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Can Minnesota employers require workers to get a COVID-19 vaccine? Will they?

The question has gained urgency as businesses begin to seriously contemplate bringing remote workers back to offices.

Metropolitan Transportation Authority security contractor Janet Santiago receiving a shot of the Johnson & Johnson vaccine during the opening of MTA's public vaccination program at the Coney Island subway station in Brooklyn.
Metropolitan Transportation Authority security contractor Janet Santiago receiving a shot of the Johnson & Johnson vaccine during the opening of MTA's public vaccination program at the Coney Island subway station in Brooklyn.
REUTERS/Brendan McDermid

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?

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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.

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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.

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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.

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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.