Can employers make employees get vaccinated? And will they? w/ Terry Bonnette

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Today’s show is driven by a listener question we’ve gotten a lot over the last couple of months.

Can employers mandate their employees get vaccines? Should they? And then we talk about what some businesses are actually doing.

Our guest for this is Terry Bonnette. He’s co-managing partner at Nemeth Law and is an expert on labor and employment counseling and litigation. In his career, he’s dealt with contract compliance and regulatory compliance issues, including, FMLA, Wage and Hour, the American with Disabilities Act and more. 

He’s eligible to practice throughout Michigan, Northern Ohio, and all the way up to the U.S. Supreme Court. So I feel like we got our guy to help us be a bit smarter about what’s ahead.

You’ll find a machine-transcript of the podcast below.

Terry at Nemeth Law:

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Automated transcript:

Jer Staes
Terry, welcome to Daily Detroit.

Terry Bonnette
Thank you. Nice to be here.

Glad to have you. So this whole thing with vaccines, vaccine hesitancy, all that kind of stuff, a question that has come up with listeners, frankly, on both sides of the vaccine discussion, should you get it? Should you not all that stuff has been? Well, at some point, can employers mandate getting a vaccine? And I guess I’ll just start with that simple starting point and figure that the answer is not exactly, perfectly clean cut, if you will.

Terry Bonnette
It’s actually surprisingly clean cut.

Okay, if the question is, can they? And my answer to that is yes, employers can require that employees get the vaccine, as long as they’re aware that they might have to make certain exceptions to that policy for people who have either a religious objection, or some sort of disability, in which they would be unable to get the vaccine. So the answer to the question is, can the employer do it is really Yes, with the same exceptions that the employer would have to apply to any workplace policy or procedure? I think the other question is, should employ your steward? Or will employers do it?

And now we’re talking about something entirely different. Because, you know, when you’re implementing a policy of this sort, it’s not a one size fits all. It has to be something that makes sense for that employer, where they’re going to want to weigh the risks that are imposed by having a workforce that’s not vaccinated against the benefits of having a workforce that is vaccinated, as well as any mitigating factors that might exist in terms of what is going to be the effect on morale in the workplace, what is going to be the effect of your safety standards on your customer base? So it’s not an easy question as to whether you want to do it, but it isn’t easily question of whether you can do it.

You know, I think about this a little bit, what you’re saying is, it’s gonna vary depending on industries, because the first thing I think of, there are some jobs where you end up working very close proximity to people, there might be more exposure chances versus say, a job where you’re not as in close proximity.

Terry Bonnette
It does, to the extent that the employer is making a decision that should be reasonable or justifiable. All of those are going to be factors what, how closely are my employees working together? How closely are my employees interacting with the general public? What other safety precautions do we have in place? Or could we put in place to mitigate risk apart from requiring a vaccine? So, absolutely, again, as I said, it’s not a one size fits all, it’s going to be industry standard, it’s going to be based on the physical makeup of your workplace, it’s going to be based upon the number of employees you have within any given area, the size of that area, whether or not you’re interacting with the public, and all of those things are should be considered.

I think about your response around religious exemption. Is that something that basically anyone can claim? How would you claim a religious exemption?

Terry Bonnette
There has to be a sincerely held religious belief or practice, and if for whatever reason, it is a sincerely held religious belief or practice, the employer may have a duty to accommodate that if it does not present an undue burden. Now, one of the undue burdens that an employer could argue is that a non vaccinated employee presents health risk to themselves and others.

So that might be one reason an employer could decline to offer an accommodation. But again, you’d have to look at whether or not there are other accommodations that would be available, can this employee be isolated? Can this employee continue to work at home? So what are the alternatives that would allow this employee to work safely, if that employee were unable to be vaccinated?

Okay. So it’s not necessarily something where if someone just says, I just don’t want to get vaccinated, I just don’t believe in it. Does that count as sincerely held or is that up for debate?

Terry Bonnette
I would argue if somebody just says I don’t want to be vaccinated, that’s not necessarily a religious belief. That’s an opinion. So, again, what constitutes a religion is fairly open. It’s a fairly broad legal standard, but You know, an idiosyncratic opinion that has nothing to do with a religious belief or religious practice is not going to meet that standard.

One of the things I hear from a lot of people who are very much trying to push vaccines that it’s something needs to happen. And, you know, I personally, you know, kind of fall on that camp because of the importance of, you know, community protection and all of those sorts of things. But online, I’ll see a lot of people saying, Well, once these things get approved, and they are approved for use, but there is a difference between the emergency approval that we have now. And then also, I don’t know what the right verbage is a permanent approval, or I mean, how does that all work? Because is there a difference between employers being able to mandate a vaccine now? Or do they have to wait until like, the whole shebang goes through, for lack of a better term?

Terry Bonnette
It’s a little bit of a gray area, and the EEOC has not taken a position on it. And quite frankly, the position they have taken on it appears to be that they are going to defer to the CDC.

But it seems like employers have not been very excited to test that. And it seems like they kind of want to wait until it gets all the way through the process.

Terry Bonnette
Nobody wants to be the test case. Do they know, let’s be on that I think a lot of my clients are taking a more reasoned approach. And, you know, anytime that an employer mandates something, and that’s just an employer, anytime somebody mandates something, there’s going to be a negative reaction, right? We don’t like to be told that we have to do something. And so most of my clients, I think, are taking the approach Well, what can I do to encourage employees to be vaccinated without necessarily mandating it? And that seems to have been a very successful approach to this point?

What are some of the things that they’re doing? I know that you probably can’t disclose individuals, but in a general sense, what are some of the things that they’re doing that are working?

Terry Bonnette
Well, a lot of them have done education, made sure their employees know the benefits of the vaccine, making sure their employees know how to get the vaccine, a lot of employers have taken steps to make the vaccine readily available, either by having someone come to the workplace or contracting with a local healthcare provider, to vaccinate their employees to provide access for their employees. Some employers have incorporated the vaccine into their wellness programs, you know, just like getting a flu shot, or something to that effect where you receive either points towards your wellness program or some sort of benefit. So there’s been a range of ways in which employers have sought to encourage people to get the vaccine without mandating it.

I know, that’s not directly in your purview. But do you have any thoughts on things like live venues and such about returning those? Do you think that live venue owners and things will want to encourage those who are going to an event to be vaccinated? Do you think that’ll be part of the mix? Or do you think that that won’t be?

Terry Bonnette
We’ve seen a lot about vaccine passports, right? Yeah, whether that’s some app on your phone, or whether you carry your vaccination card and have to show it to get into certain places? It has an appeal sort of, doesn’t it? That, Hey, I know that to get into here. Everybody had to show that they’ve been vaccinated. But at the same time, it does seem to be kind of an unwieldy process, doesn’t it? If I’m a venue owner, what procedures do I have in place to make that happen? So again, it’s kind of that same cost benefit analysis, where what is the benefit of offering this compared to what is it going to cost me? And that’s going to be once again, individualized assessment for each venue owner.

And I imagine it would be difficult to because I’ve been seeing stories in the news of vaccination cards being falsified, or people selling fake cards, right, which although is a legal problem, if you do it yourself? I don’t know, off the top of my head, the consequences for that. But that is a legal problem. If you falsify a vaccine card. It’s hard for a venue to say that card is real or is not like how do you go through that process?

Terry Bonnette
Right. And I honestly have no idea how that works. I’m assuming that if you know their vaccine, quote, unquote, passport, that whoever is managing that is taking some degree of protection to ensure that people who received the passport are actually vaccinated. But I think the other question we have is that there are still a lot of questions about the effectiveness of the vaccine against, you know, the various variants. The effect of This is a vaccine over time, whether we will be boosters. And so all of those questions about being able to guarantee that somebody is safe and cannot spread the virus, I’m not sure I would want to be the person responsible for that.

When the other side of that is, is that there is the idea of a vaccine passport for, say, a venue or a private place. And that from what I’ve been able to read between the lines is different than say a quote unquote ban on vaccine passports at some in the state legislature have pushed, because that is only affecting governmental units, they can’t necessarily mandate that they’re in a legal sticky wicket, if they were to try to mandate a ban on vaccine passports for private companies.

Terry Bonnette
Right, again, what government regulation can do, as opposed to the ability of the government to regulate private property, are vastly different standards. And so there is a question, I’m not sure it’s an easily answerable question in the context of this discussion we’re having today. But you’re absolutely correct. They’re wildly different in what the government can do.

And what a private citizen can do, kind of what I’m gathering from this conversation is there’s not going to be like a silver bullet, this isn’t going to be a situation like some people seem to want where, oh, well, this is just going to happen this one way, it’s still going to be a patchwork of things over time with a lot of individual choices by people and companies and such like that. And, you know, it’s going to be an interesting thing to watch over the next few months.

Terry Bonnette
I think it will be. And I think one of the things I have been saying from the beginning of the pandemic, there’s a lot of the protections that we’ve been able to put into place. A lot of, you know, the employers being able to take help screens for entry into the workplace or employers being able to ask their employees whether they’ve been vaccinated, or to take their employees temperature, absent a pandemic, I think the EEOC would frown upon a lot of that behavior, right? However, because there is that immediate threat to health and safety, that allows employers a lot wider leeway into what they can and cannot ask of their employees.

So at some point, as the pandemic winds down, and as more and more people do become vaccinated, we have to start asking the question of, if I have 100 employees, and 99 of them are vaccinated, can I still say that one unvaccinated person creates an immediate threat to the health and safety of others, the relative threat level is going to play a factor. And as that starts to come down, our ability to respond to it is going to become much more limited as well.

Oh, that makes a lot of sense. But also seems like there’s going to be a lot to have to figure out around. Okay, when is the right time to stop? It’s not just when can it stop? But when should it stop?

Terry Bonnette
Right? And I think, again, that’s going to be an individualized assessment on any given workplace or venue.

Is that something that say the health department could start to help give guidance on in the future?

Terry Bonnette
It’s typically not something that the health department would give guidance on, you know, for example, the EEO C’s regulations, or rules on it apply to pandemic situations, to the extent that the CDC or the health department declares the pandemic over, that would certainly have an effect on our ability to apply those rules and regulations. But, you know, to the extent does the health department come in and say, Hey, they’re riskier or not a risk here, beyond, you know, contact tracing, that’s really not something that’s going to happen, I don’t think.

Well, Terry, I feel like I’ve learned a lot. And it also feels like there’s a lot of nuance in this. Once you start to unpack a layer, especially when it comes to individual decisions. I really appreciate you kind of helping us through this and shining a light on all of the stuff that’s happening, because it’s going to be an interesting 2021 as all of this kind of stuff unraveled, especially, hopefully crossing fingers cases continued to decline.

Terry Bonnette
I hope so. But yes, I agree. It’s going to be a very interesting 2021. And hopefully, it doesn’t stretch much beyond that.

Terry Bonnette, co managing partner of Nemeth Law. Thank you so much for your time today on Daily Detroit.

Terry Bonnette
I’ve enjoyed it. Thank you for having me.

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