Can Employers Require Employees to be Vaccinated for COVID-19?
With the rollout of the COVID-19 vaccine, a host of questions about who may receive the vaccine and when have arisen. One such question that some employers are losing sleep over is whether or not they can require their employees to be vaccinated. This question will not be definitively answered for some time. As long as the employer can show, however, that requiring the vaccine is job related and consistent with business necessity and the employee does not claim any applicable exemptions based on medical or religious reasons, an employer mandate will likely be upheld if challenged in court.
Even though a business may require the vaccine, employers may still run into difficulties depending on the type of business, the presence of a union, the experimental nature of the vaccine, and other factors. This article discusses some of the potential legal repercussions of an employer’s decision to mandate the COVID-19 vaccine.
Can an employer require an employee to be vaccinated for COVID-19?
In most cases, an employer may require all employees to take a vaccine as long as it is job related and consistent with business necessity.[1] To require any medical exam, inquiry or vaccination, the employer must establish that it is “job-related, the business necessity for the exam or inquiry is vital to the business, and the exam or inquiry is no broader or more intrusive than necessary.”[2]
The ‘job related and consistent with business necessity’ requirement exists on a scale. This scale is dependent on the type of work that the employee is performing. For instance, vaccinations for health care workers and those who work with vulnerable members of the population are more likely to fit this requirement than vaccinations for individuals who work from home and do not come into contact with others on a daily basis.
Employees can, however, claim exceptions such as an ADA disability or medical reason why they should not take the vaccine, or a sincerely held religious belief against taking the vaccine.[3] If such an exception is validly claimed, the employer then must provide a reasonable accommodation. Such accommodations may include scenarios like working from home, continued or enhanced use of Personal Protective Equipment (PPE), or isolated work situations where the employee does not encounter others.
In order to claim a valid religious exemption to taking a vaccine, an employee must hold a sincere religious belief that conflicts with the job requirement of taking the vaccine and must inform their employer of the belief. “[I]t is not sufficient merely to hold a ‘sincere opposition to vaccination’; rather, the individual must show that the ‘opposition to vaccination is a religious belief.’”[4] Employers who do not respect valid religious exemption claims by providing a reasonable accommodation could be liable for religious discrimination under Title VII if they discipline the employee for failing to comply with the vaccine requirement.
Employees who do not comply and who do not have an ADA disability or religious reason for not taking the vaccine may be disciplined or excluded from the workplace. Employees with an ADA disability who fail or refuse to take a vaccine, however, may only be excluded from the workplace if they would pose a direct threat to others.[5] The EEOC in conjunction with the CDC has ruled that the COVID-19 pandemic is a “direct threat.”[6] Therefore, if someone claims an exception due to an ADA disability and refuses to take the vaccine, if no reasonable accommodation is available that would not cause undue hardship on the employer, the employee may be excluded from the workplace because he or she would pose a direct threat to others by remaining.
Vaccine Requirements in the Past:
Employers requiring the flu and other vaccines have been allowed by courts in the past to mandate employee vaccination. In fact, during the H1N1 swine flu outbreak OSHA said that employers had the right to require that employees be vaccinated for swine flu.[7] So there is regulatory precedent for past vaccines that could potentially support an employer mandate for COVID-19 vaccination. OSHA has not yet stated whether employers have the right to require COVID-19 vaccination explicitly.
There is also precedent outside of the employment context for governments requiring the general public (those without known medical reasons that would prevent them from taking a vaccine) to be inoculated. Such precedent is usually found in the cases of parents refusing to vaccinate their school children, however, the general public has been required to receive vaccines in the past as well.[8] Although not directly relevant in the employment context, it does show that the courts will put an emphasis on public health in epidemic/pandemic situations.
Past COVID-19 Specific Requirements:
One important piece of guidance moving forward is the EEOC’s statement that employers are allowed to require coronavirus testing prior to returning to work. This type of medical test was stated to be “job related and consistent with business necessity,” with respect to employees returning to the workplace. It stands to reason that if the coronavirus test was explicitly stated to be allowed, the EEOC may make the same determination for the vaccine, however, they have not done so yet. It may be that the government is waiting for the vaccines to undergo the full review process and be approved for biologic licensing instead of just emergency use.
The Emergency Use Issue:
One particularly difficult wrinkle to these vaccines is the fact they have only been approved for emergency use by the FDA and the biologic licensing has not yet been achieved by either of the vaccines currently approved for emergency use. There is no clear indication which way a court may decide with respect to employers requiring vaccines which are only approved for emergency use, however, it is likely that the type of business involved would, again, have great weight in the decision process. For instance, a hospital requiring the emergency use approved vaccine would be more likely to win a challenge than a non-healthcare business.
The emergency use approval potentially exposes employers who decide to mandate the vaccine to more liability than if the vaccine had already achieved full biologic licensing. Employers mandating the vaccine face potential liability if there are adverse reactions to a vaccine which does not yet have formal FDA approval. This may include allergic reactions or reactions of subsets of the population whose tolerance of the vaccine has not yet been extensively studied—pregnant or breastfeeding women, for instance. It is partially for this reason that many businesses have reported that they will not require the vaccine, but instead strongly encourage the vaccine through incentivization and education.
The Unionization Issue:
Another potential pitfall is the presence of unions in an industry. If an employer is requiring unionized employees to be vaccinated, the collective bargaining agreement may be determinative of whether or not such a mandate is allowed. It may also dictate that to require any medical examination or procedure additional negotiations must take place. Thus, the collective bargaining agreement must be analyzed prior to requiring employees to take the vaccine to ensure the requirement is in compliance with the governing agreement.
Liability for NOT Requiring the Vaccine:
Although not likely to be successful, there is a possibility that employers may face lawsuits for NOT requiring the vaccine by employees who feel that the employer is not providing a reasonably safe workplace as generally required by OSHA. This is a potential challenge that may be mitigated by strongly encouraging the vaccine or providing easy access (when available) to the vaccine. It would also be mitigated by an employer taking other measures to help ensure employees’ safety, such as requiring and enforcing mask wearing and social distancing requirements.
Conclusion
In general, there are a number of considerations that must be factored into the decision of whether or not an employer should require its employees to be vaccinated. Each business will likely have a different analysis based on what type of business they conduct and how much contact there will be between coworkers and the public. It is recommended that management consult its legal team when deciding whether or not it should mandate the vaccine.
[1] 42 U.S.C. § 12112(d)(4).
[2] Hustvet v. Allina Health Sys., 910 F.3d 399, 408 (8th Cir. 2018), citing Parker v. Crete Carrier Corp., 839 F.3d 717, 722 (8th Cir. 2016), and 42 U.S.C. § 12112(d)(4)(A).
[3] https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act
[4] Brown v. Children’s Hosp. of Philadelphia, 794 F. App’x 226, 227 (3d Cir. 2020).
[5] 42 U.S.C. §§ 12111(3)(8); 29 C.F.R. § 1630.2(r).
[6] https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act see § B.
[7] https://www.osha.gov/laws-regs/standardinterpretations/2009-11-09
[8] See Jacobson v. Commw. of Mass., 197 U.S. 11 (1905) where a Massachusetts’ man was required to receive a free vaccine during a smallpox outbreak in the early 1900s.