While COVID-19 vaccinations may not be available to the general public until later next year, some employers are currently considering whether they should require their workers to be vaccinated. Similarly, employees have expressed concerns about whether they will be required to be vaccinated to return to their office or as a condition of employment elsewhere. Ultimately, mandating vaccines for workers raises employer liability and employee rights challenges that require the advice and guidance of an experienced employment lawyer.
COVID-19 Vaccines: a condition of employment?
Although companies in the healthcare industry typically require their staff to be vaccinated against the flu and other communicable diseases as a condition of employment, it is generally uncommon for businesses to require their workforce to be vaccinated.
Moreover, many states have laws requiring influenza immunization for hospital workers and other health-care personnel. Given the threat of transmission of the deadly novel coronavirus in the workplace, more companies are considering mandatory vaccine policies for their employees, particularly those in hospitality, travel, retail, and others involving close public interaction.
In short, it is legally permissible for employers to require employees to get a COVID-19 vaccination as long as such a requirement does not violate applicable state and federal discrimination laws, including Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA).
As an example, under Title VII, employers may be required to accommodate employees who object to vaccination because it conflicts with their sincerely held religious beliefs. Similarly, employees who have a medical condition (e.g. multiple sclerosis) that makes it unsafe for them to be vaccinated may be entitled to an exemption under the ADA.
It is interesting to note that the U.S. Equal Employment Opportunity Commission (EEOC) has previously issued guidance on mandatory flu shots advising that employees may be entitled to exemptions. The EEOC has also stated that employers covered under the ADA should consider encouraging workers to get the flu vaccine rather than requiring them to be vaccinated.
The Challenges of Mandatory Vaccine Requirements
Although a COVID-19 vaccine requirement may be lawful, employers must weigh the costs and benefits:
- Can an employer be held liable if a worker suffers an adverse reaction to a vaccine?
- What happens if there is no vaccine requirement and an employee is exposed to the coronavirus in the workplace?
- What are the costs associated with mandatory vaccine requirements?
- Does a mandatory vaccine requirement expose an employer to potential liability under HIPAA (The Health Insurance Portability and Accountability Act of 1996)?
In sum, health care, travel, retail, or other businesses whose employees are at risk or who present a risk to others have strong justifications to require their employees to be vaccinated; however, exceptions must be made for individuals who cannot be vaccinated due to a disability or sincerely held religious belief.
Given the time, expense, and liability that may be involved with requiring vaccinations as a condition of employment or of returning to work, however, a better option may be for employers to encourage, facilitate and subsidize COVID-19 vaccinations.
In any event, the best way for employees and employers to understand their rights and responsibilities as the coronavirus pandemic unfolds i