As the coronavirus vaccine raises hopes that the COVID-19 pandemic can be defeated in the coming months, some workers in Maine may be wondering if their employer will be able to require them to be vaccinated as a condition of employment.
The answer appears to be: probably.
New guidance from the federal Equal Employment Opportunity Commission (EEOC) aims to identify the degree to which employers can require workers to get the COVID-19 vaccine and what exceptions are permissible.
“There is nothing in Maine or federal law that expressly prevents employers from requiring employees to be vaccinated as a condition of employment,” Jim Erwin, a Portland-based attorney who is a partner leading Pierce Atwood’s Employment Group, told The Center Square by email. “However, the ability to require vaccination is subject to the employer’s duties under anti-discrimination laws and OHSA.”
If an employee is working from home or otherwise isolated from other people, then the risk of COVID-19 transmission is no longer a direct threat, and the employer must accommodate the employee, Erwin said. But if they’re coming into contact with the public, the employer likely wouldn’t have to make such an accommodation.
The EEOC guidelines could still change depending on how the COVID-19 virus threat changes, Erwin said.
“For example, there is no finding by the EEOC that the ordinary flu is a direct threat, so there is a greater duty to accommodate medical and religious objections to the flu vaccine,” Erwin said. “Also, if and when employers decide to allow fewer employees to work from home, we may see more conflict around this issue.”
It’s key for workers to know that employers may be able to terminate employment if you work around other people and refuse a vaccination, Erwin said, and for employers, it’s important to recognize that while you can require employees to be vaccinated, there are good reasons to consider how necessary such a policy is.
“Your type of business, your workplace culture and how well your employees are complying with your infectious disease prevention rules (distancing, handwashing, mask wearing, etc.) are important factors in deciding whether you really need to make vaccinations mandatory,” Erwin said. “A healthcare facility, a food service business, or manufacturing facility where people are in close contact and are hands on might lead to a different decision from an office environment.”
Meanwhile, although the state recently approved additional groups to receive the vaccine, more clarification is needed, Greg Dugal, director of government affairs with HospitalityMaine, told The Center Square by email.
“We would really like to hear from the Maine [Center for Disease Control] that hospitality workers are on the list of employees that can be vaccinated in phase 1B, right alongside or after grocery workers,” Dugal said. “It is critical that we know where we stand on the list of when we would get the vaccine so that restaurant and lodging employers that have been receiving guests all along can protect their forward-facing employees.”
It’s important for employees to know a vaccine awaits them shortly due to the critical nature of their work, Dugal said.
“They are, after all, one of the only group of workers that have to face unmasked customers in their work space as the patrons consume their food,” Dugal said. “[Employers] would love to have their employees vaccinated, if they so desire, ASAP.”
Beyond vaccines, employers can advocate for additional protections amid the pandemic.
“The Legislature should pass some kind of Covid liability immunity bill that acknowledges businesses for taking care of their employees and customers throughout this pandemic and helps to minimize their risk if they follow all required protocols,” Dugal said. “This would provide them with some certainty in a very uncertain world both personally and professionally. Hospitality businesses have suffered more than any other industry throughout this pandemic and it is nowhere near over.”
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