With the first shipments of the COVID-19 vaccine being distributed in Arizona, many people are keeping an eye out for when they are able to get vaccinated in the spring. While this is a welcome next step in the difficulties of this year, it’s important for employers to know their rights when it comes to vaccinations for employees and if they are able to mandate a COVID-19 vaccine for employees.

AZ Big Media spoke with John J. Balitis, attorney and the chair of labor and employment at Jennings, Strouss & Salmon, P.L.C., about some important things for employers to consider when the vaccine becomes available and what their options are for accommodating employee requests should they arise.

John J. Balitis, attorney and the chair of labor and employment at Jennings, Strouss & Salmon.

AZ Big Media: Can employers require employees to get the COVID-19 vaccine as a condition of employment? Are there any exceptions?

John J. Balitis: Yes, with some exceptions that fall into three primary categories: first, if an employer has a unionized workforce, it may be required to bargain in order to gain the right to impose a vaccination mandate. So an employer would need to first think about whether or not they have the unionized workforce and if they do, they need to consider whether or not they have to bargain for that right. 

For other employers that don’t have unionized workforces, they need to consider at least two things before they implement a mandate for vaccinations.

First, if the employer has 15 or more workers, the employer then needs to consider the fact that it is then covered by the Americans with Disabilities Act and by Title 7, which is the federal law that protects employees against discrimination based on a variety of protected characteristics, one of which includes religion.

With respect to the ADA, if the worker has a bonafide disability that would preclude the worker from being inoculated, then the employer needs to proceed through the standard ADA analysis to determine whether or not there is a way to reasonably accommodate that worker. Some examples would be if the worker was not able to take the vaccine, would be to isolate the worker in the workplace so he or she didn’t interact with others or perhaps consider if that worker can perform his or her job remotely or continue to so if they have already.

In terms of Title 7, which protects employees against discrimination based on their religious beliefs, some employers may find that some of their workers have sincerely held religious beliefs that preclude them from taking the vaccine and if the employee can establish that, then the employer needs to consider once again whether or not it can accommodate that sincerely held religious belief.

And the alternatives would likely be the same as they would be under the ADA, you could isolate the worker in the workplace, let the worker work remotely, there may be some other accommodation that the employer could fashion. In either case, whether we’re talking about the ADA or Title 7, the obligation to accommodate is lifted if the employer can show that it would constitute an undue hardship to make an accommodation, but the bar is fairly high for those undue hardships; it’s somewhat extraordinary for an employer to be able to show that doing something like this would constitute an undue hardship.

ABM: Are employers within their rights to separate employees who refuse to get the COVID-19 vaccine?

JJB: Here in Arizona, all employees are at-will workers unless they have contracts with their employers to the contrary; and all that means is that in Arizona law, either party to that employment relationship- the employer and the worker-can terminate the relationship at any time, with or without cause, with or without notice.

So if an employer wanted to impose a mandate for vaccination, and none of the exceptions applies, in Arizona, an employer would be within their rights to separate that employee. If the employer decided to try to accommodate the worker, even if the ADA or Title 7 didn’t apply, that would then just be a voluntary choice on the employer’s part. Outside of Title 7 and the ADA, and the unionized workforce exception, there wouldn’t be any legal obligation to accommodate before the employer exercised its right to separate the worker.

ABM: Could an employer who has employees physically going into an office require them to get the COVID-19 vaccine?

JJB: Once the vaccinations roll out and become actively distributed, we may see some guidance on this maybe from the CDC or the Department of Labor, but one thing to keep in mind even before any of that may come out, is the requirement under the Occupational Safety and Health Act (OSHA), and Arizona has its own state version of OSHA, under both of those laws, the federal law and Arizona’s state counterpart, there is the general rule that employers are obligated to provide a safe workplace for workers. 

It’s a very generic rule that could get applied subjectively by OSHA or the Arizona Industrial Commission for example, to make sure that workplaces are safe for us. And there could be an argument I suppose, that not mandating a vaccination when it’s available would be a failure on the employer’s part to provide a safe workplace, but I haven’t seen, heard or read anything which suggests that OSHA is going to apply that safe workplace requirement that decisively.

At least right now until the vaccinations start, there isn’t any discreet, precise obligation for employers to require vaccinations, but I think we need to be mindful and watch what happens to see if maybe some additional regulations come out or OSHA takes the position that the safe workplace requirement may actually require vaccination mandates.

ABM: How will small businesses in Arizona be impacted? Do they have the right to terminate employees if they do not get vaccinated?

JJB: Keep in mind the 15 or more-employee threshold triggers those laws like the ADA or Title 7, and once those laws apply to you as an employer, you then have an obligation for example to accommodate a disabled worker or a worker with religious beliefs, so the 15-worker threshold doesn’t require an employer to mandate vaccinations, it requires those employers to potentially accommodate workers who say they can’t get vaccinated. 

The corollary of that is, when you talk about small businesses, those laws don’t apply, the ADA doesn’t apply to a small business with less than 15 workers and neither does Title 7, so those small operations would be able to require a vaccination regardless of disability or religious belief because those laws don’t apply to them. And if a worker said for example, ‘I have a disability and I can’t get a vaccine or I have a religious belief that precludes me from getting a vaccine,’ those smaller employers could say, ‘I’m sorry then, you’re going to have to leave then,’ whereas larger employers that are governed by those laws would have to then say ‘Ok, let me see if I can accommodate you.’

So the smaller businesses in other words have more flexibility, they could require vaccinations and fire people who don’t get them, regardless of religious beliefs of disabilities. 

ABM: How do you predict things will develop with the vaccine and how it will impact the workplace?

JJB: I think we can see things develop as the vaccinations become available, and potentially regulations. The CDC has been very proactive throughout the course of the last several months in creating and updating regulations as things evolve, and I think we’re going to see sort of a next evolution of this whole situation once the vaccinations start. 

For example, if an employer had a vaccination mandate and an employee was prone to severe allergic reactions, then that employee would certainly be a candidate to be able to opt out of the vaccine. I think all of this is going to roll out through some amount of trial and error and we just need to follow it and watch what happens.