California-based employment law attorney Cory King told Collision Industry Conference (CIC) attendees in April that while employers can require workers to get vaccinated for COVID-19, they should make sure they get legal guidance in doing so to avoid violating any state or federal regulations.
“The short answer is yes, you can [require vaccines], but as with anything in the law, it’s not that simple,” King said.
King predicated his presentation by saying he can’t provide legal advice in such a setting, but was offering some issues business owners would want to discuss with their legal counsel.
King said in most states, for example, employees must be paid for their time getting vaccinated if it’s a job requirement. Some employers have sought to reduce this cost by bringing in someone to do the vaccinations in-house, King said, but under that scenario, employers must be careful to avoid violating the Americans with Disabilities Act (ADA) relative to medical inquiries, given that pre-screening questions are required for those getting vaccinated.
“If they don’t want to answer those questions, or they answer them and are denied the opportunity to get the vaccine because they don’t pass the pre-screening, you cannot ask them why they did not get vaccinated,” King said. “If you do, you are arguably potentially running afoul of the ADA.”
Employers also have to provide “a reasonable accommodation” for those not willing to be vaccinated because of a religious or “sincerely held belief,” he said, but again, this is an area where a company should get legal advice. Don’t question the sincerity of their belief or get into an argument over this, King said. Rather, acknowledge what they are saying, tell them you will look into it and get legal advice.
“You can make it through this, no question,” King said. “The way you would overcome that is to show that it would create an undue hardship, and that is defined as having more than a ‘de minimis’ cost or burden on the employer,” an analysis an employment lawyer can walk you through.
Concerns about long-term effects of the vaccine or belief “it’s a government science experiment” cannot negate an employer mandate because “fear is not a protected category,” King said.
“But before you force somebody to get vaccinated, or fire somebody because they refuse to get vaccinated, I strongly encourage you to make the phone call to your attorney,” he said.
There are also privacy protection steps to take if an employer collects proof of vaccination from employees. King was asked what an employer should do if an employee asks how many of their coworkers are vaccinated.
“I would recommend against [revealing] anything [related to that] unless you have some local or state regulation that says you need to,” King said. “Because that immediately starts the witch hunt: Who’s vaccinated? Who’s not? You arguably could be viewed as disclosing. It’s not worth the risk. I would not go into that. I can’t give a specific answer without researching it to make sure there’s nothing specific to [your] locality. But the general recommendation is I would not be disclosing anything like this.”
Equipment, Insurance Issues for EV Repairs
A number of speakers at CIC discussed some of the fire-related safety precautions shops should take relative to regularly having electric vehicles---especially those with lithium batteries---in the shop for repairs.
“One thing is to call your [business] insurance company and find out how this may impact your premiums,” said Mark Quarto of Futuretech, an electric vehicle training organization. “They probably will have some ideas on other things you’ll need to do with your building.”
David Willett with ProSight Specialty Insurance concurred.
“It does take additional coverage, and it does take additional risk measures,” he said. “We get asked those questions from the knowledgeable [shops]. The scary ones are the ones that don’t ask those questions. The industry is woefully unprepared for this.”
Quarto said it is also advisable to make sure “the fire marshal is alerted to what you’re doing in your building.” He said the National Fire Protective Association is currently “finalizing some requirements for where battery packs are to be stored, how far they need to be apart when they are stored when they are out of the vehicle.”
Quarto was asked what body shops should look for in an electric vehicle charging station for their shop. He said most EVs will be compatible with any 220-volt charger that is SAE J 1772 compliant.
“It’s considered to be a Level 2 charger,” he said, which can charge most vehicles in four or five hours, as compared to a 110-volt charger that will require two or three times that long. “There are some other options, fast-charging, but typically a shop isn’t going to need a fast charger. They’re very expensive. The J 1772 chargers are anywhere from $300 to $800, maybe $1,000.”
It will require a dedicated 220-volt circuit, he said.
“Nothing else on there. Otherwise the charger will get tripped all the time,” Quarto said.
Another speaker during the discussion of EVs at CIC mentioned shops may want a forklift to load or unload EV battery packs into or from delivery vehicles. Willett said forklifts are another item to discuss with your business insurer.
“We haven’t had those in many shops, and for those in the collision repair industry thinking about having a forklift, there’s a lot of additional training and safety requirements,” he said.
CIC Among First In-Person Meetings
The discussion took place during the first of the quarterly CIC meetings held in-person since January of last year. Organizers said about 130 people attended the meeting in Phoenix---about half as many as is typical---but the meeting was open to “virtual attendees” as well.
“We’ve been very anxious to get back to a live scenario,” CIC Chairman Darrell Amberson said at the conclusion of the first day of the two-day meeting. “We knew there were some risks with that. We knew that hardly anyone else in the industry is meeting live. But we also felt like somebody has to be the first to jump off the dock. I’ll say right now, the water feels pretty darn good. It’s been absolutely terrific.”
John Yoswick