Can employers require their employees to receive COVID-vaccinations?
While vaccination is one of an employer’s best tools for preventing COVID-19 outbreaks at their worksites, requiring employees to be vaccinated and disciplining them if they refuse comes with legal risks.
Although the federal Equal Employment Opportunity Commission (EEOC)’s December 2020 guidelines stated that employers could implement and enforce mandatory COVID-19 vaccination policies for certain jobs and with certain exceptions1, the U.S. Food and Drug Administration (FDA) requires that recipients of vaccines under an “emergency use authorization” (which includes the current COVID vaccines) must be informed that they have the option to accept or refuse the vaccination. For more detail on this federal agency contradiction, see https://workplacecoachblog.com/2021/01/covid-vaccination-update-in-light-of-the-vaccines-emergency-use-authorization-status/
“The current problem,” says Perkins Coie Senior Counsel Michael O’Brien, “is that many employees looking for vaccination guidance see the EEOC’s guidelines as a green light for mandatory employee vaccinations. But these guidelines appear to refer to a regularly approved vaccine, not emergency use authorized vaccines like those currently available. The FDA’s requirements are explicit that people receiving emergency use authorized vaccines be given a choice whether to take them or not.”
If you’re an employer navigating this balance beam, here’s what you need to know:
According to the EEOC, employers need to ensure their polices comply with the Americans with Disabilities Act (ADA), federal and state anti-discrimination laws (in which religion is a protected category) and any other state or local workplace laws and regulations. Employers that elect to require vaccinations as a condition of employment need to ensure these requirements are job-related, a business necessity and don’t violate an employee’s rights under an employment contract or collective bargaining agreement.2
For more detail on the EEOC guidelines, the issue of direct threat, and potential accommodation options, see https://workplacecoachblog.com/2020/12/mandatory-covid-vaccinations-the-rules/
Federal law allows employees to request that they be exempted COVID-19 and other vaccination requirements because of disability/medical reasons or religious-based objections. Employers need to accommodate these employees unless doing so would create an undue hardship for the employer or create a direct threat to other’s safety.
EEOC guidance outlines what the employer needs to do to evaluate whether an employee’s refusal to be vaccinated constitutes a direct threat to others or the employee him/herself. Employers can do this by assessing the nature, severity and imminence of the potential harm and the likelihood the harm will occur.
Legal justification for mandatory vaccination policies
Rules for flu vaccination offer the best source of guidance on COVID-19. Many believe mandatory workplace COVID-19 vaccination is justifiable as a health and safety measure.
In the past, the Office of Occupational Safety and Health Administration, courts and arbitrators have upheld mandatory flu vaccination policies as a legitimate workplace health and safety measure. OSHA’s “general duty clause” requires that employers keep the workplace free from “recognized hazards,” which would include coronavirus infection.
Do flu vaccination rules apply to COVID-19?
OSHA flu vaccination guidance rests on three facts, two of which apply to COVID-19. These two: influenza is contagious and spreads via human-to-human contact, and when an employee gets the flu, it poses a hazard to co-workers, customers and others at the work site.
At the same time, while research shows that flu vaccinations are safe and effective in preventing the flu, COVID-19 vaccinations have received only emergency use authorization and lack long term data supporting their safety and effectiveness. This casts doubt on whether the OSHA’s flu vaccination guidance will apply to COVID-19.
Further, OSHA’s guidance reminds employers that firing employees who defy a mandatory vaccination policy could violate its whistleblower protections if the employee’s refusal is based on his/her “reasonable belief” that s/he has a medical condition, such as an allergy, that could cause serious injury or death if she gets the shot.
The bottom line?
Encourage your employees to get COVID-19 vaccinations without ordering them to do so by educating them about the vaccination’s benefits and address any concerns they raise about its safety. If you believe you need your employees to get vaccinated to prevent significant hazards to others at your worksite, contact your attorney to weigh the risks, benefits and prevailing guidelines. Says O’Brien, “Most employers are incentivizing vaccination or keeping it voluntary.”
© 2020, Lynne Curry
Lynne Curry, Ph.D., SPHR, is the author of “Beating the Workplace Bully” (AMACOM, 2016, https://amzn.to/30V5JO6) and “Solutions”, https://amzn.to/2GYlnAN (both books are rated 4.8 out of 5 stars on Amazon.com). Send your questions to her at https://workplacecoachblog.com/ask-a-coach/ or follow her on twitter @lynnecurry10. www.workplacecoachblog.com.
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