Can Employers Require a COVID Vaccine?

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By: Bill Henry
PublishedDec 9, 2020
1 minute read

Robinson & Henry managing partner Don Eby was recently interviewed on KDVR Fox 31 Denver about whether employers can require workers to get a COVID vaccine when it becomes available.

Check out the video below to see what the legal community is saying about a employer-mandated COVID vaccination.

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DENVER (KDVR) — Get ready for COVID-19 arm jabs next year. Legal experts are warning employees that they can be fired for refusing to get vaccinated.

Barring an individual employment contract or union collective bargaining agreement, the United States is largely a country of at-will employment, giving bosses a lot of leeway. There are legal exceptions for wrongful termination, but when it comes to COVID-19 vaccines, workers might not have much of a choice.

“An employer has a duty to ensure that he has a safe (workplace) environment,” said Don Eby, partner at Robinson & Henry P.C.

Eby said bosses may think of a COVID-19 vaccine as they would the influenza vaccine.

“An employer can, and many do, demand that their employees get the flu vaccine each year,” Eby said.

DU Sturm College of Law assistant professor Govind Persad agrees.

“For the COVID vaccine, the same sort of broad (flu vaccine) rules apply,” Persad said.

The Equal Employment Opportunity Commission (EEOC) allows these types of employer vaccine mandates with some exceptions. Certain religious requirements and documented vaccine-adverse medical conditions could provide protections for employees.

“(Employees) may file a reasonable accommodation request … make a reasonable accommodation request with their employer based on the ADA (Americans with Disabilities Act),” Eby explained.

There is some uncharted territory. Laws continue to play catch-up with the pandemic. The vaccines are new and, if approved, required to receive emergency-use status. Those facts could play a role in what employers are permitted to require, according to Persad.

“Because the FDA is making this emergency-use authorization decision, I would wait to see what (the FDA says) about the (employer) mandates before knowing what things are going to look like,” Persad said.

In other words, potential federal mandates could change everything for employers who may wish to require COVID-19 jabs.

Healthcare settings are being watched closely concerning employee vaccine policies. FOX31 reached out to Denver Health, Centura Health, UCHealth and HealthONE healthcare systems on Tuesday. All of those organizations are strongly encouraging their employees to get vaccinated, but hospital administrators are not requiring it.

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