While many employers mandate vaccinations for their employees, doing so will also raise a host of legal and practical considerations that employers must consider before any such programs are implemented.
- The need to accommodate employees who, because of a medical condition, cannot take the vaccine;
- The need to accommodate employees who, because of a sincerely held religious belief, cannot take the vaccine;
- Potential liability concerns under workers’ compensation and other laws if employees take the vaccine and develop an adverse reaction;
- Potential labor law and related protections for employees who may oppose taking a vaccine based on perceptions that it is unsafe; and
- Practical concerns like developing—and evenly enforcing—policies that discipline employees who do not take vaccines.
As a matter of policy, if an employer does require their employees to obtain a COVID-19 vaccine, the employer must develop a written policy.
In addition, an employee may have a general objection to receiving a COVID-19 vaccination that does not require a reasonable accommodation. An employee who refuses to obtain a mandated vaccine should never be automatically terminated, which may violate other state or federal law. Also, a significant portion of employees refuse to comply with the vaccine mandate, the employer will be put in a very difficult position of either adhering to the mandate and terminating all of those employees, or deviating from the mandate for certain employees, which increases the risk of discrimination claims.
Before implementing employee mandates that could lead to very difficult decisions, employers may want to:
- Develop a vaccination education program.
- Make obtaining the vaccine as easy as possible.
- Cover any costs that might be associated with getting the vaccine.
- Provide incentives to employees to obtain the vaccine.
Before any type of employer vaccine mandates are implemented, it would be extremely wise for an employer to have their mandated vaccine policy reviewed by their legal counsel.
Religious Discrimination Concerns. Title VII of the Civil Rights Act of 1964 (“Title VII”) imposes accommodation requirements for employees who cannot take a mandated vaccine due to a “sincerely held religious belief, practice, or observance.”
Employer Liability Concerns
Before implementing a mandatory vaccination program, employers should consider the potential liability that may be associated with both mandating and not mandating vaccines.
Employers must consider the possibility of liability if an employee has an adverse reaction to the mandated vaccine. While such cases have not been tested in the courts with respect to COVID-19, similar cases (at least in some states) suggest that adverse reactions to mandatory vaccinations may form the basis of a viable workers’ compensation claim. The details on potential workers’ compensation liability will vary from state-to-state, and will likely evolve as COVID-19 cases are litigated.
Conversely, employers should also consider the potential liability of not mandating vaccines. For example, OSHA’s “General Duty Clause” requires employers to furnish a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. Employees may assert that workplaces that do not mandate vaccines against COVID-19 violate this provision—although other protective measures (e.g., social distancing, masking, etc.) are likely sufficient to satisfy this standard.
Employers must carefully review any policy or mandate regarding COVID-19 vaccines, and carefully weigh their actions with proper legal guidance.