DES MOINES, Iowa — Can your boss make you get the COVID-19 vaccine?
That's one of the questions circulating on social media in Iowa this week, so Local 5 went straight to the experts to find out the protections for both employees and their employers.
Kay Oksvig is an employment attorney in Des Moines. She sat down over Zoom with Local 5's Stephanie Angleson to hammer out the details.
Q: Can employers require their employees to get the COVID-19 vaccine?
A: The short answer is "yes." There are exceptions, so we'll get into that, but the short answer is "yes." Employers can generally require their employees to get the vaccine.
Q: What sectors require certain vaccines and tests, like tuberculosis or flu vaccines?
A: So, usually, we're used to having the health care industry and health care employers require certain vaccinations or tests, but there are other industries that also require certain medical information or exams.
So, for example, people working with certain chemicals or people who work in jobs that require them to lift a lot might go through a medical exam. But vaccinations are a little different.
And a lot of us are used to having a flu shot clinic where our employer says, you know, "go to the breakroom between 6 and 10 and you'll get a free flu shot." Or if you go on your own, you'll get reimbursed.
So this is really a fairly new idea for most of us unless you're already in health care. The idea of being required to provide health care information to an employer or required to provide proof of a vaccination is a pretty new issue.
Q: What can happen if an employer does require it but an employee refuses to get a vaccine?
A: There are sources of information, and I encourage all of your viewers to research the vaccine, look at FDA fact sheets, talk to their health care providers.
But if they are in a situation where their employer is requiring the vaccine and the employee does not want to, there are a couple of exceptions under the law where they're not required to have the vaccine.
So those two main exceptions are number one: if the employee has a disability that would prevent them from being vaccinated. That's something that the likely knows already from working with their health care providers for other vaccinations or shots, but it's certainly something that people should talk to their health care providers about, and then if necessary, disclose to their employer.
Another exception would be if the employee has a sincerely held religious objection to receiving a vaccine. There are also exceptions and protections under the law for those employees.
But if the employee doesn't fall into either one of those categories, or even if they do, if the job still requires it, then it is possible that there could be some accommodations that the employer and the employee would need to discuss and agree upon that work for both the employee and the employer.
Or if there are no accommodations that can be made in that particular situation, it is possible that the employee could be placed on a leave of absence, which is often without pay, or in some circumstances, it's possible that the right answer would be ending employment for that particular individual.
For a lot of my clients, I'm not recommending, you know, that's not the first step. You know, for most industries, we're not looking at widespread availability of the vaccine for several months.
So, I know there's a lot of uncertainty, I empathize with people. There's a lot of worries this year about what tomorrow might look like, let alone next month or hopefully next year. But all that to say it's really important that your viewers talk, have the conversation with their employer, and understand that their employer might not have the answer right now, but that's okay. In time hopefully, we'll be able to work out solutions that work for everyone.
Q: Can an employer require COVID-19 testing?
Testing can be mandated in certain industries for example, if the job requires certain contact with patients or members of the public, or if the employee is exhibiting symptoms and wants to return to work and without some kind of quarantine period.
There are certainly occasions when testing can be required. And I expect we'll continue to see more change in that area, but there are exceptions there, too.
If the employee works remotely full time and expects to continue to work remotely full-time for several weeks or months, the employer cannot require a COVID-19 test in those situations.
Because under the law, the employee is not posing a direct threat to the employers, fellow employees, or their clients or members of the public. So there's some legal analysis there, but there are usually exceptions.
Q: Do you predict that we could see some more lawsuits in the coming months about this vaccine, especially as it pertains to the workplace?
I do. And I'm hopeful with my clients, we're counseling them to make sure that they're having the conversations that they're following the law.
For many employers, that may end up being a voluntary program just like flu shots for others, but from what we know from previous recessions or financial hardship times, of course, COVID unprecedented, but from what we're predicting, yes, there will be a spike in employment related litigation.