By TOM CLEMENT, MRA General Counsel
On December 11, 2020 the Federal Food and Drug Administration granted Emergency Use Authorization (EUA) to a COVID-19 vaccine developed by Pfizer. A second vaccine, developed by Moderna, received EUA on December 18, 2020. With those authorizations began the long and difficult process of administering mass vaccinations as quickly as possible while also calming skepticism about safety and effectiveness.
Limitations on the immediate availability of the vaccine also required difficult prioritization decisions in determining who should be first. As with most other states, Michigan has established a four-phased implementation with a goal of vaccinating 70% of the population age 16 and older by the end of 2021. Phase 1A is made up of healthcare workers and long-term care residents and staff. Phase 1B covers individuals age 75 and over, frontline responders, school and corrections staff, grocery store workers and other essential frontline workers. Retail workers are currently included in phase 1C, although MRA President and CEO Bill Hallan has reached out to the Department of Health and Human Services and requested a re-classification to phase 1B given the critical role retail plays in the economic revitalization.
When the vaccine is made available to retail employees, two questions that deserve careful consideration are whether a retail owner can require their employees to get the vaccine and, if so, whether they should.
Employers are within their rights to require employees to get the vaccine under appropriate circumstances, with exemptions made available. First, mandating the vaccine must be due to a legitimate job related purpose and consistent with business necessity. Second, the requirement must be applied consistently to employees with similar job functions. Third, exemptions must be made pursuant to the Americans with Disabilities Act for medical purposes and Title VII of the Civil Rights Act of 1964 for sincerely held religious beliefs. Compliance with all of these requirements is essential to avoiding liability.
Mandatory vaccine policies are common in high-risk industries such as healthcare, schools, senior living communities and day cares. These and other similar industries share many common traits that present a high-risk for exposure, such as close contact between large numbers of individuals and the in-person presence of those at higher risk or sick. Depending on the nature of your retail business, you may also share these and other traits that make a vaccine requirement a good idea. The opposite may be true for smaller businesses with fewer employees. What is critical from a legal perspective before requiring vaccinations is identifying and memorializing the specific job-related business necessity that is safeguarded by mandating the vaccine.
If you choose to proceed with mandatory vaccinations, you should establish a process through which employees may seek exemptions for either medical or religious purposes. Exemption requests can be made verbally or in writing, although written requests are preferable. These requests can be denied if not based on a legitimate medical or religious reason or because the request would cause an undue hardship such as posing a direct threat to employees or third parties. Exemption denials, however, can be a source of litigation. The better practice may be to explore accommodations for the employee such as remote work, separate working areas, or increased use of personal protective equipment.
Unfortunately, there are legal risks regardless of whether you mandate vaccinations or not. Requiring vaccinations can lead to legal issues for improperly denying an exemption or if an employee suffers an adverse reaction to the vaccine. Also, not requiring vaccinations can cause issues if someone contracts COVID-19 at work. Ultimately, there is no one size fits all solution. The best approach is to look at your specific retail industry and conduct an objective assessment of all relevant factors including, but not limited to, the number of employees, size, customer foot traffic, and proximity of work spaces.
Finally, if you choose to mandate vaccinations, you should do so through the formal adoption of a written policy outlining why the vaccination is being required, which jobs it is being required for, and a process for employees to request an exemption. As a part of this policy, you should also indicate that workers will be paid for the time required to get the vaccine, especially if done during business hours. If you choose not to require the vaccine, you can still encourage vaccination and offer some small incentive such as a few hours of paid leave or an additional vacation day.
Over the past year it seems that every new COVID-19 rule, regulation, or order that is issued leads to consistent uncertainty as to what exactly is required and whether you are in full compliance. Requiring employees to get vaccinated appears to be no exception.