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Volume X, Number 225

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A Vaccine is Coming: Can Employers Require Employees to Take it?

As clinical trials continue across the world for a COVID-19 vaccine, many employers are asking whether they will be able to require employees to take the vaccine when it becomes available in the United States. Like with so many questions surrounding COVID-19, the answer is not entirely clear.  In general, employers can require vaccination as a term and condition of employment, but such practice is not without limitations or always recommended. 

The U.S. Occupational Safety and Health Administration (“OSHA”) has taken the position that employers can require employees to take influenza vaccines, for example, but emphasizes that employees “need to be properly informed of the benefits of vaccinations.”  OSHA also explains that “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistleblower rights.”

In March 2020, the Equal Employment Opportunity Commission (“EEOC”) issued COVID-19 guidance specifically addressing the issue of whether employers covered by the Americans With Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) can compel all employees to take the influenza vaccine (noting that there is not yet a COVID-19 vaccine). In responding to this question, the EEOC explained that an employee could be entitled to an exemption from a mandatory vaccination under the ADA based on a disability that prevents the employee from taking the vaccine, which would be a reasonable accommodation that the employer would be required to grant unless it would result in undue hardship to the employer.  Under the ADA, “undue hardship” is defined as “significant difficulty or expense” incurred by the employer in providing an accommodation.   Additionally, Title VII provides that once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship to the employer as defined by Title VII, a lower standard than under the ADA.  Under Title VII, employers do not need to grant religious accommodation requests that result in more than a de minimis cost to the operation of the employer’s business.  However, analogous state laws may impose stricter standards. 

In light of these exemptions and the risk of discrimination, the EEOC has advised that it is best practice to simply encourage employees to take the influenza vaccine rather than to mandate it.   Although we can presume that the EEOC will issue similar guidance when a COVID-19 vaccine is approved, the threat imposed by COVID-19 to the health and safety of others may make employers more inclined to require vaccination. Moreover, this threat and the necessary safety measures required of employers with unvaccinated employees may render exemptions to the COVID-19 vaccine more burdensome.  However, employers must also consider that employees may respond negatively to a vaccination requirement, and adverse reactions to the vaccine could lead to workers’ compensation claims.

Accordingly, employers contemplating any policy mandating a COVID-19 vaccine should be prepared to carefully consider the threat posed to the health and safety of their employees, the risk of future claims, and employee morale.  Moreover, employers must be prepared to carefully consider the reasons for any employee requests for exemptions.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 210

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About this Author

Lindsay L. Ryan Principal Polsinelli Labor and Employment Employment Litigation
Partner

Lindsay is committed to providing reliable counsel to strategically solve client matters and address their litigation needs. Clients rely on Lindsay to develop solutions and effective arguments with respect to their complex legal challenges. Her practice focuses on advising employers on compliance with both state and federal requirements for disability accommodation, leaves of absence, wage and hour, harassment and discrimination complaints, workplace investigation, reductions in force, disciplinary actions and terminations. She represents clients in all forums, including state and federal...

310-203-5333
LaToya Alexander, Polsinelli, Wage and Hour Litigation Lawyer, Employment Class Actions Attorney
Associate

LaToya Alexander has a passion for employment and labor litigation, and believes that forming strong relationships with clients is critical to providing effective legal counsel. For each engagement in which LaToya is involved, she seeks to provide concise and articulate legal counsel that aligns with clients’ business objectives. 

Prior to joining Polsinelli, LaToya worked as a law clerk for the Honorable Brian S. Miller, Chief Judge, in the Eastern District of Arkansas. She was exposed to a number of areas of law and developed a solid understanding of the litigation process. Her prior clerkship experience provides her with a unique perspective concerning the far reaching consequences of actions taken even in the earliest stages of litigation. Through LaToya's client-centered practice, she anticipates clients' needs in order to avoid litigation, and crafts solutions to best meet clients' immediate and long-term goals.

During law school LaToya served on the editorial board of the Arkansas Law Review and worked as a teaching assistant in Criminal Law and Property Law. She also received the Award for Excellence in Legal Writing, as well as the Bard Rogan Natural Resources Law Award for obtaining the highest grade in Oil and Gas Law and Water Law.

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