Part 2: Can Employers Require Employee Vaccination?
Employers who are unsure about whether to require employees to receive the COVID-19 vaccine or not should take into consideration the role of state and local laws and the Equal Employment Opportunity Commission (EEOC).
The Role of State and Local Laws
The COVID-19 pandemic has forced states and local public health authorities to make emergency decisions governing this public health crisis. Under existing regulations, all states require certain healthcare facilities to mandate or offer vaccines for numerous infectious diseases, including seasonal influenza, Hepatitis B, Mumps and Rubella (MMR) and measles, to their employees.
There is variation among states regarding which reasons employees may use to decline vaccination. For example, Illinois does not accept philosophical or moral objections to influenza vaccinations, while other states, like Alabama, Kentucky, North Caroline, Pennsylvania, Massachusetts and Tennessee, allow an employee to decline influenza vaccination for any reason as long as they are made aware of the health risks.
Many states’ workers’ compensation laws would allow workers injured after receiving an FDA-approved vaccine to receive compensation. However, some states have laws that would not protect employers under Workers Compensation if they have engaged in gross negligence or reckless conduct.
Employers who choose to administer the vaccine may be protected by the Public Readiness and Emergency Preparedness Act (PREP) as long as they have received authorization from the federal, state or local government to administer the vaccine.
Equal Employment Opportunity Commission
According to an article by EHS Today, “The Equal Employment Opportunity Commission (EEOC), in a guidance issued in 2009 about pandemic preparedness, explicitly said that employers could require employees to get the flu vaccine so long as employers provided reasonable accommodations to people with disabilities and those with religious objections, as required by the Americans with Disabilities Act (ADA) and the Civil Rights Act, respectively.”
However, employers are not required to provide a reasonable accommodation if there is none available, if the reasonable accommodation poses an undue hardship to the employer, or if the employee would pose a direct threat to the health and safety of others that could not be prevented through reasonable accommodation.
Reasonable accommodations will vary depending on the work environment, such as businesses that require close face-to-face interaction with coworkers or the public.
Workers who cite a religious objection to vaccination are required to provide supporting information for their religious beliefs. Similarly, employers who cite “undue hardship” in providing reasonable accommodation are required to provide proof.
The Bottom Line
Regardless of whether employers will be legally required to mandate employee vaccination or not, those who do decide to implement a vaccine mandate should create an objective written policy based on actual job requirements and apply the policy consistently.