Employers may already be asking benefits folks if they can mandate that their employees get the COVID-19 vaccination. Below, veteran labor attorney Elaine Turner, shareholder/partner at the national law firm Hall Estill, weighs in.
“The Equal Employment Opportunity Commission (EEOC) has not yet spoken to whether employers may mandate that all employees take a COVID-19 vaccine when one becomes available. However, during the H1N1 public health crisis, the EEOC determined that, during an influenza pandemic, employers could not mandate that all employees take a flu vaccine regardless of employee medical conditions and religious observances. Courts have reviewed similar issues related to mandatory vaccine policies for the flu and for other diseases as well. Under federal law, courts have found that employees were not exempt from mandatory vaccine policies when their medical condition did not rise to the level of a disability under the ADA or their anti-vaccine philosophy was not a sincerely held religious belief. Courts determining federal law claims have also not exempted employees from mandatory vaccine policies when to do so would impose an undue hardship on employers such as healthcare providers whose patients would be placed at risk if exposed to employees with a contagious disease.
While we wait for the EEOC and other government entities to speak to the issue, employers should begin evaluating whether their business is legitimately in need of a mandatory COVID-19 vaccine policy or should merely encourage employees to take the vaccine. Under federal law, employers must have a reasonable belief that a mandatory vaccine policy is required because an employee’s ability to perform essential job functions will be impaired by COVID-19 or an employee will pose a direct threat due to COVID-19.
This is likely an easy determination for healthcare providers, but not so easy for other kinds of employers who are outside the healthcare industry. Employers should also closely examine applicable state law requirements. Many states have laws relating to vaccine requirements. In the context of other vaccines, a small number of states have allowed individuals, such as school age children, to be exempt from mandatory vaccines based solely on their parents’ personal beliefs or the belief of the child.