Like many employment related questions, the answer to whether employers can require their employees to be vaccinated against the flu (or COVID-19 when that vaccine becomes available) is “yes” but only in the absence of any complicating factors, and “no” in many particular cases.
According to the Occupational Safety and Health Administration (“OSHA”), employers can require employees to be vaccinated against the flu, but employees who believe they have a medical condition that makes getting vaccinated dangerous may be able to refuse under various whistleblower protections.
The Equal Employment Opportunity Commission (“EEOC”) has declared that employers cannot require employees with disabilities to be vaccinated where the disability would make vaccination unsafe. Practically speaking, it will be very difficult for an employers to require an employee to be vaccinated where the employee’s healthcare provider states that it would be potentially dangerous for the employee to be vaccinated.
The EEOC has also stated that employers must accommodate an employee’s sincerely held religious beliefs, practices, or observances that prevent the employee from being vaccinated, unless such accommodation would be an undue burden on the employer. Challenging an employee’s purported religious beliefs is, unsurprisingly, a fraught process.
In light of these issues, the EEOC has advised that “ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act.
As with many other COVID-19 related issues, vaccination is likely to be contentious as a social/political issue, regardless of employers’ legal rights and obligations. Everything from mask wearing to requiring social distancing has become politically polarized and it is hard to imagine that something as physically invasive as vaccinations will not be similarly contentious. Employers will need to balance the benefits of requiring vaccinations, which could include making customers feel safer and preventing location closures and individual absences, against the costs, which could include employees quitting, lower morale, and navigating disability and religious accommodation claims, which may be genuine or may be made in bad faith.
At a minimum employers should strongly encourage employees to be vaccinated against the flu, and against COVID-19 when a vaccine becomes available. Employers that wish to make vaccination mandatory should consider offering employees who refuse to be vaccinated the ability to work remotely and be mindful of legal protections based upon disability, religious belief, and whistleblower status. Employers are legally required to provide employees with reasonable accommodations for disabilities and for good faith religious beliefs, unless those accommodations would create an undue burden.
Aaron Goldstein is a labor and employment partner at the international law firm Dorsey & Whitney. Goldstein has been advising businesses on measures that should be taken since the COVID crisis began. Goldstein also Goldstein provides litigation expertise and advice regarding trade secret disputes; non-competition agreements; race, gender, disability, national origin, age, religious, and sexual-orientation discrimination; whistleblower retaliation; and sexual harassment; protected under law.
