Vaccines and Your Dealership as An Employer – Where Things Stand Today

By W. Kirby Bissell

With the surge of the Delta variant and increased COVID-19 cases around the country as well as full FDA approval of the Pfizer vaccine, questions and potential pitfalls abound for dealerships attempting to navigate the myriad developments and options as employers to keep their employees safe while also respecting their legal rights. As you have undoubtedly now heard, OSHA has been directed to implement an emergency rule requiring that employers with over 100 employees either adopt weekly COVID-testing protocols for unvaccinated employees or otherwise mandate vaccines for all their employees. While that emergency rule is still under development, questions abound as to dealerships’ abilities to inquire about employee vaccination status, consider mandating vaccines for the safety of employees, and take other steps to minimize disruptive quarantines and sick leave necessitated by positive COVID tests or contact-traced exposures. This article will provide an overview of the most common vaccine-related issues we have heard from dealerships recently.

Can your dealership inquire into the vaccination status of its employees? The answer to this question is unequivocally, yes! The EEOC has indicated that simply inquiring into vaccination status is not likely to implicate potential employee disability or health-related information. Thus, such an inquiry is valid. However, dealership personnel involved in this process should exercise special care to avoid potential pitfalls. First, never inquire into why an employee may not be vaccinated. Second, do not disclose the vaccination status of any employee to another. Individuals involved in executive management, oversight and safety roles are an exception. Finally, it is also perfectly acceptable to request proof of vaccination. However, depending on how the OSHA emergency rule is ultimately structured, dealerships maintaining records of employees’ vaccinations may be subject to OSHA preservation requirements for retaining proof of vaccination.

Can dealerships mandate vaccines among its employees? Even before the announcement of the upcoming OHSA rule, the resounding answer from courts around the country is that private employers with at-will employees can mandate vaccinations as a condition of employment. Late last year and over the summer, the EEOC as well as DOJ came out separately with guidance reinforcing dealerships’ legal ability to mandate vaccines should they so choose. The key to any vaccine mandate is to make reasonable accommodations for employees with disabilities, legitimate medical concerns or sincerely held religious beliefs. Any objection by an employee must undergo an individualized evaluation regarding the basis of the objection and the accommodations that can be offered to allow the employee to remain in his or her job. This is a fact-specific inquiry and best handled in consultation with your dealer lawyer experienced in employment matters.

What other measures can dealerships take to ensure a safe workplace and continued operations? – Short of mandating vaccines, there are many steps dealerships can take to continue to mitigate the spread of COVID-19.  Dealerships can encourage vaccinations by educating employees regarding the benefits of being vaccinated and encouraging them to speak with their healthcare providers regarding the decision. Dealerships can also offer cash bonuses, lottery prizes or other incentives as a carrot to achieve more vaccinations amongst their employees. Dealerships can also require mask-wearing, routine COVID testing, and other mitigation methods to keep their employees safe and dealerships fully-staffed.

Finally, while the explanations above are generally applicable in many states and federally, dealerships should be aware of state laws, and specifically recently-enacted legislation, that may limit the options they can pursue to mitigate the effects of COVID on their workplaces and operations. Before implementing any COVID-related workplace measures, consult with your dealer attorney experienced in employment matters.