As the first Covid-19 inoculations to the first round of recipients begins, many employers who are battling to stay open, stay functioning and keep from going out of business are asking themselves if they can require their employees to get Covid-19 inoculation. The short answer is: YES. However, as with most things related to employment law, the answer is actually more complicated than a simple yes or no and requires a deeper analysis by employers.
Employers can require employees to get the vaccine if they want to continue to be employed. Most states, including Massachusetts and the surrounding New England states, are “employment at will” states. This means that employers have a right to set working conditions. The Occupational Safety and Health Administration (OSHA) actually requires employers to provide their employees with safe and healthy working conditions. However, there are significant exceptions to making this type of job condition that employers must be aware of.
Employees have a right to seek an exemption from an employer’s vaccine mandate if they have medical grounds for doing so or if they have sincerely held religious beliefs. Workers can ask for alternative accommodations, such as use of personal protective equipment, working separately, or working from home. These restrictions flow from the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. If an employee seeks an exemption for medical reasons, employers must engage in “the interactive process” with the employee to determine what, if any, reasonable accommodations can be made to keep the employee working productively while keeping the workplace and the employee safe. This means thinking about personal protective equipment, social distancing, changing work hours, remote working, etc.
These are just two of the factors that employers must consider when determining whether they should institute a vaccine mandate. There is the potential for significant liability concerns in mandating the vaccine, other than those related to the ADA and Title VII. What if an employee who did not request an exemption has a severe allergic reaction to the vaccine, causing significant illness and only got the vaccine because it was mandated by the employer? This scenario raises the specter of protracted litigation where early reports from the medical field are noting that while rare, adverse reactions in people who have a history of allergies are occurring.
What is an employer to do? Employers should weigh carefully the risks versus the rewards. There are certain industries that will make the vaccine a requirement due to the high risk or essential nature of the business, such as health care workers and first responders or grocery store workers and manufacturing employees. Instead of mandating vaccinations, consider “strongly recommending” that employees get vaccinated. As long as all employees are treated equally, consider offering incentives to employees who agree to get vaccinated. Provide your employees with available information from the medical field to help address their concerns regarding the safety of the vaccine. Remind employees that getting the vaccine is not an attempt to limit their rights, or autonomy, but rather provides them with more freedom of movement and a safer workplace from the virus.
Reprinted with permission from Marcus, Errico, Emmer & Brooks, P.C. Copyright © 2020
Dawn McDonald is a partner at Marcus, Errico, Emmer & Brooks, P.C. in Boston, Mass.