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Question No. 1: Can an Employer Make Workers Get a Vaccine?
Klingenberger: This is a huge question, and the answer may depend on the type of employment. An employer in the health care industry may, for example, have greater rights and needs than an employer in the construction industry. If an employer requires employees to be vaccinated, at present we see at least two ways this could be challenged:
By raising a religious accommodation issue. “For religious reasons I object to receiving the vaccine.” In this case, the employer would need to explore whether the employee has a “sincerely held religious belief” that would require an accommodation. That can be a delicate process, but let’s assume that the employee says enough for the employer to credit the request for a religious accommodation. And let’s assume everyone else is vaccinated. What might an accommodation in this context look like? The employer could evaluate things like: Can the employee work remotely (thereby not exposing others if the employee contracts the virus)? Is the employee’s position one where he/she does not come in contact with other employees? If such accommodations are possible, how long will the accommodations work for the employer and employee?
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