Can the boss require workers to get a COVID-19 vaccine? There are rules in Florida
More businesses, including some in Florida, are requiring employees to get vaccinated against COVID-19 as concerns over the more contagious delta variant continues to grow.
While COVID-19 vaccines are optional, the federal government has said employers have the right to require workers who will physically be in the workplace to get vaccinated, even while the shots are still under emergency-use authorization.
Accommodations must still be made for people who cannot get the vaccine because of a disability or a religious belief, practice, or observance.
Disney has recently joined a growing list of companies that have announced employee vaccination requirements. Some Miami restaurants have an employee vaccine mandate, too, and so does Holy Cross Hospital in Fort Lauderdale, the University of Miami and Nova Southeastern University.
Federal employees and contractors were recently told to get vaccinated or comply with new rules, including weekly testing. Miami-Dade County government, Jackson Health System and the city of Delray Beach issued similar rules this month.
But what about Florida’s ban on vaccine passports?
The order prohibits businesses and government entities from requiring customers — or in the case of schools, students — to show proof of vaccination to get service. Businesses are still allowed to mandate vaccines for employees. That’s subject to bargaining for unionized workers.
So what exactly should you expect if your job starts mandating vaccines?
We spoke with four experts to find out:
▪ Porpoise Evans, partner in the Labor & Employment and Litigation division of Weiss Serota Helfman Cole & Bierman in Coral Gables. Evans is co-chair of the Dade County Bar Association’s Labor & Employment Law Committee.
▪ Zascha Abbott, partner at Lewis Brisbois in Fort Lauderdale. Abbott is co-chair of the Dade County Bar Association’s Labor & Employment Law Committee.
▪ Suhaill Morales, shareholder of Allen Norton & Blue in Coral Gables who specializes in labor and employment law.
▪ Glenn Cohen, deputy dean and James A. Attwood and Leslie Williams professor of law at Harvard Law School. Cohen is also director of the university’s Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics and is an expert on health law and the intersection of bioethics and the law.
Here’s what we learned:
Can businesses require employees to get the COVID-19 vaccine in Florida?
Yes. The federal government says it’s OK. Florida Gov. Ron DeSantis has also said businesses have a right to impose a vaccine requirement for employees, as the Miami Herald has previously reported.
However, lawsuits challenging work vaccine mandates have been filed in the U.S. One of the most noticeable cases so far: 117 Houston Methodist Hospital employees in Texas filed a lawsuit against the hospital’s work vaccine mandate. A federal court dismissed the suit in June. The suit is under appeal.
My job is requiring COVID vaccination. Can I get a disability or religious exemption? Do I need to show proof?
All four experts told us that while employers have the right to require vaccinations, accommodations must be made for people who cannot get the vaccine due to a disability or a “sincerely held religious belief, practice, or observance.”
However, the accommodation cannot cause an “undue hardship” on the employer. What counts as an undue hardship can vary by business and could be on a case-by-case basis. It will also depend on whether the accommodation is for a disability (including pregnancy-related conditions) or for religion, according to the U.S. Equal Employment Opportunity Commission.
“Do you have to radically reconfigure the job to make this work? Or are there ways of just adjusting the job slightly in order to make it work? That’s kind of the spectrum of what we’re talking about,” Cohen said.
Examples of reasonable accommodations, according to the EEOC, include requiring unvaccinated employees to wear a mask, having them social distance from coworkers and customers, requiring them to get periodically tested for COVID-19, and giving them a staggered shift, telework or reassignment.
“In other words, if they can’t do their job at all, even from home, then that would be an undue hardship under the circumstances,” Abbott said.
For a disability-related accommodation, the employer can ask for some documentation, like a doctor’s note, but not detailed medical records. The EEOC has detailed guidance on how the process should work online.
If it’s a religious accommodation, the employer generally has to trust the worker’s word. However, if the employer is “aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information,” the EEOC says.
Other things to know: It’s against the law for an employer to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation.
Can I apply for unemployment if I get fired for not getting the vaccine? What if I quit?
Your non-unionized workplace now has a policy requiring COVID-19 vaccines but you don’t want the vaccine and don’t qualify for an exemption. If this happens, your boss could try to accommodate you. Employers also have the right to fire you for failing to comply with the company’s policy, Morales said.
For termination to be on the table, employees would have to know about the mandate and it would have to be applied to everyone equally, she said. And while you can apply for remployment assistance (formerly known as unemployment), there’s a chance you won’t qualify due to breaking the company’s policy, Morales said.
The Florida Department of Economic Opportunity says people can be eligible for assistance “if they lost their job through no fault of their own, and they did not quit their job for personal reasons.” The department has eligibility requirements listed online.
When asked about what category vaccine refusal would fall under, a spokesman said assistance eligibility, in any situation, is determined on a case-by-case basis because it depends on what led up to the termination.
Now, you might ask: What if I quit before I’m fired?
Again, you can apply, but you might not get it. In Florida, people who voluntarily resign usually aren’t eligible for benefits.
Can companies offer incentives instead of requiring vaccinations?
Just like how businesses are offering perks to attract new help, employers can also offer incentives to get people vaccinated. It’s similar to how some vaccine pop-ups have offered free cocktails, pizza and or a chance to get free tickets to see The Weeknd, Maluma, Bad Bunny or the Miami Heat.
What sort of incentives can employers give?
It’s a common question Evans said he’s getting from clients who are torn between requiring or strongly urging vaccinations.
Cash bonuses, gift cards and extra time off are all incentives employers can offer workers who get vaccinated, he said. However, businesses need to make sure the incentives aren’t so tempting that it could be seen as coercion or that they’re putting too much pressure on employees to get it.
Cohen said employers can also issue a “soft mandate,” which gives workers two options: Get vaccinated or have additional restrictions, such as weekly testing.
This story was originally published August 7, 2021 at 6:00 AM.
