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
By Jodi Schafer, SPHR, SHRM-SCP, Human Resources Management Services, LLC
1 https://www.eeoc.gov/laws/guidance/questions-and-answers-religious-discrimination-workplace#:~:text=Title%20VII%20requires%20employers%20to,accommodated%20without%20an%20undue%20hardship.&text=An%20accommodation%20would%20pose%20an,operation%20of%20
the%20employer's%20business