After a long and difficult year, several pharmaceutical companies have announced that COVID-19 vaccines are on the horizon. This is welcome news for employers who have been struggling with myriad employment issues during the pandemic. However, like everything with COVID-19, a vaccine raises its own legal questions. Most notably, once the FDA formally approves a vaccine, can an employer mandate that its employees take it?
For most employees, the answer is probably “yes”. There is ample precedent for employers mandating vaccines in certain fields, such as flu shots for healthcare workers in hospitals. Indeed, the Occupational Safety and Health Administration (OSHA) in the past has said employers have the right to mandate vaccines. Moreover, the EEOC has already issued guidance stating that COVID-19 meets the “direct threat” standard under the Americans with Disabilities Act (ADA). This classification means the EEOC believes a significant risk of substantial harm is posed by having someone with COVID-19 or its symptoms present in the workplace.
That being said, at least two federal discrimination laws may provide some protection for employees who oppose taking a vaccine. Under Title VII of the Civil Rights Act of 1964, a sincerely held religious belief against taking a vaccine could serve as the basis for a religious exemption. See December 5, 2012, EEOC Informal Discussion Letter: Title VII: Vaccination Policies and Reasonable Accommodation. In addition, under the ADA, the employee could assert that they have some disability that prevents them from taking the vaccine, such as a sensitivity or allergy to something in the vaccine. Even anxiety to taking a vaccine could conceivably constitute such a disability.
If an employer receives accommodation requests not to take the vaccine based upon religious beliefs or disability, an employer would be required to consider whether a reasonable accommodation can be granted. In this case, this may mean a change in working hours to avoid contact with coworkers, remote work, or other social distancing. Ultimately, the employer could decline the accommodation request if the accommodation for the particular employee poses an undue hardship on the company.
Of additional interest, for employers that mandate that employees receive a COVID-19 vaccine, if an employee suffered complications from the vaccine, he or she may be able to assert that the complications are illness or injuries caused by their employment. This may mean that the complications arising from the vaccination are covered by workers’ compensation insurance.
Employers would be wise to gauge the expected response of their employees before putting in place a final policy on the subject. Simply because an employer presumably can mandate that employees take a COVID-19 vaccine does not mean that the employer must do so. For businesses in high risk fields, immediate employee vaccinations will be essential. For others, however, a policy of “strong encouragement” and a reminder that “we are all in this together” may actually be better received by the workforce. Ultimately, employers must continue to balance workplace safety with sensitivity to their employees during these trying times, which hopefully are nearing an end.
Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.