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Can Wisconsin Businesses Require Their Workers to Get a COVID-19 Vaccine?

August 27, 2021

As the global COVID-19 pandemic continues to surge, the economy is getting back on track and businesses are opening up at full scale. While companies are anxious to get back to normal, there are still many questions about how to safely reopen amidst the continuing pandemic. Business owners are faced with decisions regarding how to keep their employees and customers safe. The COVID-19 vaccine is proven to be highly effective at preventing severe disease and complications.

Unfortunately, fewer people have chosen to get the vaccine than anticipated, making the decision to mandate fall to the companies themselves. Business owners and managers need to know whether they can require workers to get a COVID-19 vaccine and what to do about employees who refuse to comply.

Employers Can Mandate COVID-19 Vaccinations

Generally, Wisconsin is an employment at will state. This means that employers can terminate employees at any time and for any reason. More and more large companies are requiring employees to get vaccinated or risk termination. Businesses want to ensure the health and safety of all employees and at the same time, reassure customers that their establishment is safe. The law allows employers of private companies to set their own rules and guidelines, giving them the right to put stipulations in place for employees that may include wearing masks and getting vaccinated.

OSHA Guidelines

Employers have a duty to keep employees safe. The Occupational Safety and Health Administration, OSHA, provides COVID-19 guidelines for employers. They recently updated their guidance on mitigating and preventing the spread of COVID-19 in the workplace. It is important for employers to check back with OSHA frequently to learn of any new updates. They provide information to help employers keep employees safe. OSHA strongly recommends vaccination as the best way to prevent the spread of COVID-19. They urge employers to provide paid time for employees to get vaccinated and take time to recover from any side-effects. Employers should require employees who are not vaccinated to get regular COVID testing in addition to wearing masks and physical distancing.

EEOC Guidance

The U.S. Equal Employment Opportunity Commission, EEOC, is tasked with enforcing anti-discrimination laws, including the Americans with Disabilities Act, ADA, Rehabilitation Act, Title VII of the Civil Rights Act, and others. The EEOC helps to protect all employees including those with disabilities or conditions that could compromise their health in the workplace. It is important to note that the EEOC reminds people that the law does not prevent employers from requiring employees to be vaccinated. Employers can accommodate individuals who are unable to get the vaccine due to medical concerns or religious beliefs. For example, employers may provide special workplace spaces for those who are not vaccinated and may mandate regular testing.

Department of Justice

The U.S. Department of Justice, DOJ, recently stated in a memorandum that they support vaccination mandates in the workplace. It is important to note that the DOJ cites the Food, Drug and Cosmetic Act, FDCA, permits employers to require a COVID-19 vaccination, even if it is still subject to Emergency Use Authorization, EAU. They state that employers have the right to terminate employees or not hire them, if they refuse the vaccination, as long as the employer accommodates those who are unable to get the vaccination under EEOC guidelines.

Taking Precautions to Ensure Safety

Business owners must weigh the many issues of vaccination mandates when they put policies in place for their companies. Employers should continue to review CDC guidelines regarding COVID-19, including the Interim Public Health Recommendations for Fully Vaccinated People. You may consider mask-wearing compliance indoors and in spaces where you cannot provide social distancing. It is also a good idea to review and follow the information put out by the Wisconsin Department of Health Services on mask wearing and more. The bottom line is that as an employer, you walk a fine line of providing a safe environment and keeping your company running smoothly. If you have questions about your rights during this time, speak with one of our attorneys at Moen Sheehan Meyer, Ltd. Call us today by phone at (608) 784-8310 or contact us by email for a consultation.

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