Part 1: Can Employers Require Employee Vaccination?
As numerous COVID-19 vaccines await FDA-approval, employers across the country are wondering what this means for their business. Should they require their employees to take the vaccine?
Though it may be a while until the vaccine is widely available — since frontline health workers and older, vulnerable individuals will be first in line to receive it — the Occupational Safety and Health Administration (OSHA) allows employers to establish legitimate health and safety policies that are job-related and consistent with business requirements. At this time, however, there is no OSHA standard that requires employers to provide employees with a COVID-19 vaccine once it becomes available.
On the other hand, a 2009 letter of interpretation said employers who would like to require employees to take the seasonal flu vaccine could do so, with certain exceptions.
The General Duty Clause
There has been some speculation in the legal community about the implications of the General Duty Clause which states that “Each employer shall furnish to each of his employee’s employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Could OSHA use this clause to issue citations to employers who fail to provide COVID-19 vaccines?
According to an article by EHS Today, “Ultimately, the agency’s ability to issue a General Duty Clause citation will depend on a variety of factors, including guidances issued by the Centers for Disease Control and Prevention (CDC) and OSHA itself about use of the vaccine in the workplace. It also will depend on the strength of the employer’s COVID-19 safety and health program and the extent to which it follows other guidances from public health officials.”
The Unions’ Role
Employers with unionized workforces should keep in mind the implications of the National Labor Relations Act (NLRA) and labor contract obligations. Some unions may need to bargain with employers regarding COVID-19 vaccinations prior to implementation, while some labor contracts may already require employers to provide vaccinations without a need to bargain.
Employers should keep in mind that Section 7 of the NLRA may protect the rights of employees protesting against a mandatory vaccination policy, handing out flyers among coworkers about a vaccination mandate or discussing the vaccine among coworkers.