Condo Media - February 2021 - 12

Asked & Answered

Needling Question
The ins and outs of requiring vaccinations
Now that there is a COVID vaccine available,
if employees are eligible to receive the
vaccine, can employers require it?
As the first COVID-19 inoculations to the first round
of recipients began in December, many employers
who are battling to stay open, stay functioning, and
keep from going out of business are asking themselves
if they can require their employees to get COVID-19
inoculation. The short answer: Yes. However, as with
most things related to employment law, the answer is
actually more complicated than a simple yes or no and
requires a deeper analysis by employers.
Employers can require employees to get the vaccine
if they want to continue to be employed. Most states,
including Massachusetts and the surrounding New
England states, are " employment at will " states. This
means that employers have a right to set working
conditions. The U.S. Occupational Safety and Health
Administration (OSHA) actually requires that employers provide their employees with safe and healthy
working conditions. However, there are significant
exceptions to making this type of job condition that
employers must be aware of.
EXEMPTIONS AND
ALTERNATIVE ACCOMMODATIONS
Employees have a right to seek an exemption from
an employer's vaccine mandate if they have medical
grounds for doing so, or if they have sincerely held
religious beliefs. Workers can ask for alternative
accommodations, such as use of personal protective
equipment, working separately, or working from
home. These restrictions flow from the Americans
with Disabilities Act (ADA) of 1990 and Title VII of
the Civil Rights Act of 1964. If an employee seeks an
exemption for medical reasons, employers must engage in " the interactive process " with the employee to
determine what, if any, reasonable accommodations
can be made to keep the employee working productively while keeping the workplace and the employee
safe. This means thinking about personal protective
equipment, social distancing, changing work hours,
remote working, etc.

CONDOMEDIA February 2021

LIABILITY CONCERNS
These are just two of the factors that employers must
consider when determining whether they should
institute a vaccine mandate. There is the potential for
significant liability concerns in mandating the vaccine,
other than those related to the ADA and Title VII. What
if an employee who did not request an exemption has a
severe allergic reaction to the vaccine, causing significant
illness, and only got the vaccine because it was mandated
by the employer? This scenario raises the specter of
protracted litigation, where early reports from the medical field are noting that while rare, adverse reactions in
people who have a history of allergies are occurring.
WHAT TO DO?
Employers should weigh the risks versus the rewards
carefully. There are certain industries that will make the
vaccine a requirement due to the high risk or essential
nature of the business, such as health care workers and
first responders, or grocery store workers and manufacturing employees. Instead of mandating vaccinations,
consider " strongly recommending " that employees get
vaccinated. As long as all employees are treated equally,
consider offering incentives to employees who agree to
get vaccinated. Provide your employees with available
information from the medical field to help address their
concerns regarding the safety of the vaccine. Remind
employees that getting the vaccine is not an attempt to
limit their rights, or autonomy, but rather provides them
with more freedom of movement and a safer workplace.
As always, if this issue presents itself in your work
place and you need assistance navigating the myriad
concerns raised by this issue, it's recommended that
employers seek legal counsel.
■ THIS ANSWER WAS PROVIDED BY
DAWN MCDONALD, A PARTNER IN THE LAW
FIRM MARCUS, ERRICO, EMMER & BROOKS, P.C.

Condo Media - February 2021

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