Meyers, Roman, Friedberg & Lewis has a Coronavirus Response Team. Contact Jon Hyman to help with how your business should
continue to respond to this national emergency.


Tuesday, September 1, 2020

Coronavirus Update 9-1-2020: Vaccines — can an employer require them; should an employer require them?


There are currently more than two dozen COVID-19 vaccines in development world wide, as pharmaceutical companies race to perfect a viable vaccination to halt the ongoing pandemic. 

When (and it's a big when) one or more vaccines becomes available, can an employer require it of their employees as a condition of employment? 

When the EEOC initially published its guidelines on pandemic preparedness 11 years ago (in response to the H1N1, aka Swine Flu, pandemic) it answered this question with a "yes."

In response to the COVID-19 pandemic, the EEOC reissued its guidance
May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII.
ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Here's the thing. While the EEOC says that employer can't require "all" of its employee to take a vaccine, an employer actually can require a vaccination subject to reasonable accommodation exceptions for ADA disabilities and sincerely held religious beliefs. 

But just because an employer can mandate vaccines for most employees doesn't necessarily mean that it should. Instead, I fall back to the EEOC's closing statement about "encouraging employees" to get vaccines. Mandating what employee does with his or her body feels too invasive and Big-Brothery to me. I'd prefer that employers arm employees with the knowledge they need to make an informed choice about the benefits of inoculations, and then strongly encourage employees to make the scientifically and medically responsible choice.