Employers Can Require Workers To Get Vaccinated, But Wash U Labor Law Expert Says To 'Tread Carefull | KBIA

Employers Can Require Workers To Get Vaccinated, But Wash U Labor Law Expert Says To 'Tread Carefull

Jan 13, 2021
Originally published on January 13, 2021 7:24 am

Missouri health officials expect to vaccinate all health care workers by the end of January, followed by teachers and other essential workers.

The U.S. Equal Employment Opportunity Commission, the federal agency that enforces workplace discrimination laws, released guidelines last month, confirming that employers can require staff to get the COVID-19 vaccine.

Still, questions remain about what happens if a worker refuses.

St. Louis Public Radio’s Shahla Farzan spoke with Washington University labor law professor Peggie Smith about considerations for employers and workers as they prepare for the vaccine rollout in Missouri.

Shahla Farzan: What are some practical reasons why an employer might require employees to be vaccinated?

Peggie Smith: Employers have a responsibility to maintain the health and safety of their workers, so I think that is first and foremost going to be on the minds of a lot of different businesses. In addition, any number of employers are going to be concerned about potential liability concerns. You can well imagine that employers will likely face some level of liability in a situation where they don't mandate the vaccine and then an employee can prove that they contracted the virus in the workplace because of unvaccinated workers. Also, depending on their industry, they have to worry not just about employees, they also have to worry about patrons, patients, guests, etc.

Farzan: The EEOC included two potential employee exemptions in its guidance: those with disabilities and those with sincerely held religious beliefs that prevent them from receiving the vaccine. What would the process look like for employees who claim one of these exemptions?

Smith: So let’s say you have an employee and that employee says, ‘I don't want to get vaccinated because I have a disability.’ What the employer is going to have to be able to demonstrate is that any unvaccinated employee is someone who would pose a direct threat, because there is a significant risk of substantial harm to the health and safety either to that individual or to other individuals. And the employer has to do more than that; the employer also has to be able to establish that that risk can't be eliminated or reduced by a reasonable accommodation. It’s not enough for the employer to say, ‘Hey, this person poses a risk to the health and safety of the workplace,’ the employer has to take that additional step and demonstrate that they’re not actually able to provide a reasonable accommodation to someone with a disability.

A reasonable accommodation can take any number of forms. For example, you might imagine that depending on the particular workplace, the employer is able to arrange for the employee with a disability to work remotely from home or allow the employee to take a leave of absence.

Farzan: Does the process look similar if someone claims a religious exemption?

Smith: One of the interesting things when it comes to employees who claim they have a sincerely held religious belief is it's a lot more vague than an employee with a disability. The definition of religion is incredibly broad. It protects those religious beliefs and practices that may be completely unfamiliar to the employer. The EEOC advises employers that they should typically assume that if an employee makes a request for religious accommodation, it is in fact based on a sincerely held religious belief. That said, the employer is within its right to look for more supporting information to justify the employee's claim that they have this sincerely held religious belief that conflicts with being required to take the vaccine. Once again, the employer has to first try and provide a reasonable accommodation, unless providing that accommodation would pose an undue hardship on the employer.

Farzan: What if an employer isn’t able to offer an accommodation for an employee who refuses the vaccine?

Smith: Even then, the employer should look to see if there are any other applicable state, federal or local laws that might give that employee some additional rights. You could well imagine that even if an employer is not able to provide a reasonable accommodation to an employee who says that they don't want to take the vaccine because of a disability, maybe that employee would be entitled to leave under the FMLA [Family Medical Leave Act] … or some other employer policy. But assuming there is no other protection that is available, the employer can in fact terminate the employee.

Some of those factors that the employer has to consider is, what's the duration of the risk that is being posed here? What's the nature and severity of the potential harm that might come about by allowing an unvaccinated employee to remain in the workplace? What's the likelihood that that possible harm will actually come about? What's the imminence of the potential harm? So without a doubt, employers are going to have to tread very carefully and ensure that they're covering all of their bases, dotting their i's and crossing their t's.

Farzan: How likely do you think it is that we’ll see some employers requiring staff to get vaccinated? Is it possible there will be mandates at the state level for certain groups of workers?

Smith: I think that actually very few employers will look to mandate the vaccination. I think employers are going to be really sensitive to the reality that right now, any number of employees are resistant to getting the vaccination. There is a lot of misinformation and disinformation out there about the vaccine. I think employers are aware of that, and they're going to be really concerned about causing a backlash among their workforce. As a practical matter, I think that what you're going to see is, instead of mandating the vaccine, employers are going to be far more likely to strongly encourage workers to get vaccinated. And that encouragement will need to go hand in hand with efforts on the part of employers as well as government officials more generally to educate the general population, as well as specific workforces about the importance of getting vaccinated.

There are going to be some industries where it very well might be mandatory. Those would include health care-related jobs, nursing homes, [and] those industries where you see people who work really closely together. For example, workers in meatpacking or other kinds of manufacturing facilities. I think it's unlikely that we're going to see mandates coming at a state level. But again, I wouldn’t be surprised to see the state stepping in with regard to particular kinds of workplaces, such as public schools. At the moment, all 50 states have laws that require vaccinations for students, so I don’t think it’s a huge leap that this might be extended to COVID-19.

Farzan: What role might unions play in this process, if any?

Smith: The majority of all workers are ‘at will’ workers, whose employment relationship is not subject to a collective bargaining agreement. But things will look very different for those workers who are unionized. If you have a union involved and an employer tries to unilaterally implement a mandatory [vaccine] program, you could well imagine that that could lead to a claim on the part of the union that it is a unfair labor practice that goes against the collective bargaining agreement. It's going to be interesting to see how unions come out, but generally what I've noticed is that unions have been very supportive of requiring vaccinations for their membership.

Farzan: Are there certain steps employers should take to help encourage employees to get vaccinated?

Smith: Employers should think about how to make it as easy as possible for their employees to actually get the vaccine. One strategy that employers should consider is covering the costs that might be associated with actually getting the vaccine. What other kinds of incentives might employers be able to offer employees to encourage them to get the vaccination? One other thing to consider is recognizing that there will be some employees that will likely have an adverse reaction to the vaccine or other potential side effects. Consider telling employees if that happens, employers are going to provide those employees with paid time off so that they can recover.

Follow Shahla on Twitter: @shahlafarzan

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