May 25, 2021

Mandating the Covid Vaccination at Your Business. . . Can You? Should You?

Covid restrictions are coming off and Minnesota is going back to work. While everyone is glad to start to return to something that feels like normal, not everything remains the same. With vaccines now widely available, businesses need to make decisions about how to move forward.

This blog is based on guidance available as of the date of this blog. As with all things COVID-19 related, the laws and rules are constantly changing and can vary from state to state and even from city to city.  Therefore, before acting, be sure to get legal advice to make sure you have the most up-to-date information in your jurisdiction.  

Can a MN Business Require its Employees to Get Vaccinated? 

The short answer is yes, an employer in Minnesota can require its employee be vaccinated. But what about an employee who cannot get the vaccine due to a disability or for religious reasons?  Most employers will need to provide a reasonable accommodation for such employees and should have an exemption process in place to accommodate such individuals.

If a business in Minnesota wants to require vaccines, it can take someone’s word that they have been vaccinated or can ask for proof of vaccination. If proof is required, be sure to keep such proof in a confidential medical file. Also, when asking for proof, consider telling employees not to provide any medical information as part of the proof.

Just Because You Can, Does That Mean You Should? 

Employers should consider more than just the law when deciding whether to mandate vaccines for their employees. While knowing everyone is vaccinated may make people feel safer, the fact is many people will not get the vaccine. As a business, what will you do if an employee refuses to get vaccinated (and the reason is unrelated to a disability or religious belief)? What will be the impact on company culture if a vaccine is required and an employee is terminated or resigns for refusing to be vaccinated? How critical is vaccination in your industry? These are just a few of the questions that should be considered when deciding whether to require employees to be vaccinated.

Is There a Better Answer Than a Mandate? 

Many companies are offering an incentive to encourage employees to get vaccinated.  Such incentives could be a cash incentive, additional paid time off, gift cards, or any number of other items.

Another option is to have two sets of workplace rules.  For example, fully vaccinated individuals (two weeks after their 2nd shot for a two-dose regimen and two weeks after the single shot in a one-dose regimen) are not required to wear masks and physically distance in the workplace while unvaccinated individuals must continue to wear a mask and physical distance.

Can an Employer Ask Employees if They Have Been Vaccinated? 

Putting aside the question of whether to require employees to be vaccinated, can an employer ask employees if they have been vaccinated? After all, that question seems to have replaced talking about the weather as the new conversation starter in Minnesota.

Employers generally cannot ask “disability-related” questions unless they are “job-related and consistent with business necessity.” So, any questions that may elicit information about a disability are generally off-limits. That said, simply asking or requiring an employee to show proof that they received a COVID-19 vaccination is not a disability-related inquiry since it is not likely to elicit information about a disability. But, do not go further.  For example, do not ask someone why they did not receive a vaccine.  

The information contained in this article is provided for general informational purposes only. It may or may not be accurate in your jurisdiction or on the date you read it.  It also is not intended to constitute legal advice and should not be construed as such. Your use of this website does not create an attorney-client relationship between you and SchindelSegal, PLLC.  If you need legal advice, you should speak with an attorney.