Loyola University Chicago School of Law, JD 2021
As COVID-19 is back on the rise throughout the United States and various vaccine trials are occurring, employers are beginning to consider COVID-19 vaccine mandates for all their employees. While no vaccine has been approved yet, predictions point to a possible release by the end of the year. The vaccine is not expected to be readily available until mid-2021 for the general public, which makes it difficult for most employers to mandate vaccination at least until 2021. The Equal Employment Opportunity Commission (“EEOC”) has yet to release guidance on COVID-19 vaccine so it is best to consider guidelines discussing flu vaccines for now. Although there are necessary accommodations due to federal legislation, vaccine programs are permissible.
EEOC COVID-19 guidelines
In March 2020, the EEOC updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance document to assist employers with pandemic planning in the work place. The document was originally published in 2009 during the spread of the H1N1 virus and has now provided guidance during this pandemic. It focuses on implementing these strategies in a manner that is consistent with the Americans with Disabilities Act (“ADA”) and with current CDC and state/local guidance for keeping workplaces safe during the COVID-19 pandemic. During the pandemic, employers should rely on latest CDC and state or local public health assessments. Employers are also expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.
Since the pandemic has begun, many employers have closed their office buildings and provided employees with remote access to ensure the best safety of their employees. While some employers can send everyone home to work, employers in industries like hotels, hospitality, and manufacturing are asking about whether they may issue mandatary coronavirus vaccination for all employees. The EEOC guidance document raises the question of whether employers covered by the ADA and Title VII of the Civil Rights Act of 1964 may compel its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic. An employer is not able to compel its employees to take a vaccine and the employees may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents them from taking the influenza vaccine. 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. Finally, the document suggests ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it. The update to the document has not addressed whether the same rules will apply to the COVID-19 vaccine.
OSHA COVID-19 guidelines
The Occupational Safety and Health Administration (“OSHA”) has also provided guidelines on preparing workplaces for COVID-19. Within the guidelines, OSHA listed steps all employers can take to reduce the risk of exposure to COVID-19 and provided specific steps employers can take to protect workers based on their level of risk of exposure. Lower exposure risk jobs are those that do not require contact with people known to be infected with COVID nor frequent close contact with the general public. Jobs classified as very high exposure risk job include healthcare workers and morgue workers. The guidelines also do not include an employee vaccination mandate in its recommendations.
With a lack of guidance on vaccination mandates, it is best for employers to suggest vaccination rather than mandate it once it is available. Another consideration in employers mandating vaccination is possible liability to the employees. If an employee suffers from an adverse reaction to the vaccine after being required to take the vaccine by their employer, the employee may have a workers’ compensation claim. When considering the possible liability, necessary disability and religious accommodations, and uncertainty regarding availability of a vaccine, it is best for employers to highly suggest employees to get the COVID-19 vaccine. Although it would be permissible to mandate vaccination of employees while providing necessary opt-out procedures for certain employees, the mandate would be very complicated to implement.