As COVID-19 vaccinations are approved for distribution and become more widely available, employers will inevitably face many questions. One major question will be whether employers can make COVID-19 vaccinations mandatory? If so, what about employees who refuse to take a vaccination? Which vaccination from which drug manufacturer will employers recommend? How will businesses proceed with staff who are more susceptible to COVID-19 than others?
Generally, once a safe and effective vaccine is available, employers will be able to require most employees to get COVID-19 vaccinations. The requirement of mandatory vaccinations in the workplace is not a new concept and many courts have upheld such mandates.
Although vaccination requirements may be permissible, there are important exemptions recognized by federal laws such as Title VII, the Americans with Disabilities Act, and some state and local laws may also exempt certain employees. As an example, when an employee raises a religious concern or a potential issue with the vaccination based on a disability, employers should be prepared to conduct individualized evaluations of requests for accommodation.
The U.S. Equal Employment Opportunity Commission has acknowledged that COVID-19 meets the ADA’s “direct threat standard,” which refers to an employee with COVID-19 in the workplace who poses a “significant risk of substantial harm” to others. The “direct threat standard” permits more extensive medical inquiries and controls in the workplace than typically allowed under the ADA.
The U.S. Occupational Safety and Health Administration is also more likely to defer to employer-mandated vaccinations, as the agency is already encouraging its investigators to submit to vaccinations when they become available. However, employees have rights under a whistleblower complaint clause pursuant to Section 11(c) of the Occupational Safety and Health Act of 1970, if they have a medical condition that creates a real danger of serious illness or death and a reasonable belief the COVID-19 vaccination would be harmful.
A decision to require or encourage vaccinations should not be undertaken without consultation with counsel. Employers can seek counsel by contacting the attorneys at York Bowman Law, LLC.