Employers Can Mandate the COVID-19 Vaccine, but Should They?

10 December, 2020

These days the news is brimming with articles about the eagerly awaited release of a COVID-19 vaccine. Employers are holding out hope that the vaccine is the path back to a normally functioning workplace, and some are seeking opportunities to get employees vaccinated as soon as possible. But can an employer mandate that employees receive the COVID-19 vaccine? Based on recently issued EEOC guidance, the answer is yes, but with the obligation to provide accommodations to those with disabilities under the ADA and those with sincerely held religious beliefs under Title VII. In previous guidance regarding vaccinations, the EEOC recommended private employers consider encouraging, rather than requiring, employees to take the vaccine. While this recommendation was not reiterated in the current vaccine-related guidance, it should still warrant consideration given the broad protections under the ADA and Title VII described by the EEOC.

But assuming employers can mandate the vaccine, the question remains: should they? We expect many healthcare organizations will mandate the vaccine to protect both employees and patients, and provide accommodations where required. For non-healthcare employers, the case for mandating is less clear. Mandatory vaccinations may be the fastest route to resuming normal business operations, but that road is fraught with obstacles and pitfalls. Consider:

This is a new vaccine. Some versions were created using novel technologies. Although the clinical trial data is encouraging, we’re still learning about this virus and the efficacy of the vaccines. At this point, the employer’s risk of mandating the vaccine is a bit of an unknown, and some employees may be reluctant to receive a new vaccine that has been granted emergency use authorization rather than full FDA approval.
COVID-19 is already a divisive issue. Given that Americans have different views on the virus itself -- in some cases politicized and highly emotional -- you can expect employees will have equally different reactions to a COVID vaccine. Sixty-one percent of Americans say they will take the vaccine, but that varies by party affiliation: Only 48% of Republicans say they will receive the vaccine. Given the pushback that government officials have received over mask mandates (and, for that matter, retail businesses trying to enforce mask mandates), is there reason to believe employees will be more accepting of a vaccine mandate?
Vaccines in general are not universally accepted. In addition to the medical and religious objections employees may raise, there are philosophical objections to consider. There is a strong contingent of Americans that oppose vaccinations – 30% of American children aged 19-35 months have not receive the recommended 7-vaccine series. Parents opposed to vaccinating their children may also object to mandatory vaccinations in the workplace.

There are also administrative issues that go along with a mandate. Employers will need to track and monitor which employees have received the first and second doses of the vaccine, and ensure personal data protections are in place. Moreover, what enforcement mechanisms will they use if employees don’t comply?

We suspect that once employers dig into the issue, the legal, philosophical and operational challenges will lead many away from mandating vaccinations. But you can still choose to encourage vaccinations. Here are some steps to take:

Communicate and educate. Provide employees with reliable information -- for example, content from public health announcements and websites – on a regular basis.
Lead by example. Senior managers and other “influencers” in the organization can share their vaccination experiences and explain why they chose to be vaccinated.
Offer time off. Encourage employees to take the vaccine when it becomes available by providing time off to go and receive the vaccine. For most people the side effects of the vaccine are expected to be similar to other vaccines (though we are learning about this and will continue to learn more as vaccinations continue). Employers should consider whether to provide time off or require employees to take sick leave if they need to recover from side effects.

One last important note. Even though all the recent great news regarding vaccine efficacy has us seeing the light at the end of this challenging tunnel, we must keep in mind that this effort will take time. Everyone will need to keep up their guard and continue all of the mitigation measures going forward until we reach a point of herd immunity. It will be essential to continue distancing, wearing masks and taking other precautions, and it’s best to assume that we will need to continue these measures through 2021. If it turns out that we can resume more of a normal life earlier, we can all sigh with relief.

Federal advisors endorsed the Pfizer-BioNTech coronavirus vaccine on Dec. 10. Read more in this article from The Washington Post.