More than seven months into the coronavirus pandemic, the outbreak continues to spike across the world. After many months of business closures, employees are beginning to return to on-site work, with many workers raising concerns about an increased risk of infection at the workplace. Medical experts have noted that vaccination could be the game-changer in overturning the spread of the disease and protecting people from contracting the virus. Consequently, employers are considering COVID-19 vaccinations for their workers as another strategy to double down on workplace safety amid the pandemic and to improve employee morale and productivity. But many employees are asking if workplace vaccinations for COVID-19 could be mandatory.
Although the Equal Employment Opportunity Commission (EEOC) is yet to issue guidance on a COVID-19 vaccine, employers may follow the EEOC’s guidance on the flu vaccine to decide on workplace coronavirus vaccination. If this guidance is anything to go by, employers can enforce a mandatory COVID-19 vaccination policy when a vaccine is available - but there are many pre-conditions for and exceptions to this.
In the absence of EEOC guidance, state laws take precedence. Does your state’s law mandate coronavirus vaccinations? Does the law require mandatory COVID-19 vaccination for employees in your industry? Your organization’s policy must be consistent with state law for such action to be legal. Health workers, for example, are required to take certain vaccines to be allowed into the clinical setting to protect themselves, their vulnerable patients, and other healthcare workers. Chances are, health workers may also be required to take a COVID-19 shot when one is available.
The legality of such action also depends on your terms of employment. Are you working at will or on contract? Contract employees usually have the organization’s rules of engagement spelled out in their contracts, and many may have negotiated terms relating to vaccinations with their employer. In this case, your employer can only take actions that are consistent with the contract. If the agreement indicates that you may be subject to health requirements, including vaccinations, you may not have a lot of options.
If state laws permit mandatory COVID-19 vaccination policy and such is also in agreement with your employment contract, employers must consider a few exceptions before enforcing such policy.
Under the federal and state discrimination law and the Americans with Disabilities Act (ADA), employers are required to accommodate people with disabilities and those who have religious objections to a medical procedure.
In the case of persons with disabilities, some workers may have medical conditions, including an allergy to a vaccine or a severely immunocompromised state - such as those with HIV - which contraindicate vaccinations. If an employee provides a medical note documenting any of these conditions, employers should waive the mandatory vaccine requirement for the employee.
For workers with religious objections, employees must demonstrate that the objection is hinged on a sincere religious belief. Employers must note, however, that the term “religion”, as explained by the EEOC, can be broadly interpreted and may not necessarily be an organized or formally established doctrine. So under Title VII of the 1964 Civil Rights act, a Christian employee, for instance, may have a deeply-held personal objection to vaccination even if the Christian religion does not espouse such belief or no other person adheres to it.
In one case in Ohio, a Customer Service Representative was fired for refusing the seasonal flu shot, which was a violation of her organization’s policy. She rejected the vaccination because she was vegan, a claim her employer dismissed as invalid. She went on to file a suit against her employer in a federal court, claiming that her termination violated her right under Title VII. The employer argued that veganism was a dietary preference and not a religious belief, but in a surprising outcome, she won the case. The federal court concluded that she had legal ground to claim that her veganism requires the same protection as a sincerely-held religious belief.
If workers make accommodation requests and their objections are valid under the ADA or Title VII, employers should have discussions with the affected employee on alternative measures, such as regular testing or changes to work patterns, which the organization may take to protect other employees.
In cases where there are no accommodation requests under the ADA or Title VII, employers still need to consider some factors before implementing a mandatory COVID-19 vaccination policy. Are you prepared to address employee compensation claims if any worker develops adverse reactions to the vaccine? Should an employee develop medical complications as a result of the vaccine, are there administrative measures in place to address the resulting claims?
On the other hand, employers will also be held liable if there are not enough measures to protect workers and visitors from becoming infected with COVID-19 in the workplace. This whipsaws employers between safeguarding employee health and respecting their liberties. Given this, medical experts say employers may be better off encouraging - and not mandating - their employees to receive a vaccine. Employers may instead double down on other steps to protect workers from the infection, such as:
- Provide personal protective equipment (PPE) such as face mask to all workers, particularly those who do not get vaccinated
- Promote regular sanitizing of the work environment, and provide cleaning and disinfectant agents for workers to regularly clean their workstations
- Require regular COVID-19 testing for workers, to ensure early identification and isolation of infected workers.
- Modify work patterns to allow some workers, especially those who do not get vaccinated, to work from home or get less social roles.
The benefits of an inoculated workplace are enormous in light of the economic downturn of the pandemic. Vaccinating employees and keeping them immune from COVID-19 may boost their productivity, keep businesses insulated from closures and disruptions, and curb further spread of the disease. But employers need to take note of certain considerations before implementing a mandatory vaccination policy. Considering valid exceptions to vaccinations and the potential barriers to such policy, employers should carefully study the facts and make informed decisions that will both safeguard the workplace and protect employee liberties.