We are all suffering from COVID fatigue. And as much as you may be exhausted of having to endure constant memes, articles, news stories, and debates surrounding COVID, we each bear responsibility to those we are charged for having in our care.
In this context, I am referring to our clients. While true that people hire us to respond to immediate and emergent issues affecting their organizations and their staff, another of our essential responsibilities is to mitigate risk and prepare our clients for events on the horizon so that they can be resilient in the face of uncertainty.
Nothing has created more uncertainty in recent memory than COVID. As a planet-wide event, no person or organization, private or public, has been alone in attending to the uncertainty and working to navigate the unchartered waters that this virus placed us into. We have thus learned from both the successes and mistakes of others as well as our own. We are still learning, particularly since COVID has new variants that are up ending our understanding of the parameters of the infectiousness and danger of the virus.
There has, in truth, been no time since the start of the pandemic that has been as confusing and uncertain as it is now with the emergence of the Delta variant becoming the dominant virus spreading throughout our population. We don’t fully understand the variant and we aren’t being given the luxury of time to do so either, just as we weren’t given that luxury when the pandemic began. Rather than play wait and see, it is best to plan forward in anticipation of what may be coming, especially as other variants such as the Lambda variant emerge and threaten to continue adding new twists to the story we are living through.
As government health agencies play catch-up and struggle to create accurate and clear messaging about what we should do to protect ourselves, we are doing the same. It is our job, after all, to provide clear messaging and advice within the context of employment law, human resources, and operational resiliency. To mimic that saying most of us have heard, responsible leaders hope for the best and prepare for the worst.
We did this by creating COVID emergency response plans that incorporated OSHA emergency regulations, EEOC guidelines, and COVID-related benefits with internal practices to protect the staff and operational integrity of our clients. Just as we did then, we continue to look forward and plan for the uncertainties that lay ahead.
If the Delta variant is as contagious as virologists and epidemiologists are concluding, getting COVID is no longer a possibility as it is an inevitability for those who remain unvaccinated. It is from this stance that we look ahead and as to why so many companies, hospitals, and government agencies are now mandating vaccination. It is time to consider doing the same, setting aside personal opinions, political beliefs, and all the related controversies. Instead, we are focused on a few realities and urge all our clients to do the same. They are as follows:
- EEOC guidelines affirm that private companies can mandate vaccination.
- Vaccinated individuals are less likely to contract COVID, far less likely to get sick, even more less likely to be hospitalized, and extremely unlikely to die from the virus. Statistically, the majority of individuals being hospitalized and dying are unvaccinated. Breakthrough infections (COVID infections in vaccinated individuals) are currently estimated to occur in less than one percent of those who are vaccinated.
- The new Delta variant is nearly twice as contagious than previous variants and more contagious than the cold virus.
- Vaccinated individuals may get infected and shed the virus without showing symptoms of infection though for shorter periods than those who are unvaccinated.
To Mandate or Not to Mandate Vaccines
What this all means is that it is inevitable your unvaccinated employees will become infected. Many will become sick and unable to work, and some will not recover. So, the question is a simple one that we will ask in several different ways so that you can appropriately consider your risk exposure.
- Can you effectively continue operations without your unvaccinated employees?
- Do you have unvaccinated staff in critical positions?
- If they were to get sick, will you still be able to operate?
If you can operate effectively without your unvaccinated employees, then you may not need to consider mandatory vaccination and leave it to them to make that choice for themselves. If you cannot operate effectively without your unvaccinated employees, then we recommend you either make contingency plans anticipating their absence or require vaccination. Doing neither will certainly compromise your operations, handicap your ability to service customers in the near-term, and likely impact your resiliency because you will give ground to your competitors that you may never recover. This is the advice I am giving my clients and am making public to anyone concerned and or confused regarding vaccination mandates.
What about Special Accommodations?
Some employees may be excluded from a vaccine mandate for either health reasons or a religious belief. If you decide to implement a vaccine mandate, keep the following in mind.
Medical Objection – If an employee has a medical condition/reason to object, as recognized by the ADA, they have the right to do so. If this is the case, the employer has legal rights and obligations of its own. You may request disability-related documentation that substantiates that the individual should not receive the vaccination because of a health condition.
As is currently required in California, you may provide reasonable accommodation such as wearing a mask as effective alternative means of infection control.
Your company can take business impact into consideration when looking at such exceptions. An exemption is permitted as a reasonable accommodation under the ADA unless there is undue hardship, which the ADA defines as either significantly difficult or expensive for the employer.
Religious Belief – If an employee objects to a vaccination based on religious grounds, they have that right as well. If an employee has a sincerely held religious belief, practice, or observance against being vaccinated, they are protected under Title VII of the Civil Rights Act. You, as an employer, have a duty to reasonably accommodate the employee unless this creates an undue hardship on your business.
Employers cannot force those specific religious employees to get the vaccine, but the employee would still have to adhere to other accommodations that would likely include requiring the employee to wear a face covering.
For those of you who are not clients or have not engaged with us to help you navigate the realities and impact of COVID, this message is for you. It is very likely you are not following Cal-OSHA regulations, EEOC guidelines, or have in place policies and practices that protect your employees and your operations. You may also be at risk of violating various laws put in place in response to the pandemic. For example:
- If you are not requiring or performing temperature checks daily, you are breaking the law.
- If you are requiring employees to come to work even when they are feeling sick, you are breaking the law.
- If you are not requiring unvaccinated employees to wear face coverings, you are breaking the law.
- If you are harassing or forcing employees to not wear face coverings, you are breaking the law.
- If you are not offering testing to unvaccinated employees when they are expressing COVID symptoms, you are breaking the law.
- If you are not providing up to 10 days of exception pay to your employees who are unable to work because they experienced work-related COVID exposure or infection, you are breaking the law.
- If you are not cleaning and disinfecting your work areas on a regular basis, you are breaking the law.
- If you are not providing your unvaccinated staff respirators at no cost, you are breaking the law.
I think you are all getting the point. You have a responsibility to protect your employees and the successful operation of your organization. Our mission is the same. We work to your benefit and to protect your interests. If you haven’t taken action to protect your people and your organization to the degree you are legally required, which is a minimum standard, then I encourage you to reach out to us. You wouldn’t want a COVID outbreak to occur in your organization, and you certainly wouldn’t want Cal-OSHA to take the drastic and legal step of shutting down your business. Nor would we.
Stay safe and stay a step ahead. We certainly do. And we will continue to work to keep you not just up to date, but ahead of the curve.