Robert Young is a partner with Worcester law firm Bowditch and Dewey, helping clients navigate complex labor and employment issues.
Updated: August 16, 2021
10 things
10 Things I know about. ...Employer vaccine mandates
By Robert Young
The Delta variant continues to drive increased COVID case reports, causing concern for employers seeking to re-establish in-office work as the norm. To safeguard their workforces and to gain some sense of predictability in the unpredictable world of COVID, some employers have adopted vaccine mandates. But can they?
10) Under federal law, they can. The U.S. Department of Justice found a vaccination mandate does not run afoul of the emergency use authorization of the Food, Drug, and Cosmetic Act, under which each of the COVID vaccines currently are approved.
9) No, really, they can. In May, the Equal Employment Opportunity Commission said anti-discrimination laws don't prohibit vaccine requirements.
8) Courts are on board. In late July, a federal court in Indiana upheld an Indiana University requirement for all faculty, staff, and students to be vaccinated to be on campus for the fall semester.
7) But ... A few important caveats apply. An employer’s vaccine mandate must contain disability- or religious-based exceptions.
6) Reasonable accommodations still are required. For those with disability or religious exemptions, employers must offer reasonable accommodations, such as the ability to wear a mask at work, to work socially distant from coworkers, and to work modified hours.
5) Don’t forget about state law. While Mass. currently does not prohibit vaccine mandates, other states have enacted laws banning consideration of vaccination status as a condition of employment. Employers with multi-state operations need to consider differing state laws.
4) Confidentiality remains critical. An employer may collect proof of vaccination but must safeguard it like any other medical information.
3) Incentives. Employers may offer incentives to employees to be vaccinated, but the incentive cannot be so large as to be considered coercive.
2) Employer vaccination requirements may be the last, best hope. The specter of losing a job may be the, ahem, shot-in-the-arm an individual needs to get a vaccination.
1) But employers must balance other concerns. The impact on employee morale (and, possibly, recruitment) could be significant. For unionized workforces, a vaccination mandate would be a mandatory bargaining subject. Employers will have to consider the circumstance when a high-performing employee refuses to be vaccinated.
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