As an employment and labor lawyer, I would like to address the legality of workplace vaccine mandates.  In speaking with employers and employees of large and small Nevada businesses over the past few months, I know the decision regarding whether to get vaccinated or not to get vaccinated is a subject that evokes strong emotion.  From fears concerning the continued spread of the virus and its variants to the distrust of those in authority and the information they are sharing, people have strong “vax” or “anti-vax” perspectives that can make the decisions employers need to make about appropriate workplace policy very difficult.  

I will not share my personal opinions on whether a person should get vaccinated. On a personal note, though, I generally do not like to take so much as an aspirin for my ailments. So I understand that getting vaccinated is a big deal for many people. In the interest of transparency, I will simply say that my family and I are all vaccinated and most of the people who work with me are vaccinated. 

I think any potential risks presented by getting vaccinated are outweighed by the rewards. I have a lot of at-risk family members, members of my church, and friends I care for. And I have determined that preventing the spread of the disease and reducing the severity of the illness in the event that me or one of my loved ones get sick with COVID-19 or a variant is better than the regret I know I would feel if I was even remotely responsible for their sickness or death because I did not get vaccinated. My motive is simply love. I love my family, friends, and community enough to take a risk on a vaccine that appears to have been administered safely to 167 million Americans while providing significant protection from the sickness and death that this disease causes.  

That being said, whether to get vaccinated is a personal choice.  Indeed, 55 percent of Nevadans have chosen not to get vaccinated, and many employers I have spoken to have asked me whether they should adopt a policy mandating that their employees get vaccinated. Candidly, I don’t know whether employers “should” mandate the vaccination of their employees. The term “should” assumes certain values and morals.  I would never wrap legal advice to my clients in a blanket of my own personal values and morals re: what they “should” or “should not” do. However, as a matter of law, I do know that employers “can” mandate vaccinations under federal and state law. And many have. 

What I have learned since the advent of the pandemic is that we should all exercise a bit of humility in what we know, what we think we know, and what we think others should do or not do. The answers to the many questions this pandemic has presented to us are not as black and white as many would have us believe. The questions presented often require a nuanced set of answers that do not fit neatly into boxes on a checklist of dos and don’ts.

I think it is important for employers to acknowledge, whether or not they agree with their employees, that there are valid reasons for some people to either delay getting vaccinated or object entirely to ever being vaccinated. Proponents of vaccination are zealous in their conviction that everyone should be vaccinated. They express their opinions in such strong and unequivocal language that there does not seem to be much room for reasonable dissent. This causes many anti-vax employees to either (a) brood quietly about their deep concerns about the uncertainties surrounding the risks of getting vaccinated or (b) assert their fears and distrust of authority defiantly in their opposition to authority figures issuing mandates at the federal, state, and local levels. It becomes even more threatening to employees who don’t want to be vaccinated for one reason or another when their employer begins issuing mandates consistent with what government officials are recommending.

This circumstance reminds me of the children’s poet and author, Dr. Seuss, who might have written a rhyme something like this: 

Now, the Vaccinated Sneetches had pokes in their arms,

while the No-Vax Sneetches had none upon thars.

Those pokes weren't so big.

They were really so small,

Pfizer, Moderna and J&J said,“Safe for them all!”

But because they had pokes to pause the pandemic,

All the Vaxed Sneetches bragged, "We're the best on the beaches."

With their snoots in the air,

They would sniff and they'd snort, 

“We'll have nothing to do with the No-Vax sort!"

And whenever they met some,

When they were out walking,

They'd hike right on past them, without even talking.

When the Vaxed Sneetches’ children went out to play ball,

Could a No-Vax sneetch hope to get in the game...?

Not at all.

You could only play if you had pokes in your arms,

And the No-Vax children had none upon thars.

When the Vaxed Sneetches had frankfurter roasts, 

Or picnics or parties or marshmallow toasts,

They never invited No-Vaxers, they’d boast.

They left them out cold, in the dark of the beaches.

They kept them away, don’t let them come near!

And – at work and at play – that's how it was, year after year.

Until a No-Vax Sneetch called his attorney and asked, on a whim, 

Can my employer make me get a poke in my skin?

The attorney answered, “Why, yes, they sure can, 

If they honor Title VII, ADA and all workplace bans.

(This parody was adapted from “The Sneetches and other Stories” by Dr. Seuss.)

All kidding aside, many employers are faced with serious decisions and have been asking what they can do if their employees refuse to get vaccinated. Some employers want to terminate workers who won't take the vaccine, while others want to require unvaccinated employees to submit to weekly testing and take other safety precautions.

The Equal Employment Opportunity Commission (EEOC) has weighed in with guidance that answers some workplace vaccination questions. For example, the agency said that federal anti-discrimination laws don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. (Any vaccination mandate implemented should be job-related and consistent with a specific business necessity.)

Employers that encourage or require vaccinations, however, must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 and other workplace laws, according to the EEOC. This means an employee with a religious objection to receiving the vaccination should be respected and accommodated. Title VII requires an employer to accommodate an employee's sincerely held religious belief, practice or observance, unless it would cause an undue hardship on the business. Courts have said that an "undue hardship" is created by an accommodation that has more than a "de minimis," or very small, cost or burden on the employer.

The definition of religion is broad and protects religious beliefs and practices that may be unfamiliar to the employer. Therefore, the EEOC recommends that employers give employees the benefit of the doubt that a request for religious accommodation is based on a sincerely held religious belief.  Most employers are not theologians, priests, or rabbis, so they should not attempt to judge the validity of a person’s professed religious conviction. 

Likewise, people with pre-existing conditions and disabilities that make it unsafe for them to get vaccinated should be excused from a vaccination mandate. However, under the ADA, an employer can have a workplace policy that includes a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace. The EEOC defines a "direct threat" as a "significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation."

The question then becomes, from an employment law perspective: are non-vaxed people a direct threat if they are asymptomatic, wear a mask, and otherwise practice good hygiene and social distancing habits?  Four factors are generally used to determine whether a direct threat exists are: (1) The duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.  If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or permitting a leave of absence.

Some organizations are firing employees who don't comply with a vaccine mandate. A federal judge recently sided with a large hospital system that chose to fire employees who refused the shot. Other organizations are requiring regular testing for those who don’t get vaccinated.  However, be careful if you are an employer considering testing non-vaxed employees only. The science behind testing non-vaxed people, but not vaccinated people, is changing. In early August, the CDC concluded that vaccinated people may be just as efficient at spreading COVID as non-vaxed people who get the virus. 

As a consequence of these recent findings, the CDC has recommended that everyone be required to wear a mask.  The CDC and policy makers are also reconsidering when testing should be required of both vaxed and non-vaxed people. 

My best legal advice to Nevada employers considering mask mandates is to exercise a little humility, a lot of patience, and flexibility in implementing COVID vaccination policies. Be gracious in how you communicate your policy. Take time to listen to your employee’s concerns.  With this legal opinion in mind, I close with one more verse from the Dr. Seuss:

Then, when every last cent of their money was spent, the Fix-it-Up Chappie packed up 

And he went.

And he laughed as he drove

In his car up the beach,

"They never will learn.

No. You can't teach a Sneetch!"

But he was quite wrong. I'm quite happy to say

The Sneetches got really quite smart on that day,

The day they decided that Sneetches are Sneetches

And no kind of Sneetch is the best on the beaches.

That day, all the Sneetches forgot about shots in their arms 

And whether they had one, or not, upon thars.

 Jason Guinasso is an employment and labor attorney and managing partner at the Northern Nevada law offices of Hutchison & Steffen, PLLC.