As widely predicted, with the extensive distribution of safe and effective COVID-19 vaccines, travel is beginning its comeback. Views about the speed and nature of recovery (business versus leisure, for example) may differ, but the numbers are growing, cruising appears to be on the brink of resumption and more people are contacting their travel advisors for planning and booking.
The return of business will lead to the reopening of travel agencies (should we now call them travel advisories?) and the return of staff to offices. That in turn raises questions about whether an agency can require proof of vaccination status by its employees and independent contractors to whom it rents space.
If the agency will not require proof of vaccination against COVID-19, what will the agency’s policy be regarding testing or other means of verifying that employees or ICs are not infected? If proof of vaccination will be required, what will the consequences be if an employee/IC refuses to get vaccinated? What is the policy if a refusal of vaccination is claimed to be based either on specific health considerations or upon some other basis such as religious objections?
The independent contractor situation may be the easiest since, presumably, there is in place a written agreement between the agency and the IC that covers the policies of the agency, current and prospective, with which the IC must comply. If there is no agreement with the appropriate language, there will have to be a negotiation if an IC objects to showing proof of vaccination. Before those negotiations begin, the agency should have a plan for how it will proceed if the negotiations fail.
Let’s start with some aspects of this that are reasonably clear. The U.S. Equal Employment Opportunity Commission (EEOC) has many resources available that address questions such as employment discrimination arising due to the pandemic. These resources are listed here. A comprehensive list of employment/work-related questions and guidance may be found here.
Unfortunately, the EEOC notes that the material in that link was issued before, sometimes long before, the Center for Disease Control’s updated guidance for fully vaccinated people (last updated May 28, 2021). The EEOC is still evaluating the impact of CDC’s new guidance, but for now, the above link is the latest. The list of questions and answers is long and complex, but it is essential to understanding what actions can and cannot be taken. It covers a number of topics related to employment discrimination:
- Disability-Related Inquiries and Medical Exams
- Confidentiality of Medical Information
- Hiring and Onboarding
- Reasonable Accommodations required by the Americans With Disabilities Act
- Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics
- Furloughs and Layoffs
- Return to Work
- Caregivers/Family Responsibilities
- Vaccinations with a subsection specifically on COVID-19 Vaccinations: EEO Overview
The breadth and detail in the material are somewhat intimidating. To apply it effectively, I suggest that agency management read down the list and for each question, make your own list of actions/policies you will take or implement for each issue covered. That list, which likely will be much shorter than the full EEOC guidance, will become your agency’s simplified individual road map to direct your progress toward resumed operations.
In general, and subject to the details reference above, the EEOC has stated that its federal equal employment opportunity laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.”
That’s fine as far as it goes, but the EEOC also notes that “other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers. From an EEO perspective, employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”
The EEOC also noted that employers may offer incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the Americans With Disabilities Act. Incentives offered must not be coercive in that “a very large incentive could make employees feel pressured to disclose protected medical information.”
Unfortunately, there is no escape from this complexity but, as suggested above, there is a way to simplify the application of the rules to your business situation.
Most commentary about these issues supports the view that requiring vaccinations as a condition of returning to the office is lawful. Some useful advice is to limit inquiries and proofs to vaccination, without asking why or why not, which could lead to invasion of protected health information. Agencies will also want to take care regarding asserted religious objections to vaccines. Consultation with agency counsel is essential.
There is more to this than just protecting other employees/ICs in the physical office space. If staff must travel to conduct business (for, say, site inspections), supplier policies regarding vaccinations must be taken into account, along with destination rules for quarantining non-vaccinated travelers.
States may have laws/policies that differ from the federal approach. This is an area in which federal rules may not supersede all state requirements, since matters of public health are involved. And, of course, the pandemic situation is rapidly evolving in two contradictory directions: vaccination is rapidly bringing down the number of COVID infections while variants of the virus continue to emerge in other countries and could change the pandemic landscape here fairly quickly. Every action taken now should be expressly subject to change in the event that public health considerations warrant.
Finally, the EEOC and CDC views are not necessarily the final word on all of this. Lawsuits are pending in several states regarding vaccine mandates and related work restrictions. The governors of at least three states (Arizona, Florida, and Texas) are trying to prevent businesses in many cases from requiring proof of vaccination before delivering services. Variation in pandemic regulations has moved down to the local level in some cases. Counties and cities may have their own rules on testing, quarantine, and vaccination. Everything in this arena is in flux to some extent.
While I agree that these lawsuits likely are misdirected, their resolution is going to take a long time and, therefore, the uncertainty of outcomes will be with us through the travel recovery period.
Here is a list of useful articles about these subjects:
- CDC Toolkit
- Society for Human Resource Management
- AOL: Lawsuits Mushroom as Workers Test Employers’ Rights to Mandate Vaccination
- Penn Law Professor Predicts Business Will Require Vaccination Proof
- Here’s What Employers Are Not Allowed to Do To Entice Workers to Get COVID-19 Vaccination
- For Employers, the Law Is Mostly on Their Side When it Comes to Vaccines
- Can Your Employer Require a COVID-19 Vaccine
A final note of caution: the pandemic situation is evolving rapidly. It is fraught with political, personal, and other conflicts that are deeply felt and once stimulated, hard to contain. Agencies looking to reopen and bring back employees cannot escape making decisions about these issues. Trying to avoid the subject exposes the manager(s)/employees to health risks that can be extremely serious. Addressing the subject requires dealing with complex issues and hard choices. Short of mandates, an agency can try incentives but in the end may have to face the ultimate decision: mandate or not. If not, what then? Telework is one option. In typical agency offices of small physical size, masking and social distancing may be insufficient. Mask requirements also may face various forms of resistance. These and the other issues raised by the EEOC and CDC guidance should be thought through in advance so that agency policies and practices can be calmly and properly applied as conditions evolve.
It is, therefore, critical to proceed into this jungle with the advice of counsel. This is probably the last thing advisors/managers/owners want to hear right now, but we are on the verge of a renaissance in travel – long-awaited and desperately needed. For the sake of the agency and its workers, it’s important to get this right.