From when one will be available in the United States to where you may fall in the priority line, COVID-19 vaccines are dominating the news cycle right now. Unsurprisingly, a common question from employers has emerged: can we require employees to obtain a COVID-19 vaccine before returning to work?
In short, it depends
Because the EEOC has not issued guidance specific to the COVID-19 vaccine (not yet, anyway), its past guidance concerning whether an employer may require employees to get a flu vaccine is helpful. Generally, employers can require employees to receive a vaccine before returning to work, but there are a couple of caveats.
First, employees may be entitled to an exemption from a mandatory vaccination requirement, so it is important for employers to find out why an employee will not get the vaccine if asked to do so. An employee with (1) a covered disability or (2) a sincerely held religious belief, practice, or observance that prevents the employee from taking the vaccine may need to be excused from this requirement as a reasonable accommodation unless it will present undue hardship. For employers considering denying an accommodation based on undue hardship, it would be prudent to consult with your employment lawyer before doing so. Accommodation issues stemming from COVID-19, work from home, and administration of the COVID-19 vaccine are likely to continue to plague employers for the next couple of years (at least), so getting ahead of this issue is key.
Second, and practically speaking, it remains to be seen when vaccinations will start in the United States and, even then, how quickly vaccines will be commonly available for those who fall at the bottom of the priority line. In the meantime, employers should be considering whether a mandatory vaccination requirement is right for their workplace and, if so, when it will go into effect and the consequences for not complying (subject to the reasonable accommodation exemptions). What is right for each employer will depend on the workforce, the nature of the business, and many other factors.
So, what now?
With so many unknowns at this point, the best course of action is to plan ahead but remain flexible and wait to disseminate or implement any sort of policy or requirement. Take this opportunity to weigh the potential legal exposure of a mandatory vaccination requirement and consider whether a mandatory or voluntary (even if strongly encouraged) vaccination policy is appropriate based on the nature and needs of your business. Avoid a knee-jerk reaction; instead, balance workplace health and safety with employee rights and ensure those handling accommodation requests will be prepared. And if you have questions, consult your employment counsel before acting.
