June 8, 2021

By: Maggie Spell Partner, Jones Walker LLP.

1. Can employers in the construction industry require employees to receive a COVID-19 vaccine as a condition of employment? 

In short, it depends. Back in December 2020, the U.S. Equal Employment Opportunity Commission (EEOC) explained that, generally speaking (and under federal law), employers can require employees to receive the COVID-19 vaccine. However, there are a few caveats.  

First, certain employees may need to be excused from a mandatory vaccination requirement as a reasonable accommodation unless it will present undue hardship. Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to employees with a covered disability that prevents them from receiving the vaccine. (Fact sheets for the COVID-19 vaccines include examples of some of the underlying medical conditions that may result in an accommodation request.) And under Title VII of the Civil Rights Act of 1964, employers are similarly required to provide reasonable accommodations to employees with sincerely held religious beliefs, practices, or observances that prevent them from getting the vaccine. Employers requiring the vaccination would be wise to consult with an experienced employment lawyer before denying an accommodation. Accommodation issues stemming from administration of the COVID-19 vaccine (and COVID-19 more generally) are likely to plague employers for a while, so getting ahead of this issue is key. 

Second, employers with unionized workers—as is fairly prevalent in the construction industry—should consult their collective bargaining agreements. Requiring the COVID-19 vaccination may trigger an obligation to bargain with the union before putting such a policy in place.   

Third, employers should check state and local law for more restrictive rules and other hurdles. There may be pre-existing employment laws that apply to requiring vaccination, requesting vaccination status, and complying with requirements for data collection or retention. And there may also be pending legislation that expands the reasons employees may refuse the vaccine beyond a disability or a sincerely held religions believe, or that restricts companies from asking for proof of vaccination or vaccination status. Pending legislation at the state and local level is proving to be dynamic and varied, so employers should consult with counsel knowledgeable about the particular locations of operation. After a state-by-state analysis, it may be appropriate or even necessary to take different approaches for different jobs.  

2. What should employers in the construction industry consider in evaluating whether to require the vaccine?  

What is right for each employer and each workplace will depend on a number of factors. The nature of an employer’s business and operations as well as the employees’ job duties will be driving factors for employers across the board. For construction employers, the particular industry may be a factor in the analysis.  

The physical premises may also dictate what is appropriate for each employer. This includes consideration of issues like how closely employees work and how much, if any, employees interact with members of the public. For example, a large outdoor construction site may not necessitate requiring the vaccine, while a close-quarters indoor project could warrant a different analysis. 

Additionally, construction employers should look to the impact that COVID-19 had on the business—or any given project—over the last year. For employers who have had shutdowns due to COVID-19, mandating the vaccine may be more enticing. On the other hand, companies that have had little to no impact may not want to rock the boat with employees if the forecast for future projects is the same.  

But what is most important is that there is no one-size fits all approach. How to handle the COVID-19 vaccine is something that should be analyzed carefully and in light of each specific workplace before any policy or requirement is implemented or disseminated.   

3. For employers who are still unsure of or deciding how to proceed, what now? 

Despite the wide availability of the vaccine, there are still a lot of unknowns, so many employers are currently not requiring the vaccine or waiting to make a final decision. Employers should weigh the potential legal exposure of a mandatory vaccination requirement and consider whether a mandatory or voluntary (even if strongly encouraged) vaccination policy is appropriate based on the nature and needs of the business. Avoid a kneejerk reaction in favor of balancing workplace health and safety with employee rights and ensuring those handling accommodation requests will be prepared. 

For employers who are thinking about implementing a mandatory vaccination policy, there are a number of practical issues to prepare for—and employee morale is one of the main factors. Some employees may be reluctant to get a COVID-19 vaccine based on a concern about adverse reactions, a general anti-vaccine sentiment, or a belief that the vaccine has been politicized. Employers will have to decide what will happen if employees refuse the vaccine if made mandatory, which may result in adhering to the mandate and firing a large number of refusing employees. For construction employers, considering how the loss of labor may impact a particular project would be prudent. Employers should also be careful when creating exceptions for employers (beyond those required by law) because deviating from the mandate for certain employees creates the potential for discrimination claims down the road.  

It is highly likely that at least some employees will refuse the vaccine for reasons other than an underlying disability, a religious belief, or another characteristic protected by state or local law (if any applicable law exists) so employers should be prepared for that reality. Failing to uniformly apply a mandatory vaccination policy could present a separate risk for liability.  

4. Can employers ask employees for their vaccination status? 

Probably so. However, there are some things companies should think about before surveying employees about their vaccination status. The EEOC has stated that employers may generally ask whether employees are vaccinated and ask for proof of vaccination without creating problems under the ADA because this is not a disability-related inquiry. But digging into the reason the employee chooses not to get a vaccination may uncover underlying medical conditions that require accommodation. Under the ADA, this inquiry can only be made if the question is “job-related and consistent with business necessity.” There may also be state laws related to collection, storage, and disclosure of personal data or information, so it is important to brush up on applicable laws prior to gathering data on vaccination status.  

5. Is there anything for employers who not mandating, but rather encouraging, the vaccine to consider? 

Accommodations due to an underlying disability, a religious belief, or another characteristic protected by state or local law (if any) are not necessary, but there are still things to think about and prepare for. Consider encouraging employees to stagger vaccines to prevent a labor shortage or a project slowdown while employees are being vaccinated or if employees have adverse reactions. And if encouraging the vaccine, consider paying employees for the time it takes to be vaccinated as well as any missed work due to an adverse reaction. (Along these lines, be on the lookout for legislation that may require this.) Regardless of whether an employer is encouraging the vaccine or staying silent, keep enforcing the precautions taken thus far during the pandemic, like social distancing and wearing masks for those who are unvaccinated. 

Ultimately, each workplace presents unique issues. Given the potential health and safety implications, as well as the potential liability associated, employers should thoroughly explore what is right for the business—and even potentially for specific job sites or projects—before settling on an approach.  

Maggie Spell is a partner in Jones Walker’s labor relations and employment practice. She can be reached in New Orleans at mspell@joneswalker.com or (504) 582-8262. Because the information described herein is general in nature and may not apply to all situations, legal advice should be sought before taking action based on the information herein. 

“The Construction Industry Team at Jones Walker LLP is one of the most highly regarded and award-winning construction law practices in the nation. Our experienced construction attorneys understand the complex dynamics between — and the unique priorities of — project participants and can craft effective solutions that minimize disputes, manage risks, and help keep projects moving from conception to completion.”

The  views expressed in this article are not necessarily those of ConsensusDocs. Readers should not take or refrain from taking any action based on any information without first seeking legal advice