With the Pandemic Still Rolling, and Flu Season Beginning, Can Employers Mandate Vaccines?

With forewarning of a new “spike” in coronavirus cases in Minnesota and the rest of the U.S. this winter, and the complication of the regular flu added to the mix, employers are faced with the possibility of losing many of their employees, and business, to flu-related illnesses for a prolonged period of time.  With that in mind, many employers are considering what steps they can take to keep their employees, clients, and businesses safe, if and when vaccines for the coronavirus become available.  Many healthcare providers have been requiring their employees to receive all normal vaccines in effort to keep patients safe, but what about other businesses?

While no Minnesota state courts have issued a decision specific to the flu vaccine, there is a decision from the federal courts that discusses mandatory vaccines and how Minnesota human rights law applies to those vaccines.  In Husvet v. Allina Health System, an employee sued her employer after the employer required the employee to get an MMR vaccine.  When the employee refused to get the MMR vaccine, the employer deemed her to have voluntarily resigned from employment.  She sued under both the ADA and MHRA, claiming that the forced vaccine violated Minnesota’s prohibition on physical examinations.  The Court of Appeals denied the claim on summary judgment, stating that the requirement of a vaccine constituted a bona fide occupational qualification.

In the Eighth Circuit decision, the court found that under Minnesota law, where public safety is involved, an employer who attempts to rely on the bona fide occupational qualification (such as vaccination) must  establish “there is a rational basis in fact to believe that elimination of the bona fide qualification would increase the likelihood of risk of harm to the employer’s clients.”  It held, therefore, the requirement of a vaccine did not violate the Minnesota Human Rights Act’s prohibition on employee physical examinations.

With that, it is an acceptable practice in Minnesota for employers to require that employees receive a vaccine if it will decrease the likelihood of risk of harm to the employer’s clients.  However, all employers are not treated equally.  What may be considered a bona fide occupational qualification at a hospital may not carry over to someone working in a less-customer facing profession.  It is also yet to be determined whether this opinion will carry over to other, possibly less-intrusive medical procedures aimed at reducing the spread of disease.  It is best to get the opinion of your legal representatives on whether you may require your employees to be vaccinated.

Furthermore, the EEOC has stated that employees may be exempt from vaccine requirements due to either religious or disability restrictions, and employers must be open to accommodating employees who have such limitations through an interactive process.  With that being said, the mere fact that someone is “anti-vaxx” counts as neither a religious belief nor a disability.

As time goes by, the likelihood of a viable Covid-19 vaccine being available for public consumption grows greater and greater (eventually).  Employers need to be prepared for when that time comes.  If you, or your organization need guidance for working with employees after vaccines come available, contact the Wiley Law Office, for advice that works.