Page 21 - Delaware Lawyer - Summer 2021

has indicated that it is now safe for vac- cinated individuals to gather indoors without masks. Equally important for business continuity, vaccinated individ- uals do not have to quarantine after a known exposure to the coronavirus un- less they develop symptoms of the dis- ease. With a return to normal operations tantalizingly close, many businesses are considering a vaccine requirement as a condition of continued employment.
Experts, however, remain divided as to the legality of this approach, particu- larly while the CDC permits the use of only three vaccines in the United States, under a limited emergency use authori- zation (EUA).
In evaluating vaccine requirements, employers must consider federal, state and local laws, all of which may impact
implementation of such a mandate. The U.S. Equal Employment Oppor- tunity Commission (EEOC) has made clear that vaccine mandates do not vio- late federal anti-discrimination laws, so long as employers make reasonable accommodations for medical and reli- gious restrictions on vaccination. But state and local common law must also be considered. As lawsuits wend their way through courthouses across the country, employers are left to balance the risk of litigation against workplace safety. Adding to the morass, the Del- aware General Assembly is currently considering a bill that would expressly prohibit employment discrimination on the basis of vaccination status, although the chances of the bill becoming law are unclear.
And indeed, studies show that a sig- nificant majority of U.S. businesses do not intend to impose vaccination re- quirements, perhaps as a result of the inherent uncertainty regarding the le- gality of vaccine mandates under state law, the sharp social divides surround- ing vaccination in the country, and tight labor markets that leave employees with many alternatives if they object to an employer’s policies. As an alternative, some employers are looking to incen- tives to encourage vaccination, especial- ly for employees who are on the fence.
While the State of Delaware is do- ing its part through the DE Wins! Vac- cine Incentive Program, employers are much more restricted in their ability to incentivize vaccination in light of recent EEOC guidance. The EEOC has indicated that employer-sponsored vaccination programs likely involve the disclosure of confidential medical infor- mation governed by the Americans with Disabilities Act (ADA). As a result, any incentive program must be carefully de- signed to provide encouragement but “not [be] so substantial as to be coer- cive.” What is coercive? That’s anyone’s guess. Both the Obama and Trump administrations issued administrative guidance intended to define legally per- missible incentive programs — but both sets of regulations are now inoperative. It is also unclear whether businesses are required to extend incentives to those who cannot be vaccinated for religious or medical reasons, to avoid unduly burdening members of those protected classes. As a result, the safest course of action is to avoid incentives altogether, or rely on small-value gift cards and marketing novelties — but who really needs more company-branded hi-liters?
With vaccine mandates and incen- tives causing legal concerns, employ- ers have few completely safe options to return to a pre-pandemic working environment. The EEOC tells us that
SUMMER 2021 DELAWARE LAWYER 19
SAQUAN STIMPSON