The imminent availability of a COVID-19 vaccine has received a lot of public attention. Perhaps the most pressing question from Colorado employers is, “Can employees be asked to take the vaccine when it becomes available?” Perhaps, but state law provides additional considerations beyond federal disability and religious discrimination concerns, labor laws, and employer liability issues.
Federal Considerations on Compulsory COVID-19 Vaccinations
Disability and religious discrimination under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, employer’s liability under the Employee Compensation Act and the Occupational Health and Safety Act (OSH Act), and labor issues under National The Act on Labor Relations (NLRA) presents significant challenges for employers who wish to obtain mandatory COVID-19 vaccinations, each of which could be the subject of an entire article.
Discrimination on the basis of a disability. You can only require vaccinations under the ADA if they are “job-related and consistent with business need” (even if required because of a “direct threat”). Assuming a COVID-19 shot would meet the standard, the law continues to provide exemptions if employees have ADA-insured disabilities that may prevent them from taking the vaccine.
For ADA protected employees, you must consider “reasonable accommodation” such as an exemption or additional personal protective equipment. The law requires you to investigate and resolve the problems through the interactive process and provide accommodation that is not unduly harsh.
Religious Discrimination. Title VII requires you to accommodate employees who are unable to take a vaccine because of a genuine religious belief, practice, or observance. As with the ADA, you must adequately address the qualified religious objections of workers under Title VII, at least without “undue harshness” on the company, although the standard in the religious context is less stringent for employers than under the ADA.
Employer’s liability. Pitfalls can arise if COVID-19 vaccinations are required or not. In the case of mandated recordings, you must consider the possibility of liability if employees experience side effects. Although the law is not clarified, compulsory vaccinations can form the basis of entitlement to viable compensation, the laws of which vary from state to state. However, in Colorado, workers’ laws supersede traditional tort (e.g. negligence) claims and remedies for workers injured in the workplace.
Regarding the latter concerns (without requesting the vaccine), under the General Mandatory Clause of the Occupational Safety and Health Act, you must establish a workplace that is “free from identified hazards that cause or are likely to cause death or serious injury to employees. You can argue that any workplace that doesn’t require vaccines for COVID-19 is against the provision, although other protective measures (such as social distancing and masking) are likely to be sufficient to meet the standard.
Employment Law. Finally, the vaccination requirement could create potential labor law issues. Public and private COVID-19 responses – and vaccinations in general – have become heavily politicized, and it is possible that a mandatory firing policy could meet opposition from certain employees or groups of workers. Whether it is a union or a non-union, the NLRA gives individuals the right to conduct sheltered, concerted activities and to protest against the company’s actions. You could be responsible for disciplining or firing employees for behavior.
In addition, in union dealings, the requirement to have vaccinations could be a compulsory subject of negotiation with the union if there is insufficient discretion on the part of the employer under the specific terms of an applicable collective agreement. Even in such circumstances, you may need to “effect negotiations” with the union to discuss the implementation of the program and the implications for the workers represented.
Additional thoughts on Colorado
Colorado law includes some additional wrinkles that employers need to consider when deciding whether to get compulsory COVID-19 vaccinations.
Protect whistleblowers in public health emergencies. Last summer, Colorado implemented additional whistleblower protections for employees in response to public health emergencies. The new law prohibits employers from taking negative action against employees who have a good faith concern about violating government health or safety regulations in the workplace or about “an otherwise significant risk to health or safety in the workplace” in connection with an emergency in the public health field when the employer “controls” the working conditions that lead to a threat or injury. “
The law clearly protects workers from retaliation if they indicate that an employer is failing to comply with health and safety regulations related to COVID-19. But what if an employee has a good faith belief that compulsory vaccination is a significant threat to occupational health and safety? The law precludes the protection of workers who disclose information “in reckless disregard of [its] Truth or falsehood. “However, it’s hard to tell if the coronavirus vaccination information information is actually ‘inconsiderate’, especially since the vaccines are being distributed under the FDA (Food and Drug Administration) emergency authorization powers that don’t need to be scrutinized as closely like typical FDA license.
Colorado’s statutory off duty law. Colorado law prohibits employers from dismissing employees for lawful out-of-hours activities unless the restriction relates to a serious professional requirement or is reasonably and rationally related to the employment activities / responsibilities of an employee or a specific group of workers. In this way, an employee can take part in anti-vaccination protests or advocacy in their free time. If the employer fired him for the activities (possibly because they undermine employee confidence in the mandatory vaccinations), the dismissal could be against the law.
If the same employee refused to be vaccinated and the employer fired him for the same reasons, he could at least try to argue that his lawful off-duty activity was the root cause of the dismissal, rather than refusing one Get shot.
State standards for religious discrimination based on disability. The federal definition of what constitutes a “religion” is exceptionally broad and can encompass all aspects of religious observance and practice as well as belief (regardless of whether the practices are viewed as unorthodox or shared by a small fraction of the population ). However, the scope of “religion” under the Colorado Anti-Discrimination Act (CADA) is arguably broader.
Colorado defines “religion” as all aspects of religious observance, belief, and practice, and an individual does not need to be a member or adherent of any particular organized religion, sect, or faith tradition to have a religion. In contrast to Title VII and ADA, which only apply to employers with 15 or more employees, the CADA applies to all employers regardless of their size.
The problem of compulsory workplace vaccinations for COVID-19 will only get worse when the vaccines are made available to the public in the coming months. Suffice it to say that employers at both the federal and state levels face significant legal pitfalls and challenges. Without additional instructions from federal and state regulators, e.g. B. Equal Employment Opportunity Commission (EEOC), OSHA, and Colorado Civil Rights Division, it may be more cautious to strongly encourage vaccinations while continuing to implement protective measures such as masks, social distancing, sanitation, and remote working.
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