Bring on the Vaccine
There is very good news on the horizon – the COVID vaccine is coming soon.
Can an employer require its employees to take the vaccine to keep the workplace safe?
The answer is probably – depending on the specific facts of your workplace.
If you are anything like me, you are following the vaccine news with anxious anticipation. It’s terrific news that there are now two vaccines approved by the FDA. And I cannot wait for one of them to be available to the everyday joes like me.
But as I sit here waiting like a kid on Christmas Eve – I began to wonder how this is actually going to work. And how will it affect our industry? How will companies treat the vaccine? What can they require of their employees? Well I’m smart enough to know that the answer to these questions are way outside my area of expertise. So I turned to friend and fantastic employment lawyer Alana Ackels. In this article, therefore, I recount my discussion with Alana as she educated me on what companies can and cannot require when the vaccine is available.
Best Practices for a Safe Office
Alana and I started our conversation with the question that everyone wants to know – can employers require employees to get the vaccine? We are lawyers, so of course you already know the answer – maybe. Sometimes? Probably.
I’ll unpack that. Alana said that the short answer is employers can probably require employees to get the vaccine – with some exceptions. Ultimately this question is covered by the Americans with Disabilities Act. Specifically, she said that it’s covered under the medical exams guidelines. And the ADA has a lot of rules governing when and how an employer can require its employees to get a medical exam.
To be clear, Alana said requiring the vaccine itself is not a medical exam. But the screening questions are. So if an employer asks an employee if he or she has been diagnosed with COVID, if he or she has a fever, etc. – those questions do qualify as a medical exam.
According to Alana, an employer can ask these questions (i.e., give a medical exam) if they are job related and consistent with business necessities. That’s the key issue – is requiring the vaccine job related and consistent with business necessities? That is a fact based inquiry that will change for every business. And, it can change within a business if circumstances change.
A more specific question to ask, therefore, is if employees do not get the vaccine, do they pose a direct threat to other employees? According to Alana, the answer to this question will be very specific to how your job site works. For certain industries, it may be more important than others. For example, I would think property management companies that deal with the public may have a stronger argument to require the vaccine than a company where everyone works separately in a private office. Also the circumstances surrounding the outbreak may matter. Right now, when the infection rates are sky high, employers may have a stronger case to require the vaccine. But if the numbers level off, that immediacy may subside also.
Alana made clear, however, that there is an exception to all of this. If an employee cannot take the vaccine because of a disability or a religious belief, the employer cannot require the employee to do so. It will then need to find a reasonable accommodation for the employee, if it can.
So What Will/Should Employers Do?
After hearing her great analysis, the question I asked Alana was – ok, what will or should companies do?
Alana explained that what probably makes the most sense is for companies to do something similar to the flu vaccine – strongly encourage it. If it is strongly recommended but not required, the decision is not subject to the ADA. If the vaccine can be administered by a nurse at the office – a company may want to bring in a nurse to administer the vaccine on site to all who so choose. Whatever you can do to make it easier on your employees will be beneficial.
Returning to the Office
Finally, while I was gleaming this great advice from Alana, I asked her what I knew was likely a popular question – what if you have an employee who does not want to return to the office? Can you require it?
Once again – we are lawyers. The answer is probably.
Alana said that under an OSHA analysis, an employee cannot refuse to report to work for fear unless he can show he has a reasonable belief of death or serious bodily harm. This is, obviously, a very high standard. If an employer can show that it is adhering to CDC guidance for making the workplace safer, then the employee will have a hard time showing there is a legitimate fear. This is one of the many reasons that safety protocols are extremely important.
Anyway, I hope that helps answer some questions. Thanks to Alana Ackels for her expertise. If you have questions about this or any other employment law issue, I highly recommend going to her website and then giving her a call.