When Employers Can Require COVID-19 Vaccinations

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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.”

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