Vaccinated Employees – Employers’ Rights To Incentivize, Require, or Ignore

Co-Authored By

Attorneys Eric Klemm and

Joseph A. Camilli

While the COVID-19 pandemic wears on, there is hope for a return to normality in the workplace given the numerous vaccine options currently being shipped out across the country. Vaccines offer the promise of an end to the current pandemic environment and a reopening of full business operations. However, for various reasons, there may be some hesitance or even resistance to receiving the vaccine from some employees. If you are a business owner who is anxiously awaiting being able to fully reopen your business and want to ensure that your employees are vaccinated for the health of your customers, other employees, and even yourself, a natural question to ask is what legal options do you have at your disposal? What steps, if any, can you take to insure your employees get vaccinated so that everyone can safely return to work?

One option that has made news recently is simple: pay your employees to get vaccinated. (hyperlink: https://www.npr.org/2021/01/21/958849642/grocers-have-a-strategy-to-get-their-workers-vaccinated-against-covid-19-pay-the). Many larger US employers including Trader Joe’s, Aldi, and Dollar General have announced that they will offer cash incentives for employees who get vaccinated against the COVID-19 virus. That said, this option only works if you have additional funds to spare, and after a year of pandemic many businesses will likely not have reserve cash to spend.

What if, instead of asking nicely and offering a reward, a business owner wants to simply tell an employee they need to be vaccinated to continue their employment?  The EEOC addressed this very issue late last year in a publication “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”. (hyperlink: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws). While the law does not explicitly say that employers may require their employees to be vaccinated, it answers and asks questions based on the assumption that employers may do so. Employers generally control the conditions of employment, and if requiring vaccination is one of those conditions as a general rule this is permissible under federal law.

If an employer wants to require its employees to receive a vaccine, are there any associated risks to be aware of? As with many employment related issues, the Americans with Disabilities Act (ADA) is something to be aware of when requiring employees to do something as a condition of employment.  Similarly, the Genetic Information Nondiscrimination Act (GINA) is another federal statute that is implicated when medical issues or decisions affect an employee’s ability to work are called into question.  As a general rule of thumb, employers are permitted to require employees to be vaccinated so long as (a) the vaccination policy has certain exceptions for things such as religious objection or medical necessary (b) the vaccination requirement is related to the work the employee will be doing; and (c) the requirement is consistent with business necessity.  In order to determine whether these three conditions are satisfied for the unique situation facing a particular employer’s business needs and work environment, any employer considering a vaccine mandate should check with their legal counsel to ensure that proper consideration is given to the legal risks that may come along with requiring their employees to be vaccinated.

Finally, an employer may wonder about its liability for not requiring its employees to get vaccinated, both with respect to liability imposed by employees for the employer allegedly permitting a dangerous work environment, as well as liability imposed by customers under a similar theory.  Typically, employers have not been held liable for employees contracting “ordinary diseases of life,” because nothing unique to the work environment can be traced to transmission of such afflictions.  However, employers are required to provide safe work environments for their employees and, relatedly, those employers who permit a communicable disease to spread to their customers and employees through the negligent actions of employees’ who are under the supervision of the employer may be held liable for such negligent supervision.  Therefore, to address concerns relating to not requiring employee vaccination, employers should pay close attention to federal, state, and local guidance/regulations from the various health departments that regulate the community and industry in which the employer operates.  Employers who ignores such guidance or regulations could be creating a uniquely dangerous workplace.  Moreover, employers who become aware that their employees are engaging in particularly dangerous activities that could jeopardize the safety of the employers’ other employees or customers should strongly consider taking proactive steps to mitigate the risk of their employees transmitting the illness to others.

If you are looking to navigate the ever evolving COVID-19 legal ecosystem, Neider & Boucher is here to help you adjust and adopt to make it through the pandemic and help you as you grow once the virus has been dealt with.