Legal Insider: Could Employees be Mandated to Get COVID Vaccines by Their Employer?

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Can employers require employees to take the new COVID-19 vaccine?

This issue is likely to come up soon as vaccines for the COVID-19 virus start being deployed. The short answer to this question is likely yes for most employees in the long term. There are exceptions. As a side note, I will be in line to get the vaccine when those at higher risk have first been able to receive their vaccines first.

Religious, Disability and Moral Objections

Whether or not an individual is required to get a COVID-19 vaccine will depend on many factors, including the type of employment that the individual has and whether or not they have health conditions that could be complicated by the COVID-19 vaccine or perhaps run contrary to sincerely held religious beliefs.

Vaccines authorized under the emergency authority of the U.S. Food and Drug Administration (FDA), as the first vaccines will be at the start of the vaccination process, may be more difficult to mandate. I suspect that as the vaccines receive final approval by the FDA, which is a different process, that this could change as well. I don’t know if it will make a significant difference in the next year or two given that there also won’t likely be enough vaccines for everyone that wants one for a number of months. There are also many legal issues in flux and the legality of employers requiring vaccines could be bolstered by Congress.

As an analogy, there are employers that mandate the flu vaccine. The U.S. Occupational Safety and Health Administration (OSHA) has said that employers can legally impose a flu vaccine requirement on their workforce but that employees have the right to request medical or religious exemptions under federal anti-discrimination laws. Similar guidelines are likely to also apply for the COVID-19 vaccine.

EEOC View of Required Vaccinations

The Equal Employment Opportunity Commission’s (EEOC) view of the Civil Rights Act, is that once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents her/him from taking a flu vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.

An ethical or moral objection to taking the vaccine would not likely be enough to get beyond such a requirement. Employers with undue hardships (which can override objections) will likely be seen in some types of positions, like those that require direct contact with customers or where COVID-19 outbreaks have previously occurred. In cases where employers have required flu vaccines, some employers have let employees avoid vaccination but require those employees that refuse to take a vaccine to wear a mask at work.

Eventually, the vaccines probably will be approved under the FDA’s more lengthy rules and will no longer be considered experimental. But even then, requiring a COVID-19 vaccine as a condition for returning to employment could create the potential for many types of problems. We are fairly early in the COVID-19 vaccination process, but there are likely to be more laws protecting employers that require vaccines for employees due to the severity of the pandemic.

For those that object to COVID-19 vaccines, there are also likely numerous lawsuits that will be filed over these issues unless new laws are enacted. The best practice for an employer would likely be to strongly encourage but not force an employee to take a vaccine unless there is no other option.

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