COVID-19 Dominates Legal Questions from Employers
The past two years have been a whirlwind for employers and employees alike as the pandemic created major changes in the workplace that are not necessarily short term.
Lawyers based in Central Virginia helped us navigate some of the most pressing legal issues businesses will face in 2022: vaccine mandates, remote work and medical marijuana.
When President Joe Biden mandated vaccines for certain categories of workers in September 2021, he set off a firestorm of protests from employees and concerns by employers.
“I joke that we’re all just becoming vaccine lawyers,” said Patrick Bolling, an attorney with Woods Rogers PLC.
While the 5th Circuit Court of Appeals struck down the mandate for employers with more than 100 employees in November, legal challenges will continue. “It’s being challenged in virtually every state,” Bolling said. “Everyone is completely confused.”
In the meantime, employment lawyers recommend that health care providers, federal workers and federal contractors, and companies with more than 100 employees, prepare for the Jan. 4, 2022 deadline to have their employees fully vaccinated.
“The hottest topic right now is who pays for the testing?” Bolling said, adding that employers are not likely required to pay for the testing. Some companies, however, may decide that they can’t afford to lose employees who refuse vaccines and may choose to hire vendors to do weekly testing.
Bolling also noted that employers only have to accommodate employees’ religious and health exemption requests if they do not create an undue hardship. For example, a nursing home or childcare facility that serves vulnerable populations has every right to terminate employees who refuse the vaccine.
John Falcone, an attorney with Petty, Livingston, Dawson & Richards PC, agrees that the vaccine mandate has raised a lot of questions, but he maintains that it’s positive because it protects employees, customers and the general public. “Absolutely, it’s good for business,” he said.
Falcone noted that employers can also say no to testing if it is too expensive or too much of an administrative hassle. In general, employers have the upper hand when it comes to determining how and whether to accommodate employees who refuse vaccinations.
Another work topic that has arisen from the COVID-19 pandemic is the question of returning to a common workplace after working from home. Some employees have high anxiety about contracting COVID and want to continue to work remotely.
“Accommodations under the Americans With Disabilities Act (ADA) are on such a case-by-case basis, it’s hard to come out with any generalized rules or tests as to what would qualify,” said Gary Coates, an attorney with Freeman, Dunn, Lucy & Coates PC.
A disability is considered a mental or physical condition that disrupts one or more major life activities, Coates said, and it requires medical documentation. COVID-related anxiety might be accommodated with a segregated workspace, he noted, but added that the pandemic has raised even larger issues. Many employers are realizing they don’t need to pay for expensive office space, while some find their employees are more efficient working from home. Of course, some jobs might be impossible or less efficient with workers away from the job site. Some smaller employers may need workers on site to be physically present to answer phones or meet clients.
Bolling says it all comes back to what constitutes a reasonable accommodation. For example, an employee who needs to stand at a desk might reasonably expect his employer to provide a desk that raises and lowers, but refusal to come to work where attendance is an essential function of the job could result in termination.
Another growing concern is the long-term effects of COVID-19 on those who have survived the virus but continue to have symptoms, referred to as long COVID, Bolling noted. Recent studies suggest that up to 50 percent of those who have had the virus continue to have health problems related to it.
Lawyers are also getting a lot of questions about medical marijuana. While Virginia now allows it, there are only a handful of dispensaries in the state, Coates noted, adding, “Doctors have to be registered with the state to provide it. You can’t just see any doctor.” There is also a lot of paperwork that takes time to complete.
Falcone said employers have been asking a lot of questions about drug testing. “If an employee tests positive, but is not otherwise impaired, the employer can’t take action against the employee for that reason,” he said.
The bottom line, however, is one must not be impaired at work, and employers have the right to prevent employees from possessing marijuana at work.
Some employers have stopped including marijuana in their tests, Falcone said, but noted it’s trickier for employers with federal contracts because marijuana is still illegal under federal law.
Bolling advises employers to be careful and be sure to document any actions by an employee that could lead to firing to prove they are not discriminating against those with a medical marijuana prescription.
Most companies continue to conduct drug testing during the hiring process, but are more likely subsequently to test when there is a reasonable suspicion that the employee is impaired or when there has been an accident at work.
All three of these issues are likely to continue to raise questions and concerns for the foreseeable future, particularly as the political party in power continues to seesaw back and forth.