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As the Vaccines Roll Out, What is the Employer’s Responsibility?

January 6, 2021 Leave a comment DRI Admin

An employment law expert weighed in on a question that every organization needs to be able to answer: Can employers legally require their employees to get the COVID-19 vaccine?

Business Insurance recently interviewed legal expert Glenn Grindlinger, Partner in the Labor & Employment Department at Fox Rothschild, on how employers should engage with the COVID-19 vaccine as it becomes available.

“Generally an employer can require their employees to be vaccinated, subject to two exceptions,” Grindlinger said. “The first is a religious exception – employers must accommodate an employee’s sincerely held religious beliefs. So an employee may object to getting the vaccine for religious reasons.”

In this scenario – a federal law, under Title VII of the Civil Rights Act – the employer would have to exempt the employee from the requirement. However, it could also require that employee to take other precautions (PPE, social distancing, etc).

Also under consideration should be health exceptions, for employees with disabilities or health conditions that would prevent them from safely taking the vaccine.

Would vaccine requirements vary from state to state? Grindlinger believes that’s most likely, but unless the state specifically requires it for all of its citizens, “The employer would have the ability to require their employees to get vaccinated if the employer wants to engage with that,” barring the religious or disability exception.

He also touched on some legal pitfalls employers should be aware of:

  • Organizations that do not require employees to take the vaccine could be considered negligent, opening themselves to liability if a third party’s COVID diagnosis was traced back to that organization
  • If the vaccine is required, were an employee to experience an allergic reaction or a similar negative response (a possibility for any vaccination), the employer should be prepared to offer worker’s compensation or similar accommodation – though this may vary depending on each state’s comp policies.

If an employer does not require a vaccination, can it ask the employee – or a prospective employee during the hiring process – about their status, or does that fall under healthcare privacy issues?

“The odds are they cannot ask that question unless they have a legitimate business reason to do so,” Grindlinger said. “If the employer determined it isn’t requiring its employees to get vaccinated, I think it would be a very hard road to go down to say there’s a legitimate business reason to ask them.”

Click here to watch the complete interview.

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