Are Employer-Mandated COVID-19 Vaccinations Legal?

When a COVID-19 vaccination is made  available to the public, should employers  require employees to get the vaccination?  The COVID-19 vaccination  has been touted  as the easiest way for  our country to return  to normalcy following the almost  year-long pandemic. Such vaccinations  will allow businesses to safely  reopen and permit individuals and  families to return to their routines.  Employers, in particular, are  eager for business to return to prepandemic  levels.

While the 2019-20 influenza season cost employers$13.1 billion in lost productivity, according to  outplacement firm Challenger, Gray & Christmas,  the global COVID-19 pandemic is expected  to be even more damaging.  It’s not surprising, then, that many employers  are wondering if they can require  employees to get the COVID-19 vaccine. The  answers are “maybe” and “it depends.”

The Law
You want to protect your employees, and  the COVID-19 vaccination might seem the  simplest answer. But, before you decide to require  every employee to get the vaccination  when it’s available, make sure your actions  do not put you at a legal risk.

Theoretically, employers can mandate  that employees receive vaccines for both the  flu and COVID-19 as a condition of employment.  Certain high-risk workplaces, such as  hospitals and nursing homes, already do so,  and they can legally require employees to get  one or more existing vaccinations. Experts assume  that the COVID-19 vaccination would  be included in the list of approved vaccinations.

In addition, many states also require  students to receive certain vaccinations in  order to attend public or private K-12 schools.  While these practices suggest that schools  and employers with traditionally high-risk  workplaces might be able to mandate vaccinations,  they are not common in schools or  workplaces not associated with health care.  Therefore, before pursuing similar requirements,  check to see if federal or state laws  support your actions.

2020 CARES Act
The federal CARES Act requires group  health plans to pay for COVID-19 vaccines  that are recommended by the U.S. Preventive  Health Services Taskforce and the Center  for Disease Control (CDC) Advisory Committee  on Immunization Practices. If your health  plan complies with this law, your employees  will have access to the vaccine at no cost if  they choose to take it.

EEOC Guidance
Although the Equal Employment Opportunity  Commission (EEOC) has not addressed  the issue of mandatory COVID-19 vaccinations  in the workplace, it did address the  issue during the H1N1 pandemic in 2009.  The EEOC said that both the Americans with  Disabilities Act (ADA) and Title VII of the  Civil Rights Act of 1964 prohibited employers  from compelling employees to be vaccinated  for H1N1 regardless of their medical  condition or religious beliefs even during a  pandemic.

However, employers may be able to require  COVID-19 vaccinations under the ADA  or Title VII guidelines if they can demonstrate  that the vaccine is “job-related and  of business necessity” or prevents a “direct  threat” to workplace safety. However, the  EEOC says that under the ADA an employee  with an underlying medical condition could  be entitled to an exemption from mandatory  vaccination for valid and supported medical  reasons.

State Law
The U.S. Supreme Court says that states  — not the federal government — can decide  whether to enact legislation making vaccinations  mandatory. If your state makes vaccinations  mandatory, then the decision has been  made for you.