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COVID-19 Vaccine: What Employers Need To Know

With the Pfizer and Moderna COVID-19 vaccines now in wide-scale deployment, and with a single-dose vaccine from Johnson & Johnson apparently nearing FDA emergency authorization, the federal government’s current goal is to provide all adult Americans with access to one of these vaccines by the end of summer. While uncertainties remain, this is still good news, as it should lead to a sharp decline in serious and fatal infections while also allowing most companies to get back to business as usual.

But, as with most developments related to the COVID-19 pandemic, the availability of these vaccines presents some challenging questions for employers: Can employers require their employees to get vaccinated? What if an employee refuses to get vaccinated on religious, political, or other grounds? Could employers face liability if they allow unvaccinated employees to come to work? What policies can – and should – employers adopt in order to protect themselves and their staff?

Can Employers Require Employees to Get Vaccinated Against COVID-19?

Under federal law, employers can require employees to get vaccinated against COVID-19. However, there are several important, and complicated, exceptions.

As a general principle, federal equal employment laws prohibit employers from applying blanket rules that do not account for employees’ protected characteristics. As a result, while employers can (and generally should) adopt policies requiring COVID-19 vaccination, these policies must allow for exemptions in appropriate circumstances.
For example, if an employee has a medical condition that makes vaccination dangerous, then that employee should generally be excused. Likewise, employers must generally respect their employees’ decisions not to get vaccinated on religious grounds.

What about those who refuse to get vaccinated on political grounds? In the past, courts have held that secular objections to mandatory vaccination requirements are not protected under federal law. However, state laws may still provide protections, and Section 7 of the National Labor Relations Act (NLRA) protects employees’ rights to band together to raise objections to the terms of their employment.

Importantly, even if an employee’s objection to a COVID-19 vaccination requirement is protected, this does not necessarily mean that the employer must oblige. If an employee’s protected objection results in an “undue hardship” for the employer, then a mandatory vaccination policy may still be enforced. Whether a particular employee’s objection represents an undue hardship or can be overcome with a reasonable accommodation (i.e. by allowing the employee to wear a mask and remain socially distanced in lieu of vaccination) is a determination that must be made on a case-by-case basis.

Under federal law, employers can require employees to get vaccinated against COVID-19. However, there are several important, and complicated, exceptions.

Can Employers Require Employees to Get Vaccinated Against COVID-19?

As a general principle, federal equal employment laws prohibit employers from applying blanket rules that do not account for employees’ protected characteristics. As a result, while employers can (and generally should) adopt policies requiring COVID-19 vaccination, these policies must allow for exemptions in appropriate circumstances.
For example, if an employee has a medical condition that makes vaccination dangerous, then that employee should generally be excused. Likewise, employers must generally respect their employees’ decisions not to get vaccinated on religious grounds.

What about those who refuse to get vaccinated on political grounds? In the past, courts have held that secular objections to mandatory vaccination requirements are not protected under federal law. However, state laws may still provide protections, and Section 7 of the National Labor Relations Act (NLRA) protects employees’ rights to band together to raise objections to the terms of their employment.

Importantly, even if an employee’s objection to a COVID-19 vaccination requirement is protected, this does not necessarily mean that the employer must oblige. If an employee’s protected objection results in an “undue hardship” for the employer, then a mandatory vaccination policy may still be enforced. Whether a particular employee’s objection represents an undue hardship or can be overcome with a reasonable accommodation (i.e. by allowing the employee to wear a mask and remain socially distanced in lieu of vaccination) is a determination that must be made on a case-by-case basis.

Could An Employee Sue For COVID-19 Exposure If An Employer Does Not Have Adequate Policies In Place?

Given the availability of COVID-19 vaccines, what are the risks if an employer doesn’t adopt a mandatory COVID-19 vaccination policy? Under the federal Occupational Safety and Health Act’s “general duty clause,” employers have a duty to maintain a workplace free of recognized hazards.

At this point, COVID-19 is certainly a recognized hazard, so employers must take appropriate measures to protect their employees. Whether this means adopting a mandatory vaccination policy, mandating masks or social distancing, offering remote working opportunities, or some combination of the above is a decision that needs to be made based upon the nature of the employer’s business and operations.

As a final note, it is also important to recognize that simply having a COVID-19 policy is not enough. In order to avoid liability exposure, employers must diligently and consistently enforce their COVID-19 policies as well.