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Kroger faces hard questions on whether it will force employees to vaccinate against COVID-19

The EOC says employers can mandate vaccinations, but there are a few exceptions

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With vaccine availability starting to grow and new vaccines entering the market, hope for an exit from the funk COVID-19 has put us all in is starting to grow. But will the places we shop do their part and make sure all their employees are vaccinated and virus-free? 

Headlining this puzzle are grocery chains where employees mingle with customers more than most other retail environments. Kroger, the country’s largest grocery company with 11 million customers a day roaming its aisles, stepped up to the mic on Wednesday to offer its position -- kind of. While Kroger says it’s encouraging its workers to get vaccinated against the coronavirus, it’s waffling on whether it will require the shots once they are widely available.

"At this time, we're strongly encouraging our shoppers and associates to get vaccinated," Tim Massa, Kroger's senior vice president of human resources and labor relations, told The Enquirer.

When The Enquirer pushed for a more definitive answer about mandating employee vaccination in the future, Massa didn’t give a direct yes or no and simply repeated his previous answer. Kroger executives were also mum on how they might reassure worried customers who might be unhappy that store associates weren't required to be vaccinated.

Can retailers force employees to get vaccinated?

It’s possible that Kroger is straddling the fence in hopes of a legal dust-up from both anti-vaxxers and vaccine skeptics. As companies weigh their vaccine policies, the Employment Opportunity Commission (EOC) decided to establish its position before the situation goes off the rails. 

The EOC’s bottom line is that, yes, employers can mandate that employees have to get immunized with the coronavirus vaccine -- with some exceptions. 

In new guidance, the EOC said employers can require that employees get vaccinated as a condition of going to work. The exceptions are employees who are either pregnant, have a  disability, or object to being vaccinated on the basis of religion. In those situations, the employer has to find a way to accommodate the employee -- such as working remotely or being reassigned -- “unless it would pose an undue hardship, meaning significant difficulty or expense.”

“They have to check with their state and deal with the accommodation issues, but in broad terms, yes, employers can mandate it,” Shannon Farmer, a labor and employment lawyer at Philadelphia-based Ballard Spahr, told Human Resource Executive.

“If employees can’t work remotely, they need to do everything possible to get them back and get customers back in the door,” Farmer says. “If you’re in hospitality or the entertainment industry, if this is the way to get your business open again when you’ve had to be closed, you’re going to do everything you can to get it open.” There may also be an appeal for patrons if a company says it mandated vaccines for all of its workers, she adds.

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