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Should employers require the COVID booster shot? Virginia attorney weighs in

Virus Outbreak Boosters
Posted at 10:08 PM, Nov 01, 2021
and last updated 2021-11-01 22:08:29-04

RICHMOND, Va. -- As more Virginians received their COVID-19 booster shot, a Virginia employment attorney advised employers to hold off on requiring a third shot.

"When they said you can get a booster like literally, they said six months, this is six months to the day for her. So, we all came to get the booster shot," said Jacci Miller, who received the booster with her daughter and husband Monday evening.

Miller and her family joined a small group trickling out of the Richmond Raceway.

Everyone who spoke with CBS 6 had a personal reason for getting their booster.

"Working in the schools, we're fully back in person so I just want to make sure that I'm protecting myself, my students, my students' parents, of course, my family as well," said Henrico teacher, Justin Bartlett. "It’s just a little bit more peace of mind with everything going on."

For Miller, it was the loss of a family member.

"A month or so ago, my sister contracted COVID after being vaccinated, but it wasn’t too bad. But she also passed it on to my parents. My dad actually passed," said Miller.

Now, the family said they wouldn’t have a problem if their employer mandated a booster shot.

"I can only speak for me. I'm going to be in the front of the line if it’s needed for each and every additional shot," said husband, Maurice Miller.

"Anything that we can do as a preventative measure we’re going to take those steps," Jacci Miller added.

Meanwhile, Bartlett said while he opted to get the booster for himself, he didn't believe the shot should be mandated.

"I feel like it should be a personal choice," Bartlett said. "But for myself, I made sure that I'm doing everything I can do to stay safe and healthy."

When it comes to if your employer can, or even should, require the COVID booster shot, Ben Johnson, an attorney with the law firm Pierce McCoy said the answer was two-fold.

"As a general principle, it is still true that employers can require employees to be vaccinated so long as they keep the door open for employees to request certain legally mandated accommodations," said Johnson.

But at this point, Johnson didn't recommend it.

"Booster shots do raise some unique questions about whether that general rule will apply in the same way," Johnson said.

From an employment law standpoint, Johnson said the main problem with mandating boosters was that they weren't universally authorized, so only certain groups have been approved for the shot.

"That means that if an employer mandated booster shots for employees, there could be instances where they are effectively mandating the shot for some employees, but not others," Johnson said.

He added that any time an employer treated one group of employees differently from another group, they could find themselves in a risky position legally.

"If an employer were to create a policy that said, you know, everyone 65 and up has to get the vaccine, that could raise some concerns under the Age Discrimination Employment Act as to whether the employer is discriminating on the basis of age," Johnson said.

But he did add that employers may want to start planning for when boosters do become more universally available by consulting with attorneys on how to develop policies.

"I think it's always a good idea to get ahead of the game on this," Johnson said.

As for employees' rights, Johnson said employees could still request exemptions for sincere medical or religious reasons.

He also said depending on the circumstance, it may be worthwhile to consult with an attorney if your employer is mandating boosters.