As COVID-19 vaccinations ramp up across the United States, people are starting to think about post-pandemic life in more optimistic ways. However, reinstating normal routines such as returning to the workplace won’t be simple.
This question can be more vexing than people expect. The short answer is that yes, employers could require certain employees to be vaccinated. However, employers need to be sure they are not exposing their companies to risk by violating the rights of employees. Employers should also consider if the employee belongs to a union and that requiring a bargaining unit employee be vaccinated may run the risk of violating the collective bargaining agreement between the employee’s union and the company.
Is Vaccination Necessary for the Job?
Being vaccinated against COVID-19 can be a significant advantage for employees in specific sectors. People like healthcare workers, first responders, and those in the retail and service industries who are vaccinated can make the workplace safer for themselves and others with whom they come into contact.
Thus, if a job requires a person to work with vulnerable individuals, for instance, employers may choose to require employees to get vaccinated when they are eligible to do so.
One option employers might explore to maximize vaccination rates without mandating it is to offer incentives. These might include gift cards or extra time off for those who opt to get the vaccine.
Employers who do decide to require vaccinations should make accommodations for people who cannot be vaccinated or are not vaccinated to avoid discrimination claims based on, for example, an employee’s disability or religious beliefs.
Some examples of reasonable accommodations include:
- Temporary relocation or reassignment of non-essential duties;
- Construction of physical barriers, like plexiglass windows;
- Enforcing social distancing measures; and
- Reducing non-essential contact with others.
When these measures do not put an undue hardship on employers, they can be effective ways of protecting the safety and rights of employee , while mitigating risk for employers.
Individuals Pushing Back
Legal challenges have already come up involving employees who cannot or refuse to get vaccinated. Some parties argue that it is discriminatory to require individuals to get a vaccine that the Food and Drug Administration has only authorized for emergency use. Others worry about the ethical repercussions of vaccine mandates.
As Lindsey Bever notes in this March 6 Washington Post article, employers can find themselves torn between their moral duties and legal obligations when it comes to the vaccination status of their workers, making a thorny issue even more tangled. As such, it can be crucial to consult an experienced employment attorney before making any definitive statements regarding this issue. Please contact me for answers and counsel.