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Considerations for Employers Considering "Mandatory" Vaccination Policies

Philip R. Stein
Vaccine ImageA vexing question for many businesses is whether to make COVID-19 vaccinations mandatory for employees once those vaccinations become more widely available. Though the health and safety benefits of such a policy may seem readily apparent, employers must brace for possible substantial employee resistance and resulting legal challenges.

Not long after the first detection of COVID-19 cases in this country, the U.S. Equal Employment Opportunity Commission (EEOC) determined that the coronavirus meets the "direct threat standard" established under the Americans with Disabilities Act (ADA). A key consequence of that standard is that employers may make more extensive medical inquiries and impose stricter control mechanisms in the workplace than would typically be allowed by the ADA. A “direct threat” finding means that having anyone with COVID-19 in the workplace poses a “significant risk of substantial harm” to others. Accordingly, employers are able to implement medical testing and screening measures usually not available to them under the ADA.

Though the EEOC has generally looked with disfavor on mandatory vaccination programs, the "direct threat" conclusion indicated that the vaccine for COVID-19 would be viewed differently. But guidance recently provided by the agency neither endorsed nor rejected the possibility of mandatory vaccination policies. The guidance included an admonition that the U.S. Food and Drug Administration (FDA) must make sure that vaccine candidates are told that they may either accept or refuse vaccination. This suggests that any "mandatory" policy must contain carve-outs permitting employees to opt-out in all circumstances -- or at least some categories of circumstances that will presumably be identified. Employees' disabilities, and sincerely held religious beliefs that may make an employee resist vaccination, are two probable categories of carve-outs that may ultimately be required.

Notably, other federal agencies (such as the CDC and OSHA) have typically been more supportive of workplace vaccination policies, especially for industries deemed critical to the economy and national infrastructure. OSHA is in fact encouraging its inspectors to get COVID-19 vaccinations as soon as they can. That said, that agency, too, has in the past carved out exceptions from employers' vaccination mandates for employees on certain bases. Those include a "reasonable belief" that the employee has a medical condition that might be seriously aggravated by the vaccination.

For now, employers considering making vaccinations mandatory for their personnel should take note of published federal agency directives or guidance related to mandatory vaccinations. They should also understand that there is no strong existing precedent for mandatory vaccinations outside of certain "critical" industries. Finally, they should be prepared for resistance among some members of the workforce, and seek to tailor any contemplated "mandatory" policy in a manner that permits abstention and takes into account privacy concerns that employees may have with respect to their resistance to vaccination. In a forthcoming post, we expect to explore privacy implications of vaccination policies in more detail.

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