NEF Learning Zone – January 2021

Laura Herron, NEF President, has offered Kathi Dobson this month’s message space for the New Year:

This is not a NAWIC position statement. These are my views and understanding of what I know about the COVID 19 vaccination process as of mid-December 2020.

I am a safety professional and I’m also a Registered Nurse. Although I have not worked in that role for many years, I keep up with my licensing and education. One thing that has been very important to me is the possibility of vaccines being available to fight the COVID-19 pandemic and how it plays into worker health.

That day is now here. Both Pfizer and Moderna have been approved by the FDA and vaccinations of 1^st line and essential workers as well as nursing home staff and physicians have begun. For most of us, the vaccines will be available mid to late 2021 or early 2022. A third vaccine, from Merck, should be available in early to mid 2021.

Does that mean we must still follow all the important precautions the CDC has recommended? Absolutely. It will take over a year before more than half the US population are immunized, and until that happens, the virus still has a great chance to spread. And remember, there are people in our communities that will never take the virus over concerns, real or imagined that they have. Some will not be able to take the vaccination because of severe allergies to the components in the vaccines. There are lots of pros and cons that each individual must take into consideration, much like we do with flu shots, and other immunizations.

One of the key concerns of workers is will my employer require me to get vaccinated? Let’s review a few key points.

The EEOC has published their stance on this matter, but keep in mind a lot of this is related to ADA accommodations and workers with disabilities.

What you should know about COVID-19

This is a lengthy document that reflects many employment issues related to this pandemic, but you will find that the EEOC protects worker’s rights regarding vaccinations. Included in the document is the information that where an “unvaccinated employee may pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 C.F.R. 1630.2(r).  Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists:

1. the duration of the risk;
2. the nature and severity of the potential harm;
3. the likelihood that the potential harm will occur;
4. and the imminence of the potential harm. 

A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.”

For construction, it is important to understand that if there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in Question K.7., there may be situations where an accommodation is not possible.  When an employer makes this decision, the facts about particular job duties and workplaces may be relevant.  Employers also should consult applicable Occupational Safety and Health Administration standards and guidance.  Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.

There may also be an issue where a worker expresses religious beliefs or practices that prohibit the vaccination, and again, the courts have stated that employers must provide a reasonable accommodation for that worker unless it would pose an undue hardship under the Civil Rights Act – that is more than a de minimus cost or burden on the employer.

The bottom line – at least for companies like mine, (and a lot of this is still being evaluated by the attorneys who are way smarter and understand legal implications more than I do,) is that most companies and unions are strongly recommending, not requiring that workers take the vaccinations when they become available – subject to learning more about the vaccination process and health & safety implications for workers.

That being said, if the company we work for is being directed by an owner-client to have all workers on their site/project be vaccinated, workers will have to comply – much as we do now for drug testing, mask wearing, PPE use, etc. that is written into contractual language or addendums.

I know there will be much more in the months ahead regarding the process, and appreciate Laura Herron, NEF President, for reaching out to me to provide some information at this time – feel free to contact me if you have questions, and I’ll do my best to research answers with you to come up with solutions that will work for you and your company.

In health,

Kathi Dobson – Detroit Chapter 183