The release of one or more COVID-19 vaccines by the end of 2020 is now a tangible reality.
While vaccinations will likely not be available to the general public until the spring, clinical trials for three vaccines show 90-95% efficiency, and the United States is poised to soon begin vaccinating healthcare and certain essential workers, the elderly, and those with underlying conditions.
Employers, many of whom have sent their employees home throughout the pandemic, must now decide if they will require COVID-19 vaccines for their employees.
Can employers mandate COVID-19 vaccines?
The short answer is yes — with some exceptions.
“They can mandate a vaccine, but there are some limitations,” says Jenna Reed, Vice President of HR Services and General Counsel at Cascade Employers Association.
While the COVID-19 pandemic is a novel situation, the flu vaccine sets a precedent for how vaccination mandates are handled in the workplace.
The federal Occupational Safety and Health Administration (OSHA) has said that employers can require flu vaccinations for employees, but the Equal Employment Opportunity Commission (EEOC) allows employers to request an exemption, or “reasonable accommodation,” under the American With Disabilities Act (ADA) or Title VII of the Civil Rights Act.
“For example, if someone had a medical condition or a disability that would prevent them from having that vaccine, employers would then have to look at a reasonable accommodation under the ADA,” Reed says. “There can be religious accommodations as well as we’ve seen with other vaccines.”
Employers do not have to accommodate nonreligious or political beliefs about vaccines.
As seen with the flu vaccine, employers who choose to mandate the COVID-19 vaccine will have to provide reasonable accommodations to employees with genuine religious or medical reasons for abstaining from vaccination.
Reasonable accommodations could include offering that the employee work remotely or requiring personal protective equipment while working, according to Reed.
But because COVID-19 is significantly more contagious and deadly than the flu, navigating reasonable accommodations will be significantly more complicated.
“For example, if allowing an unvaccinated employee to come into the workplace will be a direct threat to the safety and health of others, then allowing that employee to not get vaccinated may not be a reasonable accommodation, but that’s really kind of uncharted territory,” Reed says.
Direct threat standard
If an employee with a disability poses a “direct threat” to other employees or customers despite reasonable accommodation, they are not protected under the ADA.
“Direct threat” is defined by the EEOC as “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.”
In March 2020, the EEOC declared that the COVID-19 pandemic meets the “direct threat” standard, enabling employers to ask health questions and require medical screenings in the workplace.
However, the EEOC has yet to issue guidance on mandatory vaccine policies.
If employers mandate vaccines, can they be held liable for side effects?
Attorneys warn that employers could be liable if an employee has an adverse reaction from a mandated vaccine.
Ronda K. O’Donnell, Michelle Michael, and Mari Gangadean of Marshall Dennehey Warner Coleman & Goggin wrote that there is a legal precedent for employer liability under workers’ compensation laws.
“When the need to get a vaccine is essentially encouraged or made a requirement of an employee’s employment and something bad happens as a result, state law decisions suggest that workers’ compensation claims might be triggered.”
Legal recommendations from the pros
Attorneys with California-based employment and labor law firm Liebert Cassidy Whitmore, say that in lieu of guidance from Federal and State agencies, nonprofit employers interested in requiring COVID-19 vaccinations should limit the scope of their mandates to employees who report to worksites and facilities, and offer a good faith process to employees who cannot receive a vaccination for health or religious reasons.
Employers should also provide information to employees explaining the vaccine requirement rationale and consider contacting an attorney to discuss obligations.
ABOUT THE AUTHOR
Lia Tabackman is a freelance journalist, copywriter, and social media strategist based in Richmond, Virginia. Her writing has appeared in the Washington Post, CBS 6 News, the Los Angeles Times, and Arlington Magazine, among others.