As we continue through the COVID-19 pandemic, and possible vaccinations continue through clinical trials, the question has been raised whether a vaccination can be mandated, either by government, at some level, or by the private sector. Current polling suggests that more than one in three Americans say they will not get a COVID-19 vaccination today. With that being said, the federal government, and employers arguably have the authority to mandate the vaccination. As outlined below, it is more likely that an employer may mandate the vaccination as opposed to the government, with the latter taking a position of encouragement for the general public.
Generally speaking, the employer’s authority for such a mandate originates from the Occupational Safety & Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”).
In fact, OSHA previously addressed a similar issue through its response to the H1N1 (“swine flu") outbreak in 2009. In that same year, OSHA issued a comment opinion to the Honorable Congresswoman Marcy Kaptur of Ohio, specifically addressing whether or not a constituent’s employer could mandate the acceptance a swine flu shot with mandatory time off for refusal.
OSHA noted that “[u]nlike previous seasonal influenza viruses, this pandemic influenza virus disproportionately infects a wider age-range of people.” OSHA further noted that employers were expected to perform a workplace risk assessment and encouraged employers to offer not only the seasonal vaccine but also the H1N1 vaccine. Continuing, the opinion letter noted that while OSHA does not specifically require employees to take the vaccines, an employer may do so. Employers should also be mindful of potential whistle blower situations when an employee refuses vaccination due to the belief that a personal medical condition that creates a real danger of serious illness or death.
The EEOC also provided guidance during the 2009 H1N1 pandemic through its Pandemic Preparedness Plan. As you are most likely aware, the EEOC provides guidance to employers covered by the Americans With Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). In 2009, the EEOC noted that, generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring same. Further, the EEOC noted that an employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him or her from taking the vaccine. Therefore, such an exemption was viewed as a reasonable accommodation barring an undue hardship to the employer. Similarly, the EEOC noted that pursuant to Title VII, an employee may assert a reasonable accommodation if the employee’s sincerely held religious belief, practice, or observance prevents him from taking the vaccine, unless such an accommodation would result an undue hardship to the employer (which is a lower standard than under the ADA).
Continuing, the EEOC issued additional guidance earlier this year via un updated Pandemic Preparedness Plan. On March 21, 2020, the EEOC’s most recent guidance notes that employers are permitted to implement more extensive medical inquiries and controls as a result of COVID-19 as same is a “direct threat” that “cannot be eliminated or reduced by reasonable accommodation.” The EEOC guidance provides that, during the pandemic, employers may, among other things:
However, this guidance was issued prior to the availability of a COVID-19 vaccine and did not specifically address mandated vaccinations. This guidance may be further revised as we near a fully implemented vaccine, which may occur as early as the end of 2020. Notwithstanding the above, in practicality, the “direct threat" references makes it difficult for an employee to refuse employer mandated vacation on grounds of the ADA or Title VII with the expectation to keep their jobs.
The issue is further muddied by state requirements. Employers should look not only to federal law, but also state law, as the latter typically raises the employer obligations above federal minimum mandates. Many states already mandate vaccines for children and attendance of school (in fact all 50 states have some vaccination requirements), with some exemption (which has become known as the Anti-Vax movement). Moreover, many states require employers within certain sectors to undergo vaccination for Hepatitis-B, Measles, Mumps, Rubella (MMR), Pertussis, Pneumococcal disease and the like. It is possible, if not expected, that states will require certain sectors (such as healthcare and other front-line services) to mandate the COVID-19 vaccine in a similar manner that many have already mandated testing for same.
In summary, absence additional guidance from the EEOC, employers may want to begin drafting a legally compliant vaccination policy in preparation for a vaccine that is considered safe for the general public. While the policy should certainly consider the issues outlined above, employer should likewise be mindful of a policy that is not overreaching and in violation of the ADA and Title VII.
In conclusion, employers must be proactive in managing the coronavirus pandemic and the associated employment. Employers are encouraged to consult with an experienced attorney to discuss the potential options available at this time and in the future.
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