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Employment lawyer lays out considerations for workplace vaccination policies

“Are we going to terminate employees if they don’t comply with the mandatory vaccination policy?” asked employment attorney Harriet Cooperman said. “What are you going to do when your best salesperson refuses to get vaccinated? Or your senior vice president? Those are all important considerations.” (The Daily Record/File Photo)

With the Pfizer coronavirus vaccine receiving full Food and Drug Administration approval on Monday, more and more employers are considering mandating vaccinations in the workplace. Previously, concerns about the vaccine’s Emergency Use Authorization status made some employers wary of requiring the vaccination, although doing so was still legal, many lawyers argued. 

Additionally, the emergence of the delta variant of the coronavirus — a new strain of the virus that is more transmissible and makes up around 93% of COVID-19 cases worldwide — makes it more important than ever for people to get vaccinated, experts say. 

But how should employers go about implementing mandates that best protect their workers and customers, while also avoiding unnecessary confusion or legal recourse? Harriet E. Cooperman, a partner at Saul Ewing Arnstein & Lehr LLP and a veteran employment attorney, laid out several steps employers should take when developing their vaccine policies during a Greater Baltimore Committee virtual event on Friday. 

The first consideration that must be made is whether the mandate will be, as Cooperman put it, a “big M” or a “little M” mandate. A big M mandate offers no alternative for employees who do not have a medical or religious exemption and choose not to get vaccinated anyway.  

A little M mandate usually requires those who choose not to get the vaccine to take some other course of action to protect themselves, their coworkers and their clients from the coronavirus, such as submitting to a weekly COVID-19 test. This is something the company would have to foot the bill for. If employees had to take the test during non-work hours, they would have to be compensated for it, according to the federal Fair Labor Standards Act, Cooperman said. 

The employer also has to consider who the mandate will apply to — whether it’s a subset of employees who work directly with customers; those employees who are coming in to work; or even all employees, including those who work remotely. 

In Maryland, Cooperman said, “an employer can require all employees to be vaccinated, with certain exceptions, even regardless (of) whether they are interacting with other third parties.” 

This can be justified because, if an employee falls ill with COVID-19, that most likely means they can’t work for a period of time, impacting the business. 

But employers also have to think about what they will do if workers who don’t have a medical or religious exemption refuse to get the vaccine.  

“Are we going to terminate employees if they don’t comply with the mandatory vaccination policy?” Cooperman said. “What are you going to do when your best salesperson refuses to get vaccinated? … Or your senior vice president? Those are all important considerations.” 

It’s important for employers to also consider how they want to verify their employees’ vaccinations, whether they show their vaccine card or their vaccination records from the state’s Maryland MyIR database, especially as non-legitimate vaccine cards begin to crop up for sale online. 

Companies may also request proof that those requesting an exemption truly have a medical or religious reason not to want the vaccine. Because it is difficult to verify whether someone has “sincerely held” religious beliefs, employers traditionally err on the side of caution by simply assuming the employee’s religious exemption is legitimate. But if they are given an objective reason to doubt that, it’s legal to ask for additional information. 

“It’s difficult … and, frankly, it’s uncomfortable for employers to start delving into what is the deeply held religious belief,” Cooperman said. 

Although there have been rare examples of people having serious negative reactions to the vaccine, a company mandating the vaccine could not be held accountable if an employee who received the vaccine reacted badly, Cooperman noted. 

First, it would not be a case of negligence because these reactions are so rare — a vaccine recipient has a one-in-a-million chance of reacting negatively, according to Mohan Suntha, president and CEO of the University of Maryland Medical System, who also spoke at the event. 

Second, these reactions are more common in those with certain underlying conditions, the presence of which would allow the employee to have a medical exemption to the vaccine mandate anyway. 

“The risk is so minimal … I just don’t see, frankly, where an employer is going to be held to be liable,” Cooperman said. 

Suntha did note that businesses should be understanding if their employees experience temporary, minor symptoms after receiving the vaccine and need time off work.