As Kansas enters the second phase of its COVID-19 vaccination campaign, essential workers at some of Wichita’s largest employers meet qualifications to get the shot.
These workers may not be able to get the vaccine very soon because of ongoing supply issues. But the rollout raises questions for some about how their employer might handle the vaccines as we enter a so-called new normal.
The second phase, which Kansas moved into on Thursday, includes employees at large-scale aviation manufacturing plants, grocery store workers and teachers, among others.
So, can employers require that their employees get vaccinated against the coronavirus?
“The answer is yes, with limited exceptions,” said Sean McGivern, an attorney practicing employment law at Wichita firm Graybill and Hazlewood.
Those exceptions rise from federal employment law and include religious and disability discrimination, which falls under the Americans with Disabilities Act, or ADA.
However, not every employer would consider such a mandate. Most will determine whether vaccination, as a medical treatment, is directly related to someone’s employment. If so, they could require the shot.
That mandate would be similar to an employer asking a job candidate to take a drug test, said Trinidad Galdean, a labor and employment attorney with Wichita-based Galdean Law Firm.
In a similar vein, some employers might require a test for a certain level of physical fitness if the job would entail lifting a particular amount of weight, for example.
It might be a fundamental function of work for many employees that they come within six feet of others while on the job.
Americans With Disabilities Act exemptions
An employer could potentially make the argument that it’s essential for a worker to be around other people to do their job, so they need to vaccine to continue to work safely, Galdean said.
Exceptions to any of these requirements would fall under the Americans with Disabilities Act. If an employee is required to receive the vaccine, but has medical concerns because of past severe allergic reactions to vaccines, for example, they might request a reasonable accommodation under the ADA.
An accommodation could work in the reverse direction too. For example, take an employee who either is 65 years or older or who has an underlying health condition that puts them at increased risk of complications for COVID-19. That worker might request to continue working from home if the rest of the workforce has not been vaccinated.
This request would fall under the ADA, too, because of a medical concern, said Galdean.
Ultimately, any exemptions under the ADA should be communicated thoroughly between employer and employee.
“The way to resolve this quickly comes down to communication,” said Galdean.
If an employee has concerns about receiving, or not receiving, the COVID-19 vaccine, they should voice those concerns in the right place, often a human resources department.
“If there is litigation pursued, it’s because an employer hasn’t taken the necessary steps to inform the employee of how to communicate concerns,” Galdean said.
Still, any exemption under the ADA must be because of a medical condition. People who are more generally hesitant about the vaccine, but don’t have a specific disability or condition that puts them at risk, don’t fall under ADA accommodations.
“You need a medical excuse if you’re going to demonstrate you need an exception from the requirement,” McGivern said.
A big variable McGivern sees is in the work-from-home economy. In past decades, people with medical concerns have sought accommodation under the ADA to work remotely. For example, someone might have limitations on their vision and trouble driving.
Courts have been dismissive of that accommodation in the past, McGivern said, deciding it was too burdensome on an employer.
“Now the last year really brings that into question,” he said.
Employment attorneys anticipate that more federal guidance will continue to come out as vaccines grow more commonplace.
“This will evolve even more,” said Galdean.
Wichita employers prepare for vaccination
Most local employers did not directly answer questions from The Eagle about whether they would require the coronavirus vaccine in their workforce or simply encourage it. Many indicated they were working with local and state health officials to receive more information about distribution.
Textron Aviation, which has workers in phase two, will offer the vaccine to its employees and some family members.
“When available, the company plans to offer the vaccine to its employees and immediate family members, and will determine the best distribution strategy for its team members,” a spokesperson for the aviation company said.
Spirit AeroSystems does not plan to require vaccinations, a spokesperson said. The company is working with authorities on distribution as well.
“Once the most vulnerable groups within phase two are vaccinated, we will continue our collaboration with medical partners and the County to ensure a quick deployment of the vaccination to Spirit employees,” the spokesperson said.
Wichita Public Schools will encourage its employees to receive the COVID-19 vaccine. The district is still waiting on more information.
“We’re looking forward to our staff having the opportunity to receive the vaccine,” a spokesperson for USD 259 said.
Kroger, which owns Dillons grocery stores, also has employees in vaccine phase two in Kansas. Frontline grocery store employees were included as they’re unable to work from home, much like manufacturing employees and teachers, and are in high-contact environments.
This story was produced as part of the Wichita Journalism Collaborative, a partnership of seven media companies, including KMUW, working together to bring timely and accurate news and information to Kansans.