Kokua Line: Can a Hawaii employer require an employee to be vaccinated against COVID-19?

Question: Can a Hawaii employer require an employee to be vaccinated against COVID-19?

Answer: Yes, within limits, said Emily Marr, assistant general counsel for the Hawaii Employers Council, an association that provides human resources and labor relations services for its members.

“According to December 2020 guidance from the Equal Employment Opportunity Commission (EEOC), employers can require an employee to be vaccinated against COVID-19 so long as the employer reasonably accommodates those who cannot be vaccinated because of a disability or a sincerely-held religious belief. However, according to a recent survey conducted by the Hawaii Employers Council, local employers are far more likely to encourage the vaccine than to mandate it. Employers may consider issues such as whether they are a unionized employer, public policy concerns, and potential liability when deciding on a vaccine mandate. Every organization is unique; that’s why the Hawaii Employers Council encourages employers to consult with trusted legal counsel and their human resources team before making a decision,” Marr said in an email.

Numerous readers are asking about COVID-19 vaccination rules in the workplace. Marr answered the previous question and the following ones, for general informational purposes only.

Q: I am an employer who depends on face-to-face sales. Most of my employees cannot work remotely. Can I require only the employees who can’t work remotely to get vaccinated, or do I have to have a blanket rule for all employees, even if some of them work from home?

A: “The EEOC does not require employers to take a blanket approach to mandating the COVID-19 vaccine. In fact, a targeted and flexible policy is more likely to pass muster if challenged by an employee seeking a religious or disability accommodation. Ultimately, as with all policies, employers should ensure that their policies do not have a disparate impact on protected classes.”

Q: I thought employers couldn’t require COVID-19 vaccination because the vaccines are for emergency use. But I saw on the national news that that isn’t right. Please clarify.

A: The U.S. Food and Drug Administration granted emergency use authorization for the Pfizer, Moderna and Johnson & Johnson COVID-19 vaccines. The FDA hasn’t issued vaccine mandates, but the EEOC has authorized them, within limits. That’s the distinction.

“The Centers for Disease Control and Prevention (CDC) has explained that the EUA is not a basis for the FDA to mandate the COVID-19 vaccine. However, the EEOC’s guidance allows employers to mandate such vaccinations. As both the CDC and the EEOC caution, if an employer requires proof of COVID-19 vaccination, the employer cannot require employees to provide any medical information as part of the proof.”

Q: What if my boss tells me to get vaccinated and I refuse?

A: “If the employee refuses a COVID-19 vaccination based on a disability or a sincerely-held religious belief, the employer must provide a reasonable accommodation. The EEOC’s guidance has suggested that several reasonable accommodations are available to employers and that terminating the employee should be a last resort. If the employee refuses to be vaccinated on some other ground, their refusal is not protected by the EEOC. However, an employee can try mediating their dispute with their employer, either formally or informally. Failing that, at least one employee has filed a federal lawsuit. In Legaretta v. Macias, an employee filed a federal lawsuit claiming that an employer’s vaccination mandate is illegal because COVID-19 vaccines are currently authorized only under the Food & Drug Administration’s (FDA) emergency use authorization (EUA) powers. The Court in Legaretta refused to grant the employee a temporary restraining order because the employee had not yet been disciplined or terminated for refusing to take the vaccine.”

HEC members can find more information about vaccine policies and reopening workplaces safely on the organization’s website, www.hecouncil.org.

Write to Kokua Line at Honolulu Star-Advertiser, 7 Waterfront Plaza, Suite 210, 500 Ala Moana Blvd., Honolulu 96813; call 529-4773; fax 529-4750; or email kokualine@staradvertiser.com.