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Can and Should Employers Require Employees to Take the COVID Vaccine?

Rogge Dunn addresses common questions about the COVID vaccine in the workplace.

What should companies do when the COVID vaccine is readily available?

Employers have been asking me for advice regarding whether to implement mandatory employee vaccinations, make vaccinations voluntary, and offer economic incentives and/or whether to work with unions or employees to develop a vaccination policy.

Employers face an unenviable dilemma.  Some employees are adamant against taking the vaccine for fear of an adverse reaction or political beliefs; other employees want employers to require vaccines to provide a safer workplace.

Many companies are considering compulsory COVID vaccinations as a condition of employment.  Under the law, an employer can require employees to be vaccinated, and if they refuse, fire them.  However, anti-discrimination laws prohibit discrimination against employees who refuse the vaccine because of a sincerely held religious belief.  Employees with such religious beliefs are exempt from a company-wide COVID vaccine mandate.  These laws apply to companies with 15 or more employees.

In addition, disability laws prohibit companies with 15 or more employees from firing an employee with a disability who refuses a vaccination, if they are prone to an adverse reaction.  In that situation an employer must make a reasonable accommodation, such as the employee working remotely.

What are the pros and cons of employers requiring employees to be vaccinated?

Some employers believe mandatory vaccinations provide a competitive edge. This is particularly true for brick and mortar operations with high-foot-traffic customers. Companies can tout the fact that all of their employees have been vaccinated, so their establishment is safe.  This is a particularly strong selling point for restaurants, bars, gyms, and salons.

Other employers worry that forcing employees to take vaccines will hurt morale.  They’re considering incentive payments to encourage employees to take the vaccine.  These employers would pay for the employees’ vaccines and pay for the optional vaccination of employees’ family members.

Many employers who want to implement a vaccination policy are waiting until after a significant number of vaccinations occur to be sure the vaccination is safe, effective, and generally accepted by the public.

What is the risk of worker’s compensation claims for contracting COVID if the employer does–or does not– require mandatory vaccinations?

 If employers require employees to take the vaccine and they have an adverse reaction, employers can be sued only under the worker’s compensation program, which significantly limits the amount of damages an employee can recover.  On the other hand, if employers do not require vaccination, and an employee claims they caught COVID at the workplace, then employers would face a worker’s compensation claim by that employee.

Once again, employers are damned if they do, and damned if they don’t.  Having said that, the risk of a worker’s compensation lawsuit is low because an employee would have a difficult time proving they caught COVID at the workplace–unless an employee traveled only to work and always directly back to their home and quarantined themselves.   It would be difficult, if not impossible, for the employee to prove they caught COVID in the workplace, if after work they visited friends or family members, went to the grocery store, and/or participated in other activities outside the workplace.  Thus, the risk of worker’s compensation claims is low.

How can employers keep up with COVID developments without always having to consult a lawyer? 

Employers can keep abreast of the latest legal guidance for free by regularly visiting the EEOC and OSHA websites. Set Google alerts on COVID topics impacting employers. Finally, review updates from the CDC and the White House COVID task force.

Rogge Dunn represents executives, entrepreneurs, and financial advisors in business and employment matters. These include the CEOs/ presidents of American Airlines, Beck Group, Dave & Buster’s, Gold’s Gym, Halliburton Energy Services, Kinko’s, Texas Capital Bancshares, Texas Tech University, Trammell Crow Holdings, and Whataburger. Corporate clients include Adecco, Beal Bank, Benihana, CBRE, Cintas, Match.com, Rent-A-Center, and Outback Steakhouse. Dunn has been a Super Lawyer every year Thomson Reuters has awarded that honor and recognized as one of the top 100 attorneys in Texas. He has been a D Magazine Best Lawyer 11 times. Executives and companies who need the power of a trial attorney hire Rogge Dunn.

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