As Seen in The Daily Beast.
With the Biden administration all-in on the inoculation of America, meaningful plans for widespread COVID-19 vaccine distribution and availability are taking shape. The Pfizer-BioNTech and Moderna offerings will surely be joined soon by Johnson & Johnson’s single dose vaccine, and FDA approval of the promising Oxford-AstraZeneca product, which may even halt the spread of the novel coronavirus, seems inevitable.
Bottom line, it’s just a matter of time before everyone—and not just first responders, health-care workers, and those over the age of 65—will be able to hop in line for a shot, and that’s great news for those wanting to be immunized against COVID-19.
Not to be overlooked, however, are the millions of people nationwide who, for a variety of reasons, would rather take a pass on the vaccine. These folks raise a host of questions, including one being asked by workers nationwide: Can employers require employees to roll up their sleeves for injection?
Yes they can. From a purely legal standpoint, there’s little preventing a private employer from imposing a vaccination mandate on its employees. Of course, whether compulsory vaccination in workplace should be implemented is another question altogether.
Employers Are in a Tough Spot
Private employers have an inherent duty to protect their companies and employees. The Occupational Safety and Health Administration, the governmental agency tasked with ensuring safe and healthful working conditions for the U.S. workforce, says as much.
OSHA’s General Duty Clause compels every employer to provide workers a place of employment free from recognized hazards likely to cause death or serious physical harm. Taking this a step further, in most states employers also owe a duty of care to vendors and clients who enter the workplace or come into contact with an organization’s employees. Certainly, this all sounds reasonable, but how exactly does the General Duty Clause extend to COVID-19 vaccines?
It’s a given that the coronavirus is a recognized and dangerous hazard, one that has too often proven to be fatal. Consequently, its spread must be contained, both in and out of the workplace. Toward that end, vaccines, wearing PPE, and testing appear to be the best, if not only, ways forward. The Centers for Disease Control and Prevention agrees, and has affirmatively stated that immunizations will protect not just the recipients, but also those around them, especially individuals at increased risk for severe illness.
Given CDC vaccine recommendations and OSHA’s marching orders that employers maintain safe and healthy working environments, employers can compel employees to protect themselves and co-workers by submitting to COVID-19 vaccinations—a mandate that in many ways is like requiring hardhats on a job site. After all, allowing unvaccinated workers to potentially shed COVID-19 at the office would be akin to knowingly permitting a dangerous hazard to exist.
This shouldn’t come as a surprise. OSHA has long taken the position that while employers don’t have to mandate that employees be vaccinated, they may do so. In fact, for years, employers (namely hospitals) have been legally authorized to demand that workers get annual flu vaccines in order to continue on the job, and many multinational companies make employees traveling overseas obtain required vaccinations.
Still, despite the dictates of OSHA, an employer’s imposition of a COVID-19 vaccine requirement is not without limits. Cue the Americans With Disabilities Act, U.S. Equal Employment Opportunity Commission, and Title VII of the Civil Rights Act.
An Employee’s Out
The ADA is a civil rights law that prohibits discrimination against individuals with disabilities. Pursuant to its terms, employers can’t ask employees to acquiesce to medical examinations unless they’re job-related. Doing so would be in violation of the ADA. Nevertheless, administration of a COVID-19 vaccine by an employer (or retained vendor) doesn’t rise to the level of a medical exam and isn’t restricted by the ADA—this according to the EEOC, which has confirmed that requiring an employee to show proof of receipt of a COVID-19 vaccination is not an unlawful disability-related inquiry.
That being said, a worker could claim to have a disability (say, severe allergies) that precludes the receipt of a COVID-19 vaccination, in which case the ADA requires an individualized assessment to determine if that unvaccinated employee poses a direct threat to the workplace. If so, the ADA directs the employer to establish whether a reasonable accommodation—like allowing the employee to wear additional PPE, work remotely or isolate on-site—can be provided to reduce the risk without causing undue hardship. Notably, where a reasonable accommodation is not available in lieu of termination, none is required.
Title VII provides another basis upon which an employee can at least try to skirt a COVID-19 vaccination mandate. According to the law, a reasonable accommodation must be made for employees whose sincerely held religious beliefs, practices or observances prevent them from being inoculated. But this would be a tough sell for any worker. There is a compelling argument that a requirement to vaccinate may override claims of religious freedom, and some states, including California and New York, have eliminated religious vaccine exemptions altogether.
What’s an Employer to Do?
Setting aside the question of legality (again, COVID-19 vaccine mandates are permissible), employers face the difficult decision whether or not to implement and enforce them. It’s not a stretch to anticipate that vaccine policies may lead to lawsuits filed by disgruntled workers who either don’t want to be vaccinated or experience adverse reactions to their injections.
Obviously, negative consequences such as these must be weighed against the overwhelming public health benefit and business continuity that are sure to come once workforces nationwide are eligible to be immunized. And when that day comes, then yes (with a couple of exceptions), your employer can actually force you to get a COVID-19 vaccine.
This blog post is not offered, and should not be relied on, as legal advice. You should consult an attorney for advice in specific situations.