Will COVID-19 vaccines be a requirement for going ‘back to work’?

Jasen Lee

As the nation anxiously anticipates the approval and eventual rollout of a COVID-19 vaccine, numerous questions will have to be answered, including how will employers handle bringing people back into the workplace without compromising health and safety?

Will they require employees to get a vaccination?

Utah Gov. Gary Herbert said that issue will likely be a part of any decision-making process as people return to their normal workplace environments.

“From the standpoint of the private sector, I think it would be entirely within their abilities (and) their constitutional rights as employers to say, ‘If you’re gonna come into work for me, I want to make sure that you have the vaccine so we don’t get people sick here on the job,’” he said during a news conference Thursday at the state Capitol.

However, he said, the public sector might be a little more difficult.

“We do require vaccinations for people that attend school with some exemptions (for) religious preference (or) maybe some health care issues,” he said. “So there are exemptions to the mandate for vaccines for school attendance. So that’s something that we are going to be wrestling with as we go forward.”

From a legal perspective, employers can mandate vaccines for workers. However. there are various factors and possible exceptions to consider.

“If I am a hospital, the vaccination helps me — the employer — keep the workplace safe. It also limits or perhaps eliminates turnover or absenteeism,” said Ryan Nelson, president of Employers Council’s Utah office. “It also limits or eliminates the spread of the contagion in a health care setting. So there are certainly legitimate business reasons for an employer in health care to ask for or require the vaccination.”

Similar considerations can be made for other industries as well, but the underlying business reason isn’t perhaps as acute, he said.

“We have a declared pandemic and highly contagious, easily spread contagion that impacts the economics of an organization and impacts the health and welfare and safety of the employees,” Nelson said. “So even in non-health care organizations, there certainly is a legitimate business reason for most employers, as a starting point, to require the employees to have the vaccine.”

He noted, however, employees who do not have to be in close contact with colleagues or the public may have a legitimate reason for challenging a vaccine mandate. Additionally, there are several objections that can be raised by workers who are unwilling to be vaccinated.

“The first is I have a religious belief or practice that is protected under Title VII of the Civil Rights Act,” according to Nelson, whose organization provides legal expertise in employment law to companies. Under certain circumstances, employers may have to provide reasonable accommodations for individuals with legitimate objections to being vaccinated.

In those instances, the employer will need to have a conversation with the individual to understand the sincerely held belief, he said. The accommodation could be working remotely, providing personal protective equipment or another way that could protect the health and safety of individuals in the workplace without discriminating against the objecting employee, Nelson said.

“Practically speaking, the employer does have the ability to deny or refuse to provide an accommodation for a religious request if the request or the accommodation would cause more than a de minimis impact on the employer — meaning something more than minimal on the employer,” he explained. If the accommodation is beyond minimal, an employer can issue a denial to the employee, who then may have a decision to make.

“So, you either get the vaccination or if you don’t, we don’t have to keep you in this position. We can look for some other position that doesn’t have the same safety or health concerns, and we can offer you to transfer the position,” Nelson said. “Or alternatively, if we don’t have an opening or available position, we can terminate defensively.”

In Utah, employment is at-will, meaning an employer can fire an employee at any time for any reason, other than an illegal one, or for no reason without incurring legal liability. Similarly employees are free to leave a job at any time without negative legal consequences.

“There is no entitlement to a job. But there are federal (and) state laws that provide protections within that employment relationship,” Nelson said. “For example, I can’t be terminated because of my religious beliefs. That would be a violation of Title VII and maybe the anti-discrimination act. But it’s still an at-will relationship, so there is a bit of a ‘yes’ and ‘no’ (to the question of job entitlement). It’s a classic ‘it depends.’”

Analysts say the COVID-19 vaccine is expected to initially be available under an emergency use authorization instead of full licensure from the U.S. Food and Drug Administration. The label allows the vaccine to be distributed to the public before the final testing process is fully complete.

“This is a marked distinction from the flu and other vaccines and it may make a difference in the analysis an employer must make when deciding to (if at all) mandate the vaccine for employees,” Nelson said.

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