March 1, 2021 |
Updated March 1, 2021
There are several avenues employers can take regarding their approach to the COVID-19 vaccine.
As the COVID-19 vaccination effort continues, how will this vaccine rollout impact the apartment housing industry? A recent NAA webinar, “Battling the Pandemic: The Impact of Vaccines on Apartment Employees,” takes a deeper look into the potential pitfalls and benefits of the vaccine in the rental housing industry.
The webinar, presented by Carrie Cherveny, Esq., Chief Compliance Officer, Employee Benefits and Employment Law, South Region, with insurance brokerage HUB International, reviewed different aspects and items to consider when industry employees receive (or don’t receive) the vaccine. These included the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.
“Very few employers in most polls that I review are interested in mandating [the vaccine], and the practical reality is even if you want to mandate it you can't because it's just not readily available,” says Cherveny. “There are more folks on here interested in motivating with incentives, but it absolutely makes sense in the industry. The more you can get people vaccinated, the safer and easier it is to manage and maintain your properties.”
According to the webinar, employers have three options when it comes to handling a vaccine program in the workplace. Employers can mandate the vaccine in the workplace, with exceptions. Employers can motivate employees to receive the vaccine with incentives. Employers can also educate employees about the vaccine, which is the simplest and least complex way of handling the vaccine in the workplace.
“The number one question I get is, ‘Can I mandate my employees to get the vaccine?’ The answer is, ‘Yes, at least for now you can,’ so long as the EEOC has declared COVID-19 a pandemic or national emergency or a direct threat,” says Cherveny. “If you're going to mandate the vaccine, you've got three guardrails to pay attention to: One, the Americans with Disabilities Act; two, Title VII of the Civil Rights Act of 1964 with respect to religion; and three, pregnant employees.… The FDA and the CDC have not yet approved vaccine usage for pregnant women, so if you want to invoke a mandatory vaccination program, you certainly can't mandate pregnant women to receive a vaccine.”
However, under the ADA and Title VII, there are certain requirements that must be met for application such as the number of employees. There are also state and local law equivalents to the ADA and Title VII that can apply to smaller employers.
Under the ADA, the vaccination is like an employee needing accommodation regarding a broken leg. If someone doesn’t want the vaccine because of an underlying health condition, “you have to engage in the same interactive process as you would if an employee had a broken leg and is in a wheelchair,” notes Cherveny.
Similarly, under Title VII, employees who have a sincerely held religious belief that conflicts with their ability to receive the vaccine, employers must engage in a cooperative, interactive process to identify a viable solution for that employee.
One of the biggest questions is what can employers do when employees need to enter occupied apartment homes? This is one question Cherveny receives a lot. “Listen, you've just given me the legitimate business reason for mandating the vaccine, and that is our criteria. Do you have a legitimate business reason to mandate the vaccine?”
But how important is having a mandatory vaccine program in the workplace? “Are you prepared to fire people or move them into other positions if they refuse to get the vaccine and are not protected by the ADA, Title VII or are pregnant? That's the real-world question guys: Are you prepared to enforce a mandatory program?”
Michael Miller is the Managing Editor for NAA