As employees gradually return to work after months of pandemic-related shutdown, employers are being faced with the challenge of providing a healthy working environment for any on-site personnel. One way to keep employees healthy is making efforts to reduce the risk of transmission of respiratory illnesses in the workplace. While a vaccine for COVID-19 is still under development, some employers may be asking whether they can implement a mandatory COVID vaccination policy to reduce the occurrence of at least contagious respiratory illness in the workplace. Some employers already have policies in place related to other vaccines, such as influenzas. Now is a good time to assess whether your workplace should revise its current stance on mandatory vaccines.
According to Equal Employment Opportunity Commission (EEOC) guidance pertaining to pandemic preparedness in the workplace and the Americans with Disabilities Act, originally issued in 2009 in response to the H1N1 virus and updated in March 2020 after the initial spread of COVID-19, employers may lawfully implement a "mandatory" flu vaccination policy, subject to exceptions under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII). An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him or her from taking the flu vaccine. The employer may be required to grant the employee a reasonable accommodation, unless doing so would place an undue hardship on the employer. Similarly, under Title VII, once an employer receives notice that an employee's sincerely held religious belief, practice, or observance prevents him or her from taking the flu vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship on the employer. Under Title VII, an undue hardship is defined as "more than a de minimis cost" (more than trivial/minimal) to the operation of the employer's business, which is a lower standard than under the ADA.
Subject to these two exceptions, however, employers may otherwise implement a mandatory flu vaccine policy for its workplace. Businesses must proceed cautiously with regard to any policy enforcement, particularly with respect to consideration of a religious exemption under Title VII. The EEOC has filed several lawsuits against employers with mandatory flu vaccine policies where the employer did not accommodate an employee's religious belief in objecting to receiving the flu vaccination or where the employer did not consider other possible accommodations.
With Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, predicting that a COVID-19 vaccine will be available by late 2020 or early 2021, employers may also want to begin considering policies related to COVID-19 vaccinations. While, like flu vaccinations, mandatory COVID-19 vaccine policies will likely be generally lawful, such a requirement could place employers in conflict with their workers, given that some may have concerns about the speed at which the vaccine is being developed. Employers must balance concerns related to the pushback from employees regarding mandatory vaccinations and the prevention of COVID-19 outbreaks by implementation of such policies.
Generally, employers should consider educating employees on the benefits of the vaccination and encouraging employees to voluntarily receive the vaccine by making it convenient. Employers could make it free to employees, offer to it at work, or pay employees for the time spent getting the vaccine. However, there will likely be certain environments in which employers have no choice but to mandate COVID-19 vaccination, such as meat-processing facilities that have experienced outbreaks due to the close proximity of workers or hospitals where employees have frequent contact with at-risk populations. In those circumstances, due the inevitable lack of long-term health data on the vaccine, it is important for employers to look to guidance from public health professionals as they monitor impacts and performance of inoculation.
As more information becomes available, employers should keep their employees informed in an effort to gain widespread acceptance of the vaccination, making employees less nervous about the vaccine and more likely to voluntarily receive it. This is a very unique time in the modern workplace, and balancing the legitimate concerns of a workforce with implementing reasonable safety measures will be delicate.
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