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What are employers liable for in a pandemic?

ALBUQUERQUE, N.M. — As New Mexico employers contemplate how and when to bring workers back to the offices after more than a year of the pandemic, Jeffrey Lowry, leader of Albuquerque-based Rodey Law’s Labor and Employment Law Group, offers some insights on liability.

Q: Could employers be held liable if a coronavirus outbreak occurred after workers returned to the office?

A: “It is possible but unlikely an employer could be held liable if a coronavirus outbreak occurred at the office and employees could establish that they both contracted the virus and became ill because of their work in the office. Employers can significantly minimize their risks by following Centers for Disease Control, Occupational Safety and Health Administration, and Equal Employment Opportunity Commission guidance on COVID-19 prevention protocols, especially with respect to unvaccinated individuals. Keep in mind that such claims may be covered by the Workers’ Compensation Act.”

Q: Are employers allowed to require vaccines in order to return to in-person work?

A: “This is the big question of the moment! The EEOC (Equal Employment Opportunity Commission) recently issued guidance saying that employers can generally require employees to be vaccinated before returning to in-person work. There are potential exceptions for employees who have bona fide disabilities, medical conditions, or genuine religious beliefs that prohibit vaccinations. Employment lawyers advise most employers to strongly encourage but not mandate vaccination. Nevertheless, a number of employers of medical personnel and “front line” workers have required all employees in certain positions to be vaccinated against COVID-19 to continue working. Some of those employers have faced lawsuits as a result. The primary theory of those lawsuits is that the COVID-19 vaccines are “experimental” and cannot be mandated. There is at least one such lawsuit pending in federal court in New Mexico. The federal judge in that case denied a temporary restraining order against the employer, and I am skeptical that such lawsuits ultimately will be successful. Nevertheless, we will not know for sure until those cases are resolved.”

Q: Are there any potential legal issues that may arise involving employees and employers as more workers return to in-person work?

A: “There are always potential legal issues when people work together. One potential issue is how managers and coworkers treat people based on their vaccinated or unvaccinated status. Based on government guidance, employers can require unvaccinated people to comply with different health and safety practices, but employers should be careful not to otherwise shun or mistreat unvaccinated employees, especially because that could be because of a disability or health condition. Also, until the pandemic is over, employees and employers might have different levels of comfort participating in various in-person activities. Employers and employees will need to be mindful and respectful of these differences.”


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