COVID-19 Vaccine or No Vaccine: Can employers require employees to be vaccinated?

Recent news of available COVID-19 vaccines is a welcome relief for all of us!  For business owners, it signals a returning workforce and hopefully a return to business as usual.  But there are a number of workers who remain hesitant to get the vaccine, who prefer to wait and see how effective the vaccine is and are content working from home.  Employers are now asking whether they can require all employees to get vaccinated in anticipation of their return to the workplace.

It is well established that employers can require employees to receive vaccinations so long as the requirement is job related and consistent with business necessity.  The healthcare industry or other environments where employees provide services to high risk individuals are more likely to have such requirements.

With that said, there are exemptions under the Americans with Disabilities Act (ADA) for those employees who have qualifying disabilities, including pregnancy, requiring employers to accommodate.  Title VII provides an exemption to employees who refuse to be vaccinated based upon a sincerely held religious belief.

The U.S. Equal Employment Opportunities Commission (EEOC) has not updated its guidance to employers specifically to reference a COVID-19 vaccine, but in previous guidance has said employers could require vaccines during a flu pandemic, a situation that is a direct-threat to others in the workplace. This same analysis would apply to a COVID-19 vaccine.  While there is no actual guidance for a COVID-19 vaccine, employers should follow any existing vaccine policy or create a vaccine policy.  Companies that decide to make vaccines mandatory should also know how they will they handle those employees who refuse to get vaccinated.  Such policies may also include disciplinary action up to and including termination for those employees that refuse to get vaccinated.

As you might think, mandatory vaccine policies can be controversial unless there is a clear guidance such as in the healthcare industry for a necessity. Instead of a mandate, employers certainly can recommend vaccines and even offer free vaccine clinics to all of their employees.

If your company is deciding whether to mandate vaccines or needs assistance in creating a vaccine policy, please contact our employment law team for assistance.