When Employers Can Require COVID-19 Vaccinations
December 8, 2020, HR Daily Newsletter – SHRM, by Allen Smith, J.D.
As COVID-19 vaccines become available, many employers will have a strong case for requiring employee vaccinations, so long as their vaccination policies have certain exceptions, are job-related and are consistent with business necessity, legal experts say. “Employers may require vaccines before employees return to the worksite if the failure to be vaccinated constitutes a direct threat to other employees in the workplace because the virus is rampant and easily transmitted in the workplace,” said Robin Samuel, an attorney with Baker McKenzie in Los Angeles.
Exceptions must be made for employees who cannot be vaccinated because of disabilities or due to sincerely held religious beliefs, he added. Employers do not have to accommodate secular or medical beliefs about vaccines. “Some companies will have strong justifications to require their employees to be vaccinated,” according to Gary Pearce, chief risk architect for Aclaimant, a safety and risk management firm in Chicago, and Jody McLeod, an attorney with McLeod Legal Solutions PLLC in Charlevoix, Mich., in an e-mail. “The more likely it is that nonvaccinated employees put customers, fellow employees, are the general public at risk, the more compelling the case will be for a vaccination mandate.”
Business Necessity May Vary in Different Industries
Context matters when deciding whether to mandate vaccines. Health care, travel, retail, or other businesses whose employees are at risk or who present a risk to others will have more business reasons to be “pro-vaccine,” said Jon Zimring, an attorney with Greenberg Traurig in Chicago. Office-based businesses or businesses that can rely on remote workers may find it easier to take a “personal-choice” stance, he added.
COVID-19 vaccinations are a polarizing topic for many employees, said Alissa Kranz, an attorney with Lieser Skaff Alexander in Tampa, Fla. What’s welcome to employees in one location might be unpopular at another site, she noted. “Certain employees may choose to no longer work for an employer, depending on whether or not a vaccination policy” is adopted, Kranz said. “This can result in business slowdowns and negative publicity.”
About McDonald Carano
McDonald Carano has helped to shape the Nevada business and legal landscape for 70 years. With more than 60 lawyers and government affairs professionals in our offices in Las Vegas and Reno, we are Nevada's law firm for business. We proudly represent Fortune 500 companies, financial and governmental institutions, fast-growth and mid-market companies, entrepreneurs, start-up ventures, non-profit organizations and individuals. Our attorneys deliver cross-discipline, one-stop, commercial law and government affairs counsel. Our dedication to clients, innovative thinking and practical solutions based in sound business and legal judgments are at the heart of our practice. For more information, visit mcdonaldcarano.com, call 775.788.2000 (Reno office), or 702.873.4100 (Las Vegas office) or reach us by email at firstname.lastname@example.org.
You have chosen to send an email to McDonald Carano. The sending or receipt of this email and the information in it does not in itself create an attorney-client relationship. If you are not already a client, you should not provide us with information that you wish to have treated as privileged or confidential without first speaking to one of our lawyers. If you provide information before we confirm that you are a client and that we are willing and able to represent you, we may not be required to treat that information as privileged, confidential, or protected information, and we may be able to represent a party adverse to you.
I have read this and want to send an email.