Cannabis did a booming business in 2020. On the one hand, you had various stay-at-home orders and determinations on what businesses were “essential” or not. On the other hand, you had plenty of people stuck at home that wanted their weed. The cannabis industry, which was deemed essential during the outset of the pandemic, swiftly adjusted business and delivery models to meet the demand. Adult-use cannabis demand soared as a result, and many cannabis-legal states boasted record sales in 2020.

That quick response and adaptiveness must continue as the vaccine is distributed. Employers must determine if a vaccine should be mandated and to whom. The overarching purpose is the safety of employees and customers. The business needs to maintain operations. As with everything, the details are critical.

In an interview with Cannabis Business Times, attorney Laura Bianchi, a partner with Bianchi & Brandt, recommends cannabis businesses continue the proactive approach. While companies were quick to create policies and procedures with the health and wellness of their employees and customers in mind, Bianchi says cannabis businesses should develop and implement policies on the COVID vaccine, too.

“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 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 adapt and implement things that will make sense for our patients and our staff?'”

This is especially important when considering many cannabis businesses operate as a medical dispensary. These businesses need to be able to accommodate ill patients that may be in a high-risk category. As a result, Bianchi noted that her cannabis clients are looking at mandating vaccinations for their employees.

“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 healthcare 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. This means that employers have the right to establish company and workplace policies, requirements, and conditions. This includes whether or not to require mandatory vaccination—as long as they don’t violate any constitutionally protected class or right.

The idea of a mandated vaccine could ruffle the feathers of the anti-vaccination ideology. Still, there’s more to it than that. Most states have “at-will” employment provisions. In some cases, that means employers can create company and workplace policies that include such things as mandatory vaccination. The caveat is that the employer cannot ignore constitutionally protected classes or associated rights.

The mandatory-COVID vaccine push got a boost in 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). This will remain a hot topic. Employers most likely will be allowed to legally require employees to receive the vaccine. Bianchi also noted in the Cannabis Business Times interview that this hot-button issue will be debated (and possibly litigated) in the future.

The cannabis industry is unique in that most facilities and operations cannot accommodate remote work. In the case of cultivation operations, employees might also work in close quarters, sans the six-foot social distancing protocol most of us have become accustomed to. Businesses in that category might determine that mandatory vaccinations for employees are a no-brainer.

“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 such a requirement,” she says.

“A lot of our clients also have corporate offices, and for corporate offices, there’s a little bit more flexibility in saying, ‘If we don’t want to implement a must-have vaccination policy, can some of these individuals work remotely?'” she says. “Even that can be a slippery slope because you want to make these rules and requirements cohesive across the board, but there is some flexibility where maybe you’re in a location where you don’t always have to be on-site to do work.”

Employers must consider paying for the vaccine if they will mandate it as a condition of employment for those employers that don’t offer health insurance to their employees. The timing of vaccination is essential, too. This is where the details matter and where consulting with an attorney is more important than ever. Policies and procedures must be written carefully, as detailed as possible, and cover many contingencies without creating multiple litigation opportunities. Because the notion of mandating a vaccine as a condition of employment might seem over-reaching to some, policies must be applied uniformly. To avoid any legal surprises later, it’s recommended the businesses discuss things with an attorney before finalizing any policies or mandates. Most mandated-vaccine policies will need to include parameters for exemptions, too.

If, for example, an employee will not comply with a carefully constructed mandated-vaccine policy and don’t meet the criteria for an exemption, the employer has some leverage that includes disciplinary action up to termination of employment.

“Again, most states are ‘at will’ employment states, so if an employer implements a COVID-19 employee vaccination policy … and an employee simply refuses, that employee may be subject to discipline, up to and including termination,” she says. “This is also something employers may opt to contractually require through an employment agreement. In that case, an employee’s refusal would be deemed a breach of contract and in the same manner, be subject to discipline, up to and including termination.”