Can Employers Mandate that Employees Receive the COVID-19 Vaccine?

by Stephanie A. Koenig | skoenig@flblaw.com

With the distribution of the COVID-19 vaccines well underway, employers remain concerned about the extent to which they may or must mandate employee vaccination. In tacit recognition of those concerns and the complexities associated with vaccinating the American workforce, the Equal Employment Opportunity Commission (EEOC) issued guidance for employers on handling those complexities.

As a baseline, the EEOC guidance confirms that employers can protect the health and safety of workers against exposure to the COVID-19 virus, and that requiring employees get vaccines is a reasonable means of protecting against virus exposure. Separately, the Occupational Safety and Health Administration has said that employers have a general duty to protect the health and safety of their employees from known hazards, such as COVID-19. So, generally, an employer has the ability to require non-union workers in the private sector to get vaccinated, so long as the employer accommodates medical conditions and religious beliefs. Some states (though, to date, not Pennsylvania) are considering proposals to prevent employers from requiring employees to be vaccinated.

As with most general rules, there are exceptions. According to the EEOC, if a worker cannot be vaccinated because of a medical condition or disability, the employer must prove that an unvaccinated worker would pose a “direct threat” to other workers that cannot be eliminated or mitigated by a reasonable accommodation. The EEOC guidance encourages employers to engage in a “flexible, interactive process to identify workplace accommodations that do not constitute an undue hardship.” An employer must also provide a reasonable accommodation “for the religious belief, practice, or observance” that prevents the worker from receiving the vaccine under Title VII, unless that accommodation poses more than a “de minimis” cost or burden. Of course, the EEOC guidance does not answer all questions related to the vaccine, and it prompts many other questions regarding the development and implementation of vaccination policies.

Employers should heed this guidance and consider the practical realities affecting vaccine availability, employee apprehension, and other factors in developing an appropriate employee vaccination policy. One thing is clear: prior to implementing an employee vaccination policy, it is vital that the employer develop and implement a written policy and include training that plainly addresses the legal and human resource questions related to vaccines.

Workplace vaccination policies are not one-size-fits-all.

Some questions that employers should consider when developing a vaccine policy or protocol include:

• Whether the employer will incentivize/recommend employees to get vaccinated, rather than mandate vaccination;

• Whether the employer will pay for the cost of the vaccine;

• Whether the employer will compensate the employee for the time spent receiving the vaccine;

• Will the employer administer the vaccine or will a third party administer the vaccine;

• Will (and how will) the employer require proof of vaccination;

• What will occur if an employee refuses the vaccine;

• What types of pre-screening questions are legal or even advisable prior to administering a vaccine; and

• What is the risk to employers if an employee develops side effects from receiving a required vaccine.