As the COVID-19 vaccine is rolled out over the next several months, employers should start to think about their own vaccine policies.
Can Employers Make Vaccination Mandatory?
A vaccine is considered a medical procedure under the ADA, and therefore employers can only require them of employees if the vaccine is “job related” and “consistent with business necessity or justified by a direct threat.” The EEOC has yet to say whether COVID vaccines can be mandatory, but in the past, mandatory flu vaccine policies have been permitted as long as exceptions were made for medical and religious reasons. Although mandatory COVID vaccine policies are likely legally permissible, it may be wise for employers to start off with a voluntary policy and only escalate to a mandatory policy if necessary.
What If Employees Refuse to Get Vaccinated?
Employers can expect an influx of accommodation requests in the coming months and should proactively train their staff to process these requests. Although employers may fear fraud or abuse, they should still carefully document each and every request and deal with each request on an individualized basis. Requests for accommodations should not be handled with a “one size fits all policy” – each case is different and individual employee’s concerns trump the employer’s desire to achieve uniformity.
If employees express skepticism about the vaccine, employers may want to consider publicly getting the vaccine themselves in order to establish trust and demonstrate leadership.
As mentioned above, reasonable accommodations should be granted for legitimate religious and medical reasons. Under no circumstances should an employer take adverse action against an employee who requested an accommodation. Additionally, both union and non-union employers are entitled to engage in “concerted protected activity” under the National Labor Relations Act, which means they are free to work together to advance their interests as employees. If employees band together to protest an employer’s COVID vaccine program (or lack of a program), it would be illegal for an employer to retaliate against them.