Since COVID-19 vaccine distribution began in December 2020, millions of people across the United States have been vaccinated.  Still, a large percentage of people remain unvaccinated, which creates challenges for employers who view the COVID-19 vaccine as a key protective measure for maintaining a safe and healthy workplace. Moreover, some employers are worried that, if they do not mandate or encourage the COVID-19 vaccine in their workplaces, employees may invoke the general duty clause under section 5(a)(1) of the Occupational Safety and Health Act (OSH Act) to support a claim that the employer failed to provide a safe and healthy work environment. Now that the vaccine is widely available for adults in most states and many employees are still deciding to forgo the vaccine, employers are grappling with whether to adopt a policy requiring the COVID-19 vaccine. Before adopting a mandatory vaccine policy, employers should recognize and evaluate the many legal and practical risks associated with such policies.

At this point, relevant legal precedent and guidance surrounding an employer’s ability to mandate the COVID-19 vaccine is minimal and legally untested, especially since the COVID-19 vaccine thus far has been authorized by the Food and Drug Administration (FDA) pursuant to an Emergency Use Authorization (EUA), rather than complete FDA approval. In fact, lawsuits challenging employers’ ability to mandate the vaccine, based on the vaccine’s EUA status, already have been filed.  Several states also have proposed bills which, if passed, would prohibit mandatory vaccination policies.

That being said, the Equal Employment Opportunity Commission (EEOC) has taken the position that employers, regardless of the industry, may mandate the COVID-19 vaccine, subject to certain limitations. Employers also may request proof that an employee has received the COVID-19 vaccine, although employers should avoid asking questions regarding why an individual did or did not receive the vaccine and should not obtain any other medical information from employees beyond the proof itself. However, asking for proof of vaccination is not a simple task; while some states are encouraging “vaccine passports,” which contain information pertaining to an individual’s COVID-19 vaccine status, other states are implementing strict bans on requesting such proof.  Accordingly, employers should consult relevant state laws before requiring proof of COVID-19 vaccination from their employees.

Can employees refuse the covid-19 vaccine?

As recent headlines illustrate, many employees are refusing to obtain the COVID-19 vaccine. The EEOC and the courts have advised that employees may lawfully refuse the COVID-19 vaccine for a number of reasons. Accordingly, if an employee refuses the COVID-19 vaccine due to a disability or a sincerely-held religious belief, the employer may be required to provide the employee with a reasonable accommodation regarding the vaccination requirement unless it would pose an undue hardship or a direct threat to the workplace which cannot be mitigated. Importantly, even if there is a direct threat to the workplace, an employee cannot automatically be terminated for refusing to receive the COVID-19 vaccine; rather, employers must follow their process for reviewing whether a reasonable accommodation can be provided and how (e.g., remote work). Some employees may also have been advised by their physicians not to get vaccinated due to particular health risks, about which employers, under federal and state law, generally are prohibited from inquiring.

Further, Section 11(c) of the OSH Act may provide an avenue for an employee to refuse the COVID-19 vaccine due to a reasonable belief that the employee’s medical condition will cause a reaction, leading to serious injury or death.

Additionally, many employers are currently questioning their ability to separate or otherwise differentiate employees based on vaccination status.  While further guidance from the EEOC is expected on that issue, employers should be wary of distinguishing among their employees based on vaccination status at this time, as doing so could, even inadvertently, lead to discrimination, especially if it results in a disparate impact for certain protected groups.

Should employers with unions take a different approach?
Employers with unionized workforces may be required to provide their unions with notice and an opportunity to bargain about a mandatory vaccination policy, or the impact that such a policy would have on employees’ terms and conditions of employment, as the National Labor Relations Board has held that a vaccination policy is a mandatory subject of bargaining. Moreover, both union and non-union employers should consider the right of employees to engage in protected concerted activity to advance their interests with respect to the vaccination (e.g., to protest a vaccination policy or lack thereof), as it is unlawful for an employer to interfere with, restrain, or coerce employees who engage in protected activity for mutual aid or protection. 

Other considerations

Other risks employers may face as a result of mandating the vaccine include the possibility that employees may be entitled to seek relief via workers’ compensation if an injury or illness occurs related to the vaccination. Similarly, OSHA has advised that if an employer requires the COVID-19 vaccine as a condition of employment, injuries or illnesses due to the vaccine may be recordable.

Due to the risks associated with mandating the COVID-19 vaccine, employers instead may wish to consider encouraging employees to receive the vaccine or provide access to the vaccination on a voluntary basis, such as by offering reasonable participatory rewards or incentives (e.g., gift cards, cash incentives, raffles, vacation time, etc.), by providing access to or covering the cost of obtaining the COVID-19 vaccination (e.g., vaccination clinics, paid leave to obtain the vaccine, transportation to vaccine appointments, etc.), or by educating employees on the vaccination. As many recent examples in the media demonstrate, these types of incentives have shown to be effective in promoting the COVID-19 vaccine in the workplace.

Employers are encouraged to speak with competent legal counsel about these issues.