At the beginning of December 2020, two COVID-19 vaccine candidates applied for emergency FDA approval. Additionally, at least three more large-scale clinical trials for potential vaccine candidates are in progress or are being planned in the United States. These developments, along with the surge in COVID infections, have employers inquiring whether they can require their employees to get COVID vaccine as a condition of coming, or returning, to work. While there has been no formal guidance from any government entity or agency on this topic, the following is my best educated guess as to whether or not employers can require the vaccine. Now, let’s get to channeling my psychic powers. (drum roll, please)
Generally, I think an employer can require employees to be vaccinated as a condition to returning to a non-remote workplace. COVID-19 has caused a massive health crisis and has altered the employment relationship in drastic ways. There are already certain safety-related occupations that require additional precautions by their employees. I cannot see impediments that would prevent employers from making vaccinations mandatory for onsite workers. Mandatory vaccination policies may limit workplace safety claims and other potential claims. Any mandatory vaccination policy must take into account when an effective vaccine will be available to employees and could not require vaccination if circumstances (i.e., the vaccine is not yet readily available) prevent an employee from being able to get a vaccine.
Of course, employers choosing to mandate vaccinations should anticipate several hurdles including potentially lowering employee morale, availability of the vaccine, cost of the vaccination (if not covered by health insurance or other source), as well as a panoply of exceptions or situations that will require flexibility. For example, some employees may cite medical conditions preventing them from receiving vaccinations. Other employees may possess religious beliefs that prohibit them from obtaining a vaccine. Employers choosing this route should also maintain a keen eye on potential government regulations or legal challenges that such action may spur.
When facing employee refusal based on a disability or religious belief, employers should be ready to provide reasonable accommodations. It is imperative employers must always take such requests for accommodations seriously and engage in the interactive process. Potential accommodations could include a variety of options, such as allowing employees to continue working remotely or perhaps limiting their interaction with customers and the rest of the workforce. Employers should carefully consider the types of accommodations available.
Employers not wishing to enact mandatory vaccination policies can, of course, choose a less-strict approach and simply issue communications urging their workforce to be vaccinated and indicate vaccination is not a requirement or condition to returning to the workplace.
As of December 2020, those are my opinions. However, I anticipate that we will see guidance on the topic soon. At that time, let’s circle back and test my psychic powers.
About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.
This blog is provided for educational and informational purposes only. To speak with an attorney, please contact our office at 602.248.1000 or email email@example.com