Labor and employment law attorney Michael Morrison is not a medical professional. But he does understand the importance of knowing your rights when it comes to a COVID-19 vaccine mandate in your workplace — especially now that such mandates are legal under specific conditions. 

“Mandatory medical testing in the workplace is governed by the ADA, the Americans with Disabilities Act, which is intended to protect applicants and employees from disability discrimination,” he says in this episode of The Walking Papers podcast. “An employer must have a reasonable belief based on objective evidence — which can come from a fellow employee or another trusted source of an employee's ability to perform essential job functions — that they will be impaired by a medical condition, or an employee will pose a direct threat due to a medical condition.”

In this episode, Michael discusses what counts as a direct threat, or “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” He unpacks this further by delving into what constitutes a reasonable accommodation and why the CDC decided the COVID-19 pandemic meets the direct threat standard.

Lastly, Michael shares what to expect if you implement a COVID-19 vaccination requirement in your workplace. An employee may indicate they’re unable to receive the vaccine because of a disability or a sincerely held religious belief, practice or observance (which is the main legal objection to the mandate); Michael explains how to respond in this situation.

👉 Featured Guest 👈

Name: Michael Morrison

What he does: As a labor and employment law attorney at Van Kampen Law, Michael Morrison advises his clients on legal proceedings related to workplace issues.

Company: Van Kampen Law, PC

 Words of wisdom: “Though mandatory testing is allowed, employers still have to be smart and equitable, they still have to check the boxes … and they need to remember that they can still be liable.”

Where to find Michael: LinkedIn

💡 Key Ideas 💡

Lessons learned on this episode

★    Know your rights when it comes to vaccine mandates in the workplace — Employers have the right to require their team to get the COVID-19 vaccine, but employees also have the right to refuse to get it if they have an ADA-covered disability or sincerely held religious belief, practice or observance.

★    Move forward with caution if you’re an employer mandating it — Just like mask mandates, pushback is inevitable with a vaccine mandate, so be prepared for requests for accommodations. To make sure you’re remaining lawful, ensure pre-screening questions are job-related and necessary for the business.

★    You might have to identify other workplace accommodation options that do not constitute an undue hardship — If an employee says they’re unable to receive the vaccine due to a disability, their employer must show that an unvaccinated employee would pose a direct threat, due to a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.

⚡ Episode Highlights ⚡

 [1:29] Constantly evolving: Michael discusses the current vaccine landscape — who’s in line before who, what the different levels are, etc. — in North Carolina and explains where to look for the latest information. 

[4:05] Getting the green light: Michael explains why employers have the right to require their team to get the COVID-19 vaccine via the Americans with Disabilities Act, which allows mandatory medical testing based on the “direct threat standard.”

[7:06] Equity is key: Michael dives into why employers should develop “consistent, objective internal policies” when it comes to COVID-19 testing. 

[8:08] What’s required of you: Michael elaborates on what making accommodations based on a disability really means according to the ADA, and what the only exceptions to this requirement are. 

[12:38] Worse comes to worst: Michael explains why employers are allowed to bar an employee from the workplace if they refuse to comply with COVID-19 protocols like having their temperature taken or answering questions about symptoms.

[14:44] Tread lightly: Michael discusses why, if an employer administers the COVID-19 vaccine, that employer should show that the pre-screening questions are job-related and necessary for the business.

[16:23] Expect pushback: Employers should be prepared for some employees to refuse the mandatory vaccination. Michael explains why that’s legal if they have an ADA-covered disability or sincerely held religious belief, practice or observance.

[18:49] What to say: Michael discusses how to respond to an employee who indicates they’re unable to receive the vaccine because of a disability or a sincerely held religious practice or belief.

📨 Get in Touch 📨

The Walking Papers is a bi-weekly podcast by Van Kampen Law, a plaintiff-side employment law firm based out of Charlotte, NC, this podcast aims to give listeners, who are on the wrong side of some sort of situation at work, practical advice on how to turn the tables on their employers.

🎧 Subscribe to the podcast in your preferred app.

This podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions.

💻 Visit our website for more online resources and videos, or better yet, call (704) 247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case.