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:
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:
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.