AUBURN — You’re a business owner and you’d like all your employees to get vaccinated for COVID-19 when their turn comes: Do you make it mandatory or worth their while with incentives?

Amy Dieterich, left, and Jordan Payne Hay from Skelton Taintor & Abbott law firm in Auburn. Submitted photos

And what do you do about the holdouts?

Now is the time to think that through, according to Amy Dieterich and Jordan Payne Hay, attorneys from Skelton Taintor & Abbott who offered COVID-related legal advice during a Lewiston Auburn Metropolitan Chamber of Commerce session via Zoom on Friday.

“There are options for employers to create policies that make it permissive and encourage employees to get that vaccine as opposed to making it mandatory, but those are both options available to Maine employers,” Dieterich said. “This, I think, is a really hot-button question and my advice for an employer would depend a whole lot on what kind of business they were in.”

Employers making a COVID-19 vaccine mandatory have limits, Hay said.

“You cannot force an employee to be vaccinated, or you cannot terminate them because they refuse to be vaccinated, if they have a legitimate disability-related or medical-related reason why getting the vaccine is not recommended by their physician,” she said. “The other large exception here is closely held religious beliefs — that’s a much squishier issue. Those really should be taken on a case-by-case basis. Often an employer can require a letter from a higher-up in the religion or can require other proof a belief is ‘sincerely held.’ But the best advice on that is to seek guidance.”

Employers who decide to offer incentives to employees to get vaccinated can also run into issues, Hay said.

Offer anything too substantial, for instance a bonus over $100, and it “could bring up other concerns, like the Americans with Disabilities Act, if some employees are not able to get vaccinated and not eligible for the incentive,” she said. “You put yourself at risk for treating folks differently based on disability status; certainly nobody wants to be the test case for that.”

As businesses start to craft or update vaccination policies, they encouraged taking into consideration how often their employees interact with the public. A larger grocer might take a very different approach than a company whose workforce now largely works from home.

Dietrich said it is permissible to have different policies for different groups of employees within a company, for instance requiring those who go out in the field get vaccinated but not those working in the office.

“I think one issue we’re going to run into is are there employees who are able to get the vaccine,” but simply don’t want to, she said. “What should an employer do with an employee who one might say is creating a risky workplace because they’re not vaccinated for personal reasons. I think we’re going to see a lot of conflict between choosing not to get vaccinated and disability and religious reasons to not get vaccinated.”


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