Ask The Lawyer By: Daniel A. Gwinn, Esq. – Can Boss Mandate Vaccines?
BOSS JUMPS THE GUN ON FEDERAL LAW, MANDATES VACCINES NOW
QUESTION: My boss announced this week that, effective November 30, all employees must have received at least one dose of the Covid-19 vaccination, and must be completely vaccinated by December 15. I understood that under the new federal law mandating vaccines, employees like me would have a couple of months to get this done. Can he do this?
ANSWER: The federal law — 500 pages of new OSHA regulations — requires all companies with at least 100 employees to ensure their workers are fully vaccinated against Covid-19— or undergo weekly Covid-19 tests and wear masks — by January 4, 2022. Healthcare workers and government contractors must abide by different rules.
That date may change: on November 6, a panel of the federal appeals court in Louisiana issued a stay, while it considers a claim from a coalition of businesses, religious groups and several states, that the law is unconstitutional.
But whatever the outcome of the federal case, there’s nothing to prevent employers from beating the OSHA deadline. And many, including Tyson Foods and United Airlines, have already done so. (United’s mandate is currently on hold while a court decides whether it impinged on the rights of people claiming religious or medical exemptions.)
Your boss is within his rights to require the vaccine. But, if he doesn’t allow an exemption from the requirement for medical or bona fide religious reasons, he could be in trouble under the Americans with Disabilities Act or Title VII of the Civil Right Act of 1964.
In addition to medical or religious exemptions, the OSHA rule allows people who just don’t want the shot to skip it, but at a price. Unvaccinated workers would be required to be masked at work and take a Covid-19 test, at their own expense, every week. In contrast, the vaccines are free. The OSHA rule also requires employers to give workers up to four hours paid time off to get the vaccine, and paid sick time to recover from any side effects.
The OSHA rule allows employees to pick their vaccine — either two doses of the Pfizer/BioNTech or Moderna vaccines, or one shot of the Johnson & Johnson vaccine will do the trick.
Before the OSHA rule goes into effect, employers who mandate vaccines do not have to pay workers for time to get the jab, or recuperation time (although it would be wise to do so).
Assuming at least 100 people are employed where you work — even if they are spread across different sites — the new OSHA regulations will require unvaccinated workers to wear masks, beginning December 5. Remote workers, for obvious reasons, would not be subject to the new requirements, unless they come into the office from time to time.
Whether or not the new rules apply to you, if your employer requires vaccination, and you refuse without good reason, you can be disciplined, or even discharged. If you’re fired for refusing to get the shot — or if you’d rather quit than submit — you will most likely be ineligible for unemployment.
The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0311 facsimile