There is no current guidance on whether a COVID-19 vaccination could be legally mandated by employers. However, past experience with the flu vaccination, especially in the health care industry, has indicated that at least certain mandatory vaccinations are permissible so long as appropriate exemptions are made for religious accommodation requests under Title VII and medical accommodation requests under the ADA.
With regards to the current pandemic, COVID-19, according to the EEOC, meets the “direct threat” standard (i.e., “significant risk of substantial harm” to others), which permits more extensive medical testing and screening measures than would normally be allowed under the ADA.
Based on past experience with mandatory flu vaccination policies, as well as the EEOC’s determination that COVID-19 presents a “direct threat,” it appears that the general consensus is that the EEOC would permit a mandatory vaccination policy, with appropriate exemptions. However, guidance will almost certainly be updated once a vaccine is available to help eliminate any guess work and explicitly answer this question.
Yet, even if a mandatory vaccination policy is permissible, employers must still determine whether they should require mandatory vaccinations. A mandatory policy would almost certainly be met with a large number of objections and accommodation requests, adding a significant administrative burden to the employer and potentially straining the employer-employee relationship. Employers with a unionized workforce would likely have to negotiate over a mandatory vaccination policy. Additionally, any potential complications from a mandated vaccination could lead to a workers’ compensation claim. And this is only scratching the surface of considerations an employer should take into account before implementing a mandatory vaccination policy (assuming such a policy is permissible at all). A better policy, especially considering the specific industry involved, may be to simply encourage employees to be vaccinated, but not require it, while still maintaining appropriate social distancing, disinfecting, and masking policies.
In the end, employers should stay up-to-date on any future guidance regarding vaccinations in the workplace and, if they decide to implement a mandatory vaccination policy, employers should work closely with a legal advisor to ensure that the policy does not run afoul of any employment laws and provides appropriate exemptions.
Employers with questions are advised to consult with their legal counsel regarding specific questions or concerns. If you have any questions, or need assistance, please feel free to contact Jeremy D. Iosue or Jason T. Hartzell at (216) 651-0451.
This Employment Law Alert may provide an overview of specific federal and/or state laws and regulations. It is not intended to be, and should not be construed as, legal advice for any particular situation or individual.
Copyright © 2020 Stefanik Iosue & Associates, LLC. All rights reserved.