As more people in the D.C. region get vaccinated against COVID-19, many businesses are faced with a tricky question: Can they require their employees to get shots?
On the one hand, widespread vaccination is seen by public health experts as the fastest way to return life to some semblance of normal. On the other hand, the question runs up against thorny issues of employment law and health privacy.
Still, as to whether an employer can require employees to be inoculated against COVID-19, broadly speaking, the answer is “Yes,” said Silvia Kinch, the chief of the Division of Labor Relations and Public Safety in the Office of the Montgomery County Attorney.
“Both the state, the county and an employer on their own can decide that they want to mandate vaccines among their employees,” Kinch said Friday during an online town hall with Montgomery County’s business community. “With that said, an employer still needs to be aware that an individual may have a need for an accommodation.”
Possible exemptions include religious beliefs, or a person, who for health reasons, may not be eligible for the vaccine, Kinch said. “So, any mandate to be vaccinated has to take that into consideration,” she added.
The U.S. Equal Opportunity Commission issued guidance late last year clarifying that employers could require the shots for employees, and that employees could be blocked from the workplace if they refuse them.
Now, the question about mandating employee vaccinations is playing out across the country, and there have even been some reports of employees being fired for refusing to get vaccinated.
“That is possible,” Kinch said. “You can fire someone if they, in fact, refuse to be vaccinated. However, you’ve got to look at, again, do they have a reason why they can’t be vaccinated? Can you accommodate that? And if you can’t accommodate that, does their lack of a vaccine pose a direct threat to you, your staff or your customers?”
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Does a vaccine mandate have to be spelled out in company policy? Kinch said it’s probably a good idea, especially for bigger businesses. But it doesn’t have to be too formal.
“I think it sort of depends on how big your business is. If you have a business and it’s just a handful of people, you may not need to have a formalized written policy. But the bigger you are, the more formalized you would want to get,” she said.
Kinch added, “It doesn’t have to be really fancy, it doesn’t have to have a lot of legalese. It can be very simple: ‘Dear staff, we want you to get vaccinated.'”
Another common question is whether employers can ask workers if they’ve been vaccinated. Again, the answer is yes.
“It is completely fair game for an employer to ask an employee if they have been vaccinated,” Kinch said, pointing to the recent EEOC guidance.
On the other side of the equation, employers are also free to offer incentives to employees for getting vaccinated, such as paid time to get vaccinated, or other perks, such as gift cards.
What about a business promoting its vaccinated workforce to attract health-conscious customers?
“I do think a business could put that out there; however, they should really think about it before they do, because where does that end?” Kinch said. “If you’re going to do this for COVID, will you then be doing it for flu season?”
Kinch said businesses should probably tread carefully and definitely consult their own legal counsel.
“What happens if you never get 100% staff who get vaccinated and you’re still out there saying 50% of my staff are vaccinated and your competitor down the street is saying 100% of my staff’s vaccinated?”
Still, if a customer comes into a workplace that’s advertised as 100% vaccinated and later contracts COVID-19, it’s unlikely there would be legal liability for the business, she said. For one thing, it’s hard to pinpoint where a person does, in fact, get COVID-19. “It’s just too much in the community to be able to narrow that down, so the liability would be low,” Kinch said.
Still businesses should continue with mask-wearing, social distancing and other public health measures. “As long as you’re doing the things that you’re supposed to do, you should be fine as an employer. It’s when you’re lax about that that there is the potential for a liability,” she said.
What about refusing service to customers who are not vaccinated? A private business can refuse to serve a customer for any reason, as long as it’s not a violation of the person’s civil rights, which would include denying service based on race, color, creed, religions and disability, for example, Kinch said.
You probably could ask customers if they’ve been vaccinated, but it would be hard to know if your customers were being truthful, Kinch added.
In some respects, discussions about requiring COVID-19 vaccines — at least in some professions — remain somewhat theoretical, given the low supply and the lack of access to the vaccines by the general public.
In Montgomery County, as elsewhere in the D.C. region, the vaccine rollout has been targeted, so far, toward health care workers and vulnerable populations.
With limited doses of the vaccines supplied by the state, county health officials said they are on track to finish vaccinating the county’s oldest residents in the next few weeks, before eventually moving on to those age 65 to 74 and other essential workers, such as grocery store workers.
As for when members of the general public can expect to gets jabs in the arms, citing information from the federal government, county officials said they expect that phase to be sometime in late May or June at the earliest.
