Dec 14, 2020

Whether An Employer Can Require Employees to Receive the COVID-19 Vaccination: A New Virus, an Old Question

Written by Mina R. Ghantous

The development and distribution of COVID-19 vaccinations has led the international community to breathe a much-needed, collective sigh of relief. The seismic economic ramifications of the virus have rendered employers decidedly eager to resume business as usual. The availability of a COVID-19 vaccination is being seen as a step in the right direction in terms of both employee safety and operational normalcy. However, though the virus has been catastrophically novel, the domestic legal framework regarding vaccination requirements for employees is far from it. Both the Americans With Disabilities Act (ADA) and Title VII’s protections still apply during, and in the wake of, a pandemic. Can an employer require employees to have the COVID-19 vaccination? The answer here is a conditional “yes.” Many employers undoubtedly see the value in a vaccinated workforce. Pursuant to the Occupational Health and Safety Act’s general duty requirement, employers must provide a workplace free from recognized hazards likely to cause death or serious physical harm to employees. COVID-19 has proven tragically capable of this.

Notwithstanding its potential to minimize this viral threat, requiring vaccination may contravene an employee’s sincerely-held religious belief(s), a right protected by Title VII (applicable to employers with 15 or more employees). In such a case, the employer would have to give the employee a “reasonable accommodation” in lieu of vaccination. This could take the form of requiring increased/enhanced use of personal protection equipment, an altered work schedule, etc. The “reasonable accommodation” requirement is also triggered if an employee’s disability prevents her or him from receiving the vaccine. Like Title VII, the ADA imposes this obligation on employers with 15 or more employees. The point here is that employers must tread carefully. Whether requiring the COVID-19 vaccination is both permissible and feasible will be an analysis unique to each employer. It should be informed by considerations of

  1. employee welfare and safety;
  2. relevant federal and state law, specifically including the ADA and Title VII;
  3. operational flexibility and restraints; and
  4. guidance issued by relevant federal agencies, like the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), the Department of Labor (DOL), and the Equal Employment Opportunity Commission (EEOC).

The operational nimbleness and creativity employers have used to navigate the COVID-19 pandemic thus far will continue to serve them well in deciding whether to require—or not require—their employees to get the COVID-19 vaccination.