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Wednesday, June 30, 2021

Can My Employer Make Me Get Vaccinated?

This is a question I get a lot these days. Yes, employers can force employees to be vaccinated, with exceptions. Some exceptions that come to mind are religious, disability, and pregnancy. 

Yes, employees can be terminated for refusing to vaccinate, unless they fall within a legal exception. If they do fall within an exception, then the issue will be whether there is a hardship on the employer. If the employer can prove there is a hardship, they may still be able to terminate, even with an exception.

Same answer on hiring. However, employers aren’t going to be allowed to ask potential employees if they are vaccinated during the interview process. I believe this will play out similarly to any other medical issue. What I think will happen is the employers will be able to make a conditional offer of employment, and then the employee will have to disclose whether or not vaccinated, and whether or not there is an exception.

The EEOC has issued a pretty comprehensive guidance on COVID, and it includes vaccines. It addresses issues like disabilities, etc. For instance:

Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? 

No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

 Florida has banned some businesses from demanding proof of vaccinations from employees. I believe some other red states have done so as well. SMH. In other states without the ban, employers may be allowed to demand proof. 

Even Florida doesn't seem to have banned all employers from demanding proof. The statute says:

381.00316 COVID-19 vaccine documentation.—
1122 (1) A business entity, as defined in s. 768.38 to include
1123 any business operating in this state, may not require patrons or
1124 customers to provide any documentation certifying COVID-19
1125 vaccination or post-infection recovery to gain access to, entry
1126 upon, or service from the business operations in this state.
1127 This subsection does not otherwise restrict businesses from
1128 instituting screening protocols consistent with authoritative or
1129 controlling government-issued guidance to protect public health.
1130 (2) A governmental entity as defined in s. 768.38 may not
1131 require persons to provide any documentation certifying COVID-19
1132 vaccination or post-infection recovery to gain access to, entry
1133 upon, or service from the governmental entity’s operations in
1134 this state. This subsection does not otherwise restrict
1135 governmental entities from instituting screening protocols
1136 consistent with authoritative or controlling government-issued
1137 guidance to protect public health.
1138 (3) An educational institution as defined in s. 768.38 may
1139 not require students or residents to provide any documentation
1140 certifying COVID-19 vaccination or post-infection recovery for
1141 attendance or enrollment, or to gain access to, entry upon, or
1142 service from such educational institution in this state. This
1143 subsection does not otherwise restrict educational institutions
1144 from instituting screening protocols consistent with
1145 authoritative or controlling government-issued guidance to
1146 protect public health.
1147 (4) The department may impose a fine not to exceed $5,000
1148 per violation.
1149 (5) This section does not apply to a health care provider
1150 as defined in s. 768.38; a service provider licensed or
1151 certified under s. 393.17, part III of chapter 401, or part IV
1152 of chapter 468; or a provider with an active health care clinic
1153 exemption under s. 400.9935.
1154 (6) The department may adopt rules pursuant to ss. 120.536
1155 and 120.54 to implement this section.

So, as I read this, Florida government employers and educational institutions may not demand proof of vaccination from employees, but private employers may ask employees for proof (but possibly not if the employees are also patrons or customers of the business). Healthcare providers are exempt and may demand proof from anyone.

Nothing in this statute keeps anyone from asking the question, only from demanding proof, so even those employers who aren't allowed to demand proof can fire employees if they find out they lied about vaccines. And there's real reason for employers to want to know this information, because OSHA has different safety standards for workplaces with 100% vaccinated employees versus those with only partially vaccinated workplaces. 

In general, employers can ask if you've been vaccinated, and can demand you be vaccinated, with some exceptions.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.