As a COVID-19 vaccine nears reality, employers may naturally ask whether they can require their employees to get vaccinated. While there may, indeed, be circumstances where employers can require employee vaccinations, the issue involves a range of considerations and must be handled with care and precision. For example, invoking an exception to the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission has recognized that the COVID-19 pandemic poses a “direct threat to health and safety,” thus impacting the ADA’s typical restrictions on medical checks in the workplace. Accordingly, subject to various factors, the “direct threat” exception may be an avenue through which employers can require that employees become vaccinated against COVID-19. In doing so, however, employers must also navigate delicate issues, including reasonable accommodations for employees who object to getting vaccinated either on the basis of a cognizable disability or sincerely held religious beliefs. Issues of equal access to a vaccine may also implicate disparate treatment issues under mandatory vaccination policies. Workers’ compensation and/or tort claims due to adverse reactions to the vaccine must also be accounted for, whereas mandatory vaccination policies relative to unionized workforces will likely have to be negotiated as a prerequisite to implementation. Employers should also consider whether alternate protective measures, including socially distanced workspaces, remote working arrangements and appropriate personal protective equipment, have adequately protected their employees and their business and can be expected to continue doing so. In all, the right of an employer to implement a mandatory vaccination policy has significant legal and practical ramifications. Employers should closely monitor federal, state and local guidance on the issue, and carefully assess whether such a policy is, in fact, enforceable and appropriate.
Read previous tip of the month newsletters here.