Legally Speaking: Arizona employees could be required to get virus vaccine
Major media outlets reported, and politicians confirmed, a vaccine for COVID-19 is in the final stages and will be released sooner than later. Two big drug companies, Pfizer and Moderna, are boasting a 90-95% effective rate after two doses. Now that we know it is coming, so have the questions. Who will get it, when will we get it and will it be required? The first two parts are for those with a higher pay grade than me to answer. It is the last question that I will attempt to shed some light on.
Arizona does not mandate vaccinations as a whole, not even for school-aged children. Parents can simply check a box and sign a form that gives them an exemption from any vaccination requirement if they object for medical reasons, deeply held religious beliefs or simply because they don’t want their child to get vaccinated.
At this time, public schools cannot mandate students to get the vaccine when it becomes available just like they cannot mandate other vaccinations. That being said, Arizona could pass a law requiring the vaccine, though I find that unlikely. A law such as that would result in lawsuits arguing violations of religious rights and maybe even the right to parent as you see fit.
Let’s turn this discussion to employers.
If you are an employer in Arizona you have had to deal with a lot of issues these past eight months. One more issue will be whether you mandate your employees get the vaccine. Your knee jerk reaction might be to say “absolutely! I want my workplace to be safe for myself, my employees and any customers.”
Or maybe your motivation isn’t moral but is instead financial and you don’t want to shut down and lose money if COVID finds a home at your workplace. Either way, you should have a plan in place so you are not caught off guard and provide certainty to your employees.
Unless there is a contract between the employer and employee that says otherwise, the employer can require the vaccine. The employer can go so far as to say they will fire the employee if they refuse to get it. This may seem heavy handed but there are benefits to doing this. Arguably the workplace would be safer, less employees would take sick time, production would increase and more money would be made. That being said, there are drawbacks and risks.
First, if an employee refuses, the employer would be in a position to stick to their word and fire the employee or change its stance. This would be unfortunate for many reasons including if the employee was valuable and/or had a family to support.
Second, the employee could simply refuse by attempting to use one of the above exemptions. They could even throw in the Americans With Disabilities Act. Worse case scenario, the employee could attempt to sue the employer for retaliation for refusal to take the vaccine. The employer may win but they would still have to spend money and time to deal with the suit.
Third, what if the employee has complications from the vaccine? This is not out of the realm of possibility since we do not know much about the vaccine and what its side effects will be. That could trigger workers compensation insurance and result in lost time at work and higher insurance rates.
Lastly, if you are an employer and thinking about requiring the vaccine, think about how that will affect your workplace and morale. Will it cause a division? Will it create animosity much like politics do? Although you can make it confidential who gets the vaccine and who has a reason not to, employees talk. Word will get out. Will it result in discrimination or harassment amongst the workers? That could be another lawsuit waiting to happen or a giant migraine at the least.
#LegallySpeaking, I suggest contacting your liability and workers compensation insurance carriers and determine what their requirements are. You may not have a say, the carriers might take the choice out of your hands.
Bottom line, just because you can doesn’t mean you should.
Instead of mandating, maybe think about “strongly encouraging” employees to get the vaccine. Perhaps use incentives – those who get the vaccine get a gift card, or a free lunch or some other benefit. It may also be a good idea to have a nurse practitioner come to the workplace to administer the vaccine at no cost to the employees (which means the employer pays for it). Make it easy and eliminate as many barriers and hurdles as possible.
We have all had a difficult time these past 8 months. Encouraging and supporting each other is a win – win for all. Get your workplace to be a team or a family. It will result in success emotional and financially and less legal troubles.