After the U.S. Food and Drug Administration (FDA) issued Emergency Use Authorizations (EUAs) for the COVID-19 vaccines manufactured by Pfizer, Moderna, and Johnson & Johnson, most employers resisted mandating that all employees receiving the COVID-19 vaccine as a condition of employment. In fact, a recent law firm survey found that only 6 percent of employers were planning to implement such a measure following full approval (or licensure) by the FDA. However, nearly half of employers (48 percent) were still undecided.
Even if a contractor decides not to mandate the COVID-19 vaccine for its employees, the contractor’s employees may perform work at a location, such as a hospital or long-term care facility, or for a general contractor that requires everyone on the jobsite (including the contractor’s employees) to receive the COVID-19 vaccine. For contractors facing these business requirements, it is important to understand your legal options and risk.
Contractors Don’t Have to Mandate Vaccination
Even if a general contractor or a customer mandates that all workers receive the COVID-19 vaccine at a particular jobsite, this does not mean that the contractor needs to implement a mandatory vaccination policy for its entire workforce. In fact, doing so would require the contractor to create an “accommodation” process for accommodating (or exempting) employees with certain medical conditions and sincerely-held religious beliefs from the mandate under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act (Title VII). In Canada, employees could refuse to be vaccinated on a ground protected by the Canadian Human Rights Act, Canadian Charter of Rights and Freedoms or similar legislation.
Instead, the contractor can maintain a non-mandatory policy and communicate to employees that they will only be eligible to work on the jobsite (per the general contractor or customer’s requirements) if they have received the COVID-19 vaccine. This would then allow the contractor to assign unvaccinated workers to other jobsites where vaccination is not required.
What If No Other Work Is Available?
If the contractor is unable to find other available work for the unvaccinated employee (i.e., work that does not mandate COVID-19 vaccination), then the worker should be treated the same as workers in other situations where no work is available: laid off and sent back to the hall for a new assignment.
The “accommodation” process under the ADA and Title VII applies only to “employers” and, unless the general contractor or customer is found to be a “joint employer” of the contractor’s employees, then it is generally not required to accommodate exemption requests from “non-employees,” such as the contractor’s employees. From the contractor’s perspective, there is no “accommodation” to offer because the client has made clear that vaccination is a condition of the contractor’s employees performing work on the project.
Customer and general contractor mandates regarding vaccination should be treated like other business requirements. If alternative work is not available for those who are unwilling or unable to be vaccinated, those employees should be treated the same as other workers where no work is available.