With the FDA’s full approval of the Pfizer-BioNTech vaccine, more employers are expected to mandate COVID-19 vaccines for their workforces but, as with all COVID-19 workplace policies, companies must tread carefully to ensure they follow state and federal laws, as well as health guidelines, advised employment lawyers at a recent ABA CLE.
“This area is developing constantly,” said Denise Blommel, a labor and employment lawyer in Scottsdale, Arizona, and a former field attorney for the National Labor Relations Board. At the Aug. 24 webinar, “Returning to HQ: Employee Policies and Vaccinations After the Pandemic,” Blommel and Evan Parness, a DLA Piper labor and employment attorney, walked through the sometimes conflicting information on what employers can and cannot do as they seek to keep their employees safe in the workplace.
Blommel and Parness laid out what’s legal: Employers can require temperature testing, health questionnaires and COVID-19 testing. They can also ask about COVID symptoms and COVID exposure and can generally require employees to be vaccinated, with two important exceptions. But the devil is in the details.
On the hot-button issues of mandatory vaccines, Parness noted that private employers may institute mandatory vaccine programs for employees, with employers determining whether there is a reasonable accommodation for employees for whom a bona fide medical reason or “deeply held” religious belief prevents them from getting vaccinated. Reasonable accommodations, Parness and Blommel said, could include requiring those employees to work from home or modifying their workspace, among other policies.
While certain states may have outlawed businesses from mandating that patrons be vaccinated, private employers in such states are currently permitted to mandate vaccines for their employees, Parness said. The only exception so far is Montana, which does prohibit private employers from mandating the vaccine for their employees.
And if an employee refuses the mandate without citing a medical or religious belief exception? “That’s insubordination,” said Blommel. She advised, though, to “have a conversation before you just pull the trigger. But if this person refuses to get the vaccine and it’s not under one of the exceptions, it’s goodbye.”
“You need to be transparent with the workers in your firm because if you’re not, you lose all credibility and everybody gets not only unhappy, they get scared,” said Blommel.