Can I Make My Workers Get The COVID-19 Vaccine?

By Zhen Liu

New Jersey is rolling out COVID-19 vaccines step-by-step to serve all adults who live, work, or are being educated here. The State’s goal is to vaccinate 70 percent of the adult population – or 4.7 million adults – within six months. Employers are – or should be – beginning the planning process as to what the vaccine’s availability will mean for them. With challenges like maintaining employee’s comfort level for safety at work and continuing to return them to on-site work, an important question is – “Can I require employees to get the COVID-19 vaccine as a condition of continued employment?”

The short answer is yes, at least under current federal employment laws. A business can make vaccination a requirement as a condition of employment. But there are significant exceptions, related to any disability an employee may have and for religious beliefs that prohibit vaccinations. So employer vaccination mandates are vulnerable to legal challenges and raise significant practical concerns. What’s the best way to encourage workers to get immunized, rather that issue a company-wide mandate.

Can Employers Mandate COVID-19 Vaccinations?

Currently, there is no federal or state authority directly addressing the question of whether employers may require a COVID-19 vaccine as a condition of obtaining or continuing employment. Generally, employers have a duty under federal law and state laws, to provide a safe workplace for their employees. Consistent with this, some employers have adopted measures recommended by the CDC, the Occupational Safety and Health Administration (OSHA), and state public health agencies to help reduce the spread of COVID-19.

Typical requirements include wearing face coverings, maintaining physical distance from others at worksites, undergoing temperature checks, submitting to daily health self-screenings, and/or limiting group meetings and work travel. Now, businesses are anticipating the widespread availability of these vaccines and are considering whether to impose mandatory vaccination policies.

EEOC COVID-19 Vaccination Guidance.

Businesses and employers now have some specific guidance on COVID-19 vaccinations from the federal government. On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) published the Technical Assistance Questions and Answers on mandatory COVID-19 vaccinations in the workplace. According to this guidance, employer vaccination mandates, with certain exceptions, are lawful under both the federal Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act. The EEOC guidance states that an employer-administered vaccination of an employee for protection against COVID-19 is not a “medical examination” subject to the ADA’s strict standards for disability-related inquiries.

However, the guideline noted that pre-vaccination medical screening questions of employees may implicate those standards, and, therefore, such questions must be “job-related and consistent with business necessity.” The EEOC also opined that employers may ask or require employees to show proof of receipt of a COVID-19 vaccination without violating the ADA.

(1) Disability Exceptions

What if, when requiring COVID-19 vaccinations, an employee says that he or she is unable to get it because of a disability? The guideline stated that under the ADA, the employer must conduct an “individualized assessment” to determine whether an unvaccinated employee would pose a direct threat to the health or safety of others in the workplace.

That decision may be based on a conclusion that the employee could expose others to the virus. The EEOC cautioned that an “employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk, so the unvaccinated employee does not pose a direct threat.” The guideline stated that even if the employer determines the employee must be excluded from the physical workplace, it should consider potential accommodations that could be made without undue hardship, such as a remote work arrangement.

(2) Religious Practice Exceptions

The EEOC also gave guidance on how an employer should respond if an employee says that he or she cannot comply with a COVID-19 vaccine requirement because of a religious practice, belief, or observance. Under Title VII, the employer must provide a reasonable accommodation for a sincerely held religious practice or belief unless it would pose an undue hardship. The EEOC said that because religion is defined broadly, and religious practices or beliefs vary widely and may be unfamiliar, an employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.”

The Commission suggested that if the employer has an objective basis to question the nature or sincerity of the religious belief or practice, it would be justified in requesting additional information. As a practical matter, however, employers may find it awkward to ask an employee probing questions about their personal religious beliefs. Given the inherent difficulty of this inquiry, employers are vulnerable to liability if they take adverse action against an employee who refuses the vaccine on asserted religious grounds.

While the EEOC has issued guidance regarding the vaccines under certain federal laws, New Jersey may interpret its own employment laws in a manner that is more protective of employees. These laws may further limit employers’ ability to require employees to receive COVID-19 vaccinations.

Mandatory Vaccination Policy and Employee Lawsuits.

Businesses that require their employees to get COVID-19 vaccinations should be aware of the potential for employee claims, which should guide their practices if they decide to move forward with a mandatory vaccination policy.

In the case of a disabled employee or applicant who refuses the vaccine, employers face potential liability under the ADA and/or state discrimination laws. Businesses may also be exposed to similar claims if they take action against employees who refuse the vaccine based on sincerely held religious beliefs. Employers who attempt to question the nature or sincerity of an employee’s religious beliefs or practices, offered as grounds for refusal of the vaccine, also risk violating state privacy laws.

Mandatory vaccination policies may also give rise to potential workers’ compensation claims. If an employee becomes ill or suffers a significant adverse reaction to the vaccine, requiring medical treatment and/or time off work, such an injury could be deemed compensable under state workers’ compensation statutes.

Finally, employers also face potential exposure to retaliation claims under federal or state occupational safety laws, and/or whistleblower laws, if they take action against employees who object to the vaccine based upon a good-faith concern about its impact on their health.

Vaccine Recommendations Vs. Requirements.

Given all the different concerns and risks employers will need to balance with COVID-19 vaccines, it is better to establish a policy and practices specific to them and by educating employees and encouraging them to receive vaccination on a voluntary basis. This can be done in several ways.

• Paying all costs of the vaccination or covering the costs under a group health insurance plan.
• Educating employees with accurate, up-to-date information about the known and potential benefits and risks of the vaccines and the vaccination procedure.
• Hosting vaccination clinics on-site during work hours when convenient for most employees or contract a third party at an off-site location, administered by a state licensed health care provider.
• Offering employees additional benefits for their participation in the program.

The COVID-19 pandemic is unprecedented and evolving. No state or locality has yet issued guidance specifically addressing whether a mandatory workplace COVID19 vaccination policy is permissible. Given the fast-evolving nature of the situation, it is crucial for employers to monitor new laws and guidance from federal and state authorities so they can plan accordingly. Businesses should weigh the legal exposure and other risks associated with any mandatory vaccination program, and assess whether the alternative of voluntary vaccination may be a better option based on the nature and needs of their businesses.

Staff Writer Zhen Liu is a recent graduate from Seton Hall Law School, where she was a member of the Asian Pacific American Lawyers Association. She specializes in Family Law and serves as research assistant to associate reporters of The American Law Institute.