Can Employers Make Vaccines Mandatory in a Pandemic?

Allen Smith, J.D. By Allen Smith, J.D. September 9, 2020
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a woman getting vaccinated

​Even though a vaccine to prevent COVID-19 isn't available yet, it's not too early for employers to start considering whether they will require employees to get the vaccination when it is ready.

The Equal Employment Opportunity Commission (EEOC) has yet to issue guidance on a COVID-19 vaccine, so employers should look to the EEOC's guidance on the flu vaccine for now, said Arielle Eisenberg, an attorney with Cozen O'Connor in Miami.

The EEOC has advised that flu vaccinations may not be mandated for all employees. Exceptions must be made for disability or religious accommodation requests. Proper notice must be provided as well.

"Because the exceptions make this general rule look a bit like Swiss cheese, the EEOC has advised as a best practice that employers should consider encouraging, rather than requiring, employees to get the flu vaccine," said Michelle Strowhiro, an attorney with McDermott Will & Emery in Los Angeles and Orange County, Calif.

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Coronavirus and COVID-19

When COVID-19 Vaccination Might Be Required

Sandy DiVarco, an attorney with McDermott Will & Emery in Chicago, thinks a COVID-19 vaccine would be expected for health care workers in the same way the flu vaccine is today.

Employees who refuse to get vaccinated might wear face masks in the workplace, a common accommodation in the medical setting, according to Robin Samuel, an attorney with Baker McKenzie in Los Angeles.

Amy Epstein Gluck, an attorney with FisherBroyles in Washington, D.C., and New York City, said she anticipated that vaccines will be mandatory not only for health care employees but also in retail and for other employees who interact regularly with the public.

Although the EEOC may impose religious and medical exemptions to a COVID-19 vaccine requirement, such exemptions might "result in a significant loss of life," said Amy Traub, an attorney with BakerHostetler in New York City. She said that hospitals and nursing homes have a particularly strong case for requiring COVID-19 vaccination because their employees are likely to work with immunocompromised individuals.

But Samuel cautioned that, still, "employers may not lawfully require all employees to be vaccinated."

Disability Accommodations

For disabilities that aren't obvious or when the need for accommodation is not apparent, employers can require employees who seek an accommodation to provide a health care provider certification confirming that the employees have disabilities and describing the restrictions imposed on the employees' ability to perform their jobs, Samuel said.

Employers should also be attuned to any side effects identified with a potential COVID-19 vaccine. Objections under the Americans with Disabilities Act may depend on the overlap between vaccine side effects and existing employee health conditions, said Anthony Mingione, an attorney with Blank Rome in New York City.

Religious Accommodations

"Faith-based objections are more challenging to verify," said Susan Kline, an attorney with Faegre Drinker in Indianapolis.

"Employers need only accommodate sincerely held religious beliefs, which may extend beyond mainstream religions," Samuel said.

But an employee who objects to a vaccine on medical or ethical, but not religious, grounds is not entitled to a religious exemption. Medical-based objections will not excuse an employee from a mandatory vaccine unless the employee has a disability.

"The anti-vax movement and state laws that allow employees to opt out of vaccinations must also be taken into account," said Kevin Troutman, an attorney with Fisher Phillips in Houston.

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

Onsite Administration

Onsite administration of COVID-19 vaccines, once available, "is probably the simplest way to ensure the entire workforce can get vaccinated in a timely manner," Epstein Gluck said. "Any mandatory vaccine program should be funded by the employer."

Mingione cautioned that "employers should not commit to providing onsite COVID-19 vaccines until those vaccines are proven safe and have been made widely available."

Effectiveness of Vaccines

"From the latest reports, we understand that the timeline for a safe, effective COVID-19 vaccination is unclear," Strowhiro said. "When one is released it may not have the same effectiveness as, for example, a measles vaccine." A measles vaccine is 93 to 97 percent effective, depending on the dose, according to the U.S. Centers for Disease Control and Prevention (CDC).

"The FDA's guidance sets a threshold goal that the COVID-19 vaccine in development now should prevent disease or decrease its severity in at least 50 percent of those vaccinated," she noted. "A COVID-19 vaccine will be a significant development in our fight against the virus."

She added that "a vaccine will be one of many tools needed in our virus prevention toolbox going forward," including ongoing social distancing, wearing face coverings, sanitization and quarantine when appropriate.

As for flu shots, the CDC has said that they will be "more important than ever" for the 2020-2021 flu season. The CDC explained that a flu vaccine will help reduce the burden on health care systems responding to the COVID-19 pandemic and save medical resources for care of coronavirus patients.

Mandates May Be Unpopular

How would employees react to mandatory COVID-19 vaccinations?

A Gallup poll published on Aug. 7 shows that if the Food and Drug Administration (FDA) approved a free COVID-19 vaccine today, 35 percent of respondents would not receive the vaccine.

"This is likely for a myriad of reasons, but employers should understand who their workers are and how they are likely to respond to mandates," said Alissa Kranz, an attorney with Lieser Skaff Alexander in Tampa, Fla. "Employees may decide that they no longer wish to work for an employer if they are requiring vaccines. If they do reluctantly decide to receive the vaccine, there also may be distrust between the employer and the employees."

 

[How have you adapted to the pandemic? Share your story with SHRM's Government Affairs Team as they educate decision-makers on crafting policies on work, workers and the workplace.]

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