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The Jab: Employer Rights and Considerations in the COVID-19 Era
For more than a year, employers faced COVID-19’s impacts on the operation of their business. Businesses learned to carry on in an economy where physical presence has been discouraged. In late 2020 and early 2021, however, vaccines were approved for emergency use, and many employers encouraged them to bring normality back to the workplace. To date, though, some employees remain skeptical.
Due to employee hesitancy, businesses are asking: is it permissible for an employer to mandate an employee be vaccinated? Generally, the answer is yes, provided the employer complies with the reasonable accommodation provisions of EEO laws. Nevertheless, employers may face legal risk and business realities when mandating vaccinations of employees if not handled appropriately.
In addition, private, unionized workplaces must consider collective bargaining obligations which exceed those required by EEO laws. Creating a workplace vaccination rule, in the union context, generally is a mandatory topic of bargaining. The NFL faced this very issue and was forced to abandon a vaccine mandate when the NFLPA opposed it. The lion's share of private employers, however, have more leeway in adopting vaccine mandates.
Therefore, businesses legal risks may center on: (1) whether the lack of vaccination of an employee presents a "direct threat"; in the workplace; (2) whether any accommodation requested is reasonable; and (3) whether a requested accommodation presents an undue hardship on the employer. Under ordinary circumstances, where a reasonable accommodation exists, employers should reasonably accommodate the disability and/or religious beliefs. Typically, the ADA requires an interactive process to determine what accommodations can reasonably be made for the disability. However, the emergent qualities of the pandemic and changing nature of guidance being provided by health officials and governments render decisions about implementing a vaccine mandate and addressing exemption requests a fact intensive analysis. The prudent employer will consult counsel as it makes decisions related to implementation and enforcement of a vaccine mandate.
A final consideration is the reality that businesses are experiencing one of the tightest labor markets in recent history. The labor market is creating conflicting priorities for employers: (1) a vaccine mandate to keep staff working and attract workers concerned by COVID-19’s risks; or (2) not mandating vaccination to make the business attractive to hesitant employees and applicants. The prudent business faces these considerations head-on and make a reasoned decision, given its legal risks and the reality of its labor market. With careful and thorough analysis, employers have significant leeway to make vaccine related workplace rules that work for them and their employees.
Our thanks to attorney Paul Wehmeier for the content of this article. Mr. Wehmeier practices labor and employment law with Arnett, Draper & Hagood, LLP and teaches Labor Law as an adjunct professor at the University of Tennessee College of Law.
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