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Employment Law

Can Vaccination Requirements be Enforced in the Workplace?

Can Vaccination Requirements be Enforced in the Workplace?

Amanda Milgrom
Amanda Milgrom

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As COVID-19 continues to rage across the country, the question of vaccines – and whether they can be imposed on an individual or not – is a hotly debated topic. Folks have strong opinions on both sides of the discussion. Some stand for individual liberties, arguing the individual’s choice is more important. Others argue for the collective, contending that one person’s liberty should not come at the expense of exposing the group. As an employment lawyer, I get a lot of questions from my clients asking whether they can force their employees to get the COVID-19 vaccine. As we’ve written about in prior blog posts, the answer is a qualified yes.

Another way to analyze the question of imposing vaccine mandates is to ask: what would the Supreme Court do? Notably, the Supreme Court was forced to confront this issue back in 1905 during the smallpox epidemic. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court upheld the authority of states to enforce compulsory vaccination laws. In a majority opinion written by Justice Harlan, the Court concluded that individual liberty is not absolute and is subject to the police power of the state. There, the plaintiff had a bad reaction to a vaccine as a child, and so when the smallpox vaccine was made available, he was fined $5 for not getting it. The case wound its way through the courts until it reached our highest court. There, the Supreme Court declared in a 7-2 ruling that one man’s liberty could not deprive his community of their own liberty (i.e., avoiding disease).

The Plaintiff’s arguments were very similar to those we are hearing today: that the U.S. Constitution protects your right to decide whether to inject a vaccine into your body; that the government does not have the authority to intervene and impose it on you. These challenges have not yet come before a court regarding the COVID vaccine. However, as more employers are imposing a vaccine requirement on their employees, (see Delta Airlines, for example), we can expect that they will. Particularly now that the vaccine has passed full FDA approval. At that time, it will be interesting to see how Courts apply Jacobson and its precedential ruling that a state can impose a vaccine requirement.

While the structure of the Court is quite different today compared to 1905, the Jacobson case offers us significant insight into how a challenge against a vaccine mandate would be handled and can provide employers further assurance that a mandate is permissible under the law.

ABOUT THE AUTHOR

PARTNER & EXECUTIVE DIRECTOR

Amanda Milgrom represents individuals and businesses of all sizes in various litigation matters regarding employment, intellectual property, and business disputes. She practices employment law, representing employees in discrimination lawsuits and counseling employers on best practices, drafting employee handbooks, and putting together suites of employment contracts.

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Employment Law

Can Vaccination Requirements be Enforced in the Workplace?

As COVID-19 continues to rage across the country, the question of vaccines – and whether they can be imposed on an individual or not – is a hotly debated topic. Folks have strong opinions on both sides of the discussion. Some stand for individual liberties, arguing the individual’s choice is more important. Others argue for the collective, contending that one person’s liberty should not come at the expense of exposing the group. As an employment lawyer, I get a lot of questions from my clients asking whether they can force their employees to get the COVID-19 vaccine. As we’ve written about in prior blog posts, the answer is a qualified yes.

Read More »
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Employment Law

Colorado’s Equal Pay for Equal Work Act: What Employers Should Know

Colorado’s Equal Pay for Equal Work Act: What Employers Should Know

Jason Fisher

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Colorado’s Equal Pay for Equal Work ACT (“EPEWA”) became effective January 1, 2021, and all companies that employ Coloradans should be aware of its provision—which may require an update to employer practices and policies—to avoid liability.

By enacting EPEWA, the Colorado legislature seeks to prohibit wage discrimination on the basis of sex, which includes gender identity, or on the basis of sex combined with another protected trait such as disability, race, creed, color, national origin, sexual orientation, religion, age, or ancestry. However, EPEWA also contains provisions regulating (1) what information is required in job listings, (2) who is notified of promotional opportunities, and (3) how interviews are conducted regarding wages.

JOB LISTINGS

All job listings open to Colorada applicants must include the following:

  • The hourly or salary compensation offered (a reasonable range is acceptable);
  • A description of all benefits offered such as health, retirement, and paid time off;
  • A description of any other compensation offered such as bonus or equity incentives.

PROMOTIONAL OPPORTUNITIES

Employers must further make a “reasonable effort” to notify current employees of promotional opportunities. Such notice must be in writing and made available on the same day to all employees for whom the opportunity would be a promotion. It must also be given far enough in advance of having the position filled to allow employees a reasonable time to apply.

INTERVIEW QUESTIONS REGARDING PAY

When performing interviews with applicants for new positions or promotional opportunities, employers are prohibited from asking how much the applicant made in their previous position or any other questions regarding the applicant’s wage rate history. Further, if an employer learns of an applicant’s wage rate history, the employer is prohibited from using that information in determining the applicant’s new compensation.

COSTS OF VIOLATIONS

Employers who fail to comply with the provisions of EPEWA leave themselves open to complaints filed by employees with the Colorado Department of Labor and Employment (“CDLE”). CDLE will conduct investigations into alleged violations, and employers will be required to turn over any documentation requested that has bearing on the complaint. If a violation is found, employers can face fines between $500.00 and $10,000.00 for each violation. They may also be required to provide back pay and other damages to employees who were subject to the violating conduct.

The legal ins and outs of employment are constantly changing. Employers should regularly revisit their internal policies and procedures to ensure compliance and update those practices as required. If you are an employer concerned about compliance with EPEWA, please reach out to Milgrom & Daskam for a free consultation.

ABOUT THE AUTHOR

ASSOCIATE

Jason focuses his practice on corporate governance, commercial finance, commercial contracts, and employment law. He advises clients on all aspects of general corporate matters and strategic business decisions including organization structure, operating/shareholder agreements, and private debt and equity offerings.

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Colorado’s Equal Pay for Equal Work Act: What Employers Should Know

Colorado’s Equal Pay for Equal Work ACT (“EPEWA”) became effective January 1, 2021, and all companies that employ Coloradans should be aware of its provision—which may require an update to employer practices and policies—to avoid liability. By enacting EPEWA, the Colorado legislature seeks to prohibit wage discrimination on the basis of sex, which includes gender identity, or on the basis of sex combined with another protected trait such as disability, race, creed, color, national origin, sexual orientation, religion, age, or ancestry.

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Employment Law

How Employers Can Support Working Moms Post-Pandemic

How Employers Can Support Working Moms Post-Pandemic

Lindsey Brown

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Working moms have been especially hard-hit by the stress of pandemic life. When schools and daycares shut down, working moms* were expected to take on the role of teacher, in addition to their other two full-time jobs: mom and employee.

This added stress resulted in women leaving the work forces in droves, at a time when women’s participation had been setting record highs. In September 2020 alone, 865,000 women left the workforce, compared to 216,000 men. Women’s participation in the workforce is now the lowest it’s been in thirty years.

Working moms are expected to always be “on,” which results in exhaustion. A study by FlexJobs reported that 40% of working women were unable to unplug or were working more than they thought they should. This is compounded by the pressure to subvert “maternal bias,” the conscious or unconscious belief that a working mom can’t be effective both in work and in motherhood. It’s no wonder, then, that more women than men report exhaustion, burnout, and pressure to work more.

As life begins to return to normal (at least in the United States), employers are in a unique position to implement the lessons learned during the pandemic and to shape a future that better supports working parents. Given the downward trend in the size of the workforce, it is ultimately in employers’ best interest to support mothers, lest companies continue to lose valued employees.

So what can employers do to support working moms?

1. Build community; support engagement.

Parenting is tough. Parenting in a pandemic is even harder. But as we emerge from a year of isolation and lockdown, we’ve learned that having a supportive community of like-minded women can make all the difference.

Connecting working moms with other working moms—who understand the daily stress of meeting deadlines while also getting kids dropped off on time—really matters. Being able to tap into this community is incredibly valuable.

Whether they are groups of moms within a particular profession (like Denver-based MAMA for attorneys) or organized around motherhood generally (like the mama’hood), support systems for working moms are there, but moms may not know they exist or may be unsure of how to get involved. Companies can help by connecting their employees with community groups, and they can support participation and leadership within those groups. For example, employers can offer to cover membership fees or dues and can allow flexibility for parents to attend group events or classes.

2. Money matters.

Childcare costs are continuing to rise. For many families, monthly childcare costs equal or exceed their monthly mortgage. Employers can offer stipends to help cover the cost of childcare. Additionally, companies could offer subscriptions to services like TULA (a Denver-based, on-request personal assistant service), grocery or meal-kit delivery, or even house-cleaning services—anything to help ease the daily, mile-long checklist of working moms.

3. Continue flexible schedules, including time off.

A silver lining of the pandemic is that many businesses learned that their employees could succeed while working remotely or with flexible hours and could still maintain pre-pandemic productivity.

Employers should continue fostering a sense of adaptability and flexibility. Companies can implement parent-friendly scheduling policies and cultivate a culture where it’s encouraged and expected that these will be used. Offering a flexible schedule and then penalizing an employee who utilizes that option is disingenuous and undercuts the relationship between employer and employee.

Studies show a compressed work week or shorter workday can reduce burnout, but simply offering a flexible schedule won’t completely cure the problem. While flexible scheduling has allowed many moms to stay in the workforce, it has come at the cost of their well-being. The hours after kids’ bedtimes used to offer a brief reprieve from the daily chaos, but that time is now supposed to be used for catching up on emails and finishing projects, leading to burnout.

Employers can offer part-time or reduced schedules, extra paid time off, or even unpaid leave. Employers should let moms know that it’s acceptable to take time for themselves, and employers should respect those boundaries. Employees who have dedicated time away from work are more productive than those who are “always on.”

4. Most importantly, ask what moms need.

Companies should foster an understanding of the lived experiences of working moms. Having open and honest conversations about the needs and expectations of working parents will allow both employee and employer to succeed. Employees who feel heard and supported are far less likely to quit. Retention and employee satisfaction in turn increases productivity and the company’s bottom line. All employees, not just parents, will benefit from a culture of empathy and open communication.

While working moms have been hurt by the pandemic, employers have the opportunity to set the course for a better future. Employers who enact thoughtful policies that prioritize and support working moms will see the benefits of a culture of trust across the company.

*This piece focuses on women, as our society traditionally assigns the majority of child-rearing responsibilities to moms, either overtly or subconsciously, and because the author is writing from her perspective as a mother. However, the same supports equally apply for parents of all genders, as well as for other primary caregivers.

ABOUT THE AUTHOR

PARTNER

Lindsey is a litigation partner and mom to her one-and-a-half-year-old daughter. Lindsey is proud to work at Milgrom & Daskam, where being a parent and an attorney is celebrated and encouraged. Milgrom & Daskam works to support its working parents by fostering dialogue and understanding.

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Employment Law

Navigating Mandatory COVID-19 Vaccination as an Employer

Navigating Mandatory COVID-19 Vaccination as an Employer

Jason Fisher

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According to recent guidance published by the U.S. Equal Employment Opportunity Commission (EEOC), private employers may require employees to receive a COVID-19 vaccination. The EEOC enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act, both of which impact an employer’s ability to require vaccination against COVID-19. In addition, emerging, state-specific regulations will determine employers’ vaccination policies. Prior to enacting a vaccine requirement, employers must understand their legal responsibilities under federal and state law.

The ADA allows an employer to enforce a policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” This is the same standard that enables employers to require COVID-19 testing of employees who exhibit symptoms before allowing those employees to enter the workplace, and it is now being applied to enable employers to require vaccinations.

When applying this standard to required vaccinations, the employer must examine whether such a requirement screens out, or tends to screen out, an individual with a disability. For example, persons who are immunocompromised or taking certain medications may be unable to receive the vaccine due to a qualifying disability. If so, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r).

A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others in the workplace to the virus.

Even after the employer concludes that there is a direct threat, the employer cannot immediately exclude the employee from the workplace or take any other action. The employer must still determine that there is no way to provide a reasonable accommodation that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.

Employers must also consider whether any state-specific laws pertain to their vaccine requirements. While not yet in effect, legislation proposed in a number of states would restrict an employer’s ability to require vaccination. Some of this legislation would prohibit employer-required vaccinations outright, while, in other states, the legislation would permit required vaccinations only for employees in healthcare facilities or for those who work with medically vulnerable populations. The proposed legislation in Colorado would impose a broad restriction on employer-required vaccinations by prohibiting employers from taking adverse actions against employees or applicants based on vaccination status.

Employers must be ready to adapt their policies as the range of requirements applicable to mandatory vaccinations expands, and this is an area ripe for employee litigation. It is highly recommended that employers speak with an attorney to determine whether their current or proposed policy complies with federal and state law.

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ABOUT THE AUTHOR

ASSOCIATE

Jason focuses his practice on corporate governance, commercial finance, commercial contracts, and employment law. He advises clients on all aspects of general corporate matters and strategic business decisions including organization structure, operating/shareholder agreements, and private debt and equity offerings.

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Read More »