Q: I work for a small professional services firm. Most of us have been working remotely but rotating through the office, based on a schedule. Now with more and more people receiving the vaccine, I am feeling more pressure to return to the workplace. Our CEO is beginning to talk about it and he says he is “targeting the spring” but wants to assess the vaccine rollout. I have two questions for you. One, can anyone make me take the vaccine? I am not sure I want to take it. My CEO is very bullish saying we should all get it ASAP. And, two, can they require me to return to the workplace? I feel like I am more productive working from home.
A: Many of us are looking forward to healthier days ahead. I know many of our clients are eager to return to some type of normalcy.
I consulted Attorney Peter J. Moser, one of the founding partners of Hirsch Roberts Weinstein LLP, a boutique management-side labor, employment and litigation law firm, headquartered in Boston. Moser shared “Most employment lawyers agree, based in part on recent EEOC guidance, that private employers can indeed mandate COVID vaccination if they wish. However, few employers have so far chosen to do so. Reasons include the current Emergency Use Authorization status of available vaccines, limited availability of the vaccine, a perceived risk of legal exposure, a fear that mandating vaccination might actually sow distrust and reduce employee willingness to receive the vaccine, and a fear of losing a significant percentage of the workforce.” Mandates are different than a recommendation though. We have many clients who are suggesting, encouraging and recommending that their employees receive the vaccine.
Many employers are hoping that employees return to the workplace. Most of our clients have been incredibly flexible with employees. However, there is an expectation that most employers will begin asking employees to return to the workplace. At this writing, many employers still must abide by the Commonwealth of Massachusetts capacity and gathering limits. Moser offered this input on the topic: “Employers generally have the right to require on-site attendance (subject to state and local reopening restrictions). An exception, however, may exist if the worker requires remote work as an accommodation for disability or pregnancy, or perhaps as an accommodation due to a religious objection to vaccination. In these situations, an employer has the legal obligation to discuss accommodation options with the requesting employee, and ultimately to provide a ‘reasonable accommodation’. Still, an employer is not obligated to provide the particular accommodation requested, is not obligated to eliminate an essential job function, and is not obligated to provide an accommodation if it would pose an undue hardship. The analysis is highly fact specific. The EEOC did recently note that an employee who requests remote work as an accommodation might have a stronger argument for ‘reasonableness’ and for the viability of remote work if the employee already has been successfully working remotely during the pandemic.”
If you are requesting an accommodation, approach the dialogue with an open mind. Sometimes there is a bit of “give and take” during these discussions. Accommodations should also be re-evaluated periodically. Changing business needs and this prolonged pandemic have impacted many accommodations.