It seems like a simple enough question. But when we asked Clayton Wire, partner at Ogborn Mihm, LLP, a trial law firm with a Denver presence, that question, there was a pause. A long pause.
“There are arguments that they can,” Wire says, “but I think there’s a difference between, ‘Can you?’ and ‘Should you?’….It’s a sticky issue.”
Here’s where we at DiningOut insert a big ol’ disclaimer: You should consult an attorney if you have questions about this. We’re not legal experts (some days, we still use spellcheck to tell us there’s no “n” in “restaurateur”—forget about “habeas corpus”).
Wire explained that employers are generally allowed to dictate the policies of the workplace. And by requiring employees to have an immunized status, they aren’t discriminating against employees on the basis of anything that is legally considered a protected status, such as age, race, or gender. The problem, he states, is in making exceptions.
Federal laws (Wire cites the Americans with Disabilities Act as well as Title VII of the Civil Rights Act) already prohibit discrimination on the grounds of disability and religion (among other things). “You can’t force people who have a medical reason [not to take the vaccine] to take it,” says Wire. “You have to make accommodations for that.”
“This is a question that’s been asked a lot lately, and i haven’t seen any clear answers.”Clayton Wire, Ogborn Mihm, LLP
Title VII bars religious discrimination. “Similar to a disability, someone could ask for an accommodation,” Wire states. He points out that the Equal Employment Opportunity Commission (EEOC) has clearly answered “yes” to the question of whether employers can take workers’ temperatures and ask if they’re experiencing symptoms, but it hasn’t given a concrete answer on the question of requiring vaccines for workers. “Unfortunately, it’s not simple,” Wire concludes. (Find out more in excruciating detail on the EEOC’s website. Wire also points to a March 18 blog post on law firm Holland & Hart, LLP’s website.)
We asked Wire whether there were legal ways to encourage employees to get vaccinated. “There certainly could be,” he responded, “but what do you do when you’re providing a form of compensation but that compensation isn’t available to people because of their religion or disability? You run into the same issues.”
We also inquired whether an employer could be penalized for discouraging workers from getting the vaccine. Wire stated he wasn’t aware of any legal requirement for employers to provide time off to allow employees to be vaccinated, but notes that Colorado has laws on the books that prevent an employer from retaliating against a worker for engaging in any lawful conduct off duty. In addition, 2020’s Public Health Emergency Whistleblower Act makes it illegal for employers to retaliate against workers who choose to wear additional PPE or raise certain workplace safety concerns.
Wire also points to the administrative burden of ensuring staff is fully vaccinated as well as keeping track of that information. “From a business owner’s perspective, I’m not sure [requiring vaccinations] is ever going to make sense.” He also points to potential employee liability: “What if you say everyone is vaccinated, but they’re not? It seems to be full of problems to me.”
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