Reno attorneys, HR experts weigh in on concept of mandatory COVID vaccine for companies, employees

RENO, Nev. — For Northern Nevada business owners looking to bring employees back to work and bring customers peace of mind, there’s light at the end of the pandemic tunnel: two COVID-19 vaccines have been found effective and are approved for distribution.

What’s more, the federal government has given employers the green light to mandate workers get a vaccine and bar them from the workplace if they refuse.

The guidance, issued by the U.S. Equal Employment Opportunity Commission (EEOC) on Dec. 16, confirmed what employment lawyers in the region had expected.

“I think the agencies are going to say, ‘yes, anything that we can do to stop COVID-19 is something that we want to support,’” Shannon Pierce, a labor and employment attorney at Fennemore Craig in Reno, said in a video interview with the NNBW. “Add to that, OSHA (Occupational Safety and Health Administration) requires all employers — even when we’re not in a pandemic — provide a workplace that is free from recognized hazards and harms.

"The only real way that we can do that is to provide a vaccine to the employees.”

Pierce said once it became apparent the Moderna and Pfizer vaccines were going to gain approval, employers and attorneys over the past few weeks had been waiting for clarity from the EEOC, the agency that enforces laws against workplace discrimination.

Laura Jacobsen, a labor and employment attorney at McDonald Carano in Reno, said a key piece of the EEOC’s guidance states that requiring a vaccine would not violate the Americans with Disabilities Act.

The disabilities act limits employers’ ability to require medical exams such as blood tests that seek information on employees’ physical or mental conditions.

“Somewhat surprisingly, the EEOC has stated that the vaccine is not a medical exam,” Jacobsen said. “Preliminarily, I think there’s more leeway for employers to impose a mandatory vaccine requirement if they want to do so.”

Still, employers may need to be careful about how they handle the process, attorneys say. After all, pre-screening vaccination questions could violate ADA provisions on disability-related inquiries.

Employers administering vaccines, the EEOC guidance said, must show that prescreening questions are “job related and consistent with business necessity.”

Jacobsen, however, noted that even if an employer requires the vaccine, there might be employees who say they can’t because of a medical issue or religious belief.

In that case, Jacobsen said employers are obligated to undergo an “interactive process” to explore the employee’s particular limitations and see what a possible accommodation may be, like allowing them to work from home, for example.

Melissa Marsh, founder of HRinDemand, a Reno-based human resources consulting agency, said she recommends employers document that process especially closely.

“That needs to be documented really well in order for the employer, down the road, be able to show that they did what they were supposed to do,” Marsh said. “That burden alone, to me, is a bit off-putting to walk down the road of mandating.

“Not to mention, the morale impact. You have people that are afraid because there’s so much information coming at people from every angle. To say, ‘you have to do this,’ is something that’s very hard for people to take.”

Some employers that end up requiring the vaccine might not be able to accommodate a request by an employee, Jacobsen said.

“For example, if you’re a nurse who works with cancer patients, that’s a particularly vulnerable population, or maybe even retail,” Jacobsen explained. “For some employees, based upon the circumstances, it might not be reasonable to accommodate with an exemption from a vaccine requirement.”

In essence, if non-vaccinated individuals pose a direct threat to the health or safety of others, a company has the right under employment law to exclude them from physically entering the workplace, Jacobsen says.

That doesn’t mean an employer may fire a worker who declines to be vaccinated. They could be eligible for unpaid leave or other similar entitlements under federal, state and local laws, according to the EEOC.

“If an employee is saying, I’m just not sure yet, I want to give it a few months and see if any complications come up with the vaccine, maybe a leave of absence will make sense?” Pierce said. “For people who even after a long period of time just refuse, and they don’t have a religious reason, they just don’t want anything to do with the vaccine, it could very well cost them their jobs.”

In other words, if a worker’s job can’t be done remotely and there’s no reasonable way to accommodate the person’s wish not to be vaccinated, then the employer can terminate their employment, according to the agency’s guidance.

The EEOC guidance comes amid skepticism about the vaccinations among large swaths of the public. In November, just 58% of Americans said they would get a COVID-19 vaccine, according to a Gallup survey.

Because of the current lack of confidence in the new vaccines, Marsh feels some employers may follow their same policies regarding the flu shot and take a “strongly encourage” approach rather than mandating a COVID-19 vaccine.

To that end, some of America’s largest businesses — including Facebook, Marriott and Discover — say they will urge COVID-19 vaccinations and highlight the benefits, but not require employees to get them, according to a recent Wall Street Journal report.