The first Covid-19 vaccines have been released, with more to come in the near future. This landmark development raises important question:
- Can employers require their employees to get the Covid-19 vaccine as a term and condition of continued employment when it becomes available to them?
- And if an employer implements such a mandate, would it be lawful?
Are Mandatory Vaccine Policies Lawful?
The Equal Employment Opportunity Commission (EEOC) offers guidance in “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” Section K of the guidance was newly added on Dec. 16, and specifically discusses vaccine-related issues.
This guidance discusses the potential legal issues that are likely to develop, but it does not offer an opinion as to the ultimate legality of a mandatory vaccine policy. However, such a policy is likely lawful so long as an employer provides reasonable accommodations to those who need them for health or religious reasons and that the employer does not collect any health or genetic information related to administering the vaccine.
But it is important to note that the EEOC is only responsible for enforcing a small subset of laws that are applicable to employees and that mandatory Covid-19 vaccination policies could be subject to other types of legal challenges. Employers should carefully monitor this issue.
Mandatory Vaccine Policy Considerations
Employers should carefully consider the consequences of implementing a mandatory vaccine policy, including whether requiring the vaccine is necessary for the normal functioning of the workplace.
For example, a healthcare provider that treats Covid patients might feel it necessary to implement a mandatory vaccine policy, whereas an office with workers who have been working remotely and can continue to do so may not need such a policy.
If an employer feels the workplace necessitates a mandatory vaccine policy, there are further questions to ask:
- Who will be required to get the vaccine?
- What will the procedure be for administering the vaccine?
- Will the employer pay for the vaccine?
- What will the consequences be for employees who refuse to be vaccinated (without a legitimate reason)?
- When will the policy go into effect?
The EEOC guidance provides some suggestions as to overall legal risk for employers who would like their employees to be vaccinated. It is much less risky for employers to encourage their employees to get the vaccine, rather than mandate it.
If a vaccine mandate is necessary for the work environment, it is also less risky to require employees to produce proof that they have been vaccinated against the virus already, rather than to provide the vaccinations themselves.
Most importantly, it would be prudent for an employer to consult with a competent labor and employment attorney that will help it think through all of these issues and advise it on the best way to implement such a policy for its particular workforce.