By Caroline J. Sundbaum and Willa B. Perlmutter, Stoel Rives LLP
Just a few short months ago, we would have thought that COVID-19 was almost behind us and that it was only a matter of time before mine operators would no longer have to worry about the spread of the disease at their worksites. It looked like face masks and vaccinations had done their jobs, and that we had turned the corner on the pandemic.
It turns out we may have been just a tad over-optimistic. Like every other sector, the mining industry is looking at growing numbers of positive cases. In an environment where employees cannot work remotely; often live in small, tight-knit communities; and (particularly at underground mines) must work in close quarters, mine operators need to consider whether it makes sense to require miners to get the COVID-19 shot.
The mining industry is not alone. While many employers initially were hesitant to institute mandatory COVID-19 vaccination policies, the recent surge driven by the Delta variant and announcements from large organizations – including the U.S. military, United Airlines and major health care systems across the country – have caused many employers to revisit mandatory vaccination policies.
In almost every U.S. state, employment is “at will,” and employers are free to impose various terms and conditions of employment and terminate those employees who fail to comply with those terms and conditions of employment. The Equal Employment Opportunity Commission and U.S. Department of Justice (DOJ) have made clear that, absent a contrary state law, employers may require employee vaccination as a condition of employment. (Montana, for example, has a law prohibiting employers from mandating COVID-19 vaccinations and some other states have similar legislation pending as well.)
This is true notwithstanding the Emergency Use Authorization (EUA) status of the COVID-19 vaccine, which initially may have led some employers to hesitate to require vaccines. In a recent written memorandum, the DOJ explained that the EUA status does not affect whether such a mandate is lawful:
“Section 564(e)(1)(A)(ii)(III) of the Food, Drug, and Cosmetic Act concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization.”
The Mine Safety and Health Administration (MSHA) has not taken a hard position on vaccinations, other than to encourage operators to make the vaccine available at no cost to the workforce. MSHA also suggests that operators provide training on the benefits and safety of vaccines, and that they permit miners to get the shot during their regular work shifts (i.e., during paid time). At the same time, though, the agency advises companies to treat vaccinated miners the same as those who are not vaccinated, which undermines its support for vaccinations in the industry. Still, MSHA is at least implicitly acknowledging that mine operators would do right by getting their people vaccinated.
For employers considering implementing a mandatory vaccination policy, here are some factors to consider:
1. Disability and Religious Accommodations: While employers are within their right to require vaccinations as a condition of employment, employers need to be prepared to make accommodations for employees who cannot get vaccinated because of a disability or sincerely held religious belief. Employers presented with accommodation requests should ask for supporting documentation (such as a note from a health care provider or something in writing explaining the religious belief) and explore reasonable accommodations for the unvaccinated employee. For example, if possible, the mine operator might put in place continued mask or social distancing requirements, a modified schedule or workspace, periodic COVID-19 testing, or a leave of absence for a miner who cannot get the vaccine on medical or religious grounds.
2. Employee Productivity: A mandatory vaccination policy may help reduce absenteeism, since vaccinated employees may be less likely to get sick or need to quarantine. Higher vaccination rates may also lead to fewer workers’ compensation claims (if an employee contracts COVID-19 at work, the employee will be covered by the company’s workers’ compensation insurance, regardless of whether the company is at fault).
3. Employee Morale: How will a mandatory vaccination policy be received by your workforce? Will it make employees more comfortable? Or would “forcing” vaccinations lead to a backlash among your employees?
4. Union Considerations: If your organization’s workplace is unionized, a mandatory vaccination policy is likely a mandatory subject of bargaining that has to be negotiated with the union.
5. Company Reputation: This is the public relations issue. How will your vendors, clients and the public react? Will being able to say that your employees are fully vaccinated help the business?
6. Administrative Burden: Employers should also be prepared for the administrative burden – albeit slight – of verifying employee vaccination status. Although mines are not subject to the federal Health Insurance Portability and Accountability Act (HIPAA), an employee’s vaccination status should be treated as confidential and recorded in a separate medical file (not the employee’s personnel file).
Note that it is perfectly lawful for an employer to ask an employee or job applicant about their vaccination status; simply inquiring about vaccination status is not a “disability-related inquiry” under the Americans with Disabilities Act.
7. When the Rubber Meets the Road: A mandatory vaccination policy really should be mandatory, meaning that employees who do not establish proof of vaccination or a qualifying disability or religious exemption could lose their jobs. Will your organization be prepared to terminate employees when the rubber hits the road? If not, consider something short of mandating the vaccine, such as providing incentives, whether positive (a cash bonus, an extra day of paid time off, a raffle for prizes, etc.) or negative (continued mask requirements for unvaccinated employees, excluding unvaccinated employees from certain work areas, etc.).
With Delta and other variants, the state of the pandemic and associated state and local restrictions are rapidly evolving. Although mine operators may be reluctant to require employees to get the COVID-19 vaccine as a condition of employment, particularly in a time when it is so difficult to hire new employees, mandatory workplace vaccination policies are starting to become the norm, and mine operators may be well served by having a fully vaccinated workforce.
Law columnist Willa Perlmutter is chair of Stoel Rives’ OSHA group and co-chair of the firm’s mining group, with more than 30 years of experience as a litigator, focusing for the last 20 on defending mine operators across all sectors of the industry in administrative enforcement proceedings brought by the Mine Safety and Health Administration.