General Legal Considerations for Employers
By: Donald C. Erickson, Sr. Counsel, Fryberger Law Firm, Labor and Employment Law Specialist, certified by the Minnesota State Bar Association, 302 W. Superior St., Ste. 700, Duluth, MN 55802, 218-722-0861.
Disclaimer: While this article discusses general legal considerations, this short article is neither an exhaustive nor complete summary of the law and is not intended to be. It is not, and should not be taken as giving specific legal advice for anyone. While the author is an attorney; he is not your attorney. You have not hired him (although you can). He does not become your attorney, just because you read this article. The familiar legal maxim applies to any specific legal advice you need: “It depends.” It depends on your unique facts and the law applicable to you. Readers need to discuss their specific legal issues, in light of their own unique facts, with their own employment law attorneys before taking any legal action.
The rollout of vaccines across the U.S. has finally given hope to many employers of a return to some form of normality.
Although the program has gotten off to a faltering start, the promise that hundreds of millions of employees could soon be vaccinated could provide a lifeline to businesses that rely on face-to-face customer service, such as restaurants, and also allow the reopening of offices across the U.S.
But can a company mandate its staff to be vaccinated? And what happens if an employee refuses to take the vaccine.
For an employer, the availability of the vaccine raises several unresolved legal issues. A few of those will be briefly discussed in this article:
- Can an employer require its employees to get vaccinated, after the vaccine is available?
A. While the vaccine is being administered under Emergency Use Authorization (EUA) the Food and Drug Administration (FDA) rules allow an employee “to accept or refuse the vaccine.” The courts have not yet determined if an employer can mandate the vaccine before it receives full-fledged FDA approval. To do so will conflict with FDA EUA authorization rules. So, while the vaccine is under EUA, mandating the vaccine may create a legal risk for employers.
B. Once the vaccine is fully authorized by the FDA, under federal law, an employer CAN require (mandate) employees to accept the vaccine, subject to the employer’s duty to reasonably accommodate employee disabilities or sincerely held religious beliefs.
(1) Employers with 15 or more employees are subject to the federal Americans with Disabilities Act (ADA) which creates a duty to consider reasonable accommodations of employee impairments and disabilities and provide them unless it would be an undue hardship;
(2) Employers may also be subject to separate state laws such as the Minnesota Human Rights Act (MHRA) or the Wisconsin Fair Employment Act (WFEA) which also may require consideration of reasonable accommodations of impairments or disabilities.
(3) Title VII of the 1964 Civil Rights Act also requires employers to provide reasonable accommodations of an employee’s sincerely held religious belief, practice or observance that prohibits vaccination—if the accommodation can be made without “undue hardship” on the employer’s business.
(a) A “sincerely held religious belief” is broadly defined. It includes “moral or ethical beliefs as to what is right and wrong” that are held by the believer with the same sincerity as that of traditional religions.
2. What happens if an employer cannot provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief?
Before termination, employers will also need to determine if any other rights apply under the Equal Employment Opportunity laws or other federal, state, and local statutes, rules, and regulations. Employers should discuss with their own employment law attorney reasonable accommodations and the legal implications of termination.
The pandemic has shown that many jobs, formerly required to be performed only in the workplace, can be performed outside of the workplace. An employer should consider if the employee’s particular job can be performed remotely and not at the workplace. An employer should also consider whether paid or unpaid leaves of absence would be reasonable accommodations. If a remote employee is terminated for refusing to take the vaccine, a legal risk is created for the employer. Even in “at-will” employment states like Minnesota and Wisconsin, such termination could appear to be pretexts for illegal reasons, such as discrimination or whistleblowing.
If a job can only be performed in the workplace, and there is no reasonable accommodation possible, the EEOC has indicated an employer CAN exclude the employee from the workplace if an employee cannot get vaccinated because of a disability or sincerely held religious belief, practice or observance.
Excluding an employee from the workplace does not mean the employer can automatically terminate the employee.
3. If an employer does not mandate the vaccine, what can it do to encourage or incentivize employees to take the vaccine?
Another unresolved issue is what an employer can do to encourage and incentivize an employee to take the vaccine.
It is clear that an employer can encourage the vaccine by providing educational materials to employees that provide information and guidance on the benefits of the vaccine. This could include:
- a communication program that encourages employees to follow the CDC’s recommendation regarding vaccination;
- factual information about the vaccines to assist the employee in making their decision;
- logistical information about where the vaccines are available to assist employees in getting vaccinated, such as helping them figure out where to get the vaccine, how to make an appointment, and what to expect when they get there. State or local health departments provide information about vaccination locations and appointments;
- making the vaccine available on site for no cost to the employee (much like many employers do for the flu vaccine) so it is convenient for employees to get vaccinated; and
- offering approved time off from regularly scheduled work (paid or unpaid) to get vaccinated.
Several major employers, such as Dollar General, McDonald’s and Olive Garden, have announced economic incentives for workers to get vaccinated.
An employer that establishes additional money incentives for employees to obtain the vaccine may come under the federal wellness incentive program rules. At the current time, due to the change in administrations, there is no guidance in place as to what monetary incentives are permitted to encourage vaccination.
From a legal standpoint, if an employer provides economic incentives to employees to obtain the vaccine, it will also have to consider whether the incentives illegal discriminate against employees who cannot get the vaccine for disability or religious reasons. That question also needs to be discussed with your employment attorney.
 It normally takes at least six (6) months before a vaccine receives final approval from the FDA. Thus, it is unclear when final approval will occur. It is likely it will not occur before May of 2021 if past approvals are any guide.