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Q&A your employment lawyer, though, before relying on the undue hardship exception because it is a difficult burden to meet. Similarly, if you believe an unvaccinated mariner poses a direct threat due to a significant risk of substantial harm to the health or safety of the individual or others that cannot be reduced by reasonable accommodation, you shouldn’t jump to firing the employee or to automatic exclusion from the workplace. The sensible approach is to work with your employment counsel to find a solution that will eliminate or reduce this risk if an unvaccinated mariner poses a direct threat.

Jeanne Amy

Q&A:

What Should Employers Know About the COVID-19 Vaccine?

I

n December, American maritime and supply chain trade associations and organizations wrote Senate committee leaders asking that industry workers be prioritized for COVID-19 vaccinations. With the industry pushing for access to COVID-19 vaccines, employers may have questions on how the vaccine will impact their operations and relationships with employees. We recently talked to Maggie Spell and Jeanne Amy of Jones Walker LLP, a New Orleansheadquartered law firm, to get a clearer picture of what legal options there are for employers when it comes to the vaccine. Marine Log (ML): From a legal standpoint, can employers require that mariners be vaccinated? Maggie Spell (MS): Purely from a legal standpoint, yes – but it isn’t that simple because of exceptions to this general rule and the practical implications. There are many questions employers should be thinking through before making a decision on whether to require employees to get the vaccine. And given that it’s likely to be several months before the vaccine is readily accessible, there’s time to evaluate the options for your particular workplace on the frontend. Setting the practical issues aside for a moment, the Americans with Disabilities Act limits an employer’s ability to conduct medical examinations except under

26 Marine Log // January 2021

certain circumstances. The Equal Employment Opportunity Commission confirmed that the COVID-19 vaccine itself is not a medical examination, but warns that screening questions might be. If an employer requires employees to get the vaccine and it’s administered by the employer (or a third-party with whom the employer has contracted), the employer will have to show that any screening inquiries are job-related and consistent with business necessity. This rule is subject to two exceptions: (1) if the employer makes the vaccination voluntary and the employee has the choice whether to answer the pre-screening questions (but the vaccine can be denied if the employee elects not to answer), and (2) if the employer requires that employees receive the vaccine from a third-party with whom the employer hasn’t contracted (such as a pharmacy). If this second route is chosen, you can require proof of vaccine. ML: If a mariner (or employee) refuses to be vaccinated on the basis of religious or health concerns for COVID-19 specifically, what should employers do? MS: If a mariner refuses to be vaccinated, the reason why matters. When the mariner puts the employer on notice of a medical condition or sincerely held religious belief that precludes administration of the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship. Consult with

MS: There are so many practical implications employers should be thinking about with respect to this vaccine. Is requiring the vaccine, rather than making it voluntary or even strongly encouraging it, really necessary for your workplace? When it’s readily accessible, who is going to handle requests to be excluded from this requirement—and do your frontline managers know what to do if a mariner refuses to get the vaccine? And what are you going to do with the employees who refuse the vaccine without a medical or religious basis? Jeanne Amy: Additionally, much of this analysis hinges on when the vaccine is readily accessible to some or all of your employees. Industry groups, like the American Waterways Operators, have urged that the CDC include maritime industry workers in the group of individuals who should receive the vaccine in Phase 1b. Currently the only individuals who can receive the vaccine in Phase 1a include healthcare personnel and residents of longterm care facilities. Phase 1b will likely include workers in essential and critical industries. The CDC adopted the definition of “essential critical infrastructure workers” implemented by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA), which includes most maritime transportation workers. The definition includes “port authority and commercial facility personnel,” “mariners,” “tugboat operators,” and “workers supporting transportation via inland waterways, such as barge crew, dredging crew, and river port workers for essential goods.” That said, other industry groups caution that each state may differ in its treatment of workers in the maritime industry, placing the onus on employers to ensure that each employee is equipped with proof that they meet the CISA definition of an essential critical infrastructure worker.

Photo Credits: Jones Walker LLP

Maggie Spell

ML: What else should maritime employers and operators keep in mind when it comes to this new vaccine?

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