Can an Employer Mandate the COVID-19 Vaccine?
Two lawyers take a look at what an employer can and can't do around the COVID vaccine
Since COVID-19 began to shut down workplaces, schools, restaurants, and entertainment venues many people have been waiting with bated breath for a vaccine. Now 11 months in and the vaccine is being distributed. While there is more demand than supply right now, some people are starting to wonder what rights an employer has to mandate a vaccine.
Since the first vaccines were administered in mid-December, employers and employees alike have questioned whether the workplace can require vaccination as a condition of employment. It will likely be months before the vaccine is available to most Americans, and thus it may be premature for private sector employers to propose a “vaccination for return-to-work” policy. However, on December 16, 2020, the U.S. Equal Employment Opportunity Commission issued guidance regarding employers’ obligations for mandatory COVID vaccination programs.
Essentially, the EEOC guidance provides that employers can require that employees get vaccinated as a condition of returning to work if their vaccination policies comply with the Americans with Disabilities Act (“ADA”), Genetic Information Nondiscrimination Act (“GINA”), Title VII of the Civil Rights Act of 1964, and other workplace laws.
If an employee declines to get vaccinated based on a disability or a “sincerely held religious belief,” the employer must offer a reasonable accommodation to the employee, such as working remotely. If no accommodation is possible,  then an employer may prohibit the employee from entering the business if that employee presents a direct threat to the health and safety of persons in the workplace, but the employer may not necessarily terminate the employee. Employers should evaluate these four factors to determine whether a direct threat exists: (1) duration of the risk, (2) nature and severity of the potential harm, (3) likelihood that the potential harm will occur, and (4) imminence of the potential harm.
An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” An accommodation that would not have posed an undue hardship prior to the pandemic may pose one now. Prior to the pandemic, many accommodations did not pose a significant expense when considered against an employer’s overall budget and resources. However, the sudden loss of some or all of an employer’s income stream because of the pandemic is a relevant consideration. Also relevant is the amount of discretionary funds available at this time and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted).
Additionally, EEOC guidance provided that the administration of a COVID vaccine by an employer is not a “medical examination” for purposes of the ADA and administering the vaccine or requiring employees to present proof of vaccination does not implicate GINA.