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By Matthew T. Fitzsimmons, Member

One of the looming legal and practical issues arising out of the COVID-19 pandemic is whether employers can – and should – make vaccinations mandatory for employees.  Due to the direct threat to health and safety which COVID-19 presents, applicable employment laws provide that it is lawful for employers to make vaccinations mandatory(with a few limited exceptions for medical and religious accommodations).  An employer’s decision to require mandatory vaccinations is complicated, with numerous practical, legal, and economic considerations to evaluate.

An employer should first analyze the layout, spacing, and density of its workplace.  Are employees on the shop floor or office sufficiently distanced from one another or not?  Depending on this analysis, an employer can lawfully make vaccinations mandatory for certain employees and positions, but not for others.  Mandatory vaccinations are surely the subject of collective bargaining for unionized workers.  An employer which adopts a mandatory vaccination program can lawfully require an employee to provide proof of vaccination.

For an employee with a legitimate medical reason/disability for not getting vaccinated, an employer will need to determine whether or not it can make accommodations without causing itself undue hardship.  For example, can a non-vaccinated employee work in a more isolated area or work remotely from home and still perform the essential job functions?  As 2020 demonstrated quite clearly, many employees can work remotely and still be fully productive.

Another exception for mandatory vaccination is a sincerely held religious belief.  The religious exemption can be very broad.  Generally speaking, a court is not going to challenge, or rule against, an employee’s sincerely held religious beliefs for not getting vaccinated.  Again, the issue for the employer becomes can these employees be accommodated?

If an employer implements a mandatory vaccination policy, it makes good legal, practical, and human resources sense to give employees Paid Time Off (“PTO”) for the couple of hours it takes to get vaccinated.  Apart from boosting morale and making good business sense, giving employees PTO to get vaccinated also avoids claims that the employer violated applicable wage and hour laws by not paying for work-related activities.

Presently, it appears that very few employers are implementing mandatory vaccination programs.  One likely reason is that, as I write this, the vaccination queue is still restricted to people age  65 and above.  Employers may change their views as the vaccine becomes more available to the age groups comprising larger parts of their workforce. Plus, there is an assumption by many employers that almost everyone will eventually get vaccinated voluntarily.  Only time  will tell if this assumption turns out to be accurate, as news reports suggest that a significant number of people may be skeptical about or resistant to getting the vaccine.  Another reason, candidly, why very few employers are implementing a mandatory COVID-19 vaccine policy is due to many legal issues and pitfalls which remain open-ended and unresolved.

Because each situation and workplace are different, you should consult legal counsel before deciding whether or not to implement a mandatory vaccination program at your company.

For more information about NGC’s employment law practice, please contact Matt at: [email protected].