Part II of Webinar Series Scheduled for Sept. 15 COVID-19 Recovery

TAN interviews attorney Donna Peavler of Peavler Briscoe regarding her presentation during Part I of the organization’s 2021 webinar series: An Employer Round Table.

Q: Now that a significant portion of the population is vaccinated, a lot of employers are evaluating whether — and how — to return employees to the workplace. A lot of them have a lot of questions, though, about what is legal and what is not. I’d like to talk to you about two policies some employers are considering and get your opinion on whether they are a requirement that an employer can legally mandate. Let’s start with masks. Can employers require employees to wear masks?

PEAVLER: Right now, that depends on whether the employer is a governmental or private employer. Gov. Abbott has precluded state-run agencies from implementing mask mandates, which means employers like hospitals, schools, etc., cannot require their employees to wear masks. But the governor’s ban on masks does not apply to private employers. So yes, private employers have a legal right to require workers to wear masks while on the job.

Q: Okay. So they can require masks. But should they?

PEAVLER: Of course, that’s a decision each employer will have to make based on its management’s political views and unique work conditions. So I can’t answer that, but I can suggest that when making the decision, the employer consider two things: whether social distancing can accomplish the same goal, and how mask-wearing is likely to affect morale. I don’t think it’s any big secret that people simply do not like wearing masks — me included!

Q: Another hot topic is vaccines. Can employers legally require employees to be vaccinated as a prerequisite to returning to the workplace?

PEAVLER: This, too, depends on whether the employer is a state-funded employer or private employer. But yes, private employers may legally require workers to be vaccinated before allowing them to return to work. And they can fire employees who refuse to follow that company policy, with one exception. There is a gray area regarding whether an employer may discipline a worker who has a medical condition that prevents the employee from getting a vaccine. The ADA (Americans with Disabilities Act) requires employers to make reasonable accommodations for employees with disabilities, so it’s possible an employer may have to make reasonable accommodations for such employees. This may include allowing those employees to work remotely. However, if reasonable accommodations are not available, an employer may have the right to terminate that employee. But this issue hasn’t been formally resolved yet, so it’s somewhat of a minefield right now.

Q: Let’s say an employer decides to implement a mandatory vaccination policy. Is it legal for the employer to require the employee to show proof that he or she has been vaccinated, or does that potentially violate HIPAA and raise privacy issues?

PEAVLER: For most employers, asking for proof of vaccination is permissible under both state and federal law. HIPAA is not implicated for two reasons. First, HIPAA only applies to health care providers, health plans, and other health care-related entities and their business associates — not private employers. Second, HIPAA only precludes disclosure of protected health care information without the patient’s consent. Once asked, it is up to the employee whether he or she wishes to provide information regarding his or her vaccination status. If the employee chooses to do so in order to comply with the employer’s policies, then the employee has “consented” to the disclosure. If the employee chooses not to, the employer may legally terminate the employee — or take other disciplinary action against the employee — for his or her failure to comply with company policy.

Q: Let’s stay on the vaccine subject for a moment. Do you recommend that employers require vaccines?

PEAVLER: Is this is a trick question? Of course, there’s no right or wrong answer to this question, as it will depend on a number of factors, including management’s political views. But if an employer is considering mandatory vaccines, I suggest that it consider three factors: (1) What percentage of the workforce will likely be noncompliant, and can the company still meet operational demands with that level of reduction in workforce? (2) Which particular employees/positions will likely be affected, and how important are those employees/positions to the company’s smooth operation? And (3) Are there sufficient replacements available in the job market, particularly considering the current shortage of labor?

Q: Are there other measures an employer can take short of requiring vaccines to encourage a higher level of vaccination among its workers?

PEAVLER: Absolutely. Thus far, I’ve seen employers adopt three different approaches, or even some combination of these three tactics. The “kind and gentle” approach is to simply offer incentives. For example, an employer wanting to try the incentive approach might offer monetary bonuses to those employees who are vaccinated, or additional time off, or gift cards. And the employer should make it easy for the employee to get the vaccine, by having someone offer the vaccines on-site or by allowing the employee “free” time off to get the vaccine and, if the employee suffers side effects, recover from his or her symptoms.

Q: That seems reasonable and has the benefit of not punishing noncompliant employees. But you mentioned three tactics. What are the other two?

PEAVLER: I’ve seen one employer adopt an approach to make it inconvenient and undesirable for unvaccinated employees. For example, that employer required unvaccinated employees to wear masks at all times, even when not around other employees and to submit to bi-weekly testing.  

Q: That may push some toward vaccination. So what’s the third option?

PEAVLER: The third approach I’ve seen used is a tactic that singles-out the noncompliant employees and makes them feel excluded. When using this approach, the employer implements policies that make it clear who is and isn’t vaccinated, such as putting all unvaccinated people in a separate, less desirable workspace or branch office. The employer requires only the unvaccinated to wear masks, thus distinguishing them from compliant employees. And the employer offers social outings or lunches only to the vaccinated employees. Again, these are not approaches I am recommending one way or another, but simply situations I’ve aware some employers are implementing. Before employing any of these tactics, I recommend that an employer talk through the proposed strategy with its HR department and attorneys.

Q: It’s a tough time to be an employer, for sure. Let’s switch gears now and talk about another phenomenon brought on by COVID — a new population of remote workers. The increased number of remote workers raises a number of issues, such as how does the employer keep the worker safe, and is an injury at home an “occupational injury” that should be covered by nonsubscribers’ occupational injury benefit plans?

PEAVLER: Let me tackle that first question first. An employer’s duty is to provide a reasonably safe workplace. This is challenging for remote workers, because the employer does not have much control over the employee’s work environment. So the first thing we recommend is to define the workplace. Is the employee required to work from home, or may he or she work at a coffee shop or a vacation home? Once the workplace is defined, then the employer should institute training for remote workers on how to reduce the risk of injury. The biggest category of injuries we have seen from remote workers is trips and falls. To reduce this exposure, instruct employees to look for and identify potential trip and slip hazards in their workspace. Consider having them do an inventory and sign a form acknowledging their awareness of particular hazards. Not only will this raise their awareness and hopefully prevent injuries, but it will also help you defend a liability claim should they sue for such an injury, since under the Supreme Court’s decision in Austin v. Kroger, employers have no duty to prevent injuries from “known” or “open and obvious” hazards. For example, employers should specifically instruct employees to look for objects like electrical cords that cross walkways — and perhaps even offer to buy cord covers that keep them in place so they pose less of a trip hazard. Discuss ergonomics with the remote workers and consider offering allowances for them to buy comfortable chairs or risers for their monitors. I could go on and on, but those are a few examples of measures an employer can take to help keep its remote workers safe.

Q: Of course, we all know that even when proper measures are taken, accidents still happen. Are injuries suffered in a remote environment covered under most occupational injury benefit plans?

PEAVLER: That will depend on a number of factors, the most important being whether it was “in the course and scope of employment.” By defining permissible work areas and work hours, that helps narrow the time and places that would be considered “in the course and scope of employment.”

Q: What about tort liability for remote injuries? Since injured employees have a right to sue nonsubscribing employers, would they be likely to prevail on a slip-and-fall claim for a fall sustained at their remote location?

PEAVLER: Like most questions about liability, that will depend on the circumstances. But remember that to establish liability under a premises-liability theory, an injured worker must prove the employer had “notice” of the unreasonably dangerous condition. It’s unlikely an employer would know about a hazard that is unique to one employee’s workspace, so proving liability would definitely be an uphill battle for the employee.

Q: I know there are a lot more questions employees likely have about this new COVID world. Would you mind providing your email address and allowing individuals to ask you additional questions?

PEAVLER: No problem! My email address is dpeavler@peavlerbriscoe.com. I’m happy to answer any questions I can. Keep in mind, of course, that just like with everything I said today, each case and claim and situation is different, and if the employer has a specific question about a specific situation, they should probably seek legal advice that is tailored to that particular issue.

Q: Thank you. And with that, I’ll conclude our interview. I and everyone at TAN appreciates your continued support, and I appreciate your time here today.

PEAVLER: Always a pleasure. Thank you.

The opinions expressed in this interview are those of the interviewee and do not necessarily reflect the views of the Texas Alliance of Nonsubscribers or any of its board members, associate members or employer members.