In light of continued concerns related to COVID-19 in the workplace and the increasing availability of COVID-19 vaccines, many employers are wondering whether they can (or should) require their employees to get vaccinated. From a federal perspective, the short answer to that question may be “yes” (with certain limitations discussed in part below). However, some states and local governments have enacted (or may in the near future enact) laws prohibiting employers from mandating vaccination. Thus, the answer to whether an employer may (or should) require its employees to get vaccinated is complex, nuanced, and rapidly evolving. Although this article provides a non-exhaustive overview of some of the current potential issues and pitfalls for employers, any employer considering a mandatory vaccination policy should consult legal counsel prior to instituting such a policy.
EEOC Guidance
In December 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued guidance indicating that requiring employees to get a COVID-19 vaccine is consistent with both the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act. One major caveat to the EEOC guidelines, however, is that, to comply with the ADA and Title VII, employers must provide reasonable accommodations for their employees with disabilities and sincerely held religious beliefs. A reasonable accommodation might include allowing an employee to work remotely or to take a leave of absence. A labor and employment attorney can help an employer determine what might be a reasonable accommodation for an employer’s specific employees seeking accommodation.
Any employer considering vaccinating their employees on site should consult legal counsel to ensure any pre-vaccination medical screening questions or other vaccination procedures do not improperly elicit information about an employee’s disability.
Some Other Considerations
Employers’ obligations concerning mandating vaccines in the workplace do not end with the EEOC guidelines. Even if the EEOC generally indicates that a mandatory vaccination policy may be okay (with certain limitations), many state and local jurisdictions have pending or enacted legislation that may conflict with the EEOC’s guidelines. In Illinois, for example, House Bill 3682, if enacted, would prohibit Illinois employers from creating, implementing, or enforcing a workplace vaccination program that requires an employee to demonstrate that he or she has received a vaccine approved under emergency use authorization by the U.S. Food and Drug Administration (“FDA”).
In addition, employers subject to collective bargaining agreements should be mindful that some unions argue that employers should not mandate vaccines or that an employer must bargain with the union about requiring vaccinations.
Some employers may also want to consider that the FDA has not yet issued permanent authorization for any of the available COVID-19 vaccines. These employers may worry about their potential liability to an employee who might suffer an adverse reaction to the vaccine. Depending on the industry, these considerations may be more or less important to an employer. Employers in the manufacturing and healthcare industries, for example, may decide that the benefits of vaccinating their employees far outweigh any potential liability risks.
Ill effects suffered by employees from a vaccination as a result of an employer vaccination mandate likely will result in the filing of worker’s compensation claims. As such, employers considering a vaccination mandate should contact their worker’s compensation carrier regarding coverage for potential claims.
Final Thoughts
Whether to require employees to get a COVID-19 vaccination is a hot-button issue. There are a host of constantly developing laws, guidelines, and pending legislation that employers considering mandating COVID-19 vaccines must navigate. Thus, any employer considering instituting a mandatory vaccination policy should consult a knowledgeable labor and employment attorney prior to implementation to ensure compliance with federal, state, and local law, as well as to minimize the employer’s potential liability.
Should you have any questions regarding this article or labor and employment law in general, , please feel free to contact Albee Law PC at (312) 279-0115 or by email at info@albeelaw.com.
