President Biden announced a plan to increase the fight against the COVID-19 pandemic which included new rules requiring employers with 100 or more employees to mandate their workers be vaccinated or get tested weekly.
The fifteen casinos in Pennsylvania collectively employee over 16,000 people. Many have questions about the vaccine mandate. PlayPennsylvania turned to Lee D. Moylan, a Partner and Chair of the Labor and Employment Law Practice Group at Klehr Harrison Harvey Branzburg in Philadelphia, to provide her expert opinion.
Like every service industry, Pennsylvania casinos are on a hiring spree. How will mandates impact casinos’ current staff and the already-thin labor pool? Robert Ambrose, a former Atlantic City casino executive, consultant and educator offers his thoughts.
Can casinos require employees to be vaccinated?
Under federal law – there may be some state laws that do prohibit mandates – employers lawfully may require employees to get the COVID-19 vaccine.
Can I get a vaccine exemption?
Moylan explained that employees who cannot receive a vaccine because of a disability or a sincerely held religious belief may be entitled to an exemption from the vaccine mandate if a reasonable accommodation can be given to them to enable them to perform their jobs safely.
Some examples of accommodations:
- Regular testing
- Allowing the employee to continue working from home
- Separating the employee’s workspace from others
- Requiring the employee to double-up on masks.
“Employers must consider whether reasonable accommodations can be provided and be sure that they cannot be provided before terminating an employee for failing to get the vaccine,” added Moylan.
What happens if employees are not vaccinated?
The Department of Labor and OSHA will impose penalties of $14,000 per violation.
“It is unclear exactly when the rule will come out, how the agencies will direct companies to implement the requirements, and the length of the grace period to get into compliance, but I do not think it is unrealistic to conclude that all of this could happen before the end of the year,” said Moylan.
Is there legal precedence to this?
Schools mandate immunizations for students to attend. Healthcare employees have to get the flu and TB vaccines.
“This seems so different perhaps because of how politicized it has become. I think very few people had heard of Emergency Use Authorization before the pandemic,” said Moylan.
Cost of testing, paid leave to recover
Moylan thinks it is likely from Biden’s speech that employers will be required to compensate employees for the time to get and recover from the vaccine. However, it is still unclear if employers will be required to compensate employees for the time they take to get tested and to wait for the results.
Also, because the testing is a requirement of employment, it is possible that the costs of the testing will have to be paid for by the employer if the cost, when subtracted from a non-exempt employee’s pay, would result in the employee being paid less than the minimum wage.
Can a job posting list COVID vaccine as a requirement?
A number of postings already are. Job postings that listed vaccination as a requirement increased 242% in the last month on Indeed.
Moylan said that the best practice for job postings which choose to include vaccination requirements should add carve-outs for:
- Disability or sincerely held religious belief or
- A statement about employer’s commitment to providing equal opportunities to all individuals
What do vaccine mandates mean for the PA gambling industry?
As a former casino industry exec turned university instructor, Robert Ambrose is able to offer a unique perspective.
Casinos – like every other business – are still navigating uncharted waters. After being forced to close in March 2020 for about three months to slow the spread of COVID, they reopened with heavy safety restrictions. Now, casinos are working through vaccine mandates and a labor shortage. Every casino is on a hiring spree and job fairs are seemingly held nearly every week.
“The lack of seasonal help throughout the region certainly had a negative impact in customer service both in Atlantic City and Pennsylvania casino resort operations this summer. Current employees are also feeling the stress as they are having to put in extra hours to cover labor short-falls.”
On vaccine mandates impact on casinos, Ambrose said:
“If the mandate becomes the law, then those who refuse will move on to other occupations that do not require a vaccination. This further contributes to staffing shortages until the positions eventually get filled.
Whether it is Pennsylvania or across the nation the debate will continue short term. Industry leaders need to take a proactive approach to communicate and educate staff. When you mandate and push, it causes some employees to take a defensive posture. When you educate, an understanding takes place and there is a better chance of winning employees over.”
Lead image Matt Rourke/AP