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January 14, 2021

Legal News

January 14, 2021

COVID Vaccines and the Workplace

With the rollout of various vaccines across the nation and the globe, many employers have questioned whether or not they can require their employees to receive a COVID-19 vaccination as a condition to continued employment. While this is an evolving area of law and there are countless different scenarios, the following is intended to be a useful guide for employers and employees to assist in navigating this issue.

Can Private Employers Require Vaccines?

Thanks to recently issued guidance by the Equal Opportunity Employment Commission (“EEOC”), it can now be said that the short answer, for the most part, is yes, but with many potential exceptions.

As a threshold matter, the EEOC has taken the position that given the direct threat and risk of substantial harm COVID creates for all employees, requiring the vaccination, in itself, does not violate worker protection laws, such as the American’s With Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Genetic Information Nondiscrimination Act (“GINA”), though these laws do impose certain requirements and exemptions.

One important threshold question that the EEOC addressed was whether or not a vaccination constituted a “medical examination” under the ADA. In answering in the negative, the EEOC reasoned that this standard is not met because the purpose of the vaccination is to protect against a deadly virus rather than to seek out health information regarding particular employee. This is significant because “medical examinations” come with additional restrictions which should not apply in this instance. On a related note, where a third party is administering the vaccination and the employer is not inquiring about or maintaining any medical information regarding an employee, the ADA’s restriction on inquiring about an employee’s disability should not be triggered.

Similarly, while the GINA prohibits discrimination in the workplace based on genetic information, employer should likewise be able to avoid any such allegations by administering the health screening as well as the vaccination through a third party that does not share any medical information with the employer.

Therefore, as a general matter, for employers looking to mandate vaccinations for their employees, it would be best to retain the services of a third party to screen employees and administer the vaccinations without sharing any medical information with the employer. The employer may then simply ask the employee to provide proof that they received the vaccination without any further information. Additionally, employers should include a requirement in their employment manuals prohibiting employees from being or presenting imminent threats of harm to one another as a uniform policy whose goal is to prevent non-vaccinated employees from being around others.

However, while these general principles and procedures apply in most scenarios, employers do need to be cautious regarding employees i) who may have a disability that prevents them from being able to be vaccinated and ii) who may object on religious grounds under Title VII. Where an employee seeks an accommodation in the form of continued employment without being vaccinated, employers should consider whether or not granting such an accommodation would cause an undue hardship to the company and/or a threat of harm to other employees.

For example, if an employee seeking such an exemption may also work from home, allowing the employee to work remotely without being vaccinated would be a reasonable accommodation under most circumstances. To the contrary, if the employee’s primary job duties require the employee to be in close physical contact with others, it may not be reasonable or legally required to allow the employee to work unvaccinated.

Overall, given the severity of the pandemic and the ability of third party administrators to screen employees and administer the vaccination, employers should be able to generally require their employees to be vaccinated in order to maintain their employment. However, given the various needs and resources of both companies and employees, there is no one size fits all formula and employers should absolutely consult with their legal counselors to make a plan that both protects the health and safety of their employees, as well as their civil rights.

Can The Government Mandate Vaccines?

Also generally speaking, yes.

States have broad “police powers” to enact reasonable regulations as necessary to protect the public health, safety, and common good. Dating back to precedent from 1905 that arose during a smallpox outbreak, the Supreme Court held that vaccinations fall under a state’s police powers and may be mandated to protect the public health.

Given that states may also require vaccinations outside of a pandemic, such as requiring flu and other immunizations in order to attend public schools or to work in healthcare facilities and nursing homes, it seems certain that the government could mandate the COVID vaccine in a plethora of contexts, including in public sector jobs.

As this area of law continues to evolve, we will stay on top of any updates and report them to our valued clients, colleagues, and friends.

Photo by Hakan Nural on Unsplash
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