December 1, 2020
The question many employers are asking these days is whether, once a COVID-19 vaccine is available, employers can mandate employees be vaccinated as a condition of remaining at or returning to work? Well, the vaccine is now available, so this questions must be answered, and the answer is yes.
In the not so distant future, COVID-19 vaccines will be as readily available to Americans as the flu vaccine, and with that availability will come the inevitable question all employers will face, can I require my employees be vaccinated? As of now, the answer to that question remains up in the air as no governmental agency has come forward to answer it, and as a result we are left to speculate and look to the closest example we know of to formulate our best guess.
With certain limitations, employers can require employees to be vaccinated for seasonal influenza. It is our belief that once a vaccine is readily available, just as strong of an argument, if not stronger, can be made for employers to be permitted to mandate employees receive a COVID-19 vaccination. As we previously wrote, the Equal Employment Commission (the “EEOC”) allows for an employer to require flu vaccinations of its employees; provided that, the employer provides an accommodation for employees who have a valid religious reason or disability that prevents the employee from being able to receive the vaccine.
We believe since COVID-19 is deadlier and more easily transmitted than influenza and the fact the EEOC has gone as far as declaring the COVID-19 pandemic a “direct threat” to employee health and safety, employers will be permitted by the EEOC to require their employees receive a vaccination to return to or continue work. What is key to our position is the term “direct threat” used by the EEOC. “Direct Threat” is a term of art and for this purpose means:
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.
Based on the EEOC’s declaration COVID-19 is a “direct threat”, we believe at the very least employers will be protected from any adverse actions taken by employees who are required to receive a vaccination (excluding employees who traditionally are able to receive religious or disability accommodations). In addition it is possible the EEOC will permit employers to also require individuals who would otherwise be permitted to receive an accommodation for disability or religious reasons to be barred from exercising this right to prevent having to receive the vaccine.
We expect additional guidance from the EEOC as vaccines for COVID-19 become readily available. For now employers should take a wait and see approach as a definitive answer to this question probably won’t be available for several months. We will keep you posted as more information becomes available. In the meantime, if you would like to discuss this issue or strategize on other COVID-19 related concerns, Brody and Associates is here to assist.
The subject matter of COVID-19 posts are often very technical. It is also an evolving area of law and very fact specific. Our goal here is to simply alert you to some of the key issues involved. We urge you to seek competent legal counsel before applying these ideas to your specific situation. Since March, we have had a team of attorneys focusing on COVID-19 related developments and they continue to stand ready to help you with any issues involving the pandemic.
