Lawyers Address Employer-Required Vaccinations

COVID-19 vaccinations are beginning to be administered to frontline health workers and those in long-term care facilities in the U.S. It’s not yet known to whom the vaccines will be made available in the second round, but the Washington Post reports that the Advisory Committee on Immunization Practices will consider essential workers as a priority group in upcoming rounds. When vaccines are made available to those in the construction and related industries, can companies legally require their employees to take the vaccine?

To provide some answers, the Associated General Contractors (AGC) of America hosted a webinar titled, “Sticking Points: What Construction Employers Need to Know About COVID-19 Vaccines and Flu Shots,” with insights from two lawyers, Kevin Troutman and Bert Brannen, who are both partners at Fisher Phillips.

Troutman prefaced the discussion by stating that they were talking primarily about federal law. He advised attendees to consult their state and local laws, as there may be provisions that limit federal law. He also explained that they expect guidance from the Equal Employment Opportunity Commission (EEOC) and OSHA soon.

Ultimately, Troutman and Brannen believe that contractors can require the COVID-19 vaccine once it becomes available. Many companies in healthcare have flu shot requirements. However, there are two common allowable exemptions: medical reasons or a sincerely-held religious belief. Some states allow other exemptions. For a full list of all 50 state’s vaccine mandates and exemptions, click here.

Troutman explained that, historically, more employees are vaccinated when an employer requires it compared to just strongly encouraging it. However, a Gallup poll from before Thanksgiving showed that 58% of Americans said they would get a COVID-19 vaccine, which is up from 50% in September.

It’s important in terms of the EEOC that any such requirements are made because the virus poses a significant risk of substantial harm. Troutman recommended employers keep that in mind when deciding who is required to be vaccinated, such as remote employees who do not come into the workplace. According to OSHA, employers have a duty to maintain a workplace free of recognized hazards. Troutman said this doesn’t mean OSHA will require vaccines but he expects the organization to issue a lot more guidance on how to handle the vaccination process.

Brannen pointed out that the EEOC has been generous to employers in expanding rights due to the pandemic.

“Don’t get overconfident in what you can screen for or require because the EEOC has bent normal rules during this period,” he said, referring to temperature screenings, health questionnaires and testing requirements. “You don’t want to get too far over your skis after the crisis is over.”

The Americans With Disabilities Act (ADA) prohibits discrimination based on disabilities and requires “reasonable accommodations.” Title VII requires accommodation of an employee’s sincerely-held religious beliefs of practices, which both lawyers said does not mean that the employee just disagrees with the idea of getting the vaccine. They also recommended employers get documentation for a medical exemption.

If one of those two exemptions need to be made, Troutman said it’s important to require them to take other measures to prevent the spread such as wearing a mask, social distancing or teleworking.

“It should just be a yes or no question,” he said.

However, if an exemption is being made, Troutman emphasizes the importance of documenting the communication with the employee in question to show that an interactive process occurred to create reasonable accommodations.

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