With the first shipments of the COVID-19 vaccine being distributed in Arizona, many people are paying attention to when to get vaccinated in the spring. While this is a welcome next step in this year’s troubles, it is important for employers to know their rights when it comes to vaccinations for workers and if they are able to get a COVID-19 vaccine for workers.
AZ Big Media spoke with John J. Balitis, Attorney and Chair of Labor and Employment at Jennings, Strouss & Salmon, PLC on some important things employers should consider when the vaccine becomes available and what options they have to accommodate inquiries from employees should they arise.
John J. Balitis, Attorney and Chair of Labor and Employment at Jennings, Strouss & Salmon.
AZ Big Media: Can Employers Require Employees to Get COVID-19 Vaccine as a Condition of Employment? Are there any exceptions?
John J. Balitis: Yes, with a few exceptions that fall into three main categories: First, when an employer has a unionized workforce, it may be necessary to bargain to get the right to mandate a vaccination. So an employer would first have to think about whether or not he has unionized workers and if so he needs to consider whether or not to bargain with that right.
For other employers who do not have a unionized workforce, there are at least two things they need to consider before implementing a vaccination mandate.
First, if the employer has 15 or more employees, the employer must take into account the fact that this is then covered by the Disabled Americans Act and by Title 7, the federal law that protects workers from discrimination based on a large number of workers Traits, one of which includes religion.
With regard to the ADA, the employer must perform the standard ADA analysis to determine if there is a way to adequately accommodate this worker if the worker has a bonafide disability that would preclude vaccination of the worker. Some examples would be, if the worker could not take the vaccine, isolate the worker in the workplace so that he or she does not interact with others, or perhaps consider whether that worker can do or continue his work remotely, i.e. when they are to have.
Regarding Title 7, which protects workers from discrimination based on their religious beliefs, some employers may find that some of their workers are required to have genuine religious beliefs that preclude them from taking the vaccine and if the worker can demonstrate it the employer do this again to consider whether it can live up to this sincere religious belief or not.
And the alternatives would likely be the same as under the ADA. You could isolate the employee in the workplace, let the employee work remotely, and possibly find other housing that the employer could arrange. Regardless of whether it is the ADA or Title 7, the placement requirement is lifted if the employer can demonstrate that it is undue hardship to provide shelter, but the bar for those undue hardships is quite high . It is an extraordinary thing for an employer to be able to demonstrate that such a thing is undue hardship.
ABM: Do employers have the right to segregate workers who refuse to receive the COVID-19 vaccine?
JJB: Here in Arizona, all employees are free unless they have contracts to the contrary with their employers. and all that means is that under Arizona law, either party to that employment relationship – employer and employee – may terminate the relationship at any time with or without cause, with or without notice.
So if an employer wanted to impose a vaccination mandate and none of the Arizona exceptions apply, an employer would have the right to segregate that employee. If the employer decided to accommodate the employee even if the ADA or Title 7 did not apply, it would only be a voluntary choice by the employer. Outside of Title 7 and ADA, and the unionized labor exemption, there is no legal obligation to provide accommodation before the employer has exercised his right to segregate the worker.
ABM: Could an employer where employees physically go to an office require them to get the COVID-19 vaccine?
JJB: Once the vaccinations are in place and actively distributed we may see some guidance on it from the CDC or the Department of Labor, but one thing you should be aware of before this comes out is the requirement under the Occupational Safety and Health Act (OSHA) and Arizona have their own state version of OSHA. Under these two laws, federal law and the Arizona counterpart, the general rule is that employers are required to provide workers with safe jobs.
This is a very general rule that OSHA or the Arizona Industrial Commission, for example, can subjectively apply to ensure that jobs are safe for us. And there could be an argument that not vaccinating any vaccination, if available, would be an employer’s failure to create a safe job, but I haven’t seen, heard or read anything to suggest that OSHA is using this safe one Job requirement that is crucial.
At least until the start of vaccinations, there is no discreet and precise obligation on employers to request vaccinations, but I think we need to be vigilant and watch what happens to see if any additional regulations may come out or if OSHA takes the position the requirement of a safe job may actually require vaccination mandates.
ABM: How will small businesses in Arizona be affected? Do they have the right to terminate employees if they are not vaccinated?
JJB: Keep in mind that the threshold of 15 or more employees triggers these laws like ADA or Title 7. Once these laws apply to you as an employer, for example, you are required to host a disabled worker or an employee with religious beliefs, so the 15 worker threshold does not require an employer to require vaccinations, but rather that those employers must potentially host workers who say they cannot be vaccinated.
The consequence of this is that when you are talking about small businesses these laws don’t apply, the ADA doesn’t apply to small businesses with fewer than 15 employees, and neither does Title 7, so those small businesses might require vaccination regardless of disability or disability religious conviction, as these laws do not apply to them. For example, if an employee said, “I have a disability and I can’t get a vaccine, or I have a religious belief that prevents me from getting a vaccine,” those smaller employers might say, “I’m sorry, you “Then we have to go,” while larger employers subject to these laws would have to say, “Ok, let me see if I can take you on.”
In other words, the smaller companies have more flexibility, they might need vaccinations and fire people who don’t get them, regardless of religious beliefs about disability.
ABM: How do you predict the vaccine will evolve and how will it affect the workplace?
JJB: I think we can see how things go when the vaccinations become available, and possibly regulations. The CDC has been very proactive in creating and updating regulations over the past few months as things move forward and I think we’ll see some kind of next evolution of this whole situation once the vaccinations start.
For example, if an employer had a vaccination mandate and an employee was susceptible to severe allergic reactions, that employee would surely be a candidate to be able to refuse the vaccine. I think all of this will come through a certain amount of trial and error and we just have to follow it and watch what happens.
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