Much has been written about employers requiring their employees to receive the COVID-19 vaccination. The EEOC’s December 16, 2020 Guidance gives employers a green light from an ADA perspective to implement such a program so long as the employer fulfills its accommodation obligations under Title VII (religion) and the ADA (disability). The EEOC’s Guidance does not deal with the myriad of other potential legal claims to challenge a mandatory program.
Very little has been written about the additional challenges of implementing such a program in a unionized workplace. An article I wrote on that topic was published last week by Wolters Kluwer, a leading global provider of information, software, and services for professionals. Here is the article: “On the Labor Front: Requiring employees in a unionized workplace to be vaccinated”.
Meanwhile, during this early stage of the vaccine’s rollout, employers seem more focused on educating, encouraging and cajoling employees to be vaccinated. If most employees elect to get vaccinated, we may never get to the issue of requiring employees to be vaccinated as a condition of employment. However, the fewer the number of employees who elect to be vaccinated, the greater the likelihood that employers consider a mandatory program, especially in industries where employees have regular contact with the public. As discussed in my article, for employers whose employees are represented by a union, the EEOC’s Guidance is only the first step in moving toward a mandatory program. Dealing with its labor contract and the union may present additional legal and practical challenges.
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