By Kati Weis

DENVER (CBS4) – With news of a potentially effective COVID-19 vaccine on the horizon, CBS4 Investigates wanted to know, can an employer require its employees to get a COVID vaccine? The answer is yes, but there are some exceptions.

“Colorado is what’s called an ’employment at will’ state, and that gives employers a great deal of latitude in compelling employees to do things, including things like taking vaccinations, but that prerogative isn’t unlimited,” said University of Colorado Boulder School of Law Professor Ahmed White, who specializes in employment law.

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If the vaccination would go against an employee’s sincere religious belief, or if it would put the employee at a significant health risk, the employee could refuse. However, the employee would likely need to be prepared to prove those protected conditions in court.

If an employer fires an employee for refusing a vaccine, the employee could sue for discrimination on the basis of their religion or medical condition. White says refusing simply because one believes the vaccine to be unsafe will likely not be a sufficient reason for an exemption.

White says the Equal Employment Opportunity Commission – or EEOC – issued guidance just before the pandemic began about the question of employers requiring flu shots, suggesting protections for religious and medical reasons be available, but not automatic.

“They would only under rare circumstances be available to employees whose beliefs are sincere and genuine, and only where exempting the employee doesn’t put an excessive burden on the employer,” White said.

White also says an employee could be exempt if the vaccination goes against their employment contract or union agreement.

“I would be surprised if there isn’t a push by employers to require vaccinations, and I would also be surprised if that happened without a great deal of push back from any employees,” White said. “The scale of the pandemic and the severity of the disease… my sense is we might see a great deal of this going forward, as vaccinations become more readily available, and as employers struggle to reopen their businesses.”

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In 2012, Colorado passed health regulations requiring all hospital workers in the state to get a flu shot.

“It underscores, I think, precedents that already exist, and that seem to suggest that when especially dealing with particularly vulnerable populations or workers who perform certain services that create vulnerabilities for others… that governments have a great deal of leeway in requiring vaccinations,” White said.

At the time, that mandate was met with some resistance, but the Colorado Hospital Association supported the move.

“The last thing we want is to have a healthcare worker end up transmitting the flu, and that was why we supported that, and still do,” said Colorado Hospital Association Senior Vice President of Communications Julie Lonborg.

But now, the CHA doesn’t support a COVID-19 vaccine requirement.

“We view this vaccine and this illness as being in a very different place, and so our position on a mandatory COVID vaccine for healthcare workers is that it should be voluntary,” Lonborg said. “Largely because there’s still so much that’s not known. We know a lot more about COVID itself since the spring, but this vaccine will be very new. It’s been well trialed, well tested, but it is new, and the efficacy of it won’t be known yet. Will it require one dose, will it require multiple doses? Will it last for more than a certain period of time? And until we know those things, we believe it should be voluntary.”

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White says once those unknowns become clearer, there is a legal path for businesses and government agencies alike to require vaccinations of patrons, citizens, and employees.

“Certainly, there’s existing precedent for governments to be fairly aggressive in compelling citizens to receive vaccinations, or for that matter, allowing private employers to do so,” White said.

A spokesperson for the governor’s office and the state health department says the state is not considering any kind of vaccine mandate for now, writing in a written statement to CBS4 Investigates,

“Vaccines are a critical public health tool to keep people healthy, we are excited at the prospect of a scientifically-viable COVID-19 vaccine being available next year to help us combat this pandemic. The state is not considering a COVID-19 vaccine mandate at this time.”

Kati Weis

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