Reposted with permission from the blog at https://www.cairncross.com/resources/
The short answer is, very probably yes – with some caveats. But as a practical matter, will you want to? Keep in mind that early iterations of the vaccine will be for “emergency distribution” only. Therefore, the discussion in this client alert focuses on a more widely-available vaccine.
As of yet, the Department of Labor (“DOL”) has not published any guidance on this question. However, existing guidance from the Equal Employment Opportunity Commission (“EEOC”) on the flu vaccine gives us a good clue as to what they may say on this question. Consistent with the Americans with Disabilities Act (the “ADA”), an employer can require that employees undergo a “medical examination” so long as the examination is job related and consistent with business necessity or necessitated by a “direct threat.” The EEOC considers vaccination a medical examination subject to this “business necessity/direct threat” rule, and has stated that employers can require employees to obtain a flu vaccine as a condition of entry to the workplace – with the caveat that reasonable accommodation must be provided for both disabilities under the Americans with Disabilities Act and religious beliefs under Title VII of the Civil Rights Act. (For more in-depth guidance from the EEOC on pandemic flu response in the workplace, see here.) Based on this rationale, we expect that the EEOC will remain consistent and determine that employers can require employees to receive a COVID-19 vaccine as a condition of entry into the workplace, always keeping in mind the exception for reasonable accommodation.
But even if mandatory vaccination is legally permissible, consider whether you really want to implement such a policy at your workplace. If an employee refuses to get vaccinated, what will be the result?
Legally, an employer could terminate an employee for refusing to get the vaccine (and therefore being unable to report to work), unless reasonable accommodations come into play.
Keep in mind that if you require mandatory vaccination, you will need to apply the policy – and the penalty – equally among similarly-situated employees (that is, employees in similar positions and departments, or with similar titles). Terminating an under-performer for refusing to get vaccinated may be an easy call. But what if one of your top performers refuses to get vaccinated? What if a large number of employees refuse the vaccine? Are you prepared to terminate a top performer or lose a large number of your employees?
We suggest a better course of action will be to encourage and incentivize employees to get vaccinated once a COVID-19 vaccine emerges from the “emergency distribution” status and becomes widely available. Creative, supportive messaging and/or wellness incentives will likely go farther in achieving the result you want – wide-spread vaccination in your workplace – than a mandate will. (Think of the resistance to other mandatory COVID-19 precautions.) When the time comes, reach out to your employment counsel to determine the best approach for your workplace, and to ensure that your program complies with all applicable laws. Until then, stay safe and healthy! We’re here to help.