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COVID-19 Vaccine as a Condition of Employment

Tuesday, December 8, 2020
QUESTION: With a possible Coronavirus vaccine on the horizon I am wondering if there are any laws in Michigan that would prohibit an employer from requiring a new employee or an existing employee from getting the vaccine as a condition for continued employment. 

 

ANSWER: Barring an employment contract or collective bargaining agreement to the contrary, it is legal to make vaccination a condition of employment in an at-will state like ours. It is not uncommon to read handbook language that requires an employee to be up-to-date on their vaccinations, including the annual flu shot, as a condition of employment. In fact, many employers have had similar policies in place for years, especially in the health care space. The administration of this policy, however, requires further discussion. 

First and foremost, if you are considering a push to have all of your employees vaccinated for COVID-19 once it becomes available, you will need to inform your staff of this decision in advance. Don’t just mention it in passing though. You’ll want to draft a clear, legally sound policy to let all staff (both existing and future new hires) know that being vaccinated for Coronavirus will become a condition of employment. Think through who will be monitoring employees’ compliance with this policy and how employees will prove they have been vaccinated. Are you going to allow a grace period for employees to comply? Are you going to issue reminders? If you have a small office then it may not be that difficult to manage this process. However, if you have a larger group or multiple locations then you’ll want to spend some time thinking through a tracking system and perhaps a point person to make this policy effective. 

Understand that while this policy may be broadly enforced, your desire to stop the spread of the virus does not trump an employee’s right to request an accommodation or an exemption for religious and/or health-related reasons. There are some employees with sincerely-held religious beliefs that could conflict with being vaccinated. This opposition would most likely be to vaccines as a whole, not the Coronavirus vaccine specifically. However, since religion is protected under the Civil Rights Act, employers would be obligated to grant accommodations (which may include an exemption) unless doing so would pose an undue hardship. “Under Title VII [of the Civil Rights Act], the undue hardship defense to providing religious accommodation requires a showing that the proposed accommodation in a particular case poses a “more than de minimis” cost or burden…Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work.”1 

Other legal reasons an employee may request an accommodation have to do with an employee’s own health. Some of your staff may have a compromised immune system or other medical conditions that prevent him/her from being vaccinated safely. Since medical conditions are protected under the Americans with Disabilities Act (ADA) you may have to make some exceptions to your new rule unless doing so would pose an undue hardship. For the purposes of proving ‘undue hardship’ for ADA accommodation requests, the impact must create ‘significant difficulty or expense’ for the employer, which is a much higher threshold than religious accommodation denials require. In either case, it will be important to engage in the interactive process with an employee should they question or oppose your vaccination policy. You need to understand the facts and circumstances surrounding their objection before deciding whether or not an accommodation or exception could be considered. It would be advisable to consult with legal counsel before any final determinations are made.

The Michigan State Medical Society offers a legal alert on mandatory flu shots for employees, which could be used as a resource for the COVID-19 vaccine. Employers may adopt mandatory flu shot/vaccination policies which are drafted and implemented in a legally compliant manner. 


By Jodi Schafer, SPHR, SHRM-SCP, HRM Services 

 

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