Since March 23, 2020, non-essential employers and employees in Michigan have mostly been restricted from in-person work that is unnecessary to sustain or protect life. That and later stay-at-home orders were in response to the Covid-19 Pandemic. That’s about to change. And with this change, employers will need to decide whether employees must be vaccinated before returning to work.
Governor Gretchen Whitmer announced on May 10, 2021, that 55% of Michiganders had received their first dose of the safe and effective COVID-19 vaccine. This milestone means in-person work may resume across all employment sectors on May 24, 2021.
Here’s a link to Governor Whitmer’s video making this announcement. And here is an excerpt of her remarks:
I am excited that 55% of Michiganders have gotten their first dose of the COVID-19 vaccine … Everyone is eligible to get their safe, effective shots, and it’s on all of us to get vaccinated as soon as possible to protect ourselves, our families, and our communities. On May 24, we anticipate allowing a return to in-person work across all sectors, and as more Michiganders get vaccinated, we will continue lifting restrictions …
What does a return to work mean for businesses and employees?
So a few thoughts for businesses and employees: First, if you have not gotten vaccinated, do it. And if you have not, make sure your reasons square with sound science and medicine – not something you heard from someone, not something you saw on the internet, or something some politician said to support an agenda or conspiracy.
Second, employers will likely need to consider whether employers can legally make Covid-19 vaccination mandatory to return to work. And employees will want to know their rights in response to such a mandate.
Employer Vaccine Mandate – Legal and Operational Concerns.
Can an employer mandate employees get vaccinated? The short answer is mostly yes, but there are landmines along the way to making this decision. Here are a few of concerns:
Full versus Emergency Use Authorization – A distinction without a distinction.
Michigan is an at-will employment statement. So a private-sector business can fire an employee for any nondiscriminatory reason. Thus, an employer can generally require employees to get the Covid-19 vaccine.
But the current Covid-19 vaccines are approved under an “emergency use authorization” and do not have complete Food and Drug Enforcement (FDA) approval. But the better argument is that this distinction is one without a difference and an employer could mandate its employees be vaccinated before returning to work.
Medical and Religious Exemptions.
In contrast, employers will need to carefully consider exemptions for an employee who may have a medical or religious reason for refusing vaccination. A person may have a legitimate health-related reason for not getting the vaccine. And under applicable Michigan and federal law, an employer may have to provide a reasonable accommodation to its vaccine mandate.
While generally less onerous than health-related accommodations, religious exemptions to vaccination requirements should also be considered case-by-case.
HR and Operational Concerns.
There are also practical considerations for why an employer may or may not implement a vaccine mandate. One example includes losing employees who refuse to get vaccinated. Or an employer may have concerns about exposing co-workers and customers to unvaccinated employees.
This article is a very cursory overview of the grey areas of issues and grey areas businesses, and employees will likely face as Michigan and the rest of the U.S. return to work. Talk to a knowledgeable employment attorney about vaccine mandates or similar issues involved in your situation.
Use this link to contact Michigan attorney Jason Shinn if you have questions about this article or complying with Michigan or federal employment laws. Since 2001, Mr. Shinn has represented companies and individuals about the issues discussed above and other employment matters under federal and Michigan employment laws.