By Samuel Martin
Today, America appears poised to soon reach a significant milestone in its COVID efforts: the availability of vaccines to the general public. On March 11, President Joe Biden announced his intention to make every American adult in all states eligible for the vaccine by May 1, but moved that date up to mid-April just weeks later. Without a doubt, that milestone will be tremendous news, but it will also present serious questions for both employers and their employees. Each employee will face a choice whether to receive it or not. Public polling suggests that millions of Americans will decline to be vaccinated, despite doses being made available at no cost in the United States and widespread agreement that approved vaccines are safe and effective (including this March 2021 poll from NPR/PBS/Marist). The recent issue with the J&J vaccine and rare blood clots may also trouble others.
One promise of vaccination is the prospect of an end to workplace disruptions caused by the pandemic, as we all want to return to a safe and somewhat normal economy. Naturally, many employers will wish for their office staff and chauffeurs to be vaccinated—for their own health, that of the business, and the well-being of their clients. But can employers require this vaccination, and if it is indeed legal, would it be wise to do so? These will be the critical questions to ask as an employer making this decision.
First and foremost, before an employer implements any vaccine policy, it is critical to consult with an attorney. This issue is fraught with legal complications for a business owner who oversteps their bounds in the area of employee health and health care. State and local laws can differ dramatically, and individualized guidance is critical in staying on the right side of those laws. In some cases, state or local law may forbid a vaccine mandate as a condition of employment, so it’s important to know where you stand legally.
“... many employers will wish for their office staff and chauffeurs to be vaccinated—for their own health, that of the business, and the well-being of their clients.”Federal, state, and local law can apply here, and if you have a unionized workforce, there are additional complications. First, remember that all presently administered vaccines in the United States are subject to Emergency Use Authorization status by the Food and Drug Administration. Those who receive the vaccine may be reminded of this status when it is administered, and they are to be told of the benefits and risks associated with the vaccine, along with an instruction that it is optional that they receive it. While this status does not imply that the vaccine is unsafe, it should give pause to employers who consider requiring employees to receive a vaccine, along with any trepidations the employee may have.
As always, employers need to be careful to comply with legal protections contained in anti-discrimination laws like the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. These laws protect employees on the basis of certain protected categories, among them disability, pregnancy, and religion. Any vaccine policy should contemplate employee objections to vaccination on the basis of either medical objections (which may implicate disability or pregnancy rights) or religious objections, which are similarly protected. Extending accommodations for both are critical when crafting a policy and will help avoid compelling employees to receive vaccinations that offend deeply held beliefs or implicate their health and disability concerns. There are also exceptions for those with some underlying medical issues, according to the Centers for Disease Control & Prevention V click here.
At the time of writing, guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) does not expressly prohibit employers from implementing mandatory vaccinations under federal anti-discrimination laws, even under the present Emergency Use Authorization status. The EEOC does not state that employers can mandate vaccines, but that seems implicit in its guidance, which also notes certain obligations, such as exceptions and accommodations based on disability, pregnancy, and employees’ sincerely held religious beliefs. Issues surrounding informed consent requirements should also be carefully reviewed if considering a mandatory vaccination program.
Keep in mind, the EEOC only deals with federal EEO laws, and does not address state or local laws. That means employers must stay up to speed on currently considered state and local legislation on COVID vaccines. Presently, there are state bills pending that take both sides on permitting or prohibiting mandatory vaccinations, so this issue may become more complicated over time.
Businesses that employ minors face a further consideration: most vaccines presently available in the United States are not approved for administration to those under age 18 and none are available to those under age 16 (although testing is underway to determine the efficacy for those groups). For the time being, this approval status effectively precludes mandating vaccination for minor employees, who would be unable to comply.
The broader picture is this: Under federal law it is probably permissible to require employees to receive the vaccine, especially with accommodations for disability, pregnancy, and religious objections. This does not mean, however, that it is wise to implement such a policy, or that state and local law in the areas in which a particular business operates would permit it.
While some businesses may face exceptional circumstances, for almost all employers, it is most likely unwise to require vaccination. Employees will appreciate their own health care decisions being left up to their free choice and employers will benefit from avoiding the legal and employee relations pitfalls of a mandate. Odds are, as cases continue to decline and as millions choose, voluntarily, to be vaccinated, COVID will gradually become less and less a central consideration for those managing a business. [CD0421]
Disclaimer: The foregoing is provided solely as general information, is not intended as legal advice, and may not be applicable within your jurisdiction or to your specific situation. You are advised to consult with your attorneys for guidance before relying upon any of the information presented herein.
Samuel Martin is an associate for law firm Jackson Lewis P.C. He can be reached at email@example.com.