Centers for Disease Control and Prevention predicts that novel coronavirus vaccines will be widely available by the middle of 2021. With many employers and employees alike itching to return to the workplace or to maintain a safer workplace, it raises the question, “Can you require employees to be vaccinated?” Unfortunately, the answer is not definitive.
This is not the first time the United States has dealt with a pandemic. The Equal Employment Opportunity Commission (EEOC) issued pandemic response guidance after the H1N1 virus outbreak in 2009. This guidance was recently reissued with a few adjustments to address the COVID-19 virus. The two laws you need to know about are the Americans with Disabilities Act and Title VII of the Civil Rights Act.
The EEOC guidance stated that businesses covered by these two statutes may implement mandatory vaccination programs. However, employers must allow exemptions if a worker has a medical accommodation protected by the ADA, or registers an objection on religious grounds under Title VII of the Civil Rights Act of 1964.
The guidance continues to explain that an employer may deny an accommodation if it poses an undue hardship to the employer, its employees and third parties (such as patients).
Since there is no COVID-19 vaccine available now, the EEOC stopped short of making a recommendation, but it has advised employers that they may consider “encouraging” employees to get an influenza vaccine, rather than issuing a mandate. Right now, we can only presume this is the model the EEOC will follow. Once a vaccine is available, the agency will likely revisit the issue and provide further guidance governing vaccinations in the workplace, given the extraordinary health and safety threat of COVID-19.
EEOC UPDATE: On December 16, 2020, the EEOC issued an update to its COVID-19 guidelines, reminding employers to adhere to the ADA and Title VII standards if requiring employees to be vaccinated. Read the complete guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” here.
A mandatory vaccination program will likely be unpopular among certain employees, especially those involved in or influenced by the anti-vaccine movement. On the flip side, should an employee who declines a vaccine for health or religious reasons be “outed”, he or she may face internal discrimination or harassment, which could lead to employee disputes or litigation.
In addition, there are practical and logistical questions to consider: Which vaccine should an employer require if more than one is approved? Who will pay for the employee’s vaccination? If there are limited supplies, will one segment of your employees, such as those working in higher risk environments, be prioritized over another?
All of these issues must be weighed and considered against the benefit of helping to maintain a safer workplace. The attorneys at Hendershot Cowart P.C. are available to help you and your business make informed decisions on these issues and others as we navigate such unprecedented times.
Hendershot Cowart P.C. is dedicated to being your law firm for life. If you have concerns about mandating a vaccination or are dealing with a related employment law issue, call us today at (713) 909-7323.