Photo courtesy of USA Today
Proof of vaccination requirements have been the center of conversation in the past couple weeks, especially following New York City’s mandate. Many questions stem from such a requirement – is it legal? How should an operator tangibly implement such a mandate? What implementation problems can, or will, arise? How will such a mandate affect unemployment? – the list goes on. Here is an attempt to answer such questions with information already at our disposal.
Are proof of vaccination requirements/a mandate legal? Yes.
Employers must, however, make sure that they do not violate any federal civil rights laws, including the ADA, GINA, and Title VII. As such, two questions should be asked before requiring your employees to get vaccinated: 1) What information and questions can you ask your employees as their employer, and 2) Will you be able to reasonably accommodate a worker who cannot get vaccinated – whether that is because they are disabled, have “sincerely held religious belief(s),” or are pregnant – as their employer?
Employers must keep in mind that all you are trying to prove is that an employee who fails to answer your questions, and thus fails to receive a vaccine, will pose a direct threat to the health and safety of themselves and/or others. According to the EEOC’s 4-factor analysis, employers can determine the threat based on its: 1) duration, 2) nature and severity, 3) likelihood to cause potential harm, and 4) imminence. In order to avoid this threat, all questions you ask your employees must remain within the scope of “job-related and consistent with business necessity” information. No questions should steer your employees towards having to, or feeling as though they must, disclose disability-related information. All questions, and conversations on the topic, must be voluntary.
Employers must keep in mind that all you are trying to prove is that an employee who fails to receive a vaccine will pose a direct threat to the health and safety of themselves and/or others that cannot be eliminated or reduced by reasonable accommodation. If the direct threat indeed cannot be reduced to a reasonable level by way of reasonable accommodation, then the employer can exclude the employee from returning to the physical workplace, NOT terminate the employee. If the direct threat indeed can be reduced to a reasonable level by way of reasonable accommodation, then the employer and employee need to identify what kind(s) of accommodation will be the most effective. The EEOC includes a variety of accommodations available to employers including: additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace; additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others; elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position); temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting); and moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).
The conversation surrounding proof of vaccination requirements is being had around the country, however it is particularly acute in New York City due to Mayor de Blasio’s mandate announced last week. Restaurants have been especially vocal about the mandate, voicing their concerns regarding implementation and potential problems that will arise, or already have.
The first concern is that of the government handling more personal information. This has been of particular importance with regards to New York state’s Excelsior Pass. Chief executive officer of online retail scammer tracking service Fakespot, Saoud Khalifah, explained that “usually, blockchains are public and they provide a place where you can get consensus between different computers all around the world, and an open kind of platform… but, in this case, [Excelsior Pass’s blockchain technology] is closed, and it’s private and we don’t really know what’s happening behind the scenes.” Cloud security expert for cybersecurity research company Check Point, Brian Linder, mirrored Khalifah’s viewpoint while broadening the conversation to other eligible vaccination proof, adding that “you have personally identifiable information and an app that is completely unvetted and auditable, but creates a false sense of security.” Here, he is referencing the virtually safeguard-less NYC Covid Safe app – bringing us to the second concern.
The second concern is that forging vaccination cards, using others’ legitimate vaccination cards, or simply uploading a picture of anything but a vaccination card are all issues that have already happened, and will continue to going forward. Fake vaccination cards have been available on the dark web, Etsy, and numerous other online marketplaces for months already. Now, however, others have caught on to the extent to which the NYC Covid Safe app doesn’t check the validity of the vaccination cards uploaded, nor does it cross reference such cards with other databases like state records. Countless pictures have been posted on social media showing what people have been able to get away with on the app – including successfully uploading pictures of Mickey Mouse, their pets, restaurant menus – the list goes on. For those who do not want to use the app, and instead opt for showing a paper vaccination card, several instances of diners sharing valid cards amongst each other have been reported by restaurant owners; this trend has the propensity to popularize very quickly, especially if bouncers and servers are busy and do not have time to keep a close eye on all individuals in a party.
The third problem is the very real potential for violence. Mask mandates spurred countless instances of physical violence from customers, even murders. What will a vaccination mandate bring? Surely customers will project the same degree of anger, if not more, which will place employees and employers at significant risk. Not only will they be dealing with someone who might potentially resort to physical violence, but also, in the case of an altercation, they will be exposed to an unvaccinated individual in close proximity. Physical violence aside, verbal abuse has been on the rise for employees in the last couple months, which will continue to rise; as has written backlash on social media and Yelp pages, which has and will continue to affect a business’ reputation and revenue.
New York City officials have provided little to no direction on how to actually implement the vaccination mandate. Do employees check vaccination cards like a bouncer does an I.D.? Do they physically block someone from entering if they are unvaccinated? Do they allow everyone who shows their vaccination card on a government-supported app into the restaurant?
Officials have only indicated that it will be up to staff, in the indoor spaces included in the mandate, to verify the authenticity of vaccination proof – whether it be a physical card or a picture in an app. According to one of Mayor de Blasio’s spokespersons Laura Feyer, “The NYC COVID Safe App was designed with privacy at the top of mind, and allows someone to digitally store their CDC card and identification. Someone checking vaccination cards at the door to a restaurant or venue would see that those examples are not proper vaccine cards and act accordingly.” This is all employers have to work with, but many other precautions should, or must, be taken as well.
Employers can hire professional security guards.
Businesses that can afford to hire a third-party to man the door should. With more demand comes more of a propensity for violence – and businesses should get ahead of the curve. Centurion Security Solutions, a security company based in the city, recently stated that it has already started doing work for venues checking vaccination records and that it believes “most New Yorkers will comply with the new law, but worries about how the policy will fly with visitors from out of state,” according to owner Idris Washington. Although this company has the tools and services necessary to check vaccination records, other security services may not be able to – which poses further questions regarding who should be tasked with checking.
Employers can prepare staff to disarm escalatory, and/or potentially violent, situations themselves.
This can include special training on how to say no or on effective de-escalation techniques.
Employers can start implementing the requirement now in order to preemptively smooth out any kinks they observe.
Many restaurants have already begun putting the requirement into action. Some have said that offering outdoor seating has been the perfect solution, while others have compared the entire experience to that of checking IDs for alcohol. Scott Gerber, who owns Mr. Purple and the Cambell amongst others, stated that his restaurant employees have “dealt with intoxicated people and irrational people… [but] our people are skilled at de-escalating problems.”
In the same token, employers must also anticipate that they will lose customers and business due to this mandate. There will be customers that will not agree to sitting outside or wearing a mask, for a variety of reasons, and thus will not want to give their business at all.
Employers can preemptively alert customers of their precautions and requirements.
Both Yelp and OpenTable have unveiled new features that allow restaurants to add filters or tags that inform users of their vaccination requirements and other safety precautions relating to Covid-19. If nothing else, these features are effective ways to deescalate the situation before it is presented right in front of you – this way, customers who do not want to comply with vaccination requirements will be able to know if their desired location has some in place before they show up, and vice-versa.
What Comes Next?
Employers should look out for two major developments having to do with the legality of proof of vaccination requirements as well as their effect on unemployment benefits.
For example, a lawsuit has already been filed with regards to NYC’s vaccination mandate. As of last week, several elected officials from Staten Island announced that they will sue New York City over its mandate because it “infringes on citizens’ rights.” The officials include Representative Nicole Malliotakis, state Senator Andrew Lanza, state Assemblymen Michael Reilly and Michael Tannousis, City Councilman Joe Borelli, and borough presidential candidate Vito Fossella. The group seeks to call for an injunction against the mandate on August 16th, when the mandate is set to take effect. At an announcement made last week, Fossella stated that “We represent the people who say no. So if you want to come for their jobs, if you want to come for their business, if you want to come for their liberty, and if you want to come for their freedom, we’re here to say we’re standing in your way. So if there is not compromise, if there is not a reflection and a withdrawal of this ridiculous, unconstitutional edict from the powers that be, then we will sue you, not for me, not for these elected officials, but for the hardworking United States citizens.” He personally added that he is “here to tell you: if you want to be vaccinated, so be it, get vaccinated. You should if you feel it’ll help you. But if others don’t feel like they want to get it, they should not be ostracized. And we will not stand for them to be ostracized. No citizen of New York City or New York state should be second class.”
The group made clear that, while they oppose the mandate, they are not anti-vaccination – rather, their interest is in making it a choice.
On the unemployment side of the conversation, many employees have been questioning whether they will be eligible for benefits if they are fired, or quit, on the basis of the vaccination requirement. Although an answer was not previously available, many legal professionals have spoken out in the past few days in an effort to answer the question.
In short: no, individuals will not be eligible if they quit over the vaccination requirement.
In most states, individuals can only collect benefits if they prove that they are out of work through no fault of their own. On this basis, an employee who is fired for not complying with company policies, for example, is not eligible for unemployment benefits. Such policies include drug tests, safety training, dress codes and, now, Covid-19 prevention policies such as mask and/or vaccination requirements. The only caveats are medical exemptions or religious objections, which fall under the ADA. Those employees who do have proof of medical exemptions or religious objections will still be able to collect benefits if fired, according to the executive director of the National Employment Law Project Rebecca Dixon. Quitting will yield the same outcome. According to Dixon, “if you quit because of the mandate then you’d have to have good cause attributable to the employer in order to collect unemployment benefits….Good cause is usually viewed from that of a reasonable person. Given the overwhelming evidence of the safety of the vaccine, it’s likely that good cause would not be found in the case of a person who quits a job because of a vaccine mandate.”
The long answer, however, is that it will ultimately depend on the state.
Because state workforce departments can update eligibility requirements depending on the circumstances, employees fired for refusing to comply with the vaccination requirements may become eligible for benefits down the line. Although the Department of Labor has not issued a statement on this topic yet, multiple states are already taking action on the matter. A pending bill in Tennessee includes a provision that would prohibit denying employees unemployment benefits if they quit because of a vaccine requirement. Several other states are proposing similar legislation with regards to terminated employees, including Alaska, Arizona, Idaho, Indiana, and Michigan.
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