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Can You Require Employees to Get a COVID Vaccine?

RCS COVID Vaccine
December 23, 2020 at 10:00 a.m.

By Karen L. Edwards, RCS Editor. 

Attorneys presenting at a recent Associated General Contractors of America (AGC) webinar say yes.  

Now that we have an FDA-approved coronavirus vaccine, questions on who should be required to have a vaccine remain. Is it legal to mandate that workers be vaccinated? Attorneys from Fisher Phillips from Atlanta, Georgia compared it to the rules for healthcare workers that require flu shots to keep patients and coworkers safe according to Construction Dive.   

“We do have a right to be aggressive, to keep the job flowing,” attorney D. Albert Brannen said in the webinar. “We are a critical industry, and we need to communicate that to our employees, as an explanation of why we expect you to take a vaccination when we make it available.” 

Robin Samuel, an attorney with Baker McKenzie in Los Angeles told SHRM, “Employers may require vaccines before employees return to the worksite if the failure to be vaccinated constitutes a direct threat to other employees in the workplace because the virus is rampant and easily transmitted in the workplace.” SHRM reports that McKenzie also said, “exceptions can be made for employees who cannot be vaccinated because of disabilities or due to sincerely held religious beliefs.” 

The National Law Review writes that since there are no law or regulations to address the vaccine issue, that employers should reference the interpretation of mandatory flu vaccines. They reference the Equal Employment Opportunity Commission’s (EEOC) policy which does not prohibit employers from making a vaccine mandatory, but rather recommends that they strongly encourage vaccines. The EEOC may approach the COVID vaccine differently than the flu, since the country is in a “direct threat standard” that relaxes some of the rules that employers must follow regarding medical inquiries.  

We are facing new times as we roll out this vaccine and policies are developed. Contractors need to stay up to date on the latest developments and consult with their legal counsel before making any policies or implementing new requirements.  

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