By Heather Falks, Employment Attorney & ADA Coordinator | Indiana Supreme Court
We finally made it to 2021…and COVID-19 is still here. We all hoped it would feel more familiar—but not in the sense that we are getting used to stockpiling sanitizer and masks. Unfortunately, the concerns of 2020 have not fully dissipated, but the widespread availability of a vaccine gives us hope that our old normal is on the horizon, and many are eager to receive the shot. Although, the vaccine does not immediately eliminate the threat of the virus; it provides a glimpse into what is to come. We must remain diligent in protecting ourselves and our coworkers from COVID-19.
The vaccine has received emergency-use-only authorization. Emergency authorization requires that anyone receiving the vaccine acknowledges they are doing so voluntarily. Vaccines with this kind of authorization cannot be mandated by employers, which includes courts.
Educate & encourage
Many people still have questions and concerns about receiving the vaccine. Courts should educate their employees on its benefits and answer their questions. It is important to make sure that employees understand that receiving the vaccine is not required. And being too aggressive in encouraging employees to vaccinate can have a negative impact on office morale.
It is more important to make sure employees feel comfortable to ask questions and understand why vaccination is important. Some courts may decide to provide an incentive for their employees to encourage them to receive the vaccine. Incentives could include two additional vacation days or a small gift card ($15 or less) upon proof of vaccination.
Incentives offered for obtaining the vaccine must also be offered to employees who are unable to get the vaccine due to a disability or sincerely held religious beliefs. If a court decides to offer an incentive, it must be prepared to accept and evaluate accommodation requests. If an accommodation is granted, the court must be prepared to give the same incentive to employees who are not going to be vaccinated. Failure to provide the same incentive to those who receive an accommodation may be considered disability and religious discrimination.
Accommodations should be granted to employees who can establish that they cannot be vaccinated due to an underlying health condition that is a covered disability under the Americans with Disabilities Act. Examples of such conditions are pregnancy, allergies, and autoimmune disorders. Additionally, some employees may be on medications that prevent them from obtaining the vaccine. If an employee requests an accommodation, you should request a doctor’s note and medical documentation to support the request. Once the supporting documentation is provided, the accommodation should be granted, and the employee should be given any incentives that are being offered to those who obtained the vaccine.
Under Title VII, a sincerely held religious belief is a requirement to establish an entitlement to a religious accommodation. Personal and ethical objections are not sufficient. Personal antivaccination views will typically be insufficient to establish a sincerely held religious belief. An employee who is not vaccinated due to a sincerely held religious belief will need to provide an explanation. The employee can be asked how obtaining the vaccine impacts their religious beliefs. These requests will have to be evaluated on a case-by-case basis. If you get a request for such an accommodation, contact Heather Falks to discuss.
Documentation & confidentiality
The U.S. Equal Employment Opportunity Commission has determined that allowing COVID-19 into the workplace poses a “direct threat” to others under ADA standards, permitting employers to conduct more extensive medical inquiries about vaccination status. Employers—including the courts—are still obligated to protect their employees from the virus. Gathering vaccination information will help guide the court in making employment policies to protect employees who are not vaccinated. Employers only need a copy of the employee’s vaccination card.
The Indiana legislature passed HB 1405 which “[p]rohibits the state or a local unit from issuing or requiring a COVID-19 ‘immunization passport’ (a document concerning an individual’s immunization status).” While the bill prohibits employers from “requiring” documentation of vaccination, it does not prevent an employer from incentivizing employees to provide documentation of their vaccination. It is helpful to explain to employees that vaccination documentation helps the court, as an employer, set policy and protect staff. Courts should not be terminating employees due to their vaccination status or refusal to provide documentation. Employees should not be mandated to receive vaccination.
All documentation related to vaccination or accommodation requests must be kept in a file marked as “confidential medical information.” This file should have restricted access and be separate from an employee’s employment file. You cannot disclose to other employees who is or is not vaccinated. This confidential medical information should only be handled by one designated employee. No one should gossip about others’ vaccination status or who may or may not have received an accommodation. And employees should not be treated differently based upon their vaccination status.
Masks & social distancing
Now that the Governor has lifted the mask mandate (effective April 6, 2021), some counties may decide not to require masks in their buildings. Regardless of what the county requires, individual courts can issue an order mandating masks and social distancing in their courtrooms. Judges should consult with their local health officials concerning the best safety protocols for their courtrooms.
Vaccinated employees may be asymptomatic carriers of the virus and can still infect others. Having vaccinated staff working in shared workspaces with unvaccinated individuals puts the unvaccinated employees at risk for infection. The Department of Labor issued new guidance for workplaces, which states that employers should be focused on protecting unvaccinated workers.
The percentage of unvaccinated employees that a court has should be the primary factor considered when assessing whether to eliminate mask mandates and social distancing. Assess the percentage of court employees who are vaccinated. If half or more of the court staff is vaccinated, then the court may consider allowing vaccinated employees to be unmasked, but unvaccinated employees should still be required to wear masks. Courts must be prepared to enforce the mask requirement for unvaccinated employees, especially in shared workspaces, hallways, and bathrooms, because vaccinated individuals pose a significant threat to unvaccinated employees.
As an employer the courts have an obligation to protect the unvaccinated court staff. If less than half of the court staff is vaccinated—or if office morale is a concern—then the court can still require all staff to wear masks regardless of vaccination status. Courts may want to consider loosening COVID restrictions in waves rather than all at once, so if a court decides to allow vaccinated individuals to be unmasked, it may want to keep social distancing protections in place longer to make sure there are no unnecessary outbreaks during the transition. Social distancing measures can then be lessened once employees have adjusted to the updated mask requirements. Some social distancing measures should still remain, such as limits to the number of people permitted in small, enclosed areas.
It is important that court staff treat one another with respect and civility; there should be no bullying or shaming related to vaccination status. Some employees may decide they are more comfortable wearing a mask even if they are vaccinated, and that should be respected and permitted as well. Reminding staff about civility during transitions is important.
Additionally, jury pools will consist of both vaccinated and unvaccinated individuals. Courts should not ask jurors about their vaccination status unless it is related to an accommodation request. Jury pools should not be limited to only vaccinated individuals because this will impact jury diversity. Since the jury will contain both vaccinated and unvaccinated individuals—and the court will not know who is and who is not vaccinated—masks and social distancing should still be mandated for jury trials. Keeping these same safety protocols in place for jury trials, hearings, and voir dire will help keep everyone safe, which may encourage more people to participate in jury service. Sustained safety measures will lessen the likelihood of a mistrial due to an outbreak in the middle of a trial.
Continuing with virtual hearings for certain case types is another way to limit public contact and protect court employees and the public from the virus. Many courts have found that performing hearings virtually is a benefit they plan to continue post-pandemic. Courts are encouraged to continue with remote proceedings in a manner that is beneficial and efficient.
Courts should continue to monitor what color their county is on the state’s COVID website. If a county slips back into orange or red status, the courts in that county should consider delaying jury trials and performing more remote proceedings until the county goes back to yellow or blue. The color system allows courts to make data-informed decisions based on community spread.
Although we are excited that vaccines are available—and are eager to return to normal activities—we have not yet reached the finish line. The coronavirus is still a threat, and we are still in the middle of a pandemic. We must continue to be diligent in protecting our employees from the virus and do our part to ensure that the threat of the virus is eliminated before we lift our safety protocols.