Ask a Lawyer is a recurring column where attorney Jason Pill answers questions submitted by people who work in the climbing industry. Recent installments have dealt with various issues related to COVID-19, as the pandemic has created myriad situations and complications for gym staffing and operations. For this edition, Pill takes a closer look at COVID-19 vaccination as it relates to gym employees—and several legal scenarios that might arise for gyms considering whether to require it.
If you have a legal question that you’d like Pill to tackle about your gym in a future installment of Ask a Lawyer, you can submit it here.
QUESTION: “Can I require my employees to get a COVID-19 vaccine when it is available? What are the legal risks of doing so, and how should my gym prepare?”
PILL: Although healthcare and frontline workers are receiving priority for the COVID-19 vaccine, additional vaccines are being approved and hopefully will be available for the general public soon. In a rush to return to normal as soon as possible, most gyms likely will want to consider vaccine programs that will further minimize COVID-19 risks and create a safer gym for employees and climbers alike. However, public sentiment toward the vaccine is far from unanimous, and some gym workers may object to the vaccine for personal, medical, or political reasons. Below are some of the main questions to consider for your climbing gym.
Requiring employee vaccinations
Generally speaking, yes, and as explained below, gyms can bar employees from coming to work if they refuse.
No law or regulation directly addresses whether an employer can force its employees to get a COVID-19 vaccination, but the concept of mandatory vaccination programs is not a novel issue, as many healthcare workers are required to receive and maintain certain vaccinations as a condition of their employment. Most non-union companies, which includes virtually all climbing gyms, have wide latitude when crafting employee policies and procedures, including vaccination programs, because the employment relationship is presumed to be “at-will.” As a result, climbing gyms can terminate at-will employees or take them off the schedule for any legal reason, which could include the refusal to comply with a vaccine mandate.
Complicating the issue here, though, is the FDA’s sped-up procedure for authorizing vaccines in a public health emergency, which provides that individuals have the option to refuse vaccines under these circumstances. This is part of the trade-off for allowing the faster vaccine approval. So, if a gym terminates an employee for refusing to get a COVID-19 vaccination, this FDA provision could provide the employee with an argument that the firing was improper, especially in any of the 42 states that recognize a public policy exception to the at-will doctrine. The public policy exception covers situations where employees are terminated for acting in the public interest, refusing to violate a law, or otherwise exercising a statutory right.
The issue here largely would be whether employees have a statutory right to refuse the vaccine under the FDA’s approval procedures, but the law is unclear on this novel issue and clouded by the complex intersection of workplace laws and FDA approval guidance—two areas of law that rarely intersect. Ultimately, the issue will likely play out in courts across the country, but given the current lack of clarity, many employers are opting for voluntary vaccination programs as a safer option than implementing a vaccine mandate.
Employees objecting for medical reasons
Employees can object to getting vaccinated for medical reasons. In fact, there are certain exclusions to consider when implementing a vaccine program—and the most notable exclusion would be based on medical reasons. The Americans with Disabilities Act (ADA) would allow an employee to request an exemption from a vaccine mandate if the employee has a “disability,” as defined by the ADA. (For reference, not all medical conditions are covered under the ADA, which defines a “disability” as “a physical or mental impairment that substantially limits one or more ‘major life activities.’”)
If an employee requests to opt-out of a vaccination program for medical reasons, the climbing gym initially would have to determine if the employee’s condition is covered under the ADA’s definition of a “disability.” If so, the climbing gym then must determine whether allowing the employee to not get vaccinated would pose an “undue hardship” on the climbing gym, which is a term of art under the ADA and the subject of thousands of lawsuits. Given the unprecedented nature of COVID-19 and the corresponding vaccine, there is no case law or judicial analysis to inform the decision of whether employee vaccination opt-out request will pose an “undue hardship.”
Employees objecting for religious reasons
Title VII, which prohibits discrimination on the basis of religion, gives employees the right to seek an exception from a vaccination mandate based on sincerely held religious beliefs. As explained by the Equal Employment Opportunity Commission (EEOC), which enforces federal laws against job discrimination, religion for the purposes of federal anti-discrimination law covers strongly and sincerely held moral or ethical beliefs, and may be a little broader than many people consider the term “religion.”
Climbing gyms can deny religious accommodations if they create an “undue burden.” Notably, though, this standard is easier for climbing gyms to satisfy than the ADA’s “undue hardship” standard. When evaluating religious accommodations, the law requires the employer to honor the accommodation, unless doing so would cause more than a “minimal burden on the operations of the employer’s business.”
Handling medical or religious exceptions
The EEOC recently issued guidance on the issue of mandatory vaccines and employees who are unable to get vaccinated. Specifically, the EEOC advised that an employer can exclude an employee from the workplace if: (1) the employee cannot get a COVID-19 vaccine because of a disability or religious reason and the employer conducts an individualized assessment that determines the employee poses a “direct threat” to the health or safety of others in the workplace; or (2) the employee cannot get a COVID-19 vaccine because of a disability or religious reason, and there is no reasonable accommodation possible (e.g., social distancing, industrial measures).
While it would be lawful for the employer to exclude the employee from the workplace under these scenarios, it does not mean that the employer may automatically terminate the employee if a medical or religious request cannot be accommodated.
Offering stipends and benefits
As a gym owner/manager, you can offer stipends or benefits to induce employees to get vaccinated as an alternative to a vaccination mandate. To phrase it another way, if you prefer to use the proverbial carrot instead of the stick, you can offer benefits to employees who receive the vaccine. This might include tangible benefits like gift cards, or other incentives like additional vacation time or paying employees for time spent getting the vaccine. Also, consider whether you may want to afford employees additional time off after getting the vaccine (e.g., taking off the rest of the day). Early reports suggest that the COVID-19 vaccine may be more painful than a regular flu shot and could be accompanied by short-term side effects, such as flu-like symptoms or headache, that could cause employees to miss work.
Whatever approach your gym takes, plan ahead and set aside administrative resources. Most of the leading COVID-19 vaccines, including those by Moderna and Pfizer, require two separate shots to be taken several weeks apart. If you are requiring vaccines or simply incentivizing them, you will want to track these details because some employees may get the first shot and forget to get the second—or mistakenly take a first shot of one vaccine, but then get the second shot from another vaccine. Some initial planning could help avoid some of these issues and expedite the process for the climbing gym.
While the vaccine will not be generally available for individuals until later in 2021, climbing gyms should start the planning process now and consider what approach, if any, they intend to take. Climbing gyms should consider the risks of a mandatary vaccination program and whether alternatives, such as voluntary vaccinations with or without incentives, can also be effective in maintaining a safe workplace.
Note: This column offers general advice and is not intended to be used as direct legal counsel. Gym owners should consult a lawyer for their facility’s specific legal matters. Pill can be contacted directly here.
Jason Pill is a longtime climber and an attorney with Phelps Dunbar, LLP in Tampa, Florida. He practices in the area of labor and employment and assists clients in handling unique issues that arise at the intersection of law and technology. Additionally, Jason managed a climbing gym before embarking on a legal career, and he currently serves as the Chairperson of USA Climbing’s Risk Management Committee.