Pfizer’s announcement about progress with its COVID-19 vaccine means it’s time for employers to consider what their employee vaccination policies will be. Can you mandate employees get vaccinated?
The short answer is, yes, you can mandate employee vaccinations for COVID-19. However, in many cases you may be better off strongly encouraging workers to get the shots.
Employees may request exemptions from COVID-19 vaccination for religious reasons.
The Equal Employment Opportunity Commission (EEOC) says employers must reasonably accommodate an employee’s “sincerely held religious beliefs … unless accommodation would impose an undue hardship on business operations.”
An undue hardship includes impairing workplace safety, according to employment law firm Littler.
Courts have helped define what is an undue hardship.
In Robinson v. Children’s Hospital, a court found that exempting an employee from a mandatory vaccination would have posed an undue hardship because “it would have increased the risk of transmitting influenza to its already vulnerable patient population.”
This and similar court decisions have resulted in a higher likelihood of mandatory vaccine policies at healthcare facilities compared to other types of businesses.
Under the Americans with Disabilities Act (ADA), employees with a disability may be entitled to an exemption from a mandatory vaccine. The question: Would the worker’s safety be affected by receiving the vaccine?
The ADA prevents employers from excluding employees with disabilities unless they present a “direct threat.”
A direct threat under the ADA is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
The factors to consider on whether to mandate employee COVID-19 vaccination don’t end with religious and disability questions:
- Under the Pregnancy Discrimination Act, a pregnant employee may have a qualifying disability for not receiving the COVID-19 vaccine
- Mandatory vaccinations could lead to workers’ comp claims from employees who suffer bad reactions to the shots, and
- It may be wise to consult with any unions present before instituting a mandatory vaccination policy to avoid unfair bargaining claims.
Summary: What to consider
Employment law firm Ogletree Deakins suggests employers take the following steps to prepare for the arrival of a Food and Drug Administration-approved COVID-19 vaccine:
- Consider whether a mandatory policy is really necessary, or whether you’d be better off “strongly encouraging” employees to get a COVID-19 vaccine
- Consider confining a mandatory vaccine policy to high-risk locales, departments or worksites
- Prepare to review numerous requests for accommodations
- Find out if it’s possible to provide the vaccinations at no or little cost to the employee at a convenient location during normal working hours
- Plan to negotiate with any unions regarding the policy
- Review state workers’ comp laws and your current insurance policy regarding ramifications of adverse employee physical reactions to the vaccine, and
- Watch for new laws, regulations and guidance from federal and state authorities.