Unless your state government enacts mandatory vaccination laws requiring it as a condition of employment, you could put your company at legal risk.
The COVID-19 vaccination has been touted as the easiest way to return to normalcy following the almost year-long pandemic. Such vaccinations will allow businesses to safely reopen and permit individuals and families to return to their routines.
Employers, in particular, are eager for business to return to pre-pandemic levels. While the 2019-20 influenza season cost employers $13.1 billion in lost productivity, according to outplacement firm Challenger, Gray & Christmas, the global COVID-19 pandemic is expected to be even more damaging.
It’s not surprising, then, that many employers are wondering if they can require employees to get the COVID-19 vaccine. The answers are “maybe” and “it depends.”
You want to protect your employees, and the COVID-19 vaccination might seem the simplest solution. But, before you decide to require every employee to get the vaccination when it’s available, make sure your actions do not put you at a legal risk.
Theoretically, employers can mandate that employees receive vaccines for both the flu and COVID-19 as a condition of employment. Certain high-risk workplaces, such as hospitals and nursing homes, already do so. They can also legally require employees to get one or more existing vaccinations. Experts assume that the COVID-19 vaccination would be included in the list of approved vaccinations. In addition, many states also require students to receive certain vaccinations in order to attend public or private K-12 schools.
While these practices suggest that schools and employers with traditionally high-risk workplaces might be able to mandate vaccinations, they are not common in schools or workplaces not associated with health care. Therefore, before pursuing similar requirements, check to see if federal or state laws support your actions.
2020 CARES Act
The federal CARES Act requires group health plans to pay for COVID-19 vaccines that are recommended by the U.S. Preventive Health Services Taskforce and the Centers for Disease Control (CDC) Advisory Committee on Immunization Practices. If your health plan complies with this law, your employees will have access to the vaccine at no cost if they choose to take it.
Although the Equal Employment Opportunity Commission (EEOC) has not addressed the issue of mandatory COVID-19 vaccinations in the workplace, it did address the issue during the H1N1 pandemic in 2009. The EEOC said that both the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 prohibited employers from compelling employees to be vaccinated for H1N1 regardless of their medical condition or religious beliefs even during a pandemic.
However, employers may be able to require COVID-19 vaccinations under the ADA or Title VII guidelines. That is, if they can demonstrate the vaccine is “job-related and of business necessity” or prevents a “direct threat” to workplace safety. However, the EEOC says that under the ADA an employee with an underlying medical condition could be entitled to an exemption from mandatory vaccination for valid and supported medical reasons.
The U.S. Supreme Court says that states — not the federal government — can decide whether to enact legislation making vaccinations mandatory. If your state makes vaccinations mandatory, then the decision has been made for you.
As wonderful as a vaccination sounds, not everyone is excited about taking a vaccine that was fast-tracked and has no performance record. Pharmaceutical companies were tasked with developing a drug in just a few months. That is a process that usually takes 10 years, according to the Wellcome Trust, a biomedical research charity in London. Many people wonder whether a vaccine developed so quickly can be safe for everyone. Individuals who have certain preexisting conditions could be at elevated risks. Others may have a religious objection to vaccinations in general.
If you do decide that mandatory vaccinations are the best course for your company, you will need to make accommodations for employees who:
- Have certain health conditions
- May suffer negatively if taking certain medications
- Have religious objections
You may have to make accommodations so these employees can work from home.
A less controversial option would be to strongly encourage flu vaccinations or to hold an onsite clinic.
Contact BPJ today to discuss what options work best for you and your business.