GREEN BAY, Wis. (WBAY) - Can an employer require an employee to get the COVID-19 vaccine?
It’s a question many are thinking about, including employers trying to figure out what the future might look like for their company.
“It’s complicated,” said Nicole Marklein, a partner with Cross Jenks Mercer and Maffei LLP in Baraboo.
Complicated is just the tip of the iceberg said Marklein, who specializes in labor and employment law in Wisconsin.
“It’s really fact-specific. Every workplace is different, and the risk posed in every workplace is different, so what may be a risk and a legitimate risk in one business may be not so much in another,” said Marklein.
While there are still a lot of legal unknowns, Action 2 News asked Marklein if an employer can require employees to get vaccinated.
“An employer can only require employees to be vaccinated if there is a business necessity, such as if an unvaccinated person would pose a direct threat to the health or safety of others such as coworkers,” said Marklein.
As an employee, how do you know if your employer has proved that it was a business necessity to require vaccines?
“That’s where the litigation comes in, so if they were to be a claim down the road that would be one of the factors is, was this a business necessity,” said Marklein. “For the most part right now and where we are in the pandemic, the Equal Employment Opportunities Commission generally recognizes the spread of COVID-19 in the workplace to be a direct threat to safety. It’ll be interesting to see as we go forward and as more people get vaccinated, how that changes things as we go forward.”
So the next question becomes, can an employee opt out of the mandate legally?
“Unfortunately for those people, unless they have a sincerely held religious belief that prevents them from getting vaccinated or an underlying disability or medical condition that prevents them from getting vaccinated, their employer can require them to do so,” said Marklein. “An employee doesn’t have a legal right to refuse to avoid termination.”
Marklein says not only can that impact morale within the workplace, but it gets even more complicated when it comes to an employee’s rights if they legally opt out of an employer’s mandatory vaccine due to an underlying medical condition or religious belief.
“You then have the issue of learning a lot of things that an employee might disclose about themselves that you otherwise wouldn’t know such as an underlying medical condition or religious belief and that could serve as the basis for a retaliation claim down the road,” said Marklein. The employer would also have to work with that employee to realistically accommodate their circumstances via Wisconsin fair employment law and the Americans with Disabilities Act.
If an employee is required to get the vaccine and has an ill effect, it could also lead to legal repercussions.
“That might raise the specter of all different kinds of litigation or claims and legal issues including workers compensation as it was allegedly work related and things like that,” said Marklein.
Plus, if an employer tries to offer incentives to employees to get the vaccine, Marklein said it could lead to a troubled work environment.
“By doing so you could potentially be giving increased compensation or better employment terms and conditions and benefits to people based on their vaccination status that aren’t available to certain individuals with particular religious beliefs or medical conditions so right there it has a discriminatory effect, even if that’s not what the employer intends,” said Marklein.
With all the phone calls Marklein has received over the past few weeks with so much uncertainty, she recommends employers take more of a supportive route, rather than a required one while talking to their business attorney.
“We don’t know down the road how any of this is going to play out,” said Marklein. “I’m counseling my clients that unless they have a very legitimate scientific-based need to vaccine every single employee, choose to go more toward that recommendation and supportive people that want to get vaccinated, without having any adverse consequences to anyone that doesn’t feel comfortable or cannot do so.”
Along the supportive route, if companies plan to offer the vaccine to employers while at work, she recommends using a third party to administer the vaccine.
“I highly encourage them to contract with a third party, such as the county or another organization or a health care facility to administer those vaccinations, because that really protects the employer from some medical discrimination claims,” said Marklein. “The third party can ask the screening questions of the employees with respect to their health, and underlying conditions and administer the vaccination themselves.”
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