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To Vaccinate or Not to Vaccinate That is the Question: or, Trading a Jab For a Job Part II

business attorney Fairfax VA

I wrote back in May that the issue of whether to require mandatory vaccines or not was going to be an ongoing legal, political and moral issue. Sometimes I hate being right. You can find the original article that traces a bit of the history of mandatory vaccines here.

In the last few months, the Federal government, the District of Columbia, several states, several school districts, several universities and several large employers have moved to mandatory vaccine policies. 

On September 9, 2021, President Biden signed an Executive Order requiring large employers (those who employ 100 or more workers) to have a mandatory vaccination policy and has revoked the prior authorization for all federal agencies and contractors to have a regular Covid testing policy instead of a fully vaccinated workforce (including remote workers).  Countries all over the world are enacting vaccine mandates. And the debate rages on. 

About the time of President Biden’s newest Covid-19 vaccine initiative, I was listening to Stuff You Missed in History Class’s Podcast on the Eradication of Smallpox ( which can be found here) and couldn’t help but notice the similarities to the problems faced with the smallpox vaccine programs and the current Covid-19 programs. 

Like before, I’m not going to touch that debate with this article. The point is, the rules have changed since just a few months ago. The reality is that we are likely not going to control, much less eliminate, Covid-19 and all its variants without mandatory vaccination policies. And, it looks like the patience with voluntary vaccination policies has just about expired. 

More and more, it appears that employers will be required to adopt all or nothing vaccine policies. Challenges to state and federally issued mandates for vaccinations are likely to be upheld. After all, the Supreme Court ruled in 1905 (in Jacobson vMassachusetts) that mandatory smallpox vaccination programs were Constitutionally permissible. It is unlikely the Court will overturn that ruling more than 115 years later.  

“Jab for a job” requirements are the likely near future reality (if they haven’t already impacted your business) for your business. An employee’s refusal to be vaccinated is also likely to be “willful misconduct” or valid “cause” grounds to deny them unemployment benefits in the near future (again, if it isn’t already). So, how do you prepare a hostile workforce for this eventuality without losing them all?

Incentives go a long way.  

Encouraging vaccinations can take a number of forms including:

Understand the exemptions

While the Federal policy looks like it’s becoming all or nothing, there are two exemptions the Department of Labor has indicated will likely still apply and employers need to assess. 

The medical exemption

This is the easier of the two exemptions to recognize and address. It is possible for someone to have a medical condition that makes getting the vaccine a bad idea (the medical term for this is “contra-indicated”). Since I’m not a doctor (and don’t play one on this blog), I can’t tell you what medical conditions those might be. However, when an employee indicates they have a medical restriction that prevents them from getting vaccinated, the employer is on pretty familiar grounds – the employee is requesting an accommodation under the Americans with Disabilities Act (“ADA”) or the state equivalent if the employer does qualify for coverage under the ADA. 

As the employer, you have the right to have the employee’s doctor certify that the employee cannot be vaccinated because of a specific medical condition and whether that condition is temporary or permanent. 

Historically (as in not related to the current vaccines), some vaccines were grown in unfertilized eggs. A person (Employee 621) who has a horrible allergy to anything chicken couldn’t take that type of vaccine without risking the allergic reaction. The vaccine would not be recommended for Employee 621 until the vaccine could be created on some other non-poultry-based medium. So, Employee 621 would be exempt from the vaccine requirement unless it was an essential element of Employee 621’s job and there was no reasonable way to accommodate a person who was not vaccinated until Employee 621 could be vaccinated. 

Accommodations could include weekly testing for the disease, mask, and other PPE wearing and altered shift times to prevent Employee 621 from interacting with others as much.

In any case, whether someone has a medical condition that makes getting the vaccine a very bad idea is likely to be easy to document. Unlike the basis for the other exemption. 

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The religious exemption

Okay, this is the harder of the two because Title VII (the Federal anti-discrimination law) and state anti-discrimination laws prohibit discrimination “based on religion or religious beliefs.”  

Let’s start with what this exemption doesn’t cover. It doesn’t cover when the employee is a conscientious objector or has doubts of the scientific basis for or safety of the vaccine. 

It does apply when the employee has sincerely held religious belief that being vaccinated somehow violates. I’m not going to give an example as I did with the medical exemption above because I don’t know enough religious beliefs from different religions to give a real-world example rather than something totally made up that has the chance to really offend someone whose beliefs my made-up example might come somewhat close to. So, yeah, that’s a debate I’m also not going anywhere near. And that’s what makes this exemption tricky for employers. 

So let’s take for granted that Employee 643 has a sincerely held religious belief that being vaccinated will violate. Now what? Here to employers can ask the employee for some information to verify the basis of the claimed exemption like the religion, the specific religious belief, and how vaccination will violate that belief as well as information to contact the religion’s spiritual leader who can provide further information regarding the need for this accommodation. 

Be Flexible

The situation is still changing on a day-to-day basis. Predictions suggest that this won’t be the only pandemic in our lifetime. What works today may not work in 6 months. Constantly reassess the situation and what is in the best interest of your employees and business. 

Navigating the issues surrounding whether to require vaccines in the workplace is a legal landmine. Consult with an employment attorney to discuss the best steps for your business.

N D Greene PC has vaccine policy templates available for your business. 

If you would like assistance with this or any other compliance matter, please contact Nancy at N D Greene PC with the form below

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