By Jack Karp

Law360 (December 18, 2020, 8:54 PM EST ) Law firms and court systems are struggling with whether to require attorneys and other employees to be vaccinated for COVID-19 before returning to work despite new EEOC guidance allowing businesses to keep unvaccinated workers out of the office in certain situations.

The U.S. Equal Employment Opportunity Commission issued the updated guidance Wednesday, setting out how businesses that adopt vaccine requirements should handle workers who forgo a shot because of a disability or their religion.

"If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace," the new guidance says.

And administering vaccinations or asking for proof of vaccination does not constitute a medical examination that would be prohibited or limited by the Americans with Disabilities Act, the guidance says.

But employment attorneys said not to expect that to make it any easier for law firms and court systems to decide whether to mandate vaccinations for employees.

"Law firms, like all businesses, will need to make an informed decision as to what type of vaccination policy, if any, is appropriate for their business," said Michael Eckard, a shareholder and member of the coronavirus task force at employment law firm Ogletree Deakins Nash Smoak & Stewart PC.

The EEOC guidance — which Eckard said is generally consistent with what his team has been advising clients and with how many employers are already approaching vaccination policies — is not a blanket allowance for firms and companies to ban employees from coming to work if they don't get vaccinated for COVID-19 due to health or religious reasons.

Rather, it allows employers to keep workers out of the office who choose not to get vaccinated because of a disability covered by the ADA or a religious belief covered by Title VII of the Civil Rights Act only after determining that those workers pose a danger to the health of others and that there are no reasonable accommodations available that could allow the employees to continue coming to work, Eckard said.

"Like any employer, if a law firm decides to mandate vaccines, it should be prepared to consider whether a reasonable accommodation is required under the ADA or Title VII when an employee declines the vaccine or requests an exception based on a disability or religious belief," Eckard said.

Reasonable accommodations could include allowing an employee to wear a mask or socially distance, to take personal leave or leave under the Family and Medical Leave Act, or to continue working remotely, said Chuck Mataya, a partner at Bradley Arant Boult Cummings LLP who specializes in labor and employment law.

As long as a firm goes through that accommodation process, "then you're probably OK mandating that they take [the vaccine] and if they don't take it they can't come to work," Mataya said.

But most law firms will not actually decide to go ahead and implement a vaccine mandate just because of the new guidance, he added.

"I don't think that managers, for the most part, are going to want to put it in place for law firms," Mataya said. "They might encourage it, but I don't think they're going to mandate it in most situations."

A vaccine mandate could have a negative impact on morale, he pointed out, and the fact that so many firms have had success allowing their attorneys to work from home means there will be a ready and simple accommodation available for most employees who choose to avoid the shot.

But some firms — especially smaller firms that have not had as much success with remote work — will likely begin requiring their attorneys to be vaccinated before returning to work, said Beth Slate, owner and partner at law firm management consulting firm RJH Consulting.

Several lawyers she's spoken with have seen productivity at their firms suffer during the pandemic and will be in a bigger hurry to bring people back to the office, even if that means issuing a vaccine mandate, she said.

The vaccine policies she's heard law firms weighing are "a mixed bag," she said. "For small to medium-sized law firms, it's everywhere from, 'Yes, we're going to make it a requirement so that you can return to work,' to, 'No, we don't feel like you need it. If you'd like to come back, practice safe distancing.'"

As a result, there's a good deal of confusion among attorneys she's spoken with about what to expect when it's time to return to the office, she said.

Courts are wrestling with that same confusion and seem uncertain about whether they will issue vaccine mandates for employees, even in light of the new EEOC guidance.

Instituting such a mandate could be especially complicated because of the unique status of many court employees, said Lucian Chalfen, director of public information for the New York State Unified Court System.

"The vast majority of New York state's 16,000 members of the judiciary are either independently elected, appointed by state and local officials or represented by collective bargaining agreements," Chalfen said.

But court systems could require litigants and attorneys who appear in their courtrooms to be vaccinated, and employment laws probably wouldn't apply in those cases, Mataya said, though he cautioned that the ADA still would. So even if firms don't mandate shots for their attorneys, some attorneys may need to be vaccinated regardless.

"I would think that the inherent discretion that a judge has probably gives them the right to say, 'I don't want you in front of me if you haven't had the proper protections,'" Mataya said.

The New York state court system is in contact with state health officials regarding the rollout of the vaccine statewide, Chalfen said. And the Connecticut Judicial Branch is working with that state's Department of Public Health and other agencies to develop protocols regarding the vaccine, according to a spokeswoman.

The Administrative Office of Pennsylvania Courts, meanwhile, said through a spokeswoman that it is reviewing federal and state guidance related to vaccination protocols. A spokesman for the North Carolina Judicial Branch said only that "no policy decisions have been made about requiring vaccinations for judicial branch employees."

Such decisions may end up being taken out of the hands of firm and court system leaders, at least in New York. Earlier in December, a bill was introduced in the state Assembly that would "mandate vaccination for all individuals or groups of individuals who, as shown by clinical data, are proven to be safe to receive such vaccine."

It's a move the New York State Bar Association has supported. Its House of Delegates approved a resolution in November recommending that New York consider mandating the vaccine if enough people don't take it voluntarily. A bar association task force is now looking into whether to recommend that law firms ban employees who are not vaccinated from returning to the office, according to NYSBA spokeswoman Susan DeSantis.

Adding to the uncertainty is the possibility that the EEOC guidance could be revised yet again, Eckard said, especially with a new presidential administration taking office in just over a month.

So law firms and courts, like all employers, should "act cautiously" when dealing with employees who express concerns about getting vaccinated because of disabilities or religious beliefs, he said.

While the new EEOC guidance appears to be consistent with long-standing principles under the ADA and Title VII, COVID-19 is a novel issue, Eckard said. Both he and Mataya said they expect there will be a steep learning curve and probably a good deal of litigation involving employees who refuse vaccinations due to health, religious and other concerns.

"It's going to be a learning experience for everybody as we go through it," Mataya said, "and people who think they know exactly how it's going to come out, I think they're in for a surprise."

--Editing by Aaron Pelc.

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