Question: I feel it’s important for me and all who work for me to receive the COVID-19 vaccine. Some of my employees are saying they will refuse to be vaccinated. Can I require proof that an employee has been vaccinated? Can I terminate employees or place them on leave if they refuse to be vaccinated?
Answer: On Dec. 16, 2020, the U.S. Equal Employment Opportunity Commission issued guidance on employer COVID-19 vaccination programs. One thing the EEOC’s guidance makes clear is that it is legal to ask an employee whether he or she has been vaccinated and to require proof of the vaccination. In the coming months, all employers will have to decide whether they will ask and require proof of vaccination as a condition of continued employment.
The EEOC’s guidance does not explicitly state that employers may legally require employees to be vaccinated. However, its FAQs assume that such a requirement would be legal subject to two exceptions:
First, employers who require the COVID-19 vaccine as a condition of employment must recognize an exception for their employees who are unable to receive the vaccine due to a disability. Second, employers cannot require employees to be vaccinated when doing so would be contrary to a sincerely held religious practice or belief.
Employers are entitled to ask questions regarding an employee’s disability to make a reasonable determination that a disability exists. These inquiries must be job-related and consistent with business necessity. Prior to excluding an employee with a disability preventing him or her from receiving the vaccine the employer must determine that the unvaccinated employee would pose a direct threat due to a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation. In a dental office setting such reasonable accommodation might include requiring the unvaccinated employee continuing to wear a different type and grade of PPE that vaccinated employees are not longer utilizing. For employees with a disability, all determinations of what reasonable accommodations will be made should be made on a case-by-case basis.
An employer is similarly required to accommodate employees who have a sincere religious belief that prevents them from being vaccinated, unless doing so would be an “undue hardship.” This undue hardship standard is less stringent than the standard used for determining a reasonable accommodation for an employee with a disability, requiring only that the employer show that providing an accommodation imposes “more than a de minimis cost or burden on the employer.” Again, in a dental practice setting such an accommodation might include requiring the employee to continue to utilize PPE that vaccinated employees are no longer utilizing. For purposes of both exceptions, determining whether an accommodation is reasonable is intended to be an individualized, fact-based, and interactive process between the employer and the employee.
The EEOC guidance states that employees who are not vaccinated due to a disability or a sincerely held religious belief and that cannot be reasonably accommodated may be “excluded” from the workplace. Excluded does not mean termination only. If an employee can perform his or her job functions remotely, this possibility must be considered. Obviously, in a dental practice setting remote work is not going to be a possibility for many employees.
Employees who do not have a disability or sincerely held religious belief preventing them from being vaccinated are currently not subject to the protection of any law that would prevent them from being disciplined or terminated for their refusal to be vaccinated.
Every employer is going to have to decide whether or not to require vaccination as a requirement of continued employment. For those that do not require vaccination, it would be a good idea to keep a record of who did and who did not get vaccinated. Limit the record to whether or not the vaccine was obtained.
Question: What if I do not require my employees to get vaccinated, and an employee chooses not to get the vaccine, gets very sick, or passes COVID-19 on to a patient who gets very sick — can I be get sued and be liable?
Answer: I addressed a very similar question in the June 2020 MDA Journal. An employee becoming infected may claim that his or her infection was the result of an employer’s negligence, a violation of OSHA’s general duty clause, or be based on other legal theories.
Whether an employer is liable will depend on the facts and circumstances of each case. The PPE made available to employees, what other preventable measures were taken by the employer (including requiring that employees be vaccinated), what information was provided by the employer, the level of screening of patients and co-workers, and other factors will all come into play in making a determination of an employer’s liability. The employee would also have to prove the infection occurred at your workplace, that he/she was not contributorily negligent (the employee’s failure to be vaccinated will be a factor), and the amount of damages suffered resulting from the infection.
The answer/analysis remains the same as it was in June except that now the employer’s failure to require vaccinations and the employees failure to get vaccinated will be additional factors.
Question: What if I do require my employees to be vaccinated and someone has a bad reaction — am I liable?
Answer: Although there has been no litigation on this particular issue yet, prior cases considering different vaccines have determined that adverse reactions to mandatory vaccinations may result in workers’ compensation claims. Even though Michigan’s Workers’ Disability Compensation Act includes an “exclusive remedy” provision providing that the recovery of workers’ compensation benefits will be the employee’s exclusive remedy against an employer for resulting from a mandatory vaccination, no court has yet said this will be the case. Until that occurs, it remains possible that negligence or OHSA claims could be made.
Like the situation described above, the outcome of such a case would depend on the particular facts and circumstances. Particularly important would be what the employer and employee knew about the potential for an adverse reaction. It seems the responsibility for assessing this primarily would fall on the employee, who is responsible for knowing his or her own medical condition.
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