A year into the pandemic, a Massachusetts Municipal Human Resources association webinar on March 4 reflected on the lessons learned and the path forward, including a discussion of the implications of the vaccine in the municipal workplace.

Dr. Michael Hirsh, medical director of the Worcester Division of Public Health, trauma services director at UMass Memorial Health Care, and surgeon-in-chief for the Children’s Medical Center, reflected on the course of events over the past year and looked forward as the nation goes on the offensive against COVID-19.

“We’re fortunate to live in a time when we could come up with a vaccination within a year’s time,” he said. “Development of the vaccine is based on 20 years of research and development against other viruses. Messenger RNA was just waiting for the right virus to be used [against].”

He also noted that the second surge of the virus around the holiday season was less deadly because of lessons learned during the first surge in the spring.

“We wised up quickly about the most vulnerable populations and the best treatment therapies,” he said.

Hirsh said local and state governments now must develop public awareness campaigns to connect with populations that have a distrust of vaccines.

He said the COVID pandemic exposed existing health disparities across the country.

With a number of COVID variants emerging and case numbers in flux, he recommends that city and town halls continue to wait before reopening to the public.

HR concerns
Attorney Yetunde Buraimoh, an associate with Morgan, Brown, & Joy, discussed the implications of the COVID vaccine, workplace safety and accommodation, and workers’ compensation concerns.

Buraimoh started with the “question of the hour”: Can employers require employees to be vaccinated against COVID?

“Yes,” Buraimoh said. “As a general proposition, employers can require employees to be vaccinated, pending a few exceptions.”

Buraimoh said employers may request proof of vaccination, but should be careful about any follow-up questions, as they could be considered an inquiry into a disability. Any questions should meet the criteria of being a business necessity.

Municipalities that find themselves in the position of having to vaccinate employees should keep in mind that a vaccination is not considered a medical examination under the Americans with Disabilities Act, but the pre-screening questions used to determine eligibility may constitute one.

While employers may mandate a vaccination, they must provide a reasonable accommodation where a disability or sincerely held religious belief prevents someone from getting a vaccination. Buraimoh suggested that employers consider the layout of the workspace to determine what those accommodations could look like.

“That accomodation could be on-site with the necessary separation or a remote work setup,” she said. “Employers should engage in the interactive process to determine accommodation, as they would with any other accommodation request.”

She also discussed what employers can and cannot ask employees who have COVID-like symptoms or have traveled outside the state, and how to appropriately share information for contact tracing when necessary.

The Occupational Safety and Health Administration has updated standards for keeping workplaces safe for employees, and has made some unannounced workplace inspections. Buraimoh highlighted certain recommendations, including designating a workplace coordinator, conducting a thorough hazard assessment of the worksite, taking measures to reduce the risk of spread, considering special precautions for those who have self-identified as high risk, and implementing a protocol for employee complaints.

Buraimoh also discussed a few paid leave options for COVID recovery, quarantine or care of family members, including the Families First Coronavirus Response Act, which expired on the last day of 2020, and the corresponding tax credit for employers, which has been extended through March 31, 2021. Employers may still opt to offer the 80 hours of leave under the FFCRA to employees who did not use it in 2020, but they are not required to do so.

Regarding remote work policies, she noted that remote work can be an appropriate reasonable accommodation option. Given current occupancy restrictions, she said, municipalities should make sure that employees who are on-site really need to be there. When developing remote work policies, human resources should consider equipment needs, information technology security concerns, impacts on productivity, and team dynamics. A re-evaluation of work hours may be necessary for employees who are caring for children at home.

She said workers’ compensation coverage for a communicable disease like COVID is limited to situations where “the hazard of contracting the disease by an employee is inherent in the employment.” Ultimately, she said, the determination that an employee qualifies for workers’ compensation lies with the insurance company.

In response to a question on long-term accommodations due to lasting effects from COVID, Buraimoh noted a lack of guidance in this area and said municipalities should be flexible in working with those employees. Dr. Hirsch agreed.

“The long term effects of COVID are still an open question,” Hirsch said. “Studies on ‘long-haulers’ are just beginning.”

Asked about employees asking to work remotely outside of Massachusetts, Buraimoh said there may be tax implications that HR should investigate before making decisions.

Also at the meeting, MMA Legislative Director John Robertson provided an update on HR-related bills in the new legislative session and the new police reform law.

COVID-19: Legal Considerations for Massachusetts Municipal Employers in 2021 – Yetunde Buraimoh presentation (1.5M PDF)
Outlook for New Legislative Session – MMA presentation (268K PDF)
Summary of H.R.6201 Families First Coronavirus Response Act (166K PDF)
H.R. 133 Division-by-division summary of COVID-19 relief provisions (250K PDF)