Can your orchestra or bandleader require you to get a Covid vaccine shot?

It is extremely exciting and welcome news to hear that Covid vaccinations are now being made available publicly. This development is a tribute to the fortitude and ingenuity of the world’s scientific community. The speed by which these vaccines have been created and tested is one of the most remarkable achievements in modern history. Undoubtedly the vaccine will hasten the return of live music to performance venues.

Nonetheless, as might be expected, the advent of the vaccine has created a host of legal issues. In the employment arena, the primary concern that has arisen is whether an employer — especially a music employer — may require vaccination as a condition of continued employment. This issue has arisen in several negotiations in which I am involved. There is no simple answer to this question and there is no precedent that we can look to for the answer. Nonetheless, the Equal Employment Opportunity Commission and statutes such as the Americans with Disabilities Act have supplied some guidance in other contexts that may assist in navigating this challenging issue.

In 2009, the EEOC issued a technical assistance guidance memorandum during the outbreak of the swine flu (H1N1 virus) to provide recommendations to employers and employees how to deal with workplace issues created by that virus. This memorandum was updated in March 2020 to incorporate recommendations specific to Covid. The updated memorandum verified that Covid met the ADA’s “direct threat” standard.

Under the ADA, a direct threat is considered to be “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. Sect. 1630.2(r). Thus, the ADA’s requirement that an employer must provide a reasonable accommodation to employees with disabilities who can perform the essential functions of their job does not apply to this illness. An employer may prohibit employees who have contracted Covid from working, without any obligation to accommodate them.

Furthermore, because of the direct threat posed by Covid, employers may require workers to engage in safety practices such as wearing face masks and requiring them to undergo body temperature checks, so long as the results of those scans are kept confidential. To the extent that work can be successfully performed remotely, the memorandum indicated that employers should encourage remote employment as a means of controlling the spread of the virus.

The memorandum uses the flu shot as a parallel example. The memo says that an employer may not require all of its employees to take the seasonal flu vaccine as a condition of continued employed employment and that employees may be entitled to an exemption from any mandatory vaccination requirement. The same rationale applies to the Covid vaccination, as noted by a new EEOC guidance memo issued Dec. 16, 2020.

We could assume that an employee may not be compelled to take the Covid vaccine if they suffer from an ADA-covered medical condition that might be exacerbated by the vaccine. This exemption would constitute a reasonable accommodation for someone suffering from a non-Covid illness. For instance, if an individual suffers from a medical condition that could be made worse by the components of the Covid vaccine, that employee cannot be forced to take the vaccine. Also, arguably, an employee with an ADA-covered anxiety condition that might be made worse by their being forced to vaccinate may not be compelled to do so.

An exemption also exists under the religious accommodations provision of Title VII of the Civil Rights Act of 1964 for employees with a bona fide religious objection to taking the vaccination. An employee may be exempted from taking the shot if doing so would violate her or his sincerely held religious beliefs, practices, or observances. Reasonable accommodations are required under both the ADA and Title VII statutes, and employers are duty-bound to honor such requests so long as they do not pose an undue hardship.

While there is no federal law barring an employer from requiring employees to be vaccinated, the EEOC does require employers to demonstrate that barring unvaccinated employees from employment is necessary to prevent a direct threat or that an unvaccinated employee continued employment poses a significant risk of substantial harm to the health and safety of the individual or others that cannot be reduced or modified by other means.

As a factual issue, in most employment contexts, the more employees who take the vaccine voluntarily, the less the direct threat that an unvaccinated employee would pose. Of course, this may not hold true for certain professions such as those employed as health care workers, but it may certainly be applicable to musicians.

For employers contemplating mandatory vaccination requirements, they would have to demonstrate that a sizable number of employees would not take the vaccine voluntarily or that unvaccinated employees would be at greater risk of contracting the illness then they would without the requirement. One way for employers to address this issue without forcing employees to vaccinate is to require unvaccinated employees to quarantine and undergo frequent testing to minimize the risk of exposure. Employers should also examine state laws and regulations as well as CDC guidelines for further direction.

Finally, employers who have collective bargaining agreements and an ongoing bargaining relationship must negotiate over mandatory vaccinations. Implementation without negotiation would be grounds for an unfair labor practice charge.

The fact that an employer is legal permitted to require vaccination does not mean that it should. Employers who require mandatory vaccination must realize that they are placing themselves at considerable risk, since an employee might develop unforeseen complications from the vaccine. This might increase employer’s exposure to liability, which may not be subject to worker’s comp limitations. A better practice is one suggested by the EEOC with respect to the flu vaccination: employees should be encouraged to take the vaccination but not be required to do so. Many employees would welcome such encouragement and take the vaccine voluntarily. Likewise, employers would thereby minimize their risk of liability that might arise if vaccination were made a condition of employment.