To vaccinate or not vaccinate the workplace? Question facing employers has multi-pronged decision tree

December 9, 2020
Detroit, Michigan

Terry Bonnette, co-managing partner of Detroit-based management side labor and employment law firm Nemeth Law, P.C., says employers have the right – with limitations – to require their employees to be vaccinated against COVID-19.

“This is a question that is growing in frequency and the general answer is yes, employers can mandate the vaccine in their workforce, but there are also legal limitations that need to be considered when doing so, just as there are with the flu vaccine,” Bonnette said.

Bonnette looks at three important considerations that may impact whether an employer can mandate that all employees get vaccinated.

  1. Under what conditions might an employer be required to grant exemptions as accommodation to those employees who cannot be immunized for religious or disability related reasons?  
  2. Are there other objections to the vaccination that might invoke protection under OSHA or the NLRA for example and prevent an employer from taking disciplinary action?  
  3. To the extent there is a union or collective bargaining agreement in place, must the employer bargain over implementation of the requirement?

“It’s not uncommon for healthcare employers to require their staff to receive the flu vaccine, and limitations that apply there might also apply to COVID-19,” Bonnette said. “Relatively speaking, though, the COVID-19 vaccine could be applicable to all workplaces, not just healthcare providers.  Moreover, many people are already expressing objections to the vaccine that go beyond religious or disability related concerns, so the requests for exemptions to vaccination mandates could be overwhelming.”

Bonnette adds that as more people become immune to COVID-19 through vaccination or otherwise, the pandemic will taper off and employer response will have to evolve.

“We will reach a tipping point where pandemic conditions no longer apply, and a single or even handful of unimmunized individuals in the workplace won't create a direct threat to health and safety,” Bonnette said. “But where is that tipping point? Employers are going to be permitted greater flexibility in responding to a pandemic than they may be allowed when responding to less immediately threatening conditions.  So, what is acceptable today may not be acceptable a year from now.  That’s why employers need to make a decision for their individual workplace based on trusted information available at the time.” 

About Nemeth Law, P.C.

Nemeth Law specializes in employment litigation, traditional labor law, management consultation, arbitration, mediation, and workplace investigation for private and public sector employers. It is the largest woman-owned law firm in Michigan to exclusively represent management in the prevention, resolution and litigation of labor and employment disputes.