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.”
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.
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.
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.