When You Can’t Require Employees to Get Vaccinated

There are many questions surrounding the distribution of vaccines, including who will have access to them next and whether or not contractors and other employers can legally require vaccinations as part of the job. To provide some answers, the Associated General Contractors (AGC) of America hosted a webinar titled, “Sticking Points: What Construction Employers Need to Know About COVID-19 Vaccines and Flu Shots,” with insights from two lawyers, Kevin Troutman and Bert Brannen, who are both partners at Fisher Phillips.

Both men agreed that companies can legally require vaccinations. However, there are two common allowable exemptions: medical reasons or a sincerely-held religious belief. It’s important to check state and local laws about other allowable exemptions.

While companies can require that employees get the COVID-19 vaccine, there could be pushback from employees through an employee petition or an individual representing the thoughts of a group. Brannen said that it’s important for employers to remember that, under the National Labor Relations Act, they cannot fire employees in retaliation based on these acts.

If an employer decides to require the vaccine, it should create a policy early on. Troutman explained that employers should:

  • Clearly describe the expectations and rationale within the policy;
  • Explain how to seek an exemption as an accommodation;
  • Follow the individualized accommodation process diligently;
  • Ensure there’s no retaliation or the appearance of retaliation; and
  • Safeguard all medical information separate from the general personnel files.

Brannen explained that it may be preferable to alter the language from the vaccine being “required” to it being “expected.” If it’s expected, Troutman said employers should pay for the vaccine and make it easier for employees to receive the vaccine by allowing vaccinations during work hours or by facilitating on-site vaccinations at the workplace.

“And do not underestimate the importance of effective communication with employees, customers, etc., about the vaccine,” he added, emphasizing its benefits to individuals as well as the community.

Essential Work

AGC CEO Stephen E. Sandherr wrote letters to both President Donald Trump and President-Elect Joe Biden in October asking them to roll out an organized distribution plan that includes essential workers such as construction workers in the earlier rounds.

“The plan should begin with the vulnerable populations. Next, the essential workers at greatest risk of infection, such as health care workers and first responders and other essential workers who cannot work from home, such as construction workers, should quickly follow. While the construction industry has gone to great lengths to protect its workers from the coronavirus, and it has been very largely successful, its workers merit priority over other essential workers who have the option of working remotely,” he wrote. “… A thoughtful and comprehensive plan to rollout the ultimately approved vaccine for the coronavirus will ensure that the construction industry can continue to provide support for other critical sectors of the economy. There is the real potential that conflicting and confusing priorities at the state and local level will undermine the distribution process.”

A recent study conducted by scientists at Brigham and Women’s Hospital, Curative Inc. and the University of California’s Fielding School of Public Health titled, “High Frequency and Prevalence of Community-Based Asymptomatic SARS-CoV-2 Infection,” makes a case for the necessity of vaccines being made available to the construction industry.

The study evaluated SARS-CoV-2 RNA test results in Los Angeles between August and October 2020. Those tested were asked to complete a confidential online survey asking whether they had been contacted by local public health authorities about exposure, had visited a list of public places or if they had spent time with five or more strangers. They were also asked for demographic data, including their occupation.

The study found a higher prevalence of asymptomatic infection among individuals who work in the construction industry. Construction workers in the study showed a 5.7% asymptomatic positivity rate, higher than any other employment category. Construction workers in the study also showed a 10.1% symptomatic positivity rate, second only to correctional workers with a 12.5% positivity rate.

Click here to read part one of this article.

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