Workplace Vaccination Policies & Legal Considerations During COVID-19
As COVID-19 vaccines become more widely available, employees and employers alike may ask whether an employer can require its employees to get the COVID-19 vaccination. The answer is probably yes. However, it is worth considering the implications in more detail.
A mandatory COVID-19 vaccination policy is similar to an employer's right to require an at-will employee to get a flu shot. However, an employee may be excused from any vaccine requirement if the employee has a medical reason to refuse the shot under the Americans with Disabilities Act (ADA) or a religious reason under Title VII of the Civil Rights Act. For example, an employee who has documented and severe adverse reactions to an ingredient in the vaccine may be exempt from a vaccination requirement under the ADA. Employers must also consider state law and collective bargaining agreements, which may set their own standards.
Under both the ADA and Title VII, once an employer learns that its employee may be exempt from a mandatory vaccination requirement, it must provide its employee with a reasonable accommodation unless this would pose an undue hardship. (An undue hardship is generally something that would require an employer to spend a large amount of money or that would be significantly difficult to implement.) If, after providing a reasonable accommodation, the employer can demonstrate that the employee still poses a “direct threat” (as defined below), it may terminate that employee or redefine their position and job duties.
The Equal Employment Opportunity Commission (EEOC) has adapted its pandemic response to H1N1 as its guidance for COVID-19. According to the EEOC and the Centers for Disease Control and Prevention (CDC), the COVID-19 pandemic meets the “direct threat” standard. This means that, so long as an employer's fear of harm to an employee or others is reasonable and based on objective, factual information (and “not on subjective perceptions…[or] irrational fears”), the employee is not exempt under the ADA. This could mean that if an employer has given an employee an exemption from a COVID-19 vaccination requirement, but the employee continues to take unreasonable risks of exposure to the virus, thus endangering other employees or customers, the employer may terminate the employee as a “direct threat.” However, the EEOC has not updated its pandemic response guidelines since a vaccine became available.
Does a Mandatory Vaccination Policy Make Sense?
Another consideration for employees and employers is practicality. While the vaccines are still relatively new and prioritized for health care workers, employees outside the health care industry likely will not be able to get a COVID-19 shot soon. In this case, an employer may want to be flexible with its policy and allow a greater period of time for an employee to get vaccinated than it would for the common flu shot, or even strongly encourage a shot rather than require it. On the other hand, if the employee does work in the health care industry, especially if they have regular contact with patients, their employer likely could require the vaccine immediately. It may be in the employee's best interest to comply as well. If the employee does suffer harm on the job, the employee can demonstrate that the harm was not caused by refusing the vaccine.