The prospect of a COVID-19 vaccine is exciting, but it also presents challenges for employers like you. Specifically, you may be considering whether vaccinations should be encouraged or mandated for your staff. The answer to this question depends on the unique aspects of your organization and its operations. And although there’s currently no federal law that directly addresses this topic, it’s vital to navigate the legal risks of mandating or encouraging your staff to receive the COVID-19 vaccine.
The Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) have both issued general guidance on existing vaccines (e.g., influenza) in the employment context in the past. Based on this guidance, here are some key points to consider when determining the best course of action for your organization.
Per OSHA, employers can require employees to receive vaccinations for influenza, providing they properly inform employees of “the benefits of vaccinations.” In addition, OSHA states that employees can refuse a vaccination due to a reasonable belief that they have an underlying medical condition that creates a real danger of serious illness or death, and that they “may be protected under Section 11(c) of the Occupational Health and Safety Act of 1970 pertaining to whistleblower rights.”
The EEOC states that under the Americans with Disabilities Act, employees may be entitled to an exemption from a mandatory vaccine based on a disability that prevents them from getting vaccinated. This would be considered a reasonable accommodation, and the employer would be required to grant the exemption, unless it creates an undue hardship for the employer. The EEOC also states that, under Title VII of the Civil Rights Act of 1964, staff with sincerely held religious beliefs may be entitled to an exemption from a mandatory vaccination, which is considered a reasonable accommodation, unless it creates an undue hardship for the employer. These exemptions and the discrimination risk posed by mandating employees to receive any vaccine have led the EEOC to advise employers to simply encourage vaccination rather than mandating it.
In addition to the considerations above, it’s best to consult legal counsel to determine whether there are unique risks to consider for your organization’s industry or specific operations. For more COVID-19 updates and risk management resources, contact us today.