Should Employers Encourage or Require the COVID-19 Vaccine?
In December of 2020, the U.S. Food and Drug Administration (FDA) granted emergency use authorization for Pfizer’s and Moderna’s COVID-19 vaccine. Health care employers have already begun vaccinating their frontline employees, and the COVID-19 vaccine is expected to become increasingly available throughout 2021.
Many employers have been eagerly awaiting a vaccine in the hopes of protecting their workforces and customers and getting closer to “normal”. However, can an employer lawfully require the vaccination and when should an employer do so are questions many employers have.
At this point, SURESTAFF is discouraging our clients from requiring the COVID-19 vaccine based on the fact that even hospitals are not requiring it for their employees. We are also strongly encouraging our clients to seek advice from their employment attorney before implementing a vaccine initiative.
Following is some information to consider…
- Two-thirds of US organizations say they will encourage employees to get the COVID-19 vaccine but, not require it.
- Illinois hospitals are urging their workers to get the new coronavirus vaccine, but the Illinois Hospital Association says their members are not requiring the shot. Hospital leaders are hesitant to mandate employees to get the vaccine because it only has emergency use authorization from the Food and Drug Administration, not full approval. This is unlike the flu vaccine, which has full approval and some hospitals do require it.
- In December, the Equal Employment Opportunity Commission (EEOC) issued guidance stating employers could encourage or possibly require COVID-19 vaccinations for workers. However, they must comply with current workplace laws—namely the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964.
- Based on EEOC guidance, some federal and state laws allow exemptions protecting the rights of employees who are not able to receive the vaccine, including those with a disability or a sincerely held religious belief. In this case, an employer may make a reasonable accommodation—such as remote work or moving the employee to an area that is not consumer-facing.
- An employer- or OSHA-mandated vaccine is considered a part of work. So, under most state laws, an adverse reaction to the vaccine would be covered by workers’ compensation.
Who Should Be Vaccinated?
Determining which employees should be vaccinated will be largely driven by the nature of the employer’s business and potentially by the nature of a particular employee’s job duties. Obviously, employers in the health care industry and related industries—such as senior care—have a significantly heightened basis for requiring or strongly encouraging employees to get vaccinated. Outside of those industries, employers may consider:
- How closely together employees work
- How much exposure employees have to customers or other members of the public
- Whether employees have exposure to food products or other consumables in a manufacturing, restaurant or retail setting