ABC Greater Houston Chapter - Build Houston Magazine, October/November 2021

October/November 2021 17 A s the pandemic continues into the unforeseeable future, with hospital admissions rising and ICU admissions shattering prior pandemic records, there is an increasing movement toward proof of vaccination required for construction workers to gain access to job sites. This is especially true for capital expansion projects and turnaround projects at Gulf Coast petrochemical plants. Eventually this trend is likely to reach the point where all employees of contractors and subcontractors will be required to be vaccinated in order to work on specific jobs. At least one federal court in Houston, Texas has held that employers can impose a mandatory vaccination requirement on their employees as a term and condition of employment. Employees can request accommodations based on medical reasons and religious reasons under the Americans with Disabilities Act and Title VI of the Civil Rights Act of 1964, respectively. If an accommodation is requested, the employer must evaluate the request on a case-by-case basis. But for the majority of unvaccinated employees, who are most likely employees-at-will, they will face the choice of getting vaccinated or losing their jobs. Shy of a mandatory vaccination policy, employers are trying to be creative in their approaches to offer incentives to unvaccinated employees to get vaccinated. Some employers are offering financial incentives, such as a $100 payment if an unvaccinated employee gets vaccinated, or providing 4–8 hours of paid time off to get the vaccination, or offering additional COVID sick time in the event of a breakthrough case of COVID after getting vaccinated so that the employee does not have to use vacation time. Some employers hold contests whereby if a department or location reaches a designated percentage of vaccinations within that specified group then everyone in the group receives a prize. Knowing the interests of the specified group is important in specifying the prize— hunting and fishing gift cards from a sporting goods store may be an appropriate incentive or a gift card to a tool store. Having departments or crafts at a job site compete for a prize based on which group first meets the specified vaccination level may incentivize workers to get vaccinated. Notifying the employees’ spouses that gift cards at specified stores are available provided the employee gets vaccinated may apply some pressure on the employee to get vaccinated. Some employers also consider raffles or drawings for substantial prizes such as a new truck or a fishing boat. Before announcing the raffle, be sure to check local gambling laws to see if the raffle is lawful. Experience to date, however, has shown that these incentives have not moved the needle very much toward vaccination among construction workers. Many employers are incentivizing employees to get vaccinated by hi t t ing their pocketbooks. For example, some employers are imposing higher medical insurance p r emi ums on unvac c i na t ed employees. If this approach is implemented, employers should consult with their benefits counsel to ensure there are no Employee Retirement Income Security Act (ERISA) issues. Employers may limit bonus eligibility to vaccinated employees . Some employer s are specifying that unvaccinated employees are required to wear N95 or KN95 masks in the workplace, separate and apar t f rom any respiratory protection policy that would require fit-testing. These masks would be considered the employees’ private and personal mask s that they could wear outside of the workplace if they so desired. Some employers are only permitting vaccinated employees to attend company functions, such as company parties or other company social events. Some employers who are moving toward the mandatory vaccination requirement are providing notice periods to the employees to give the unvaccinated employees some time to contemplate their futures with the companies prior to the ef fective date of the mandatory policy. Some employers will require unvaccinated employees to take a leave of absence once the policy goes into ef fect with the idea that the employees can think about their choice to stay unvaccinated while they exhaust their vacation and other paid time of f benef its, with termination being the consequence once the benef its are exhausted if they do not get vaccinated. It is most likely that the “stick” approach to incentivizing employees to get vaccinated will prevail in the long run. The choice to get vaccinated or lose their jobs will likely be enough incentive for the majority of employees to take the “jab” and get vaccinated. Consequently, it should not come as a surprise to see more and more employers adopting a mandatory vaccination policy as a term and condition of employment. G. Mark J odon , a shareholder in Littler Mendelson’s Houston office, is board-certified in labor and employment law. Mark serves as the ABC chapter attorney for the Greater Houston and Gulf Coast Chapters of ABC. He can be reached at 713-652-4739 and