Vaccinations are proceeding apace in Colorado and across the United States. But as workplaces get set to resume full in-office operations, there’s a movement to limit mandatory vaccination policies and employer consideration of vaccine status. A bill introduced in the Colorado Legislature during the 2021 session, House Bill (HB) 21-1191, failed on an 8-5 party-line vote in a committee hearing. But the Colorado bill and analogous proposals around the nation represent a vocal minority pushing back against mandatory vaccinations in the workplace. How employers handle the concerns is going to be critical in 2021 and beyond.

COVID-19 vaccine discrimination legislation across the country

Subject to religious and disability exceptions under federal antidiscrimination laws, employers may generally require employees to get vaccinated for COVID-19. Many states, following federal law, provide exceptions only for medical or religious reasons.

A movement is under way, however, in state capitols across the United States to prevent employers from implementing mandatory vaccination policies and protecting current employees and job candidates who refuse to comply. More than 85 such bills have been introduced during 2021 state legislative sessions. At least 19 states have bills currently pending that, if passed, would prohibit employers from requiring the COVID-19 vaccine or taking adverse action against employees who don’t get the shots:

• Arkansas passed a bill prohibiting public employers from mandating the vaccine or discriminating against employees who refuse it.
• In Idaho, the governor’s recent Executive Order prevents state entities and officials from producing or issuing a COVID-19 vaccine passport or requiring proof of receiving the shots to access state services or facilities.
• Legislation is pending in other states more broadly limiting employer mandates for immunizations. Hop aboard. We’re taking a ride to the new frontier of workplace vaccination law.

Colorado COVID-19 bill

• In Colorado, HB 21-1191 would have prohibited employers, including licensed healthcare facilities, from taking adverse actions against employees or applicants based on their COVID-19 vaccination status. Under the proposed statute:
• Employees or job applicants could have filed lawsuits against employers for injunctive, affirmative, and equitable relief; and
• The state would have been prohibited from requiring anyone to receive a COVID-19 vaccination or discriminating against individuals based on their vaccine status.

On May 12, 2021, the Colorado bill was defeated on a party-line vote in the health and insurance committee. It’s possible the measure could be reintroduced in a future legislative session. For now, however, the state hasn’t joined Arkansas and the other states that may impose restrictions above and beyond existing state and federal law protections for religious and disability reasons.

What’s to come?

Colorado employees with questions or concerns about employers’ well-designed mandatory vaccination policies are unlikely to mount successful legal challenges (provided the policies are operated in compliance with existing federal and state nondiscrimination laws, primarily protecting religious and medical exemptions). Nevertheless, we expect continued friction in the workplace between those who have obtained the vaccine and those who haven’t gotten the shots during this reopening era.

Managing the tension isn’t going to be as simple as merely complying with the existing nondiscrimination laws. It’s likely many of you will have a small cohort of employees who refuse to take the vaccine and either continue working remotely or in the office (if permitted by company policy). Some steps for managing the friction in this new landscape include:

• Using the opportunity to remind all employees about your company’s values, including your open-door and mutual-respect-for-others policies;
• Reinforcing the message your workplace is safe and that you have taken measures to ensure compliance with the latest U.S. Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and local guidance for office environments;
• Reminding employees to avoid asking others about their vaccination status or to disparaging them for the same;
• Encouraging employees to bring any office safety concerns to a manager or HR for discussion; and
• Empowering people managers and company supervisors to engage in regular dialogue and communication with all employees, regardless of whether they’re vaccinated.

Bottom line

While no one-size-fits-all approach will work for all companies, at least thinking about the issues now is recommended. The care and attention you take to ensure all employees are treated with respect and care may be as important as ensuring legal compliance.