By Nicholas J. Fiorenza, Managing Partner & PIA Association Counsel, Ferrara Fiorenza PC
It is hard to escape public service announcements, news reports, and individual medical advice urging Flu vaccinations this year. The same will take place when a Covid vaccine becomes available. For sure, employers have a legitimate interest in having employees vaccinated – both to protect the health and safety of coworkers and to prevent an outbreak which would further impede operations during a difficult time. So, while we know we can encourage our employees to get vaccinated, can we go a step further and require it?
In classic “legal answer” form the answer is “probably”. Employers have always been able to promulgate legitimate health and safety rules. Like any other workplace rule, the standard is one of job relatedness and business necessity. This standard also requires that employers consider the legitimacy of requests for exceptions to the rule. Based on the experiences of business sectors including health and home care – which have for years mandated flu vaccinations – the most common exceptions involve the relationship between the vaccination and employee disabilities and religious beliefs.
As a starting point note that OSHA has for years taken the position that vaccines can generally be required where employers first educate employees as to the overall benefits of a mandatory vaccination program. OSHA stresses that employees expressing a reasonable belief that a vaccine puts them at risk of a serious reaction or other health condition should be exempted from the program and are protected in this regard under the Act. OSHA recommends that a mandatory vaccine program be structured around a clear written policy, including provisions on how objections can be expressed.
The EEOC likewise generally permits mandatory vaccine programs, so long as an employer respects the usual reasonable accommodation standards applied to employees with disabling conditions or sincerely held religious beliefs. Employers should note that the standards for assessing such reasonable accommodations differ somewhat in the disability and religious settings.
Unionized employers should be aware that the implementation of a required vaccine program is a mandatory subject of negotiations with respect to bargaining unit employees. With this in mind, employers may implement mandatory vaccination programs provided that the program is constructed in a thoughtful manner, is policy based, and provides for a process of employee objection that pays particular attention to disability and religious-based accommodation issues.
For Human Resources Assistance:
For more information on any of the above topics, or assistance with any employment-related matter, contact Nick Fiorenza, Association Counsel, Ferrara Fiorenza PC, (315) 437-7600, firstname.lastname@example.org.
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