AMARILLO, TX – The COVID pandemic is a game changer. As a country, we have not experienced such a phenomenon in more than 100 years. Over 300,000 Americans have died from the coronavirus, 50,000 of whom have died within the last 30 days. Since March 2020, over 57 million Americans have filed for unemployment compensation. More than 100,000 businesses have shut down.
And yet—finally—there is light at the end of the tunnel. The Pfizer vaccine is now in distribution and the Moderna vaccine will also soon be placed into distribution. The distribution of the vaccine raises an important question: Should employers require employees to take the vaccine as a condition of employment, or should employers only suggest/encourage its employees to take the vaccine? To date, there are no laws that directly address this issue.
The concept of mandatory vaccination in employment is not novel. Many health care workers are required to receive certain vaccinations as a condition of employment. The EEOC and OSHA have historically interpreted mandatory flu vaccinations as permissible…with conditions. Specifically, the EEOC has stated that an employer must provide reasonable accommodations to employees who refuse to take a vaccine due to (i) legitimate religious beliefs and/or (ii) a disability that may cause the vaccine to be harmful to the employees.
OSHA has stated that mandatory vaccinations are allowed…except for employees who refuse a vaccine because of a reasonable belief that the vaccine will negatively affect the employees’ underlying medical condition. If the employer requires its employees to be vaccinated, but if an employee declines to be vaccinated on the basis of religious belief or underlying medical condition, and if the employee requests an accommodation, then the employer should document (i) the employee’s request for an accommodation and (ii) the accommodation offered by the employer.
And so, as of today, employers may mandate vaccinations…subject to EEOC and OSHA restrictions regarding (i) religious belief and (ii) concern about an underlying medical condition. There is a wrinkle as it pertains to employees who belong to a union. Before mandating a vaccination, the employer needs to review its Collective Bargaining Agreement to determine if there are any prohibitions/restrictions in the agreement regarding mandatory vaccinations.
Even though, subject to the EEOC/OSHA restrictions, an employer can mandate vaccination as a condition of employment, the employer may want to consider requesting/persuading employees to take the COVID vaccine…as opposed to requiring vaccination. For those employees who decline vaccination, the employer may want to offer accommodations: (i) working remotely; (ii) if the employee works at the office, then physically separate him/her from the vaccinated employees; or (iii) requiring employees to wear face coverings.
There are arguments to be made both ways when deciding whether to require or encourage employees to be vaccinated:
- Arguments for mandatory vaccination – The employer can assert that requiring a vaccination as a condition of employment protects all of the employees. Employers can assert that with few limitations, employers have the right to set health and safety work conditions. Employers can argue that requiring a vaccine is “job related and consistent with business necessity.” This is the ADA standard that permits employers to make medical inquiries and administer medical tests. Plus, OSHA requires employers to provide a safe work environment. Employers in “high risk” areas (e.g., meat packing plants, hospitals and other health care providers with direct patient contact, teachers) can argue that mandatory vaccinations are necessary to protect employees and the persons who the employees come into contact with. As previously noted, most employers in the health care space currently require their employees to receive annual flu shots. Lastly, it is noteworthy that when the U.S. was faced with the H1N1 swine flu, employers were allowed to require their employees to receive vaccinations.
- Arguments against mandatory vaccination – There is a risk that if the employee receives the vaccine, then a serious adverse reaction may occur. This, in turn, may result in a Workers Compensation claim…or perhaps a lawsuit. Employee morale may be negatively affected by a mandatory vaccination requirement.
If an employer mandates vaccinations, and if an employee objects on the grounds of bona fide religious beliefs and/or concern about an underlying medical condition, then the employer is required to offer accommodations. Other than the foregoing, if the employee is an “at will” employee and if he/she refuses to be vaccinated, then the employer can probably terminate his/her employment. In making decisions, the employer must balance the safety of the workplace with an employee’s individual rights. Note that a 2018 federal court decision stated that the fear of a “garden variety” allergic reaction does not amount to a disability.
Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato, PC, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies, manufacturers and other health care providers throughout the United States. Mr. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization, and can be reached at (806) 345-6320 or firstname.lastname@example.org.