Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Dear Littler: The holiday season is upon us, and we’d like to celebrate this year by holding an actual office party like we did in the “before” times. Prior to 2020, we held luncheons in our New Jersey branch office for workers only, and hosted evening parties in restaurants where employees could bring a guest. We’d like to go big this year and rent a party bus to take us into New York City for our evening event. But here’s the wrinkle: although we are not covered by any of the existing federal vaccine regulations, we have a mandatory COVID-19 vaccine policy, and some employees who declined the vaccine work remotely. Can we make sure only vaccinated people attend our parties?
—Feeling Festive in Fort Lee
Dear Feeling Festive,
It’s hard to believe so much time has passed since in-person office parties were the norm. The widespread availability of COVID-19 vaccines has certainly given us reason to feel more festive, but we’re not out of the woods yet. The Delta variant is still wreaking havoc, the emerging Omicron variant is causing new concern, and while many of your employees may be seeking out vaccinations for family members and booster shots for themselves, vaccine hesitancy persists for others. This is why an increasing number of employers like yours, Feeling Festive, have mandated the vaccine. This number is expected to grow if the current stay on the Occupational Safety and Health Administration’s emergency temporary standard (ETS) is lifted. The ETS would require employers with at least 100 employees to ensure their workers either are fully vaccinated against COVID-19 or submit to weekly COVID-19 testing. (The Centers for Medicare and Medicaid Services has issued a vaccination rule governing healthcare entities, as have many states, and many federal contractors are subject to their own requirements.) But even now, before you issue those invitations, there are some things to consider. Let’s focus on the venue, the guest list, the party plan itself, and the cleanup.
Picking the Venue
Let’s start by focusing on your intended venue. Many event spaces only allow the vaccinated to enter, either based on their own policy or applicable law. For example, that big blowout you’re hoping to plan is subject to NYC’s Key to NYC law, which requires attendees to show proof of vaccination, with no testing-out option. Many other localities, and several states, have begun requiring that restaurants, bars, hotel ballrooms and various other venues check vaccination status at the door, and admit only those who can prove it. Some jurisdictions have different requirements for indoor versus outdoor event space.1 Some jurisdictions allow proof of a negative COVID-19 test in lieu of vaccination.2 These local laws vary and seem to change by the minute, so check the policy of the location you pick. If you stick to your NYC nightspot plan, make sure to let your employees know of the venue’s vaccination policy and the need to be vaccinated to attend.
Determining the Guest List
If you choose somewhere that doesn’t itself require vaccination, then we’re back to your company policy and your question about excluding the unvaccinated. You mentioned that certain employees have been allowed to forgo their shots and work remotely instead. Let’s break this group into three categories:
- On one hand are your straight holdouts, who simply refuse to get vaccinated for their own personal reasons, but do not have legal protection under New Jersey, New York, or federal law.3 If these individuals still work for you, you are free to exclude them from the party, or give them the option to Zoom in at some point in the festivities. That might require setting up a camera on the wall, and perhaps sending party supplies to employees’ homes. This pandemic has us all getting creative!
- On the other hand are employees who have been granted a temporary or indefinite exemption from vaccination based on their medical condition or disability. These employees are entitled to a reasonable accommodation that would allow them equal access to the benefits of employment, including all that holiday fun, unless doing so would pose an undue hardship. In assessing such a hardship, the Equal Employment Opportunity Commission (EEOC) has advised employers to consider the accommodation’s cost and impacts on operations or workplace safety as well as your financial capacity. You will have to assess these factors in considering whether you can invite those with medical exemptions, perhaps with additional masking, testing, or other safety precautions, without unduly burdening the company. This obligation does not cease simply because you are renting another’s space for the party, and you may need to negotiate with the space owner to facilitate an accommodation. This may mean that you cannot have the event in an indoor space that is subject to the Key to NYC Pass Executive Order. Whatever you decide, make sure to document the reasons. Undue hardship is traditionally hard to prove in the disability space, although COVID-19 transmission poses specific safety and health concerns that have not been well-developed in case law to date.
- Between these two categories there are those employees with religious accommodations exempting them from vaccination. I’m willing to bet that most of the accommodation requests you’ve seen fall into this bucket. They’re the most common nationwide. Again, the question is whether an accommodation would unduly burden the company. The factors for consideration here mirror those in the disability/medical context, except the burden to prove hardship is lower. Under federal and most state laws, you can deny an accommodation, namely a ticket to that party, if that accommodation would pose more than a de minimis (“minimal” if you’re foregoing the superfluous Latin) burden. For example, if the only hardship is the cost of masks and pre-event testing for unvaccinated attendees, it might be hard to deny the accommodation. But if inviting these unvaccinated employees to an event that involves eating and drinking (and therefore unmasking) would impair others’ safety, then that could be enough. The EEOC draws the comparison to steel mills’ requiring workers to wear pants because more flowing garments could get caught in the machinery. While masks might be a closer analogy to that one, it goes for vaccination too. Be careful though, as some states (including New York and New Jersey) have their own laws against religious discrimination that raise the threshold closer to that used in considering disability accommodations.
Remember that an exemption from vaccination is not a free pass. You can still require that these employees take additional safety precautions like masking or testing4 before they come in the door. Or you can consider including an outdoor space at the party (with space heaters – brrrrrr!) or allowing them to Zoom in.
There is an added complication here in relation to employees’ guests. Whatever safety precautions you may plan to require of employees, it is far less straightforward to do the same with their guests, with whom you have no legal relationship. While event venues, especially in New York City, have experience with checking vaccination for everyone entering their space, you probably will not have any information about the vaccination or health status of guests and you may not have an easy way to get that information. This may be a year for limiting the holiday party to your employees or at least limiting optional elements that congregate large numbers of people, such as group transportation.
What to Check at the Door?
So now you’ve found your venue and figured out the guest list. How do we apply your company vaccination policy as employees enter, either the office or a rented space? Well, if it’s the office, you may be required to check vaccination status, and the method many jurisdictions are requiring, is to visually inspect vaccination cards or photographs of those cards on attendees’ phones. Make sure that whoever has that job knows what to look for. Fake cards are uncommon, but they are out there. Nonetheless, checking cards is a more reliable method than simply accepting employee statements. You can also give attendees the option to upload their cards to some online database beforehand, while perhaps also attesting that they are not suffering COVID-19 symptoms, have not recently travelled, and/or have not been recently exposed.
It is a good practice, and required in many jurisdictions, to track the result of your inspections, either through the online option mentioned, by marking attendees off on a spreadsheet, or taking your own photocopies of vaccination cards. Whatever you do, make sure this information is kept private, secured, and on a need-to-know basis. Some jurisdictions may require you to hold it for a period of years.
If you rent an outside facility, you should check that they are checking vaccination status for entry in accordance with applicable laws (like the Key to NYC Pass Executive Order).
What if a guest seeks an exemption at the door, either to the office party or another venue? While you generally want to keep an open process for employees requesting those exemptions, you can impose reasonable limitations. So you do not need to allow employees to expect the bouncer to assess their exemption requests at the door. If they haven’t secured an exemption, you can tell them it’s too late for that part of their RSVP.
We’re almost there and our attendees have been cleared to enter! Let’s talk a little then about logistics at the party. The Delta variant is no joke, and there is still much that we do not know about the Omicron variant. While breakthrough cases are rare, they still occur; even your vaccinated employees may have serious safety concerns about congregating in large groups or any other activity that might impair their other holiday plans with loved ones. So make sure that either the venue staff or yours have effectively cleaned and ventilated the space beforehand, or else ensured that the venue you are renting has done so. Consider whether to require employees to mask when they’re not eating or drinking. If you expect everyone to share close quarters at the party (like on that bus) consider asking them to submit the negative results from a COVID-19 test taken within the last 72 hours, just like they would have to in order to board certain airlines. Perhaps consider separating employees into pods, spread out on separate buses or at designated tables. This can be an opportunity for employees from different departments or offices to get to know each other.
Also consider arranging the party activities to be COVID-19-safe. Maybe we cut down on dancing from the past years and include trivia, a comedy show, or something else that allows employees to stay safe in their seats while all having fun together.
Unfortunately, COVID-19 protections don’t end at last call. If employees contract COVID-19 at the party, it can give rise to a workers’ compensation claim. So consider asking employees to report if they begin suffering any symptoms of the disease in the two weeks following, or test positive. If they do, then use contact tracing to make sure you can inform those who attended to take appropriate precautions.
Feeling Festive, we’re all going to get through this pandemic eventually. In the meantime, it’s important to keep up employee morale. And that seems just what you’re doing by planning for fun, in a safe and sensible way.
1 For example, West Hollywood, California’s Emergency Executive Order of Sept. 10, 2021 requires restaurants, bars, and nightclubs to show proof of vaccination prior to entering the indoor portion of the facility, but allows customers to use outdoor space without this requirement.
2 A Public Health Order for King County, Washington, which includes Seattle, requires verification of vaccination status or a negative COVID-19 test result for those entering restaurants and bars.
3 Note that some jurisdictions allow employees to opt out of vaccination for reasons other than disability or religion, so it is important to consider the laws of the states/cities in which you operate.
4 Let’s not get started on those employees seeking an exemption from masking or testing. That’s a whole other discussion.