Steve Kuenzel

More than 8 percent of Franklin County residents have received their first COVID-19 vaccinations, and as the rollout continues, employers are grappling with vaccination policies.

Steve Kuenzel Sr., managing partner of Washington law firm Eckelkamp Kuenzel LLP, said he expects employers to proceed cautiously. “I think most employers are a little worried about their liability of mandating, and that’s why I think most employers are going to err on the side of caution by using incentives or disincentives, but not outright saying you must go get the vaccine,” he said.

Target Corp., for example, is offering employees paid time off to receive the vaccine and reimbursement for travel involved.

“It’s to help make sure people don’t feel like they’re missing out on pay if they need it to get to their appointment,” said Wes Fowler, store director at Target in Washington. “So just definitely trying to make it easier for them to get that done when it becomes available.”

With the incentive, Target employees will get up to four hours of pay, which covers two hours for each dose. They also will receive compensation for Lyft rides to travel to and from their vaccination appointments.

There are currently about 100 employees at the location who could receive the benefit, he said.

Kuenzel said industries have different cultures, and for some, disincentives could work.

“I’ve heard of a lot of employers taking the position that if their employees do not get vaccinated and come down with the virus, they are not going to pay them for their (sick) time off,” he said. 

Until Dec. 31, 2020, employers had been required to offer paid COVID-19-related sick leave to their employees, according to The National Law Review. The rule has been modified, so through March 31, the government will reimburse companies if they offer paid leave for COVID-19 contact or symptomatic cases, but now employers can choose to offer it or not.

Incentives are more popular than a strict requirement because the legal response to the latter is unpredictable, Kuenzel said. “I think some people are just kind of relying on the guidance from the EEOC (Equal Employment Opportunity Commission) that basically says you can mandate it,” he said, “but that hasn’t been court tested, so who knows until the court actually weighs in?”

The legal system takes time to determine its laws, he said. The outcomes for, say, requiring a COVID-19 vaccine that results in adverse effects are unknown because there are few court cases now to set the precedent.

“If somebody today filed that lawsuit, by the time he stepped through the court system in the appeals, we wouldn’t have that answer for another three or four years,” Kuenzel said.

If a company does require the vaccine, there are two main exemptions allowed, Kuenzel said.

The first is a medical reason. “If they’re highly allergic to the vaccine, and it’s a concern for their health, then the employer probably cannot require them to get the vaccine,” he said.

“The other one is if they come in with a documented religious objection — and nobody really seems to define what that is,” he continued. “But common sense would tell you that it probably has to be somewhat of a recognized religion rather than somebody who creates their own, so to speak.”

No Policy

Locally, Melton Machine & Control Co. and the Washington School District do not have policies requiring employees get vaccinated. 

At Melton, this is mainly because the conversation “hasn’t come up,” as the company’s cases are down and employees wear their masks, President and CEO Stacy Lindsey said. 

“Right now, we haven’t had to make any of those decisions,” he said. “We’re definitely not mandating it. We don’t think we will.”

At Washington School District, there is no policy because making one is “not recommended by policy advisers” and because one has not been implemented before, website and communications manager Craig Vonder Haar wrote in a text. 

The question becomes whether an employer could be liable, should an employee have an adverse effect from the virus and the employer had not added a vaccine-related safety protocol. The blame could be hard to pinpoint on an employer, Kuenzel said.

“Did that happen on the weekend, and were they going to a wedding event or a funeral event or gathering event? Or did they get it from another co-employee?” he said.

He said places such as nursing homes on lockdown could face legal claims if there are no policies and a resident is harmed by the virus. This is because without resident entry or exit from the building, it could be assumed the virus came from the workers.

In general, conclusions regarding COVID-19 vaccination policies are murky, Kuenzel said, and most lawyers are looking at the EEOC to inform clients how to proceed because “it’s the only government organization that’s really issued guidance on what an employer can and cannot do,” he said.

“It’s going to be really tough to make any law that’s going to be guidance for across the state,” Kuenzel said. “It normally takes a multitude of cases with different factual scenarios to hone in on.”