Almost one year ago, the Coronavirus changed the way we live, work and play. It was almost like the world paused to reset our way of life. Unlike so many small businesses across the U.S., the golf industry encountered only a short period of lockdown. As golf was recognized and accepted as a safe outdoor recreational activity, our industry flourished. But not all facets of our industry were so lucky. Clubs with substantial and thriving food and beverage operations suffered the same fate as the entire food and beverage industry.
Now, one year later, we see what may be light at the end of the tunnel. Approved vaccines are now on the market, and hopefully, enough individuals will be vaccinated to create what the medical industry terms “herd immunity.” Herd immunity is a form of indirect protection from infectious disease that occurs when a sufficient percentage of a population has become immune to an infection, whether through vaccination or previous conditions, thereby reducing the likelihood of infection for individuals who lack immunity. Immune individuals are unlikely to contribute to disease transmission, disrupting infection chains, which stop or slow disease spread.
As an employer, can you require your employees and customers to be vaccinated? For your customers, the answer is no. You can’t require them, nor can you refuse to serve them.
As COVID-19 vaccines become available, can golf course owners mandate their employees be vaccinated? The answer to that is currently less definitive. General guidance indicates several government agencies’ apparent support for mandatory vaccination policies, said Diane Welch, an attorney with McDonald Carano in Las Vegas.
For example, based on the U.S. Centers for Disease Control and Prevention findings, the Equal Employment Opportunity Commission (EEOC) has determined that COVID-19 meets the "direct threat" definition. "During the pandemic, employers have relied on this guidance to justify asking employees more in-depth health-related questions and performing medical screening of employees before allowing them to report for work," Welch said. Unionized employers probably will need to address collective bargaining obligations before the organizations communicate vaccination policies.
In the context of flu vaccines, the EEOC has explained that employers subject to the Americans with Disabilities Act (ADA) must provide reasonable accommodations to employees with disabilities that prevent them from receiving a vaccine.
Under the ADA, an employer requests information from the employee requesting accommodation, including the nature of the limitation or disability and the difficulty or issue that the vaccination would cause.
Similarly, employers subject to Title VII of the Civil Rights Act of 1964 must reasonably accommodate individuals who notify them of sincerely held religious beliefs that prevent them from receiving the vaccine.
Under Title VII, accommodations for religious reasons are a bit more complicated. Employers generally should assume that requests for religious accommodations are based on sincerely held beliefs.
If an employee requests an accommodation, and an employer has an objective basis for questioning that belief or practice’s sincerity, the employer can request supporting information from the employee.
For the reasons outlined above, the implementation of a simple directive or policy for all may be challenging. Owners and operators are encouraged to consult with a legal advisor when developing vaccination policy guidance.