On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) published its guidance related to the COVID-19 vaccine. While the EEOC guidance implies that employers may generally require their employees to receive the COVID-19 vaccine, there are several legal and practical considerations that employers should contemplate when determining whether a mandatory vaccination policy is appropriate for its business. These considerations include:
Whether a mandatory vaccination policy would be job-related and consistent with business necessity based upon the nature of the employers’ workforce and business;
Any collective bargaining ramifications for employers with a unionized workforce as the National Labor Relations Board has previously ruled that a flu prevention policy that required employees receive a flu vaccine was a mandatory subject of collective bargaining unless waived;
What is a reasonable accommodation at the work place for individuals who advise they cannot take the vaccine because of a disability under the Americans with Disabilities Act or an employee’s sincerely held religious beliefs pursuant to Title VII of the Civil Rights Act;
The general duty clause under the Occupational Safety and Health Act, which requires employers to provide a safe and healthy workplace for their employees versus potential worker’s compensation claims from employees who suffer an injury or an adverse effect after receiving a mandatory vaccine, as well as employees who contract COVID-19 at work following the employer’s refusal to mandate the vaccine;
If electing to move forward with a mandatory vaccination policy, employers need to determine whether they want to have employees receive the vaccine through a pharmacy or health care provider as opposed to providing the vaccines directly to the employees or through a third party that the employer has a contract with so as to avoid the restrictions on collecting medical information; and
If an employer requires that employees submit proof of receipt of the COVID-19 vaccine prior to re-entering the workplace, the employer should warn employees that they should not provide any medical information when submitting their proof of receipt of the vaccine.
Please contact your Allen Norton & Blue attorney for further guidance on your company’s individualized situation and whether your company could or should require COVID-19 vaccines for your employees.