COVID-19 Vaccine – Can An Employer Require It? – December 2020 Newsletter
Can An Employer Require Its Employees
To Receive The CoViD-19 Vaccine
With the much anticipated emergency approval of the COVID-19 Vaccine by the FDA, many employers are asking if they will be able to require their employees to receive the vaccine as a condition of employment, once available.
While almost everyone is anxious to get back to normalcy and full time employment, according to the latest polls, almost half of Americans still would not agree to be vaccinated against the COVID virus. With this background employers are confused of their legal rights and potential liabilities and the U.S. Equal Employment Opportunity Commission (“EEOC”) has yet to release any formal guidance. The EEOC is closely monitoring the developments and evaluating how the potential values of the vaccine would interact and conflict with the employers’ obligations under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964 and other laws the Commission enforces.
While the EEOC has yet to release any formal guidelines and direction, in light of the current emergency global health crises it is the general consensus that employers may require their employees to receive the COVID-19 Vaccine with certain caveats. It is strongly recommended that employers requiring mandatory vaccines to provide “reasonable accommodations” under the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 for employees with qualified disabilities or those that have a legitimate religious objection to the vaccine. Reasonable accommodations could include allowing the employee to work from home, if possible, or requiring the employee to wear a mask or other personal protective equipment in the workplace if they have not been vaccinated. It is also important for employers to comply with any union contracts as well when considering mandatory vaccinations. At this stage, it is widely believed that even if employers required vaccination for employees, they would be protected from liability should the employee encounter a side effect from the vaccine. Most likely, these claims would proceed through workers’ compensation programs.
Until the EEOC provides further legal guidance, which is expected in the coming months, many experts are suggesting that employers consider “strongly suggesting” that employees receive the vaccine instead of requiring it. This will help protect employers from any legal and practical issues that may come to light as the pandemic and vaccine changes the workplace landscape. Further, many employment experts believe that this will remove the negative connotation and make employees more willing to receive the vaccine. Some suggestions to encourage employees to receive the vaccine include providing incentives like gift cards, vacation time or one time bonuses. Additionally, having senior leadership employees receive the vaccine first to show that it’s safe may help encourage subordinate employees to receive the vaccine as well.
Despite this vaccine being an ever daily evolving and unfolding story and situation, the legal precedence is clear. From a pure legal perspective, states across the country and Washington, D.C. have statutes and regulations requiring students and certain health care or long-term care workers to be vaccinated against various diseases and the flu. However, all of these mandatory vaccination states have exemptions for medical, religious, philosophical, moral or other beliefs. Thus, the consensus among employment experts is to make the vaccine as easy as possible to get with the employer and employees working together to try to address the challenges facing the workplace.
This is an ever evolving and unfolding situation and story and legal guidance and direction needs to be provided by the government. We will provide an update as soon as the vaccine begins rolling out to the general public and more information and guidance is provided by the EEOC and/or the Center for Disease Control.
Please contact our office if you would like to discuss whether a vaccine mandate would be effective in your specific business situation.