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Attorney David Di Pietro| |Employer Defense Healthcare Law

As COVID vaccines become readily available, employment requirements surrounding vaccines are still a big unknown. As of now, vaccine mandates have not been tested in Florida Courts. The Equal Employment Opportunity commission (EEOC) has said an employer has the right to mandate employees to receive the vaccine, subject to The Americans with Disabilities Act (ADA) and Religious Exemptions. Employers must make reasonable accommodations for people unable to get the vaccine due to health conditions or religious beliefs. However, this does not take into consideration Florida State laws.

Florida Governor Ron DeSantis has issued an order against vaccine mandates, although not specifically including employer/employee mandates in the language. He has been quoted saying employer mandates would not be tolerated in Florida. However, there is no set law yet.

The ADA, which generally applies to employers with 15 or more employees, allows employers to impose safety-based qualification standards for employees, such as a vaccination requirement, as long as the standard doesn’t tend to exclude an individual with a disability. If an employer is going to exclude an individual based on failure to become vaccinated, the employer must first show that an unvaccinated employee would pose a direct threat to the workplace due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r)1. Posing a direct threat does not allow an employer to just exclude the individual from the workplace — efforts for reasonable accommodations, such as working remote, using FMLA or time off provided for in employee policies should be evaluated next.

As the age old adage goes, “Just because you can, doesn’t mean you should.” Employers who are considering implementing mandatory vaccinations programs should consider 1) whether they really need to; 2) how they can implement and enforce the program in compliance with other prevailing legal standards – including state laws and other EEOC laws; 3) potential risks and liability that may arise; 4) are there other voluntary, incentive based approaches that can be used more effectively.

Employers will need to develop a plan to announce the vaccination program, determine how they will enforce the program and ensure it is implemented consistently, while observing other restrictions related to requesting protected health information from employees. For example, while an employer can ask whether an employee was vaccinated, they are still prohibited from asking questions that may elicit other medical information, such as why the employee chose not to get vaccinated. Additionally, if an accommodation is made for an employee related to their decision to not become vaccinated, employers are still bound by other applicable requirements that prevent them from disclosing to others that an accommodation has been made. Now, if an employee can not get vaccinated for COVID -19 due to disability or religious beliefs, and no reasonable accommodation can be made, it may be lawful to terminate the employee, however, the Employer should consult an attorney to make sure other rights under EEOC, state or federal laws apply.

Alternatively, employers can offer incentives for employees who voluntarily choose to become vaccinated, such as additional PTO time, flexible work from home schedules or other financial incentives. It is equally important to ensure the policies are clearly written out and circulated to employees.

If an employer is looking to impose a vaccination program— whether it’s mandatory or not—, they should contact an attorney to assess their specific company’s circumstances, potential risk factors and best options from a safety, time and money standpoint. This process should allow for a clear plan that can be implemented consistently and in alignment with current regulations and mandates, which are constantly evolving on these novel issues.

1 https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
Employers can see the EEOC’s factors for determining if someone is a direct threat in their recently updated Q&A.

About The Author
Nicole Martell is a Fort Lauderdale, Florida-based civil litigation attorney as well as a mediator.This article was produced by Nicole Martell an experienced Florida trial attorney who specializes in several practice areas including healthcare law and employer defense. Nicole is highly experienced in these areas and can assist any healthcare professional or employer with ensuring their company abides by the latest federal and state guidelines in regards to vaccination or other regulatory requirements.

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