Coronavirus cases continue to be reported throughout the state. As of mid-February the total number of cases in Maine has exceeded 43,000, with more than 1,500 hospitalizations and 650 deaths. The data shows that the COVID-19 vaccines are safe and effective, and many Maine employers and employees alike may be wondering whether an employer can require vaccinations. In other words, will businesses be able to require their employees to get the vaccine?
What does the law say?
Based on current legal guidance, whether an employer can require that employees receive COVID-19 vaccination “depends.” Certain factors that will impact the legality of a mandatory vaccine policy include whether the vaccine policy relates directly to the job at issue, is consistent with business necessity, and contains certain exceptions to comply with other anti-discrimination laws. This is an area of law which is still developing, and future regulations may continue to provide further guidance.
In the broadest sense, however, employers generally can require employee vaccinations. This is likely true for COVID-19 vaccinations as well. However, a business’s ability to require vaccinations of any kind is always subject to the employer’s duties under anti-discrimination laws. This means that if there is a workplace policy requiring employees to receive a COVID-19 vaccine, the policy should allow for exemptions to the vaccine as a form of reasonable accommodation for medical reasons or religious beliefs. It is worth noting that the definition of a religious belief, although broad, does not include a philosophical or political opposition to the vaccine. Further, an employer does not need to provide a reasonable accommodation that presents an undue hardship on the employer. An employer allowing an unvaccinated employee on site may constitute an undue hardship to the employer or a direct threat to employee safety. Accordingly, an employer should document the types of accommodations they will provide to employees who are unable to or refuse to be vaccinated due to medical reasons or religious beliefs. Note that regardless of an employer’s policy on COVID-19 vaccines, the Equal Employment Opportunity Commission recently issued new guidance stating that an employer could ask employees whether they have been vaccinated.
As the Portland Press Herald reports, two of the state’s largest health care organizations, Northern Light Health and MaineHealth, are encouraging – but not mandating – vaccines for their workers. Similarly, the Chief Human Resource Officer at WEX has stated it is “highly unlikely” that WEX would require employees to be vaccinated, although it is committed to working with its employees and families to get access to the vaccine where possible. Central Maine Power, L.L. Bean, IDEXX, Hannaford Supermarkets, and Bangor Savings Bank all said they are “following developments but not ready to implement vaccination policies.”
What should you do?
Although you can require employees to receive the COVID-19 vaccines — should you? Overall, the businesses of Maine must address their own individual needs of the business and the employees. Maine businesses should consider what happens if an employee refuses to be vaccinated (without a medical or religious exemption). Is the vaccination a condition of employment? Are there reasonable ways to accommodate the employee? Can the employee work from home? Are the employees required to interact with the general public? Will the employee be eligible for leave? How will a mandatory vaccination policy impact employee morale? Ultimately, an employer must decide what is right for their specific operations and their employees. For more information on the benefits and risks of an employer mandatory vaccine policy, see here.
Overall, the increasing availability of the COVID-19 vaccines should not replace pre-existing COVID-19 safety protocols. Businesses should still adhere to mask-wearing and social distancing requirements, and industry-specific guidance.
Special thanks to Maine Law and MeRTEC, who compiled this information as part of their Maine Law Small Business COVID-19 Support Newsletter.
Please note that the information contained in this newsletter is for general informational purposes only, may not reflect the latest guidance (which continues to change rapidly) and should not be construed as legal advice. This response does not create any attorney-client relationship. For specific legal advice, your client should contact his or her attorney.