With the COVID-19 vaccine becoming more widely available in the United States, employers continue to grapple with questions about how to address it in the workplace. From whether employers can — and should — require employees to obtain a COVID-19 vaccine before returning to work to what potential liabilities and practical hurdles exist for either option, COVID-19 vaccines remain a hot topic in the employment arena. How to approach the issue varies from employer to employer, but here are some of the common questions we hear.
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- Can employers require employees to receive a COVID-19 vaccine as a condition of employment?
In short, it depends. Generally, employers can require employees to receive a vaccine before returning to work, but there are a couple of caveats.
First, certain employees may need to be excused from a mandatory vaccination requirement as a reasonable accommodation unless it will present undue hardship. This makes the reason an employee cannot or will not get the vaccine, if asked to do so, particularly important.
Under the Americans with Disabilities Act, employers must provide reasonable accommodations to employees with a covered disability that prevents them from receiving the vaccine. Fact sheets for the COVID-19 vaccines include examples of some of the underlying medical conditions that may result in an accommodation request. And under Title VII of the Civil Rights Act of 1964, employers are similarly required to provide reasonable accommodations to employees whose sincerely held religious beliefs, practices, or observances prevent them from getting the vaccine.
Employers considering denying an accommodation — whether due to a belief that the medical condition or religious practice does not preclude being vaccinated or based on undue hardship — would be wise to consult with an employment lawyer before doing so. Accommodation issues stemming from COVID-19, work from home, and administration of the COVID-19 vaccine are likely to plague employers for the next couple of years (at least), so getting ahead of this issue is key.
Second, employers with unionized workers should consult their collective bargaining agreements. If employees may be required to be vaccinated, there may be a need to bargain with the union first.
- What factors should employers consider in evaluating whether to require the vaccine?
What is right for each employer and each workplace will depend on a number of factors. The nature of an employer’s business and operations and the nature of employees’ job duties will be driving factors. For example, an employer in the healthcare industry may be in a different position than an accounting firm and may have a higher level of comfort with requiring a vaccine given that its employees are more likely to risk exposure to and from people in their care, which may include those most vulnerable to COVID-19.
The physical premises will also drive what is appropriate for each employer. This includes consideration of issues like how closely together employees work as part of their job duties and how much — if any — employees have contact with members of the public (such as customers).
But what is most important is that there is no one-size-fits-all approach. How to handle the COVID-19 vaccine is something that should be analyzed carefully and in light of each specific workplace before any policy or requirement is implemented or disseminated.
- For employers who are still unsure of or deciding how to proceed, what now?
There are still a lot of unknowns at this point, so many employers are choosing to wait to take a stance on how to proceed. Employers should weigh the potential legal exposure of a vaccination requirement and consider whether a mandatory or voluntary (even if strongly encouraged) vaccination policy is appropriate based on the nature and needs of the business. Avoid a kneejerk reaction in favor of balancing workplace health and safety with employee rights and ensuring those handling accommodation requests will be prepared.
And for employers who are thinking about implementing a mandatory vaccination policy, there are a number of practical issues to prepare for. Some employees may be reluctant to get a COVID-19 vaccine based on a concern about adverse reactions, a general anti-vaccine sentiment, or a belief that the vaccine has been politicized. Employers will have to decide what will happen if employees refuse the vaccine if made mandatory. Will the company adhere to the mandate and fire all the refusing employees? What if it is a large number? Will the company deviate from the mandate? And what about if certain key employees refuse the vaccine?
It is highly likely that at least some employees will refuse the vaccine for reasons other than an underlying disability or a religious belief, so employers should be prepared for that reality. Failing to uniformly apply a mandatory vaccination policy could present a separate risk for liability, such as potential for discrimination claims.
- Is there anything for employers to consider who are only encouraging the vaccine?
 While these employers need not be concerned with accommodations due to an underlying disability or a religious belief, there are still things to prepare for. Employers that are administering (which creates additional things to think about) or facilitating the vaccine should consider whether to stagger vaccine appointments to prevent being short-staffed while employees are being vaccinated or if employees have adverse reactions. And if encouraging the vaccine, employers should consider paying employees for the time it takes to be vaccinated as well as any missed work due to an adverse reaction. (Along these lines, be on the lookout for legislation that may require this.) Regardless of whether an employer is encouraging the vaccine or staying silent, it should keep enforcing the precautions taken thus far during the pandemic, like social distancing and wearing masks.
Ultimately, each workplace presents unique issues. Given the potential health and safety implications, as well as the potential liability associated, employers should thoroughly explore what is right for the business before settling on an approach.
Maggie Spell is a partner in Jones Walker’s Labor & Employment Practice Group. She can be reached in New Orleans at mspell@joneswalker.com or 504.582.8262. Because the information described herein is general in nature and may not apply to all situations, legal advice should be sought before taking action based on the information herein.
