Although there is currently no FDA-approved or authorized vaccine for the prevention of COVID-19, the availability of a vaccine is just a matter of when not if. According to the World Health Organization, more than 150 vaccines are currently being developed in labs across the world. Some drug manufacturers estimate that a vaccine may be ready and approved for general use by the end of this year or early 2021.
With a vaccine on the horizon, many employers are asking whether they can require employees to get the vaccine when it is available. In general, the answer will likely be yes – with some exceptions, as outlined below.
The EEOC and Mandatory Flu Shots
The question of mandatory vaccinations typically comes up around flu shots. Although the Equal Employment Opportunity Commission (EEOC) suggests employers should encourage flu shots rather than require them, there are no specific laws that preclude an employer from requiring employees to get a vaccine. In general, an employer can have a mandatory vaccination policy, provided employers consider religious accommodation requests and medical accommodation requests.
Under Title VII, a “sincerely held religious belief” may be a prerequisite for a religious accommodation. Under Title VII, “‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” An individual’s sincerely held religious belief does not need to originate from a common organized religion to require reasonable accommodation by the employer. EEOC guidance states that an employee may seek a religious exemption from a mandatory vaccination requirement if “the employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from” receiving the vaccine.
EEOC guidance also states that an employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents safe vaccination. Upon receiving a request from an employee to be exempt from flu immunization requirements for a disability-related reason, an employer may seek verification that the individual has a record of an actual disability as part of engaging in the interactive process to determine if the ADA applies. The determination of whether an individual meets the definition of disability for ADA purposes must be made on a case-by-case basis. When a vaccination is not recommended for health-related reasons, it may be necessary to approve alternative infection control practices as a form of accommodation.
In past years, many employers, especially health care providers, have mandated vaccinations. Other employers have encouraged them by arranging onsite vaccinations at the workplace and/or paying for employee vaccinations.
Unless or until the EEOC publishes guidance specific to the COVID-19 vaccine, its guidance related to flu shots provides perspective into how they may handle a new COVID-19 vaccine. Considering the scope and severity of the COVID-19 pandemic, employers will likely have the right to mandate a COVID-19 vaccine, subject to the same exemptions outlined above.
However, the question for most employers and employees alike is whether – or when – individuals will widely accept a COVID-19 vaccine. Employers can likely expect significant objection to a mandate of a new vaccine, which may be viewed by some as risky or ineffective. According to a recent Gallup poll conducted July 20 through August 2, 1 in 3 Americans said they wouldn’t get a COVID-19 vaccine even if it were free or approved by the Food and Drug Administration (FDA). Many are nervous about the vaccine and the speed at which it’s being developed. Others believe mandating the vaccine is part of an employer’s responsibility to maintain its workers’ health and well-being.
So, What Should Employers Do?
With conflicting opinions in every industry, one thing is certain – this is sure to be an employee relations issue. Confusion surrounding COVID-19 vaccines is inevitable, and even when approved, it may be months before enough people can get the vaccine to slow the pandemic.
Even though a vaccine to prevent COVID-19 isn’t available yet, it’s not too early for employers to start considering whether they will require employees to get the vaccination when it is ready. Employers should evaluate whether a mandatory vaccination policy is necessary for the business. If so, what is the consequence for an employee who refuses to get a vaccine just out of fear that it was developed too fast? Employers mandating vaccines should do so in consideration with other alternatives, such as remote work, physical distancing, face coverings, and other CDC-recommended guidelines to prevent the spread of COVID-19. Depending on the industry, an employee’s refusal to get a vaccine may be grounds for job separation.
Before mandating vaccinations, employers are encouraged to seek legal counsel. Additionally, if employees are represented by a union, mandating vaccinations must be bargained with the union. Archbright members are encouraged to contact the HR Hotline or legal team with specific questions or to seek clarification. Archbright will continue to monitor the impact of COVID-19 in the workplace and will provide updates as appropriate.