KEEP GOING: Attorney Devjani Mishra understands the pandemic fatigue people are experiencing but stresses that business owners need to continue ensuring the safety of their employees, especially as they send those employees into people’s homes and businesses. (Photo courtesy of Littler)

Many HVAC contractors report receiving vaccination status questions from homeowners before a technician’s visit. Many respond they can’t even ask that of their employees. That isn’t true, according to attorney Jessica Kuester of Ogletree, Deakins, Nash, Smoak & Stewart. Kuester said employers can ask if employees are vaccinated without violating any federal privacy laws. Being vaccinated is not a disability.

The tricky part comes if they answer “no.” Asking why can divulge more medical information than an employer wanted. An example would be an employee who isn’t vaccinated because he’s undergoing cancer treatments. The situation changes again if the employee asks for an accommodation to not get vaccinated. Then the employer can discuss the reasons why, including medical issues, said attorney Kevin Troutman of Fisher Phillips.

Businesses, Governments Require Proof of Vaccination

Sharing that information with customers becomes another issue. This is especially true of commercial customers. Companies are often limiting access to their buildings to only those with proof of vaccination. This includes vendors such as HVAC companies.

“Private property owners have a good deal of discretion in deciding who comes on their property,” Troutman said.

In some places, local governments are imposing mandates on business. New York City plans on requiring proof of vaccination to enter restaurants, gyms, and entertainment venues. This mandate includes the contractors who enter these spaces for service work. The city of Los Angeles is making vaccination a requirement to work on municipal projects going forward.

HVAC contractors with enough vaccinated employees and enough work can send employees to different jobsites depending on their status. They can also mandate all employees get vaccinated. The federal government is making that more clear all the time.

More than 100 employees at Houston Methodist Hospital sued their employer over a vaccine mandate. A federal judge threw the suit out of court. Some have argued institutions can’t mandate any of the vaccines because they have only received emergency use authorization rather than full federal approval. That changed on August 23, when the Pfizer-BioNTech vaccine became the first to receive full FDA approval.

“From a legal point of view, if anything, employers are on more solid ground than they were a few months ago because of these developments,” Troutman said. “Now, from an employee relations point of view, there are still a lot of questions.”

Soft Vs. Hard Vaccine Mandate

The main question is how many employees will quit over a mandate. In the case of Houston Methodist, the answer was more than 150, with only 25 holdouts getting vaccinated after the lawsuit failed. With HVAC already facing a constant and major labor shortage, a hard mandate seems risky.

HVAC contractors can consider a soft mandate, Mishra said. This would be giving employees the option of either getting vaccinated or undergoing regular testing. Employers need to pay for the tests, she said, and the time it takes to get the test. This can become expensive fairly quickly, so they need to weigh this decision carefully.

It’s not just customers who want companies to have vaccinated staff. A number of recent polls show support among employees to have their companies mandate vaccination. At some point, there could even be a lawsuit against a company that lacks a mandate based on the need to provide a safe workplace.

Mishra said vaccination, like so much else about the pandemic, has become a polarized issue. Early on, a lack of supply was the biggest issue when it came to vaccination. Now, it’s a lack of demand.

“At this point, people who are unvaccinated are not unvaccinated because they haven’t had the opportunity,” Troutman said. “They are unvaccinated because they have decided they don’t want to get vaccinated.”

Talk of booster shots and breakthroughs only add to vaccine hesitancy. Several studies show the trades rank high when it comes to putting off vaccination. But Mishra shared a story about one of her construction clients that had workers on-site at a hospital. The staff came out and offered to vaccinate anyone who had yet to receive their doses. All the eligible workers lined up for their shots.

Regardless of vaccine status, Mishra said HVAC contractors need to continue the safety protocols they implemented last year. That means mask-wearing, social distancing, and sanitation. She understands that people have grown tired of these precautions and the early summer lull made them seem less necessary, but they remain needed. Mishra said it was no different than requiring hard hats at a construction site.

“We’ve been watching this movie for a while now,” she said. “Rewinding it and rewatching it isn’t going to make it turn out differently.”