By Patrick Connelly, originally published in Buffalo Business First on Dec 22, 2020, 6:00am EST.

Can employers require Covid-19 vaccinations? and other things you need to know

Businesses and employers are looking ahead to 2021 and wondering whether they can legally require employees to get the Covid vaccine.

Guidance released Dec. 16 by the U.S. Equal Employment Opportunity Commission updates information on how federal laws relate to the workplace. Buffalo Business First spoke with attorneys about what to know.

Can employers require employees be vaccinated?

Scott Horton of Horton Law PLLC said the EEOC pointed out that some employees could have issues if vaccinations are required.

“It’s a relatively complex analysis for a few different reasons, but ultimately it’s likely that employers could require employees to be vaccinated as a condition for working, subject to obligations to accommodate employees with disabilities or with religious beliefs that prevent or limit them in some way from getting a vaccine,” he said.

Employers, especially with a unionized workforce, must look at contracts to see if negotiations are needed.

Matthew Mitchell, senior counsel at Tully Rinckey PLLC, said generally there must a reasonable basis for asking employees to be vaccinated.

“For people who work in long-term care facilities and places like that, it’s a no-brainer for them to be required to have the vaccine,” he said. “But say you are a retail business and have social distancing going on in the store, as well as mask requirements. Then you are a little more on tenuous grounds.”

Matthew Miller, partner at Rupp Baase Pfalzgraf Cunningham LLC, said many of his employer clients are overwhelmed by everything that must be taken into consideration to require vaccinations.

“They are scared about the loopholes,” he said. “It’s more than what they can or cannot do, it’s what they should do, given the current political climate, the speed at which these vaccines have been evaluated and tested, and whether they are going to be effective or have side effects.”

Can employers ask employees to show proof of vaccination?

It’s the EEOC’s position is that asking whether an employees has been vaccinated is not a medical inquiry, Horton said.

“However, if you were to go further and ask why the person did not receive a vaccination, that could implicate some restrictions under federal disability law or similar state anti-disability discrimination laws,” he said.

Mitchell said a safe way to do it is to ask employees if they received the vaccine and nothing more.

“That way you don’t ask them to reveal their medical history or information, it’s just a request about whether or not they have been vaccinated,” he said.

Miller said with a lot still unknown, it’s best to encourage employees to receive a vaccination rather than require it.

“That leaves the door open if the landscape changes to implement such a policy at some point in the future,” he said. “There’s a huge employee morale issue at stake here, and I think that has to be considered.”

What industries have asked most about requiring vaccinations?

Among his clients in health care, Miller said, most are leaning toward encouraging vaccines rather than making them mandatory.

Christopher Maugans, an associate at Goldberg Segalla, said he has told people outside the health care industry to carefully consider a mandate.

“Like many decisions for businesses, there’s a legal consequence to things and a business consequence,” he said. “A lot of employers have been taking a down-the-middle-of-the-road approach based on what we know. They are saying they will encourage but not mandate.”

That puts the employer on the legally safe side of potential issues, he added

Can a state require that everyone be vaccinated?

A proposed bill before the state Assembly, if passed by all legislative bodies, would mandate that all New York residents receive a vaccination if public health officials determine people are not developing a certain level of immunity to Covid-19.

Exemptions would exist for individuals cleared by a medical professional.

Mitchell said the bill is still in its early stages, but laws allow states to enact such legislation. Proof of vaccination may be required for admittance to public gatherings or to board public transportation.

“It may go as far as being similar to or included in the process of getting a driver’s license or a passport,” he said. “Those kinds of requirements can be put in place.”

What options do people have if a vaccine harms their health?

If any approved vaccines are later found later to have played a role in health issues, there is little legal recourse, said Eric Kraus, partner at Phillips Lytle LLP.

He said comprehensive liability immunity has been extended to the pharmaceutical companies that created vaccines, as well as to those that administer and promote them.

“They are going to be immunized from that kind of litigation, pure and simple,” Kraus said. “It’s really clear that an issue such as that isn’t going to impair the vaccine manufacturers from moving forward as quickly as they can.”