Can an Employer mandate the COVID-19 Vaccine?
The answer is being hotly debated right now with lines in the sand being drawn as to which side of this debate to be on and more guidance is still yet to come. On Saturday, November 7, 2020, the New York State Bar Association even passed a resolution urging the State of New York to require all New Yorkers be mandated to take the COVID-19 vaccine once a “scientific consensus emerges that it is safe, effective and necessary.” They do encourage that the government try to urge voluntary vaccination first before imposing a mandate and outline potential conditions for requiring the vaccine for all New Yorkers save those exempted by doctors. Part of the consideration would be whether the mandate would apply to all residents or to smaller populations such as health care workers or students. The New York State Bar Association’s resolution does not itself create a mandate and it gives the government of New York and all those watching around the nation much to consider as the release of the vaccine into the public becomes more of a reality.
The Equal Employment Opportunity Commission (EEOC) has not issued new guidance yet although they have addressed vaccines a number of times in the past and the courts throughout the United States have hotly debated vaccines in the employer environment. This issue is not a simple issue and employers should tread cautiously. Employers should consider the laws that apply to them and their individual reasoning behind mandating the vaccination. On the one hand an employer may feel that the requirement of a vaccine is needed among its workers because telework it not an option, workers are in a close environment making social distancing difficult, employees work in the healthcare industry, employees are dealing with the public or some other similar reason. On the other hand, employers are left with the other issues such that individuals may resent being required to take this vaccine, claims of violations of privacy, there could be individual medical reactions/side effects to the vaccine (unknown), religious concerns, other disability accommodation concerns, employee attempts to organize under the National Labor Relations Act (NLRA) and even the possibility of an employee claiming workers’ compensation if there is a complication from taking the vaccine.
Some states already require vaccinations for health care employees depending on the facts and circumstances. So it is not to be unexpected that the COVID-19 vaccine maybe something that either the States or the Employers require if they are employing health care workers in the same way it maybe required for the flu vaccine. As stated above, this might be extended now to retail workers or other employees who interact regularly with the public or if the employees deal with a vulnerable immunocompromised population such as workers in a nursing home or home health care providers.
Even if an employer is allowed to move forward and mandate the vaccine among its workforce, avoiding the issue of exceptions or accommodations does not seem to be something that is going to be able to be avoided. If you recall, the EEOC’s Pandemic Preparedness Q&A (originally published March 19, 2020) touched on the vaccine issue of the flu during the pandemic in #13:
13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36) Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it. As of the date this document is being issued, there is no vaccine available for COVID-19.
So, unless a clear law or the EEOC provides differently, employers should be prepared to go through the interactive process with employees that are challenging having to be vaccinated due to a disability and what reasonable accommodation would be available barring undue hardship or an accommodation request in the form of a sincerely held religious belief, practice or observance. This maybe distinguished from an ethical protest that may not require an accommodation under the law and so an understanding of these issues and how to work through this process on a case by case basis should all be part of the leadership teams focus. It would be beneficial that everyone should be educated on how to identify a request for a potential legal accommodation versus just a refusal to be vaccinated that may not be protected. In the meantime, we will stay tuned to see how other laws and the EEOC weigh in…..