by Greg Tumolo | With several COVID-19 vaccines in late-stage clinical trials and showing promising results, it is not too early for employers to begin thinking about whether and how to mandate vaccination prior to returning employees to the workplace. Drug manufacturers estimate that a COVID-19 vaccine or vaccines will be approved for distribution to the general public by the end of 2020 or early 2021.
Employers are beginning to ask: “Can we require our employees to get vaccinated against COVID-19?” The short answer to their question: yes. Employers may implement mandatory vaccination programs, provided, however, that they consider the various equal employment opportunity, labor relations, and workplace safety concerns.
• Americans with Disabilities Act: An employee with an ADA-covered disability may be entitled to reasonable accommodation in the form of an exemption from an employer’s mandatory COVID-19 vaccination requirement. For example, an employee with a compromised immune system may not be able to tolerate a COVID-19 vaccine that triggers the body’s immune response.
As vaccines are considered a form of medical examination under the ADA, employers also will need to grapple with the law’s stringent requirements for medical examinations of applicants and existing employees. With respect to applicants, employers will need to ensure that any COVID-19 vaccination requirement is communicated after a conditional offer of employment if all entering employees in the same job category are subject to the vaccination requirement. With respect to existing employees, the ADA prohibits medical examinations such as vaccines unless they are job-related and consistent with business necessity (e.g. regular interaction with medically vulnerable populations).
• Title VII of the Civil Rights Act of 1964: Some employees may have strong religious beliefs, practices, or observances that will prevent them from taking a COVID-19 vaccine. Employers must provide a reasonable accommodation to these employees unless doing so would impose an undue hardship to the employer’s business (i.e. more than a de minimis cost).
• Pregnancy Discrimination Act: Like the ADA, an employee with a pregnancy-related disability may be entitled to reasonable accommodation in the form of an exemption if they are unable to safely tolerate a COVID-19 vaccine.
• National Labor Relations Act: Many labor unions have taken the position that employers cannot unilaterally impose mandatory vaccination requirements in a unionized workplace. Rather, they must bargain with their unions over the details of any such requirement. To avoid grievances and unfair labor practice charges under the NLRA, employers should carefully review their collective bargaining agreements to better understand the scope of management rights in this area.
• Occupational Safety and Health Act: Under the OSH Act, employers have a legal duty to provide their employees with a healthy and safe workplace free of hazards that could cause death or serious bodily harm. If and when a safe and effective COVID-19 vaccine becomes widely available, employers that fail to incorporate a vaccination mandate into their overall COVID-19 prevention efforts may be exposed.
While the world waits for a safe and effective COVID-19 vaccine to begin to bring the pandemic under control, employers should use this time to wrestle with the legal implications of a mandatory vaccination policy. When a COVID-19 vaccine or vaccines arrive, they will be prepared.