By Ray Birch
KALAMAZOO, Mich.—There are legal and human resource issues credit unions must carefully address as the COVID-19 vaccine becomes available and CUs devise policies around staff immunization, advises one attorney, who also said no employee objection to getting the vaccine should be taken lightly.
For credit unions, the availability of the vaccines is creating a new balancing act for management as most employees won’t feel safe working in and members won’t feel safe doing business in facilities until the vaccines ideally help quash the pandemic. But as polls and surveys make clear, some CU employees are going to refuse to be vaccinated, creating a challenge for management on who can return to work.
“The EEOC (U.S. Equal Employment Opportunity Commission) has just released COVID-19 vaccination guidance, and it is similar to guidance issued around vaccination for the flu,” said Sean Crotty, partner and chair of the labor and employment department at Honigman, LLP.
Crotty explained that, consistent with the EEOC guidance, employers can require employees to get vaccinated, subject to three limitations.
“The first limitation is there must not be a state law that prohibits mandatory vaccinations, as the EEOC only interprets federal law,” said Crotty. “States can put their own limitations in place, and state governments are surely considering that.”
Crotty stressed the first step for credit unions is to check the laws in their respective states.
Second & Third Limitations
“The second limitation that CUs must address is that employers still have to consider exceptions,” he said. “Employers are obligated to consider accommodating requests for exceptions from employees whose disabilities or sincerely held religious beliefs prevent them from getting the vaccine. And that's a very specific set of exceptions—it doesn't cover personal and ethical objections. Those don't need to be honored. It's really just those that pertain to disabilities and sincerely held religious beliefs.”
The third limitation is related to federal labor law.
“If a credit union’s employees are unionized, the credit union may have to bargain with the union before implementing its vaccination policy,” Crotty said.
What Pew Study Found
A study recently released by the Pew Research Center found that a significant number of Americans may hesitate to get the vaccine. Sixty percent of respondents said they would either “definitely” or “probably” get vaccinated. That’s down from 72% in May but up from 51% in September. And only 29% of respondents said they would “definitely” get the vaccine, down from 42% in May, according to Pew. Crotty emphasized that when employees come forward with an objection to getting the vaccine the CUs should not simply reject the request.
“It's critical that the company not simply reject that objection. Rather, if the objection is based on a disability or religious issue, they have to go through what's called an interactive process—have a discussion with the employee to determine if there's any accommodation that can be made,” he told CUToday.info. “In other words, you can't just fire employees because they're not going to get the vaccination. You have to talk with them. You have to consider their objections. You have to consider whether there are some alternatives that would allow them to keep working and not receive the vaccine. That could involve requiring them to wear additional personal protective equipment, changing their workstation, reassigning them elsewhere, or have them work remotely. The key is you just can't reject the disability or religious objection outright. You have to consider potential accommodations.”
Making Accomodations
Employers, too, don’t have to just take employees’ word regarding their reasons for objecting.
Sean Crotty
“For instance, in the case of a disability request, more information from the employee and his or her doctor about the actual extent of the employee's limitations can be requested,” Crotty explained. “If the accommodation is for religious beliefs, you only have to accommodate religious objections that are based on sincerely held religious beliefs. You don’t just have to take employees’ word. You can, for example, request some supporting information, such as an explanation about their religious beliefs or even a third-party verification—someone who's aware of the employee’s religious beliefs.”
As Crotty noted, the credit union may determine, following the employee’s objection, that an accommodation can be made, such as working from home.
“However, the credit union can decline to make the accommodation if the accommodation presents an undue hardship to the organization, such as a significant expense,” Crotty said. “In that case, you can then deny the accommodation and still require the employee to get vaccinated or exclude them from the workplace if they're unable to do so and therefore present a direct threat to the health of the other employees. That's the legal framework, but that's not the end of the analysis.”
The Real World
For credit union leaders, it’s going to mean “dealing with the real world.”
“There are variety of real-world considerations to a mandatory vaccination policy,” he said. “The first thing I tell clients is consider logistics. There are only so many vaccine doses currently available. At least in Michigan and in other states, there are prioritization plans about who can get the vaccine. Therefore a credit union may say it wants everyone to be vaccinated, but that simply may not be possible or realistic in light of the availability of the vaccine.”
Instead of asking all employees to get vaccinated, the credit union instead may have to take a “calibrated” approach to delivering the vaccine to its staff.
“Maybe the credit union first requires it only for select employees based on their positions—maybe those in a public-facing job or in high-risk areas,” he said. “You may need to think through who really needs it and adjust your approach accordingly. Indeed, if you have employees who are completely remote, there's not much of a justification to require them to get the vaccine, because they don't present a risk to the rest of the workforce.”
A Polarizing Issue
Crotty acknowledged the COVID-19 vaccine is likely to be a polarizing issue among employees.
“It may be more effective, and it may be better for your workforce’s morale, to encourage or even incentivize employees to get the vaccine, as opposed to just making it a mandate,” he said. “If you are going to institute a vaccination program, do so at no cost, or little cost, to employees. And run the program so staff are not spending their own time getting vaccinated. If they are required to get vaccinated on their own time, consider compensating them for that time.”
A critical component of all of this is carefully training HR staff ahead of rolling out any type of vaccination program, said Crotty.
“Coming out of this, there will be difficult legal and practical considerations, and there will be legal challenges for credit unions that misstep. You don't want to be on the leading edge any legal claims that might develop. These objections I discussed—disability and religious—they're slippery issues,” he said. “They're hard to understand, and there are a lot of landmines and issues out there for HR staff to deal with. This is also an area where we're going to see ongoing legal developments, and there will be guidance from the state and federal levels.”
Staying in Close Touch
Crotty advised CUs to keep in close touch with either local HR organizations, or with experts from wherever the credit union gets its employment law information.
“Stay abreast of new rules as they come out. Most importantly, if you receive an objection to a mandatory vaccine requirement, review each objection with counsel to determine how to handle it,” Crotty said. “Again, you don’t want to be on the leading edge of any litigation arising from this vaccination process.”