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Employers have many questions to weigh when it comes to requiring vaccination

Erik Eisenmann is a partner in Husch Blackwell’s Milwaukee office and chair of the firm’s Labor & Employment Practice Group

Erik Eisenmann is a partner in Husch Blackwell’s Milwaukee office and chair of the firm’s Labor & Employment Practice Group

By Erik Eisenmann

The vaccine. For what has felt like the longest year of our lives, we have held out hope for a return to “normal.”

That hope hinged on the development, approval and distribution of a safe and effective COVID-19 vaccine, as well as the eligibility for it and access to it.

As we waited, we hemmed and hawed over hypotheticals: Should I get the vaccine? Will it be safe? Will I be able to stop wearing a mask? With the welcomed news that all Wisconsinites over the age of 16 are now eligible for a COVID-19 vaccine, these questions are no longer hypotheticals.

As employers throughout the state consider reduced COVID-19 caseloads, many are planning to reopen their offices in the coming weeks and months. Quite a few are aiming for a post-July 4 reopening. Talk about a celebration of freedom!

I gratefully made the choice to receive my COVID-19 shot as soon as I possibly could. Now, that choice is at the center of a debate taking place around virtual boardroom tables across the state and has even made its way to the floor of the Wisconsin State Capitol.

The question I most often receive from employers is: “Can I require my employees to get the COVID-19 vaccine?”

The bottom line is – to use an incredibly overused phrase – this is all very unprecedented. The closest recent basis for comparison is the flu shot. There is a body of case law in health care on the issue of employers’ flu-vaccine mandates. In virtually all instances, the conclusion has been that – except in certain instances, such as when bona fide medical or religious reasons are present – employers can mandate the flu shot.

And we have seen employers in the medical and healthcare fields do just that. I believe the Equal Employment Opportunity Commission and courts will take a similar approach to the COVID vaccine, and that an employer’s ability to mandate a COVID-19 vaccine will remain legal – even outside the healthcare industry – subject to the exceptions noted above.

Although the first question employers usually ask is about the legality of a COVID-19 mandate, it’s often followed up by a question that I think is even more important: “Should I require the COVID-19 vaccine?”

In the case of COVID-19 vaccine mandates, my guidance to clients throughout the state can be summarized as: Just because you can, doesn’t necessarily mean you should. Currently, employers have the legal right to require employees to be vaccinated before they come back to work offices. We have seen legislation across the country, including here in Wisconsin, that would give an employee the right to refuse a vaccine. But I believe it’s unlikely that it will be signed into law. What’s more, I’ll say that, apart from some outliers, I think it will largely be unnecessary.

I fully recognize that today, there are some people who are hesitant to get the vaccine. However, before long, I believe that hesitancy will have serious consequences for day-to-day activities. I think in the not-too-distant future, many of these people will see the need to prove their vaccination status in order to get on a plane for their summer vacation, sit in the stands at an arena or stadium or take in a concert. That very well may provide enough motivation to induce them to roll up their sleeves.

Although employers want to ensure that their greatest assets, their employees, are protected, many are understandably hesitant to put a mandate in place. For this reason, my advice to most employers for now is to consider every possible alternative to a vaccine mandate. Employers can and should remove friction points for receiving a vaccine and explore ways to increase participation. That may look like paid time off to receive the shots, onsite vaccination options, or incentives for employees, including gift cards, extra days off, or bonus pay.

We are all learning as we go when it comes to returning to work – learning about what I hope will prove to be the “post pandemic” phase of our COVID-19 journey. The question about “individual rights” has been top of mind throughout the pandemic, and I expect it will remain a central issue that is likely to lead to litigation on the issue of vaccine mandates. We will watch these cases, as well as EEOC guidelines, state legislation and federal guidance closely and will undoubtedly be guided by them.

In the meantime, here’s to hope reignited throughout our state and nation, and the opportunity to log off, sign out and be together in person someday soon.

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