Employers in a variety of industries continue to have difficulty securing vaccination rates recommended by public health experts to maximize protection for employees and the general public against the ongoing COVID-19 pandemic. On one extreme, some employers have imposed mandates with the penalty of automatic termination for employees who are not vaccinated. On the other extreme, some employers have left it up to the personal preference of employees about whether they will be vaccinated against COVID-19. Neither of these approaches is ideal. The first approach potentially violates the Americans with Disabilities Act, Title VII, and/or the Minnesota Human Rights Act for, among other reasons, the failure to provide a reasonable accommodation of a disability or the failure to provide a reasonable accommodation of sincerely held religious beliefs. The second approach potentially contributes to the further spread of COVID-19 that has already devastated communities across the country and around the world.
The recent experience of the Women’s National Basketball Association (“WNBA”) shows that another way exists to protect individual and collective health while also respecting personal autonomy. As reported by Sports Illustrated, the managerial leadership of the WNBA (i.e., employers) have embraced an approach that recognizes the importance and effectiveness of workplace democracy. To that end, and at the request of the WNBA players’ union, the WNBA employers stepped back as WNBA players (i.e., employees) engaged each other through their union to express, investigate, and discuss concerns about COVID-19 vaccines. In the process, the union worked with panels of health care professionals to address WNBA player concerns based on verified medical data and science in a shame-free and learning-focused way. By June 2021, 99% of WNBA players were vaccinated against COVID-19. Employers across the nation would do well to follow the example of the WNBA.