Credit Unions Navigate Vaccine Challenges

While COVID-19 vaccinations are moving the nation closer to a new post-pandemic normal, credit union executives are facing difficult challenges over how to manage employees who won’t get vaccinated when it comes time to return to the workplace in the months ahead.

Attorneys who specialize in employment law and serve credit unions and banks said employers can require employees to get vaccinated. However, employers must offer accommodations for employees who cannot take the vaccine because of medical reasons or sincerely held religious beliefs. What’s more, just about every state is considering proposed laws related to the vaccine, some of which would forbid employer-mandated vaccinations outright and others that would extend the religious exemption to include “philosophical objections or objections of the conscience.”

The challenge for credit unions will be maintaining a safe workplace for vaccinated and unvaccinated employees, the latter of whom are more likely to get the coronavirus and possibly spread it to vaccinated employees, members and their families. Although the vaccines provide an extremely high level of protection from catching the virus, they don’t provide full protection. Additionally, public health experts don’t know exactly how long the vaccines will provide protection, or whether the vaccines will protect against other variants of the virus that could be more deadly and transmissible. While public health experts have said achieving herd immunity could end the pandemic, it is also uncertain as to when or if that will ever be achieved because of vaccine hesitancy, anti-vaxxers and the nation’s political polarization. And without herd immunity, another surge of the virus is possible.

Nonetheless, surveys showed most employers are not requiring employees to get the vaccine as a condition of returning to work, but many businesses have been encouraging their employees to get the vaccine. Some have even been offering various types of cash, gift card or time-off-work incentives to get the shot.

While the CDC recently recommended that fully vaccinated persons no longer need to wear a mask or social distance in any indoor or non-health care setting, like an office space, the federal agency continues to recommend masks and social distancing for those who are unvaccinated.

“In our regions where mask mandates and social distancing guidelines are still required, we will continue to abide by those regulations,” Rachel Norman, chief administration officer for the $10.2 billion AlaskaUSA Federal Credit Union in Anchorage, said. “In our regions where these mandates are no longer applicable, we will follow the CDC guidelines for requirements as it relates to masks and social distancing for individuals who are not vaccinated.”

AlaskaUSA has a large workforce of more than 1,900 employees who work throughout 90 branches and service facilities in Alaska, Arizona, California and Washington.

“Even vaccinated employees who feel more comfortable wearing a mask will be encouraged to continue to do so as long as they see fit,” Norman said. “Our employees are thoughtful and focused on making good decisions personally and professionally and we believe they will continue to do so until the pandemic has been officially declared over.”

Although CDC guidelines now recommend that fully vaccinated people can go maskless indoors or outdoors, there is one important factor that employers need to be aware of before making any decision about masking, according to Tanya A. Salgado of White and Williams LLP in Philadelphia, who specializes in employment and education law and commercial litigation.

“The CDC announcement did indicate that state, local and workplace guidelines that require masking should still be honored. And I think that’s an important caveat for everyone to understand,” Salgado said. “At the outset of the pandemic, many states and localities, including local health departments, issued executive orders, regulating workplace COVID-19 safety protocols. And these protocols address the specific requirements that employers conducting in-person business are required to follow in the workplace. And these safety protocols in most jurisdictions are still in place.”

She also said employers are allowed to ask employees whether they have been vaccinated and to show proof of it. But if employees say they have not been vaccinated, employers should not ask why.

“The EEOC has warned that that question can lead to an employee volunteering information about their medical status,” she said. “And for that reason, ­employers should not be asking employees why they haven’t been vaccinated.”

Of course, there could be certain circumstances in which an employer may need to get additional medical information to provide reasonable accommodations for unvaccinated employees, but Salgado warned employers still need to be very, very careful in asking employees why they haven’t been vaccinated.

Credit union executives should also be aware that almost all states currently have pending legislation that would prevent employers from mandating vaccinations and provide even more protections for current and prospective employees who refuse vaccinations from discrimination and retaliation.

According to Husch Blackwell, a St. Louis, Mo.-based national law firm that serves several industries, including financial services, the bills under consideration vary widely by state in regard to who would be shielded from mandatory vaccinations and under what circumstances. According to the law firm, which lists each state’s pending legislation, some bills would forbid employer-mandated vaccinations outright, while others would extend the federal religious exemption to include philosophical objections or objections of the conscience. “Under some proposed legislation, businesses, employers and individuals found in violation may be subject to steep fines; civil liability, often including attorneys’ fees; and in some circumstances, even criminal liability and imprisonment,” it said.

When providing reasonable accommodations, Mark Kluger, founding partner at the management-side employment law firm Kluger Healey in Fairfield, N.J., said employers can treat unvaccinated employees differently to provide them with reasonable accommodations that would also protect everyone from known hazards in the workplace, which employers are required to do under federal and state laws. In addition to requiring unvaccinated employees to wear masks and social distance, unvaccinated employees could be assigned to a private workspace, for example.

“They could be put on a shift where there are fewer people around or they could work different hours or slightly off hours where, for example, they could come in a half hour later than their coworkers and leave a half hour later, so that they don’t spend any time in common areas with coworkers to avoid each other,” he said.

Kluger said he doesn’t think employers would run into potential discrimination issues unless employees could point to treatment that placed them in a disadvantaged position, such as being excluded from meetings, not getting good assignments or being left out of other important workplace activities. Another option is to allow unvaccinated employees to work remotely if it’s practical.

To alleviate issues that may surface between vaccinated and unvaccinated employees in the workplace, some credit unions are looking to implement a hybrid onsite/remote model for employees.

At the $3.1 billion Georgia’s Own Credit Union in Atlanta, about 90% of its 530 employees were working remotely as of late May. Rodney Cowan, SVP of human resources and learning, said the remote work model worked well because the credit union was able to maintain its service levels for its 204,229 members.

“We are entertaining our return to work process and what we want that to look like for the remainder of 2021 and going into 2022,” Cowan said. “We’ll be looking at whether we want to keep a hybrid model where maybe we have 60% of our staff in on any given day that would include some people within their ­departments coming in on Monday and Wednesday and other people in those same departments ­coming in on Tuesday and Thursday, so that we don’t get back to 100% capacity and can continue keeping some aspects of social distancing.”

Georgia’s Own is encouraging but not requiring employees to get vaccinated. The credit union, as well as AlaskaUSA, sponsored public events to encourage people to get the vaccine.

Jessica Schaffner, vice president of human resources and training for the $276 million Michigan Legacy Credit Union in Wyandotte, said some employees have already returned to the workplace while other employees are still remote and come into the office when needed.

“We started phasing back in our [20] call center employees in February because their communications with their manager and peers was just better onsite, so they worked better as a unit,” she said. “We spaced them appropriately to be compliant with social distancing. We do have some employees from different departments who come into the office periodically, including myself. I come in probably once a week to get some things done that I cannot do while working remotely. Slowly people are rotating in as needed.”

But the credit union is still assessing which positions are best suited for a hybrid model. “I anticipate that we’ll have everybody back at one point or another, whether they’re rotating through as a hybrid option or just permanently back in the office within the next few months,” she said.

John David Gardiner, a business and employment law attorney for Bodman PLC in Grand Rapids, Mich., said he’s read surveys that show 67% of employers want their employees back in the workplace when it’s permissible, but has also read surveys that show 66% of employees want to continue to work remotely. “Among the credit union clients we service, they’re finding that when remote work or telecommuting is part of the job description, they’re finding applicants, whereas if in-person work is an absolute requirement, they are finding less applicants available,” Gardiner said.