Vaccine Rollout: What the Glass and Glazing Industry Should Know

Glaziers fall under phase 1c of the U.S. vaccine distribution plan, which was approved by the Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices in December. That means glaziers will receive the vaccine after those in phases 1a and 1b. However, when the vaccine is made available to them largely depends upon supply and individual state mandates.

The committee voted to recommend that frontline healthcare workers and those in long-term care facilities receive the vaccine first as part of phase 1a. Adults aged 75 years or older and frontline essential workers such as teachers, first responders and grocery store workers are second in line for the vaccine in phase 1b. The group recommended that phase 1c include vaccinations for adults aged 65 years and older, people aged 16 to 64 with high-risk underlying medical conditions and other essential non-frontline workers such as those in construction, transportation, public safety, media and food service. Phase 2 is open to the remaining U.S. population.

A recent study conducted by scientists at Brigham and Women’s Hospital, Curative Inc. and the University of California’s Fielding School of Public Health titled, “High Frequency and Prevalence of Community-Based Asymptomatic SARS-CoV-2 Infection,” showed that the construction industry has a higher prevalence of positive COVID-19 tests than many other industries, which could emphasize the importance of vaccinations for people in this industry category.

The study evaluated SARS-CoV-2 RNA test results in Los Angeles between August and October 2020. Those tested were asked to complete a confidential online survey asking whether they had been contacted by local public health authorities about exposure, had visited a list of public places or if they had spent time with five or more strangers. They were also asked for demographic data, including their occupation.

The study found a higher prevalence of asymptomatic infection among individuals who work in the construction industry. Construction workers in the study showed a 5.7% asymptomatic positivity rate, higher than any other employment category. Construction workers in the study also showed a 10.1% symptomatic positivity rate, second only to correctional workers with a 12.5% positivity rate.

When vaccines are made available to those in the glass and glazing industries, can contractors and other employers legally require vaccinations as part of the job? To provide some answers, the Associated General Contractors (AGC) of America hosted a webinar titled, “Sticking Points: What Construction Employers Need to Know About COVID-19 Vaccines and Flu Shots,” with lawyers, Kevin Troutman and Bert Brannen, who are both partners at Fisher Phillips.

Troutman prefaced the discussion by stating that they were talking primarily about federal law. He advised employers to consult their state and local laws, as there may be provisions that limit federal law. He also explained that it’s important to stay up-to-date on any guidance issued by the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA).

Ultimately, Troutman and Brannen believe that contractors can require the COVID-19 vaccine once it becomes available, as many companies in healthcare have flu shot requirements. However, there are two common allowable exemptions: medical reasons or a sincerely-held religious belief. Some states allow other exemptions.

Troutman explained that, historically, more employees are vaccinated when an employer requires it compared to just strongly encouraging it. However, a Gallup poll from early December showed that only 63% of Americans said they would get a COVID-19 vaccine, though that percentage was up from 50% in September.

It’s important in terms of the EEOC that any such requirements are made because the virus poses a significant risk of substantial harm. Troutman recommended employers keep that in mind when deciding who is and is not required to be vaccinated, such as remote employees who do not come into the workplace. According to OSHA, employers have a duty to maintain a workplace free of recognized hazards. Troutman said this doesn’t mean OSHA will require vaccines. Brannen pointed out that the EEOC has been generous to employers in expanding rights due to the pandemic.

“Don’t get overconfident in what you can screen for or require because the EEOC has bent normal rules during this period,” he said, referring to temperature screenings, health questionnaires, etc.

The Americans With Disabilities Act (ADA) prohibits discrimination based on disabilities and requires “reasonable accommodations.” Title VII requires accommodation of an employee’s sincerely-held religious beliefs of practices, which both lawyers said does not mean that the employee just disagrees with the idea of getting the vaccine. They also recommended employers get documentation for a medical exemption.

If one of those two exemptions need to be made, Troutman said it’s important to require them to take other measures to prevent the spread such as wearing a mask, social distancing or teleworking.

However, if an exemption needs to be made, Troutman emphasized the importance of documenting the communication with the employee in question to show that an interactive process occurred to create reasonable accommodations.

“In court it’s not just facts that matter but the evidence,” said Brannen. “We can’t represent you without forms and documentation.”

There could be pushback from employees through an employee petition or an individual representing the thoughts of a group. Brannen said it’s important for employers to remember that, under the National Labor Relations Act, they cannot fire employees in retaliation based on these acts.

If an employer decides to require the vaccine, it should create a policy early on. Troutman explained employers should:

• Clearly describe the expectations and rationale within the policy;
• Explain how to seek an exemption as an accommodation;
• Follow the individualized accommodation process diligently;
• Ensure there’s no retaliation or the appearance of retaliation; and
• Safeguard all medical information separate from the general personnel files.

Brannen explained that it may be preferable to alter the language from the vaccine being “required” to it being “expected.” If it’s expected, Troutman said employers should pay for the vaccine and make it easier for employees to receive the vaccine, for example, by allowing vaccination during work hours or facilitating on-site vaccination at the workplace.

Jordan Scott is an assistant editor for USGlass magazine. She can be
reached at jscott@glass.com.

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