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Huntsville Lawyers Answer Questions about Business and Vaccinations for Employers and Employees

As the pandemic and its variants linger, companies are under increasing pressure to mandate vaccines. Employers and employees alike are beginning to question the legal ramifications of mandates in Madison County, as well as seeking clarifications about their potential culpability in enforcing them.

Both parties have a flurry of questions ranging from ‘Can a business mandate the vaccine for existing employees?’ and ‘Can they make it a requirement for hiring new employees?’, to ‘If an employee has a valid exemption, what is the employer’s recourse?’; ‘If employees must be tested weekly, who bears the cost of that?’; and ‘Can employers be liable if they don’t require vaccination and someone gets sick?’ 

Two Huntsville attorneys, Teri Mastando, whose law firm Mastando & Artrip are experts in workplace litigation including employment discrimination; and John Wilmer of Wilmer & Lee, P.A. whose firm specializes in a broad range of labor and employment law; discuss the types of questions they are getting in their law firms and answer them based on Alabama law. 

The first thing to understand according to Mastando is that Alabama is an “at-will” employment state, meaning an employee can be let go for any reason or no reason at all; for good reasons or bad reasons; or even for unfair reasons. In the eye of the law, any disputes about vaccine mandates, therefore, can be remedied by getting another job with a company that does not have the requirement, same as if they had a dress code for which the employee disagreed.

In correlation, an employee can quit, regardless of how much money the company has spent on training and perks, and the company has no recourse if they do. 

But ultimately, companies can legally make vaccination a condition of employment, and they can require current employees to do so as well. Alternately, employers cannot be held liable or are not at legal risk if they don’t require vaccination.

“Alabama employees do not have an affirmative right to employment, but there is a selection of federal laws that protect all employees wherever they are located,” said Mastando. “However, a company has the right to mandate things that make it a safe workplace, so employers can absolutely demand employees be vaccinated.

“Employees have rights under the Americans with Disabilities Act and where the employer needs to be careful is if they have an employee with a medical reason backed by a doctor for why they cannot get the vaccine. If they can show that disability, they may have some rights.” 

Employees also have protections under Title VII which says an employer cannot discriminateTitle VII based on sincerely held religious beliefs, however the employee does have to prove those beliefs, which are difficult to do. 

With the labor shortage and many businesses like restaurants, hotels, and personal care services struggling to remain fully staffed, how are these clients dealing with the vaccine mandate conundrum?

John Wilmer has several clients currently requiring vaccinations, including several clients in the food industry, but he said they are not getting a lot of resistance from employees in doing so. 

“Employees in our business community are for the most part, playing ball. When the employer says vaccines are mandatory, they listen and take the vaccine,” he said. “But I have several food service clients and many of them want to stay away from the mandate. 

“Both those that do and those that don’t mandate vaccines need additional accommodations, or they should have a plan for it. Wearing masks, social distancing, working remotely if possible, and weekly COVID tests are all acceptable accommodations under the ADA requirement.”

Many companies also have questions about who bears the costs of weekly testing.

Both Mastando and Wilmer agree there is no law requiring either party pay for weekly tests, but if the employee is required to pay for their own testing, the employee cannot be suspended in any way without pay until they do so, and the employer must be paying the employee for the hours they have worked to be protected under wage payment laws.

Another question law firms are getting from clients is whether FDA approval has any bearing on the legality of mandating vaccines.

“The FDA approval has very little to do with whether you can make vaccinations mandatory, they are two separate subjects,” said Wilmer. “However, for many companies, FDA approval gives more legitimacy to the mandate.”  

If a company mandates vaccination of their employees, is the company liable for any harm done to the employee from the vaccine if it occurred?

“The simple answer is ‘no’,” said Wilmer. “Usually if the employer mandates it, they get the employee to sign a release before they get their shots and they can be forced to sign it. That generally stops any challenges that may come up.”

The problem according to Mastando is that there are not any laws that protect employees, but being forced to sign a release is a little tricky because, in Alabama, you cannot release somebody ahead of a damage. For instance, the document you are asked to sign must be an acknowledgement that you are waiving your rights to do anything about it if you do get the vaccination and have side effects or a negative reaction to it.

“But it won’t preclude the employee from seeking recourse in that it may run up against worker’s compensation laws,” she said. “Any kind of work-related injury is covered by worker’s comp so that may be an employee’s recourse in that case. But to be clear, I do not currently have any litigation pending on that.”

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