As the COVID-19 pandemic rages on, cannabis businesses—many of which were deemed “essential” during coronavirus-related shutdowns—have become accustomed to implementing policies and procedures to keep their employees and customers safe, from mask-wearing and sanitation protocols to how they handle COVID testing at their facilities. Now, as the first vaccines are released across the country, primarily to frontline and health care workers to start, Bianchi & Brandt partner Laura Bianchi says cannabis businesses should develop internal policies regarding vaccination.
“It really is an evolving topic, as it has been all year long,” Bianchi tells Cannabis Business Times and Cannabis Dispensary. “It changes week to week, but I do think that cannabis companies are prepared [to handle the vaccine] because they had to deal with [the pandemic] in such a front-facing manner throughout the entirety of 2020. I think for a lot of businesses, they could say, ‘Everybody work remotely,’ and they haven’t had to come up with the thoughtful policies and procedures to keep everybody safe. Cannabis companies for the most part have, so I think that puts them ahead of the curve in going, ‘OK, now let’s figure out this next phase. How do we adopt and implement things that will make sense for our patients and our staff?’”
Businesses should be prepared to move quickly once the COVID-19 vaccine is available to the general public, Bianchi says, and when developing their policies regarding vaccination, business owners should consider that in many markets, cannabis companies operate medically. Dispensaries must be prepared to deal with ill patients who may be in higher-risk populations, and Bianchi says many of her cannabis clients are considering requiring their employees to be vaccinated for this reason.
“We always advise [that] there has to be exceptions for people who have some sort of medical issue or seriously held medical beliefs,” she says. “But this is a health care facility, so we can’t place other people and patients at risk. If we can require people to take the vaccination, it’s a benefit not only to the business owners and to all of their employees, but [also] to the patients who come in.”
Many states are “at will” employment states, Bianchi says, which means that employers have the right to establish company and workplace policies, requirements and conditions—such as those relating to mandatory vaccination—as long as they don’t violate any constitutionally protected class or right.
In addition, this past December, the Equal Employment Opportunity Commission (EEOC) determined that an employer’s act of requiring employee vaccinations alone would not violate the Americans with Disabilities Act (ADA), Bianchi says, which could further strengthen an employer’s position on required vaccinations.
Although it appears, then, that employers can legally require employees to receive the COVID-19 vaccine, Bianchi says the issue is likely going to be the subject of debate and litigation going forward.
“Employers really do need to weigh the risks and benefits of requiring vaccinations to ensure the health, safety and welfare of their employees, clients and business as a whole, versus any potential liability related to implementing