Vaccines typically take years of research and testing before they are available to the general public. However, since early 2020, scientists have been racing to get a COVID-19 vaccine out to the general public. According to the NY Times, researchers are testing 58 vaccines in clinical trials on humans and at least 86 preclinical vaccines are under active investigation in animals. If all goes well, it is likely some segments of the U.S. population will be able to get a COVID-19 vaccine by year’s end. To stay abreast of the latest vaccine information, check The Regulatory Affairs Professionals Society’s vaccine tracker.
Can Employers Require COVID-19 Vaccinations?
As scientists around the world continue the race to produce a COVID-19 vaccine, once one is available, the next step will be to have enough people inoculated to achieve herd immunity. While many discussions center on what segments of the population should be prioritized to receive the vaccination, in September, PEW Research Center reported 51% of U.S. adults said they would definitely or probably get a vaccine to prevent COVID-19 if it were available today; 49% said they definitely or probably would not get vaccinated at this time. That being the case, many employers may wonder if they can mandate that employees get the vaccine once one becomes available. Several state and federal laws must be examined for an answer.
History Repeating Itself
This is not the first time the question has been asked. Pre-COVID-19, employers questioned whether they could require employees to get the influenza vaccine. Some employees may have a religious reason for not wanting the flu vaccine, and Title VII of the Civil Rights Act seems to protect their right to refuse. The federal law prohibits religious discrimination in the workplace and requires employers to accommodate religious employees if doing so requires only a minimal cost to the employer. Employees may refuse a COVID-19 vaccination for religious or other reasons, and the argument could be made that accommodating their request to pass on the vaccination involves much more than a minimal cost to the employer. An unimmunized workforce could lead to catastrophic financial losses.
Let’s look to the EEOC for a potential answer. In 2009, the EEOC issued the Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidelines in which it unequivocally concluded that both the ADA and Title VII prohibited an employer from compelling its employees to be vaccinated for influenza regardless of their medical condition or religious beliefs – even during a pandemic. In response to the pandemic, in March, the EEOC updated its Pandemic Preparedness for the Workplace, to provide employers guidance regarding disability-related medical inquiries and medical examinations that might be relevant in a pandemic. The update contains several changes relevant to a mandatory COVID-19 vaccination. First, the EEOC stated the COVID-19 pandemic met the ADA’s “direct threat standard” allowing more extensive medical inquires in the workplace than originally allowed by the ADA. In other words, having someone in the workplace with COVID-19 or its symptoms poses a “significant risk of substantial harm” to other people in the workplace. This statement allowed employers to put in place medical testing not normally allowed such as taking an employee’s temperature. The March 2020 update also made mention of the fact that as of its March 2020 update, no COVID-19 vaccination was available. Given the likelihood a vaccine will be developed by year end, some expect the EECO to further update its guidance concerning mandatory vaccinations. Until that time, employers would be prudent to follow the present guidance for any mandatory COVID-19 vaccination plans.
Employers must also follow state law which in many cases is more stringent than federal law concerning employment regulations. The CDC lists many of the current state vaccination laws related to healthcare workers and educational requirements for students.
Prepare for the COVID-19 Vaccine
Until the EEOC publishes updates to its current guidance concerning mandatory vaccinations, there are steps you can take now to prepare for the arrival of a vaccine.
- Initiate a public awareness campaign now to educate your workforce on the importance of getting vaccinated.
- Reach out to your health insurance company to see if the vaccine will be covered by your plan. Inquire about plans for onsite vaccination clinics such as done for flu vaccinations.
- If you decide to make COVID-19 vaccinations mandatory, ensure your decision is based on objective facts and your employees’ job descriptions. Draft a comprehensive policy clearly explaining how an employee can request an accommodation. Ensure management understands their responsibility to engage in an interactive dialogue with any employee requesting an accommodation.
- Update job descriptions for positions requiring a vaccination due to essential functions that place the employee in direct, frequent contact with others.
Smart HR Can Help
Smart HR is closely monitoring whether the EEOC publishes updated guidelines on how employers handle employment situations arising from the pandemic. Whether or not that happens, you should prepare for how the availability of a vaccine will impact your workplace. Don’t get caught off guard. Call Smart HR today.