There’s a big question on the minds of workers as more companies open their offices as COVID-19 infections decline and vaccinations increase: Can managers require their employees to get vaccinated against COVID-19? to go back to the office after more than a year? Year of remote work?
And is it legal for a boss to ask an employee to show that they have been vaccinated?
These and other questions were asked of Robert Young, a Bowditch and Dewey partner in Framingham, labor attorney:
Can employers require their employees to be vaccinated against COVID-19?
“You can,” said Young.
However, there are two exceptions – workers with a legitimate disability or those with a legitimate religious objection.
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These exceptions are based on federal and state laws that provide reasonable accommodation for people with disabilities or sincere religious beliefs.
In the area of disability, workers are protected by the Federal Americans with Disabilities Act 1990. The state equivalent is the Massachusetts General Laws 151B.
Title 7 of the Civil Rights Act of 1964 protects workers’ rights on religious grounds. Massachusetts General Laws 151B is its state equivalent.
Do you see a lot of companies where workers need to be vaccinated?
Young represents employers in his law firm and generally said that they are the ones who most “encourage” their employees to get vaccinated.
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Companies in need of vaccination usually have employees who meet face-to-face with third parties, including customers or the public.
“These employers are more likely to need vaccination because this type of position is an inherent risk,” said Young.
Can an employee sue an employer for contracting COVID-19 at work?
The burden of proof here lies with the employee to prove that the employer was negligent.
This is a challenge because an employee can hardly prove that the employer should have known who had COVID-19 in the office.
Another legal protection for employers is that they have generally been good actors in the fight against COVID-19. They are very knowledgeable about safety precautions during the pandemic, including asking staff to stay home if they are unwell or show symptoms of COVID-19.
One option for the employee is to file an employee compensation claim for lost time due to COVID-19.
Can an employer sue an employee who infects others in the workplace?
“That’s a tough question,” said Young.
The burden on the employer who needs or strongly recommends vaccination is to pinpoint exactly where the worker contracted the virus. And the employer has to prove that the employee knew or should have known that he transmitted the virus.
Ultimately, employers need to ask themselves, “What is the end goal?” in such a situation.
If there is a loss of productivity because an employee is out of service for a period of time, the boss can find ways to eventually get that employee to make up for lost time.
There is always an option to terminate an employee who has signed a contract with COVID-19 after returning to the office as they were likely hired “ad libitum”. This means that an employer can fire an employee at any time for any reason (except an illegal one). Or for no reason without legal liability.
At-Will also benefits the employees as they can leave their jobs at any time and have no legal consequences.
Can employers ask employees to provide proof of vaccination?
The short answer is yes, but there are limitations.
An employer can only ask an employee if they have been vaccinated. It must be limited to a yes or no answer. Out of bounds asks “Why not?” if an employee has not been vaccinated.
“That could be an inadmissible medical examination,” said Young.
Employers can request a copy of an employee’s COVID-19 vaccination card from the U.S. Centers for Disease Control and Prevention. However, it must be kept confidential and separated from an employee’s medical record.
Any other words of wisdom?
Last March, when the state fell into a full state of emergency, Young’s message to employers was to be patient and think things through.
The same principles now apply as the state plans to lift all remaining COVID-19 restrictions on May 29th.
“Everyone’s had a tough time. It’s important that employers recognize this,” said Young.
That means understanding that employees return to the office with varying degrees of emotional anxiety. Businesses need to realize that they just can’t flip a switch and expect everything to work as it did before the pandemic.
“It will take time. Patience is a virtue in this situation,” said Young.
The empathy of the business owner is another important component.
“Don’t take a tough line operationally,” said Young. “You can’t force anyone to come in.”
Henry Schwan is a multimedia journalist for the Daily News. Follow Henry on Twitter @henrymetrowest. He can be reached at [email protected] or 508-626-3964.