On Friday, the New York State Bar Association announced its recommendation that every employer in the state require that all workers get vaccinated for COVID-19, except those with legitimate medical conditions or religious concerns.
In its August Report the NYSBA takes it a few steps further by asking the new Governor to “encourage businesses as permitted by law to require all individuals as a condition of entry and presence on their property: (1) either proof of vaccination or the results of a test within the past 24 hours showing that the individual is COVID free and (2) the wearing of a mask.”
Further, the NYSBA urges all employers that can provide vaccines on-site to do so, and to provide paid time-off for any employee who may suffer from temporary side-effects in the days post-vaccine.
Moreover, the NYSBA also called upon all bar associations across the country to encourage their members to get vaccinated.
Is all of this legal? The NYSBA thinks it is.
Employers are permitted to require employees to be vaccinated for COVID-19 before physically entering the workplace or engaging in other client/customer/patient activities, with certain exceptions. The Equal Employment Opportunity Commission (the “EEOC”) has blessed such a requirement, subject to the employer’s compliance with the reasonable accommodation provisions of Title VII and the Americans with Disabilities Act (the “ADA”). The Department of Justice, in a July memorandum, has similarly opined that a vaccination requirement as a condition of employment, even if such vaccine was approved under Emergency Use Authorization, is permissible. To date, the only federal court to decide this issue has agreed with the DOJ. Likewise, a vaccination requirement as a condition of employment would not run afoul of any express prohibition under New York State Human Rights Law (“NYSHRL”), again subject to an employer’s obligation to engage in a reasonable accommodation analysis.
One caveat is that if an employer has a unionized workplace, it may need to bargain with the union to mandate employee vaccinations — unless the employer “has a broad management rights clause or other specific grant of authority within its
collective bargaining agreement.”
We’ll add this to the list and discuss some of these issues in more detail on Wednesday, September 1, 2021, at Noon EDT on Zoom, where I’ll present “Everything HR Ever Wanted to Know about Mandating COVID-19 Vaccinations in the Workplace“ with my partners, Amy Epstein Gluck, David Renner, and Sid Steinberg.
The one-hour session is completely free. Just don’t expect to receive any legal advice; we get paid for that.
You and all of your friends can register here. I’ve got 500 slots available and most have been taken. But, if you guys keep signing up, I’ll up it to 1,000.