As more and more people are vaccinated against COVID-19, many Minnesotans who have been working from home for more than a year are seeing their workplaces start to think about — or even formalize — plans to bring them back to the office.
With that comes questions of who’s vaccinated and who isn’t. With just about half of U.S. adults fully vaccinated, vaccine hesitancy could make it difficult to get to the higher threshold needed in order to stop COVID-19 from readily spreading.
When surveyed, employers have expressed interest in having their workforces vaccinated. But can employers require workers to be vaccinated? And if they can, will they?
Legal considerations
To understand this issue, it helps to know that the U.S. is an at-will employment jurisdiction, said David Larson, a professor of law at the Mitchell Hamline School of Law. That means that in most cases, employees work at the discretion of their employers and can be fired at any time and for most any reason.
“So if you’re a Packers fan, they can fire you,” he said.
There are, however, a few things employees legally can’t be fired for, and those have to do with protected classes: race, color, religion, sex, national origin, age, disability and genetic information.
Employers can, with some exceptions related to these protected classes, require employees to be vaccinated against COVID-19 in the workplace, said Susan Ellingstad, a partner with Lockridge Grindal Nauen P.L.L.P., who heads the firm’s employment division.
This was something the U.S. Equal Employment Opportunity Commission weighed in on in an exhaustive document on COVID-19 as it pertains to the workforce, last updated in December.
The guidance says that employers who have a valid job-related reason can mandate vaccines before employees come back into work.
There are two exceptions: when employees have a medical disability that qualifies their exemption under the Americans with Disabilities Act, and when the employee has a “sincerely held” religious belief, protected by Title VII of the Civil Rights Act, that leads them to object to vaccination.
“It’s clearly not just ‘I’m an anti-vaxxer,’” Ellingstad said.
In these cases, employers can prevent workers from coming into the workplace if they’re not vaccinated, but they have to consider whether they can make reasonable accommodations — perhaps allowing them to work remotely or wear PPE — before considering taking action, according to the EEOC.
That the COVID-19 vaccines are, at least at present, authorized under an emergency use authorization from the FDA, meaning they do not yet have full approval (though they did go through the same safety trials as any other vaccine), has raised some questions about employer requirements.
Ellingstad said it’s her understanding that employers can still require the vaccine under emergency use authorization.
Based on the EEOC guidance, employers can not only require vaccination, but require proof of vaccination, as long as they don’t ask questions about the worker’s personal health that could prompt the worker to divulge disability-related information.
Even though, under current law, employers can require COVID-19 vaccines, several bills introduced and supported by Republicans in the Minnesota Legislature would seek to ban such mandates by businesses. They do not appear likely to pass given likely opposition from the DFL-controlled House and Gov. Tim Walz.
What Minnesota employers are doing
Few employers in Minnesota seem to be going so far as to require vaccinations, though many strongly encourage them.
Macalester and Carleton colleges have announced that — with some exceptions — both students and employees will be required to be vaccinated. Ellingstad said her law firm and others are requiring staff to be vaccinated.
MinnPost contacted Target, Best Buy, General Mills and Polaris. Through spokespeople, General Mills and Polaris said they were encouraging, but not requiring vaccinations. Target and Best Buy did not respond.
Spokespeople for two major health care employers, Fairview and the Mayo Clinic, said vaccinations are not required for employees. Mayo Clinic spokesperson Kelley Luckstein wrote in an email that Mayo Clinic employees are encouraged to be vaccinated.
“In the Midwest, more than 79.8 percent of our staff have received the first dose of a COVID-19 vaccine and more than 74 percent have completed the two-dose vaccination series,” she said. “Our voluntary vaccination rates continue to climb, and we will adjust the program requirements as needed over time.”
Inez Kalle, the director of nursing for the Episcopal Church Home, a skilled nursing facility in St. Paul, said more than 50 percent of employees are currently vaccinated.
“We’re hoping everybody gets vaccinated,” she said, but said the facility recognizes that people have cultural or religious reasons they might be hesitant to get the vaccine.
Around the state and the country, many employers are offering incentives rather than requiring their workers to get vaccines.
Companies like Aldi and McDonald’s are offering paid time so employees can get the vaccine. Local employers are following suit: MPR reported that Brianno’s Italian Deli, in Eagan, had offered a $100 to employees who got vaccinated.
But Ellingstad said we may see some workplaces shift more from encouragement toward requirement after the vaccines receive full FDA approval and as more workers who have been home for the pandemic come back to their offices.
“I really don’t see the [emergency use authorization] as preclusive of mandating, but it is at least something that’s out there that causes another reason to hesitate,” Ellingstad said. “I think that once that is no longer an issue, health care, military — certain segments will just automatically mandate.”
Office workers have not gone back to work en masse, but when they do, employers may realize colleagues do not feel comfortable spending time around people whose vaccination status they don’t know.
“That might move employers a little bit, because they now have to deal with people who really want to feel more comfortable,” she said.
Even though I’ve been vaccinated, I don’t feel safe going back into the office. My employer has made it clear that vaccines won’t be required. No one is sure how effective the vaccines will be against variants or over the long term, but it is better than nothing. I work in a cube in a crowded building with over 1,000 other people and hundreds of daily visitors. Our cubes have 3-4 foot walls. The ventilation and air flow is horrible. The elevators and bathrooms are crowded. The workplace is riskier than going to a store or out to eat. We are around others for 9 hours a day, not just a few minutes. Why is COVID different than other communicable diseases? It just is. We won’t ever have herd immunity due to the GOP anti-vaxxers. I’m high risk for death by COVID. I hope I will be allowed to continue to telework, but there are no guarantees.
Life will never be risk free.
Your point is? When your decision not to vaccinate, not mask and not socially distance can make others seriously sick or die and if on top of that you get angry when challenged (some have enough to assault or kill someone else for “infringing on my freedom”), employers who want a safe work environment will either mandate vaccination or strongly encourage it.
Which is a silly statement, because the prescence of risk does not mean one should court it. Because its risky to cross the street does not mean I should quit using crosswalks and dash out into traffic whenever I feel like it.
It could be less risky without Republicans!
Having a “sincerely held religious belief” is an overly broad exemption given that there is no belief so outrageous that someone can’t claim to espouse it.
Not so overbroad as you might think. Unless the plaintiff is independently wealthy and willing to throw their money away in legal fees, you’d be hard pressed to find the plaintiff’s attorney willing pursue any claim for discrimination for obviously whacko “religious” beliefs
There are very few good reasons to refuse vaccination. If you have a particular health issue that is valid. But personal, political and religious reasons ring hollow. Your “personal right” to refuse vaccination that would protect the rest of society is too obviously illegitimate to merit discussion. Same with political beliefs. Even if the wacky leader of your political persuasion says vaccinations are bad (even if he got one himself discreetly) that is no reason that you can dodge them yourself.
So-called “religious beliefs” are likewise thoroughly subjective, so much so that they cannot be realistically advocated for avoiding your duty. Some claim opposition to abortion or gay rights on “religious” grounds while others, praying to the same God, demand tolerance or even acceptance for both. It is a facetious argument at best.
My religion requires that I see the divine in every other person, especially the poor, while others build churches geared toward a “whites only” congregation.
Except in rare cases, the only right thing to do is to get vaccinated, for your neighbors if not for your immortal soul.
I think many employers will find many key people in their organization that wont get vaxxed. Those people will go work for the competition.
If management was worried about competition, they would have had their key employees sign non-competes. If not, well then that’s part of what what “at-will employment” is for: freedom of association, or in this case, freedom of the vaccine averse employee not to associate with their vaccine-requiring employer.
Sounds like a great way to get rid of bad employees.
Assuming there is competition that matches their personal beliefs.
Simple. If you work for me as an employee and there is a virus present that can be prevented by an available vaccination, you will need to get one now. No further discussion. Your choice to continue work for me or find a job where your personal requirements are better met by another employer.
At some point the “Your body, my choice” crowd is going to have to accept that for whatever reason, some people won’t get vaccinated.
If you are going to make vaccination status a condition for employment, where does it stop? Flu shots?
By now pretty much anyone who wants to get the vaccine has had a chance to get it. The ones who don’t want to get it have accepted the risk.
No one is free unless they are free to make the wrong decision.
You could consider the vaccine averse person to be the, “your body, my choice,” party in that analogy, if they end up carrying the virus and transmitting it to someone else. “My choice,” not to get vaccinated, “your body” if you get someone else sick by carrying a virus you ckkld have prevented yourself from carrying.
the slippery slope argument here doesn’t hold much water for me: I’m not so long out of high school, and yes, we were required to complete certain vaccination schedules. Massachusetts recently added influenza vaccines to that required list, and I expect other states to follow suit.
I think most people do accept that some people will not get vaccinated, so we have already reached that point you’re encouraging people to reach. That acceptance doesn’t preclude efforts to still encourage vaccination, even when it’s ultimately the Individual’s choice. The question becomes, are we going to force association between vaccinated and unvaccinated persons. Decades of precedent on the constitutionally protected freedom of association suggests that we will not be forced to associate, if some parties choose to require vaccination for participation.
The problem here, Ole, is the fundamental difference between COVID and a flu. One rarely kills, and you generally recover with no long term effects. The other can kill in great number and can have long term debilitating effects on the body.
When you “choose” to forego an available COVID vaccine you are beyond the realm of personal choice. You are choosing the freedom to keep alive a devastating intruder into our lives. Getting your vaccination is the kind and neighborly thing to do.
Tom. Show your work.
The flu kills a lot of people. The Corona virus is deadlier, but you can’t say that the flu is some benign illness with a straight face. As far as long term debilitating effects from the Corona virus? No one can say with any certainty what (if any) long term effects might be.
It doesn’t help your persuasion campaign when you stretch the truth. As soon as you start telling people that there are long term debilitating effects from covid (which has only been around a bit over a year) and pooh-poohing their worries about long term effects from a vaccine that was rushed into use. (Again, I’m not saying that rushing it into use was wrong, but just admit that no one is 100% sure that there are no long term effects from the vaccine either).
The flu is not benign. People should get flu shots and try to minimize exposure. But the danger from Covid is orders of magnitude greater than the flu. The question becomes where you draw the line on the acceptable risk.
As far as pooh-poohing concerns about long-term effects from the vaccine, it depends on what you mean by pooh-poohing. We want people to get vaccinated, so its a question of how to convince people. If you tell them that their concerns are based on ignorance and a fundamental misunderstanding of how vaccines work, it may not convince them, especially since there is so much false information being put out about vaccines. How do you convince people not to be stupid without calling them stupid.
None of that is in anyway relevant if your decision affects other people’s health.
They’re always free to make poor decisions. I am ALSO free to no longer employ them when they do. I really fail to see the confusion here.
Well, the short answer is: “yes” employers can require COVID vaccination for at-will employees. Any employee who thinks they can file a legal objection should know that in order to do that, you have to find a lawyer who’ll take your case… and that’s where your plan falls apart. Since you’re not filing for damages (unless you’ve been fired for refusing to get a vaccine) you’ll have to pay for a lawyer, and even if you’ve been fired, unless you have a clear case, you still might have to pay. So, just get the vaccine and go back to work if it comes to that.
Paul – nicely put. I think many who struggle with this just really don’t understand how employment works. Outside of unionized businesses, you can be fired for virtually any reason and have zero recourse. For example, one could wear too much perfume and be fired for that, or not enough deodorant and be fired for that. I have worked at places that have required neck ties for men, no exceptions. You refused to wear a tie, you were fired. Other reasons could be visible tattoos, facial piecing on men, hair dyed pink or purple, etc. So your recourse if your employer requires you to be vaccinated? You have none (unless you are a member of a union, where it will depend what is in the contract between the union and the business/organization). And it is not a HIPAA violation for a business to require vaccines. Think I am wrong? Call any employment lawyer and ask them to sue your employer for requiring a Covid vaccine, your phone call will be about 2 minutes long.
To all of those who are vaccinated, why would you care if a coworker is not vaccinated as long as you are? You got the vaccination to protect yourself from those who have the virus, I assume. Do you have a concern that the vaccine doesn’t work? Are you afraid you will somehow get COViD even though you have the vaccine?
It is of no concern to you whether another person decides not to get vaccinated, as long as you are. So my body, my choice only applies in certain situations?
See, I think this an example of a fundamental misunderstanding between the vaccine averse and the vaccine proponents. Your charge here is that people only choose to be vaccinated out of an individual self interest against adverse effects of the virus. And that might be true, but even when it is, it’s not the whole truth nor the only explanatory reason behind the decision to seek vaccination.
In fact, I didn’t choose to be vaccinated ONLY out of an individual self interest against adverse effects of the virus. That was certainly part of it, and now that I am fully vaccinated, I am positive it works, and I feel safe to resume many of my normal, pre-pandemic activities. I have resumed many of them already, and it’s been great. I have no fear that I will contract the virus to any harmful degree.
But the other part of why I chose to be vaccinated is so that my communities, my family, my friends, my workplace, my bar, my City, my County, my State, my Country, etc. reach the threshold of herd immunity. And you only reach herd immunity when you have buy-in from a large number of people. Unfortunately that’s the aspect I don’t have control over, I only have control over my individual choice to be vaccinated, not other people’s individual choices. But it is still very much my concern that as many people who can get vaccinated do so, so that those who can’t are still protected.
Taking the example of a workplace, since you bring up co-workers: if enough of my co-workers individually decide not to be vaccinated, then the workplace won’t have met threshold of herd immunity. I’ll be protected no problem, but those co-workers who aren’t vaccinated won’t be protected. Now you can make the argument that those choosing not to be vaccinated are accepting a known risk, and while I disagree with that idea given the amount of misinformation out there, it’s an argument I recognize as legitimate. But where it becomes my concern is when you have that one co-worker who happens to be allergic or happens to have a disability preventing them from being vaccinated with this particular vaccine. Unless all the other employees, or the significant majority of them, who can be vaccinated are vaccinated, that poor sucker is going to be unprotected, as the rest of us have the privilege to be, through no fault of their own and through an accident of their biology.
So to answer your questions very directly: I care whether or not my co-workers are vaccinated, because it shows me that my co-workers care about the people who for whatever reason cannot get vaccinated. I don’t have concerns the vaccine doesn’t work, but I have concerns about the people who cannot get vaccinated. And I am not afraid that I will personally contract COVID after receiving the vaccine.
It is your body, and it is your choice. But if you don’t have a legitimate reason not to be vaccinated, that choice comes with baggage and ramifications for the broader community. And one of the freedoms enshrined in the Constitution is the freedom to associate (or not associate) with people based on choices they have made.
Thanks Mr. Pingree, very nice comment. The only additional observation I would make is that the mentality you’re responding is primarily a “Libertarian” perspective; I think that perspective is basically sociopathic, which is why you have to spend so much time dealing with selfishness.
A thoughtful and overly patient response. To me, the comment highlights the “Republicans are from Mars, Democrats are from Venus” feature. Those who have self-selected as Republicans are those capable only of seeing things in selfish terms. It has been quite clear for months that the overriding goals of community vaccination have been to achieve herd immunity, protect those who are vulnerable, and most importantly for the long term, limit the probabilistic field in which variants can develop. Those on the Right don’t simply criticize these goals, they simply can’t comprehend them because they concern mutual responsibility for the common good. Writ larger, the Right’s rhetorical critique of those who are not in their clan is almost entirely based on an inability to think in terms of a community of mutual rights and responsibilities larger than the family unit. Their attribution of motives to others always simply projects their own limited way of seeing the world.
People are really concerned about the variants and that no vaccine is necessarily 100% effective. This is not a one and done deal, it will be an ongoing struggle. We also don’t know yet how long the potency of the vaccine lasts.
“So my body, my choice only applies in certain situations?”
Of course not. What you’re saying , though, is that you want your choice to be exercised without fear of any consequences.
We can apply the same logic to employer-imposed mandates that conservatives do to complaints about low wages. You don’t like it? Get another job!
Because no vaccine is 100% effective, and the larger the number of unvaxxed, the more likely variants will arise that are not as well controlled by the current vaccine. And even if the vaccine blunts the virus so that it doesn’t kill me, that doesn’t mean I won’t still get sick and require medical attention, or at least time off. Otherwise, what Sam said. Doing everything around self-interest is not noble at all.
I’m more afraid of leaving First Avenue with a belly full of beer than I am of attending a concert with 1000 drunk people breathing on me.
You haven’t been in a large crowd of drunk people, then. Even before COVID, I avoided large crowds of drunk people. They tend to be violent and unpredictable, bringing high risk of harm (not to mention drunk driving when the crowd disperses). So, I’d say your risk calculations are a bit off.
Perhaps employers cannot force employees to get vaccinated. But they can decline to accept any unvaccinated worker from returning to work in place. A vaccinated population creates a safer workplace.
I think this is where we get into the weeds when it comes to “right to work” laws. If offices truly want to bring people back, I don’t think we’ll see many situations where the unvaccinated are simply allowed to stay home (specifically for that reason). That would create situations where those who are vaccinated and want to continue working from home could use that excuse to do so. I think its more likely those who choose not to get the vaccine will be mandated to wear a mask while in the office.
This has nothing to do with so-called “right to work laws,” which are just pieces of union-busting legislation. No one has the “right” to work for a particular employer.
A lot of employers are starting to see the benefits of allowing their employees to work remotely, at least part of the time. This is scaring the commercial real estate market, but that’s capitalism for you.
https://www.yahoo.com/news/anti-maskers-covid-deniers-yelling-132900166.html
Anti-maskers and COVID deniers have been yelling about ‘freedom’ since the pandemic began. Now many of them are standing in the way of America’s actual freedom.
I feel it is the responsibility of every American citizen to help fight the COVID-19 virus and get vaccinated in an attempt at ending the war on this pandemic and getting back to normal. Not taking the vaccination when it is available to you is unacceptable and irresponsible.
I understand that some have concerns with side effects after receiving the vaccine. While some experience side effects they normally go away in a few days and many people don’t experience any side effects at all after the shots. Many of our veterans that actively took part in various wars and conflicts, especially those that saw combat, had serious concerns about dying, being wounded or becoming disabled. However, so many stood up bravely and faced our enemy even with those concerns. Today our enemy is a virus and I ask all Americans to standup bravely and do your part in fighting this virus by getting vaccinated.