Can Oklahoma employers mandate COVID-19 immunization for employees?

Will you and I be required to be immunized against COVID-19 before we can return to our jobs for real or start a new one?

Adam W. Childers, co-chair of Crowe & Dunlevy’s Oklahoma City Labor & Employment Practice Group, answers that question with a qualified yes.

Childers, who also works as an administrative law judge at the Oklahoma Department of Labor, bases that supposition on positions taken by federal authorities during the first few months of the pandemic’s U.S. outbreak.

Then, they supported employers’ decisions to require their employees to submit to temperature checks before performing on-site jobs.

“There hasn’t been this kind of emphasis on the need for a vaccination at work since polio,” said Childers, who represents client employers on various types of labor-related legal issues.

“I am beginning to get questions from clients who are anticipating this is the next hot-button issue that will come out of this pandemic. They are all looking around the corner and seeing that issue as one of the big battles for 2021.”

Arguments for and against

An employer or employees opposed to requiring vaccinations likely would base their legal arguments on the Americans with Disabilities Act, Childers said, which bars employers from conducting medical-related inquiries or requiring medical tests on their workers as a condition of employment.

However, the act allows those types of activities if employees could bring something into work that would pose a direct threat to themselves, co-workers or customers.

That language, which Childers referred to as the “direct threat standard,” is what the Equal Employment Opportunity Commission used to support its decision to allow the employee-required temperature checks early on during the pandemic.

“I think the EEOC will look at it similarly, when it comes to vaccinations," Childers said. "If it was a significant threat back in March, April and May when these temperature checks were getting rolled out, you could make the argument now that COVID-19 remains a substantial threat as we are in the midst of a surge upon a surge.”

Plus, certain industries such as health care providers already require potential employees to take tuberculosis tests or to have certain vaccinations to protect coworkers and customers they serve from potential illnesses as a condition for employment.

Childers believes there will be some people who object to a vaccine requirement based upon religious or medical concerns. People who have a legitimate safety concern about the vaccine could also object to such a requirement.

“That’s a valid issue," he said. "While the efficacy rates appear to be extremely high, longer-term impacts from vaccinations won’t be known for quite some time.

"The Occupational, Safety and Health Administration has sided with employees in the past who have declined to take a vaccine based on a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death," Childers said. "That seems to indicate that you could be protected if you have a sincere belief the vaccine could put you in danger.”

Pulling the trigger

Employers are already asking when it might be appropriate to require employees to obtain a vaccine.

Because it appears there won’t be enough vaccine to immunize everyone immediately, targeted high-risk populations such as frontline healthcare workers and seniors likely will be first in line while other populations who are at less risk of serious illness will have to wait to obtain their needed shots.

“If you can’t guarantee that everyone will have access to the vaccine until the fall of 2021, how are you going to enforce that?" Childers asked. "I am telling my employers they should consider requiring it. But at the same time, I am telling them that now is not the time. It is going to come down to supply and demand issues, and we haven’t even made it to that point.”

Meanwhile, he is encouraging the firm’s clients to use every tool they can to protect their workers and customers, such as requiring employees to wear masks while on the job or to work remotely until enough people have been vaccinated to control the virus’ future spread.

“Ultimately, the key here will be for employees to be nimble and flexible, thinking outside the box about how they can configure their workforces to both keep everyone protected while respecting individuals’ rights," Childers said. "Everything has to be on the table for employers who want to address this in a way that meets societal needs, yet still keep their businesses running. This is not a one-size-fits-all approach. You are going to have to use everything in your tool box if you are going to come out of this OK on the other side.”

Business writer Jack Money covers Oklahoma’s energy and agricultural issues for the newspaper and Oklahoman.com. Contact him at jmoney@oklahoman.com. Please support his work and that of other Oklahoman journalists today by purchasing a subscription at oklahoman.com/subscribe.