As the pandemic enters its tenth month, employers have had to adjust to significant interruptions to the workplace and the new mandates under the Families First Coronavirus Response Act and other state law protection to individuals and families impacted by the virus. Now that several pharmaceutical companies are about to rollout COVID-19 vaccines, employers are facing a new dilemma – whether private employers can mandate employees get vaccinated and, if so, should they do so?
Although it is questionable whether the federal government has the authority to mandate vaccines, President Elect Joe Biden has stated that he does not intend to make vaccinations mandatory, preferring to implement programs to encourage voluntary vaccinations. Dr. Anthony Fauci has likewise expressed his objection to compulsory mandates. On the other hand, mandatory vaccinations can be imposed on the state level but to date states have not expressed a firm intention to go this route. As with influenza, the CDC recommends individuals get the COVID-19 vaccination when it becomes available, especially healthcare workers, but does not issue any mandates to the healthcare systems.
According to the Pew Research Center, four out of ten Americans indicate that they would likely not opt for vaccination due to concerns over the unprecedented speed of the vaccine’s development and its untested long term safety record.
Can an employer mandate COVID-19 vaccinations? In the absence of any state law to the contrary, employers are free to mandate vaccinations in the workplace. This has been a common practice for healthcare workers routinely mandated to get influenza and other vaccinations, and given OSHA’s legal mandate that employers provide workers with a work environment free from all known hazards, e.g., the COVID-19 virus, employers may be incentivized to mandate vaccination to avoid liability to workers claiming a workplace exposure. Employees refusing to comply may be subject to termination.
Workplaces open to members of the general public have a compelling reason to mandate vaccinations. For example, restaurants, hair salons and other service industries may want to gain a competitive advantage by advertising that their facilities are safe because all staff have been vaccinated. However, the decision to mandate vaccinations is not without consequences. An employer mandate could trigger liability if an employee experiences a serious medical reaction to the untested vaccine. Long term effects are currently unknown. Moreover, taking away individuals’ rights to determine their own personal level of safety in opting for the vaccine can have a devastating effect on employee morale. Employers must carefully weigh the costs and benefits to employer mandates engage in a careful cost-benefit analysis before imposing a mandate.
Mandate Exceptions. If a mandatory vaccination policy is adopted, employer must be prepared to recognize two exceptions to the mandate. First, the EEOC has long recognized that employees can be excused from flu vaccination requirements as a form of reasonable accommodations for sincerely held religious beliefs under Title VII, unless that accommodation would pose an “undue hardship” to the employer. Employers can expect employees to resist vaccinations on the ground that it violates religious practices and observances. Employees may also seek an exemption if the employee suffers from a medical condition that prevents them from taking the vaccine. As with religious accommodations under Title VII, employers are obligated to make reasonable accommodations to employees under the ADA unless it would impose undue hardship. However, the EEOC has taken a more cautious approach to COVID-19 as compared to the traditional flu, finding that it meets the higher threshold of a “direct threat” that permits employers to conduct more extensive medical inquires and controls in the workplace. Nevertheless, to date the EEOC has recommended that employers encourage employees to get vaccinated rather imposing a mandate. If employees are excused on medical or religious grounds, the employer should consider additional accommodations to protect the employees and others in the workplace, such as supplying additional personal protective equipment, relocation of the employee’s work location, telework or a leave of absence.
Incentives vs. Mandates. Employers should consider incentives designed to encourage employees to voluntarily take the vaccines before imposing mandates, especially early in the vaccination process when the side effects are unknown. Employees opting for the vaccine could be excused from wearing facemasks and undergoing medical screenings. Employers should also consider cash incentives or paid time off rewards for those who get inoculated. With many employers still coping with the absence of employees from the workplace and large segments of teleworkers, these measures would go a long way to returning employees safely to the workplace.
Despite the uncertainty, it is clear that employers will be dealing with the ongoing effects of the pandemic for months to come. While the vaccine is an extremely positive development, companies need to start implementing policies best suited for the workplace to meet the challenges of the upcoming vaccination rollout.