As COVID-19 vaccines become more widely available to workers across the state, Florida employers are planning for thousands of people to start heading back to the workplace.
But the process is easier said than done. Many employers are hoping to get their workers inoculated. In turn, they face an array of legal considerations.
We reached out to four experts in the labor and employment field to assess key legal questions for navigating the vaccine landscape. They are attorney Nathan Adams of Holland & Knight; attorney Donna Ballman of Donna M. Ballman P.A.; attorney Joe Santoro of Gunster; and Jay Starkman, founder and CEO of the Miami-based human resources firm Engage PEO.
Here’s what they see happening.
Can an employer force an employee to get vaccinated as a condition for returning to the office? What is the trend now?
Donna Ballman: Yes, employers can force employees to be vaccinated, with exceptions. Some exceptions that come to mind are religious, disability and pregnancy.
Jay Starkman: The trend today continues to be a very small percent — 5 percent to 10 percent of the companies — that are actually mandating that their employees get vaccine.
Joe Santoro: You have to demonstrate it’s needed. For the most part, most people are of the opinion that because of the direct threat created by COVID, most employers can establish a policy of vaccination provided they can demonstrate it’s needed.
Some workplaces fear legal challenges if they were to require vaccinations. What is the consensus on the legal concerns?
Nathan Adams: I don’t know there is yet a consensus. I was surprised by the Biden administration when they came out against the public vaccine passport. Whether this administration is going to take a different turn on mandatory vaccinations — that’s important — which is the reason a lot of private-sector employers are in limbo right now. What is the administration going to say? A lot of industries are in a situation where they are planning. You have to begin somewhere. I’m sure all of their attorneys are sharing with them the state of the law.
Can a worker be fired for refusing to get vaccinated?
Donna Ballman: Yes, employees can be terminated for refusing to vaccinate, unless they fall within a legal exception. If they do fall within an exception, then the issue will be whether there is a hardship on the employer. If the employer can prove there is a hardship, they may still be able to terminate, even with an exception.
Jay Starkman: If it is not a refusal where [the employees] are taking steps to show a religious belief or a bona fide medical reason, then the answer is yes, as long as the policy is uniformly enforced.
Can businesses refuse to consider hiring candidates who haven’t gotten vaccinated?
Donna Ballman: Employers aren’t going to be allowed to ask employees if they are vaccinated during the interview process. What I think will happen is the employers will be able to make a conditional offer of employment, and then the employee will have to disclose whether or not they were vaccinated, and whether or not there is an exception.
Joe Santoro: There is going to be a lot of litigation on this issue. There is always going to be a middle ground. Then you have somebody who comes to you and says, “I have cancer or pulmonary disease.” Well, you just can’t fire them. You can accommodate that person by letting them work from home, or with physical barriers or alternative shifts so they’ll be able do their job with less contact with the public.
Nathan Adams: Disability-related inquiries and medical exams are generally prohibited. They are permitted between the time of the offer and when the person starts work. The EEOC states an employer may screen applicants … after a conditional job offer as long it does so for all employees in the same job type.