In December 2020, the U.S. Food and Drug Administration (FDA) granted emergency use authorization for COVID-19 vaccines from Pfizer and Moderna, and other applications are expected in the coming weeks. Public health experts see employers as playing an important role in vaccinating enough people to contain the pandemic. And as the pace of administering the vaccine accelerates, many employers are eager to protect their workforces as they seek to get back to business. But this raises questions about whether or not an employer can lawfully require its employees to get the vaccine – and if it is wise for them to do so.
Employers can require employees to take any number of health and safety measures to ensure safety in the workplace, including vaccination. There is no legal prohibition on mandatory vaccines in the employment context, although such programs are subject to several legal exceptions, most notably accommodation for disability, religion and pregnancy. The U.S. Equal Employment Opportunity Commission (EEOC) has allowed companies to mandate the flu and other vaccines with these exceptions.
In new guidance released in December, the EEOC included its views on the legal implications of the COVID-19 vaccine under the Americans with Disabilities Act (ADA), Title VII and other EEO laws. The agency reiterated that while employers can require employees to get vaccinated as a condition of going to work, they must be prepared to exempt employees with disabilities and religious objections or in the case of pregnancy. Employers must offer a reasonable accommodation to these employees, such as working remotely or being reassigned, as long as the accommodation does not cause the employer undue hardship.
The EEOC made it clear that a vaccination is not a medical examination or a disability-related inquiry under the ADA. This is significant because employers must show that any medical exam or disability inquiry is both “job related and consistent with business necessity.” However, if an employee is required to receive the vaccine from the employer or through a third party contracted by the employer – rather than through their own means – then any pre-vaccination questions are likely to constitute ADA disability-related inquiries.
Although the EEOC’s guidance is not binding on the courts, where discrimination claims will ultimately be resolved, it is likely to be influential.
The Occupational Safety and Health Administration (OSHA) has not yet taken a position on whether an employer can require the COVID-19 vaccine or offer it to meet safe workplace obligations. However, as part of guidance it issued during the 2009 H1N1 flu outbreak, OSHA confirmed that an employer could mandate the flu vaccine. At the time of that guidance, the H1N1 vaccine was fully approved by the FDA. COVID-19 vaccines have only been afforded emergency use authorization status, which falls short of a full endorsement. This could change OSHA’s analysis in the future.
OSHA also highlighted in its guidance that an employee who refuses a vaccine because it creates a danger of serious illness or death would be protected from retaliation by the employer.
While employers can make vaccinations mandatory, there are reasons they may decide to institute a voluntary policy instead. Employee concerns and reluctance to get the vaccine complicate the issue for employers. Tracking compliance and managing employee exemption requests would be an administrative burden, particularly for small businesses. In addition, COVID vaccine-related lawsuits are expected against employers that require employees to show proof of a vaccine before allowing them to return to the workplace.
Regardless of which option they choose, employers must keep in mind that they have a duty to provide a safe and healthful workplace free from recognized hazards. Because it is not 100% effective or widely available, the vaccine does not relieve employers of their obligations to comply with OSHA’s existing COVID-19 guidance, including maintaining an infectious disease preparedness plan that incorporates PPE requirements and other safety measures.
If you are an employer or an employee with questions or concerns regarding the COVID-19 vaccine, please contact us at 973.707.3322 or LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.
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