have proposed bills to prevent mandated vaccinations as a condition of employment).

Suffice it to say that the legal solutions to these upcoming business issues may be an enormous challenge in this and just about every other industry. Lawyers seek to rely on legal precedent. There is little here. (other than a 1905 Supreme Court case I stumbled upon ruling that mandatory smallpox vaccinations were constitutional). But I always say when there’s no precedent then try logic, so consider this potential scenario (with all names fictional): Joe the government program manager got vaccinated, believes everyone else should and is very vocal about it. Mary, John, and Melissa, the on-site contractor employees, refuse to be vaccinated and also refuse to wear masks, whether because of a claimed disability, a stated religious belief or because of their long adopted and equally vocal motto of “Don’t Tread on Me.” Joe complains to the contracting officer that the contractor failed to mandate covid vaccinations.

After multiple meetings and countless email exchanges the agency can’t decide on a course of action but is nonetheless faced with a number of dilemmas. For instance, can the agency force the contractor to make the employees receive vaccinations for the sake of its own workplace health and safety? The answer to that is likely no.

Can the government require a rep and cert on contractor employee vaccinations? My initial reaction is likely yes, but the legal bonanza will start faster than you can say Hoss Cartwright.

Can the agency require the contractor to remove any contractor employee refusing vaccination and/or to wear a mask by denying access to the government site? The answer is very likely yes.

Can the agency just throw up its hands and terminate the contract for convenience? Definitely yes.

It’s only going to get more sticky from here.

Stay safe.