Employers mandating vaccines: what you need to know

From the Checkwriters Compliance Team

Employers are looking toward the likely return of more employees over the coming months and year. Can – and should – employers mandate a COVID-19 vaccine as a condition of employment or continued employment? The answer is two-fold: possibly; and no. Employers pondering a mandatory vaccination requirement should consider EEOC and other federal guidance, individual state guidance, and other specific issues such as employer liability and employee morale.

Tread carefully

Employers should tread carefully in considering whether to implement a mandatory vaccination requirement for employees. The limited guidance offered by the EEOC in the form of a Q and A fails to address the question head-on, but suggests the ability of employers to require vaccination under federal law by focusing on the requirements and exceptions employers must consider should they choose to make vaccination mandatory.

However, an important preliminary consideration is that the vaccines currently available for public use have Emergency Use Authorization (“EUA”) only from the FDA as opposed to full FDA vaccine licensure. Vaccines released under EUA status are still in the investigational phase and require that those receiving the vaccine be informed that they have the ability to decline it, perhaps calling a potential employer mandate into question. See a recent article discussing this very issue.

Employee considerations

  • Employers should be mindful that their employees may have sincere reservations about the long-term safety and efficacy of these first vaccines, and that implementing a mandate when potentially other mitigation strategies exist (such as telecommuting, enhanced social distancing and masking, and staggered work schedules) could hurt employee morale.
  • Other considerations include the potential for adverse side effects to the vaccine and employer liability (though worker’s compensation could cover adverse reactions if vaccination was made a requirement for continued employment).
  • Lastly, employers must be mindful of their specific duties and obligations pertaining to accommodation requests on the basis of disability (ADA) and/or sincerely held religious belief (Title VII Civil Rights Act).

For these reasons, we would not suggest mandating the vaccine at this time.

*Additional guidance from the EEOC regarding COVID-19 vaccines and the workplace will be forthcoming, and employers should continue to monitor the EEOC COVID-19 webpage for future updates, as well as to monitor state guidance in their applicable jurisdiction.

 

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

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