VOICES

Should COVID-19 vaccine be required at work? | Shannon Pierce

Shannon S. Pierce

Subscribe:Read local news and views with a 99-cent subscription to the RGJ

This column was submitted by Shannon S. Pierce, a director with Fennemore Craig, P.C.

The past few weeks have been historic for Nevada, with Tier 1 individuals receiving the first COVID-19 vaccine. While widespread vaccination is still months away (if not longer), the vaccine represents a new frontier with respect to business’ efforts to comply with their obligation, under state and federal workplace safety laws, to provide a workplace free from recognized hazards.

To date, state and federal occupational safety and health agencies have not mandated that employers maintain a vaccinated workforce. Even if they are never required to do so, many employers are wondering if they will be allowed to require employees to become vaccinated as a condition of returning to the workplace.

On Dec. 16, the U.S. Equal Employment Opportunity Commission issued guidelines confirming the EEOC’s view that employer-mandated vaccination generally does not violate anti-discrimination laws, including the Americans with Disabilities Act. There are, however, two important exceptions: where an employee either has a bona fide disability or a sincerely held religious belief which precludes the employee from becoming vaccinated, the employer cannot require that employee to become vaccinated as a term and condition of employment.

Where an employee refuses to become vaccinated for one of these reasons, the employer should not proceed directly to terminating that employee’s employment. Instead, the employer must perform a careful analysis of factors including a) whether the employee’s job duties truly require the employee to be vaccinated; b) the extent to which the presence of an unvaccinated employee presents a safety risk in the context of the employer’s business; and c) what measures — short of removing the employee from the workforce (or even the premises) — can be implemented to reduce the risk of COVID-19 transmission. While this analysis is critical to helping the employer determine whether it must return the employee to work, allow the employee to work from home, or find another potential accommodation, many employers will find this analysis to be no easy task. This is especially since anti-discrimination laws limit the extent to which an employer can inquire into the medical or other reasons why the employee cannot or will not vaccinate.

Additional risks exist where employers require only certain segments of the workforce to become vaccinated. As the vaccine becomes more readily available, many anticipate that it will first be offered to those who are most at risk (i.e., those with underlying medical conditions, or those of a certain age). While local health officials may prioritize these individuals for vaccination, it does not follow that employers should require these segments of the population to become vaccinated as a job requirement. To do so could lead to allegations of discrimination, since the employer would be imposing a job requirement only on those within groups that, by law, are protected from discriminatory job requirements. The more cautious approach is for employers to delay any mandatory vaccination requirement until the vaccine is available to the entire workforce.

Employers may also want to consider the risks of not requiring employees to become vaccinated. While at present, there is no duty to maintain a vaccinated workforce, employees who come to work unvaccinated are arguably at higher risk to contract COVID-19 than those who receive the vaccine.

Net net, whether or not they choose to require the vaccine, businesses should proceed carefully. Employers will find themselves best served by consulting with qualified employment counsel to determine:

1) whether to require vaccination as a job requirement;

2) how to structure such a requirement to avoid infringing upon the rights of those who are disabled or hold sincere religious beliefs;

3) how the employer’s vaccination policy could impact workers’ compensation or other coverages; and

4) whether employees should be required to sign a waiver acknowledging the risks associated with coming to work unvaccinated (and if so, how to craft such an acknowledgment without running afoul of anti-discrimination or other laws).

Have your say:How to submit an opinion column or letter to the editor