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Looking at a 2009 letter from the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA), employers may be able to require their employees to take the COVID-19 vaccine, with a few exceptions (such as the likelihood of a life-threatening reaction to it). With the COVID-19 vaccine being rolled out, how can employers balance workplace safety, maintain productivity and stay within the law?

According to the Centers for Disease Control & Prevention (CDC), the early vaccination stages will likely focus on those who are at particular risk of severe and life-threatening complications from COVID-19. This is expected to include elderly individuals, especially those who live in nursing homes. It’s also expected to include frontline healthcare workers who may be exposed to COVID-19 and could expose patients to COVID-19.

Looking to the Past for Guidance on Employer Vaccine Mandates

The natural question for employers is if and how they are able to mandate a COVID-19 vaccination for employees. When it comes to OSHA and the U.S. Equal Employment Opportunity Commission (EEOC), neither agency has given any actionable guidance on mandating the COVID-19 vaccine.

In light of an Emergency Use Authorization (EUA) for both the Pfizer and Moderna vaccines, further government agency direction is likely to follow over the next few months. Until there is more definitive guidance, the most relevant and likely direction is to look back at how the different agencies handled this same question with the H1N1 epidemic.

U.S. Equal Employment Opportunity Commission

In 2009, the EEOC provided guidance based on the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, which state that employers are within their right to mandate that workers take the flu shot. However, for workers with disabilities that prevent them from receiving inoculations and for workers objecting to vaccines according to their religious beliefs, their employer must provide a “reasonable accommodation.”

If a reasonable accommodation is available, the employer is responsible for providing it. However, according to the ADA, if a reasonable accommodation is not available; it would create an “undue hardship” for the business; or if the worker would “pose a direct threat” to their coworkers’ well-being and welfare that isn’t able to be reduced via the reasonable accommodation, employers aren’t required to provide that reasonable accommodation.

When it comes to the subjective reasonable accommodation and undue hardship test, the employer must look at the worker’s individual disability, his role and what responsibilities it entails, the type of vaccine being mandated, and the employer’s circumstances. For example, if someone cannot be vaccinated, they may be accommodated by continuing to work remotely, work within the constraints of social distancing guidelines, face masks, etc. However, if the worker’s role requires close contact with others, the ability of the employer to accommodate the employee will be more in question.

Title VII similarly requires business owners who mandate vaccines as a requirement of employment to make reasonable accommodations for workers who assert a sincerely held religious belief, practice, or observance that prevents the worker from accepting a vaccine. In this case, employers may ask the employee who claims a religious exemption for reliable documentation attesting to the religious objection.

Much like the ADA, Title VII also states that if the reasonable accommodation causes an undue hardship, the employer is not required to make such an accommodation. One distinction for this exception under Title VII is that the undue hardship standard is met when the “more than de minimis cost” to the business is reached. For the ADA’s undue hardship threshold to be met, the accommodation in question must create significant difficulty or expense. For employees who have non-religious beliefs that they explain prevents them from taking a vaccination, this is not covered under Federal Law but might be applicable in certain states.

Looking back to 2009, an OSHA letter stated that businesses can require employees to take a seasonal flu vaccine, with some caveats. One exception is if they have a pre-existing medical condition that can cause grave illness or death, they may qualify for an exemption. As the EEOC suggests, asking and not mandating that employees get vaccinated might garner good results before there’s any pushback from a vaccination mandate.

Businesses can offer vaccines at their place of work, paying for it for every employee who wants it. However, in the course of offering vaccines for workers, logistics must be considered because things are still evolving as the two vaccines (and others) are projected to become more and more available. Employers must consider the time frame of availability for vaccines (depending on the business’ industry, workers’ ages, etc.), pay for time spent on vaccination (potentially if there’s a reaction, etc.), how payment for vaccines will work, delivery and storage of the vaccine, etc.

While the rollout for the COVID-19 vaccine is ongoing, now is the time for employers to determine how they will handle the inoculation with their employees. 

Sources

https://www.osha.gov/laws-regs/standardinterpretations/2009-11-09

https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act

https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-254

In order to survive – and even thrive – during these unprecedented times, small businesses have had to find new ways to make money. The UPS Store’s Small Biz Buzz survey found that 41 percent of small businesses in the United States took steps to modify their businesses in hopes of survival. Fifteen percent provided customers with curbside delivery options, 28 percent moved to online sales as their primary source of sales, and 65 percent made a concerted effort to grow their e-commerce capabilities.

More than 50 percent of those polled by a U.S. Census Bureau Small Business Pulse Survey said it would be at least half a year before pre-COVID levels of business come back. Looking at overall economic recovery, and we could be waiting five years or more for things to return to where they were before. When it comes to small businesses, it might take even more time; however, businesses that adapt will be more likely to succeed.

In order to increase the chances of the pivot being successful, Harvard Business Review recommends doing so based on the newly created conditions of the crisis. In the case of the pandemic, it’s created more telecommuting, disrupted supply chains, and required everyone to socially distance for work, leisure, and daily tasks. In light of these circumstances, there are three factors for a pivot to be successful.

Social Distancing Opportunities

With the pandemic demanding less contact, chiefly through social distancing, businesses must find ways to work around the new circumstances. One example is how dating websites have added video dating for users. Other examples include grocery stores limiting in-store customers, requiring workers and customers to wear masks, and adding more and wider delivery areas for groceries and other products.

Building on Original Business Concept

The second recommendation by HBR is that businesses examine how additional and different services or products complement the original business concept.

Let’s consider Airbnb; when travel and resulting bookings collapsed, the platform’s hosts received financial assistance that helped facilitate guest relations virtually. In a shift from its non-hotel lodging option via homeowners and apartment dwellers offering their abode for rent, Airbnb moved to provide hosts with the ability to hold online events, such as cooking classes, art therapy, virtual tours, or other activities.

Looking to the future and building on the opportunity for growth, tourists could learn about new places to travel and things to do and learn while visiting the new destination.

Adapting to Change by Adding Value

The final ingredient of a successful pivot, according to HBR, is that the move demonstrates how well a company can adapt, work through problems and adjust to market forces while proving profitable and resonating as a value in the consumer’s view.

Before the lockdown orders, Spotify placed a sizeable portion of its business model on having primarily free customers stream music on personal devices. Spotify would benefit in two ways – they wouldn’t have to send out Spotify-specific devices, along with relying on receiving advertisers’ income that free users would listen to in exchange for a free Spotify membership. However, when the pandemic hit, Spotify’s advertisers cut their marketing budgets, making this business model difficult for Spotify to sustain.

Spotify’s pivot offered podcasts for users from music artists, talk show hosts, celebrities, etc. By offering premium subscriptions for its podcasts, along with curated, niche programming, Spotify gave customers more control and a better value over previous media offerings.

While the pandemic doesn’t necessarily mean a “going out of business sign” for companies, it could spell the end of the road for those that don’t adapt to the new economy.

Sources

https://www.uschamber.com/co/start/strategy/metlife-us-chamber-small-business-index-covid-19

https://hbr.org/2020/07/how-businesses-have-successfully-pivoted-during-the-pandemic

https://www.uschamber.com/co/start/strategy/pivoting-your-business-to-survive-pandemic