Back on Dec. 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance on whether federal law allows employers to require their employees to take a COVID-19 vaccine. Unfortunately, rather than answering the question directly, the EEOC guidance (in the form of a Q&A) addressed issues surrounding exceptions employers must consider if they adopt a mandatory vaccination policy. That approach at least implies that a mandatory vaccination policy is legally permissible under federal law.
The justification for mandating vaccination, especially during the pandemic, is based on the premise that unvaccinated employees present a "direct threat" to others in the workplace. The EEOC also made it clear that employers are required to make accommodations for religious objections under Title VII of the Civil Rights Act and disability-related objections under the Americans with Disabilities Act.
Many employers have already stated that once the vaccine is widely available, they may mandate a vaccine before employees can return to the office. However, in addition to exemptions based on disability or religious accommodation, mandating the vaccine could lead to employer liability under the workers’ compensation system if an employee had an adverse reaction and it is determined that the employee was vaccinated at the direction and for the benefit of the employer. On the other hand, a unionized employer may need to bargain over vaccination programs and, at a minimum, keep their unions apprised. Mandating vaccines would be considered a mandatory subject of bargaining because it substantially effects the terms and conditions of employment.
If an employer makes the vaccination a requirement, it should, as a best practice, be prepared to pay for the vaccination, the time it takes an employee to be vaccinated, and any sick leave related to taking the vaccine.
Employers should be prepared for employees also having non-medical or religious objections to receiving a COVID-19 vaccination. If the complaints are widely varied, this could put the employer in the untenable situation of assessing whether the objections should be accommodated. Employers may be more successful at securing widespread vaccination by using open communication and giving consideration to incentivizing employees, in some manner, to be vaccinated, Employers also should be careful to follow the EEOC’s wellness regulations regarding offered incentives. Remember, each district may need to adopt a specific written policy to address COVID-19 vaccinations if they are not adequately addressed in current policy