Wednesday, September 15, 2021

Requiring Employees to be Vaccinated Against Covid-19?

Dawn D. McDonald

As the Delta variant of Covid-19 spreads, and now with new concerns surrounding the Mu variant, booster shots, and questions


concerning the safety and effectiveness of the Covid-19 vaccine, more and more employers continue to weigh the pros and cons of requiring their employees to be vaccinated.  Of primary importance to employers, is the ability to remain open for business and to function as profitably as possible.  In the face of resistance from many Americans to the vaccine, the White House has begun asking companies to mandate the vaccine for employees.  Mandates are in effect for many first responders, health workers and large manufacturers.  Many of the Property Managers and Condominium Associations that we represent are also asking the question as to whether they can require employees to be vaccinated.   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 U.S. Occupations 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 employees 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.  

Employers should weigh carefully the risks versus the rewards.  There are certain industries that have made 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.  In the condominium context, in many cases you have numerous residents sharing common areas including lobbies, elevators, etc. It is a good idea to discuss the issues with your employees and provide them with information about the vaccine.  Many employees will already be vaccinated, in which case, the question becomes a moot issue.  Other employees will not strongly object to the idea of vaccines.  For those that do have strong objections, and do not have a legitimate religious or medical reason for requesting an exclusion, it is possible that other reasonable steps can be taken to address both parties’ concerns.  If however, there is no middle ground, the vaccine can be mandated as a condition of employment.

An alternative to mandating the vaccine, is “strongly recommending” the vaccine and/or 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.

A partner at Marcus Errico Emmer & Brooks, P.C., Dawn concentrates her practice on civil litigation and employment law.  She can be contacted by email at dmcdonald@meeb.com  

 

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