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Attorney provides answers on difficulty with potential mandatory COVID vaccinations

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Posted at 1:55 AM, Feb 01, 2021
and last updated 2021-02-01 04:01:17-05

A Billings lawyer talked about the challenges of mandating the taking of COVID-19 vaccines at a Billings Chamber of Commerce tele town hall meeting last week.

While doctors talked about the Pfizer and Moderna vaccines, attorney Bruce Fain of Crowley Fleck addressed the possibility of companies requiring employees to take a COVID-19 vaccine.

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Bruce Fain

"There is a real issue with the COVID vaccine and being able to mandate employees get the vaccination," Fain said during the Zoom meeting on Thursday. "That's because it's an emergency use authorization. The medical community requires a lot more informed consent, I believe, during that process."

Fain talked about the legal issues with vaccine mandates and how they relate to discrimination, safety and employment laws.

"You're not really entitled to engage in exams of your employees that can implicate or disclose disabilities or genetic information about their family or themselves," he said.

And he said it would be difficult to not grant exemptions to employees who would choose to not take the vaccine.

"Most employers that do this require some verification by a doctor, MD or DO," Fain said. "You also have to consider any sort of accommodations that you would put in there. And generally what you need to do is establish a direct threat to the employee or to others before excluding them from the workplace. You should consider masks, PPE for employees. You should consider remote work. Work with them. Some basic other guidelines for religious objections that are out there. If it's requested you generally must provide it."

The doctors and the health officer talked about the benefits of taking the vaccines.

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"Yes, I agree with everybody else in particular in regards to the COVID vaccine," Fain said. "Your best approach is to encourage your employees, perhaps offer some incentive for them to get the vaccination as it comes available."

Fain said the Montana state legislature is considering a bill that would affect employer mandated vaccinations, Senate Bill 132.

"This is a direct quote from the statutory language: proposed employers shall make the same alternative accommodations available to any employee at the employee's request," Fain said. "As I read that, unless it's amended, you're going to have at least a medical exemption if you follow what I've suggested for any vaccine. And so any employee is just going to have to come in and ask for an exemption, which will completely eviscerate any mandatory vaccinations."

He said the legislature is also considering Senate Bill 65 that would deal with liability and COVID exposure.