With the availability of a COVID-19 vaccine on the horizon, many are asking whether an employer can require employees to vaccinate as a condition of employment.
There is currently no law or regulation that directly addresses this issue. However, as a general rule, employers can require employees to get vaccinated from the flu, and employers considering mandatory COVID-19 vaccination policies can look at mandatory flu vaccination policies for guidance.
In its 2009 Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guide, the Equal Employment Opportunity Commission explicitly stated that employers can require employees to get the flu vaccine, so long as they provided reasonable accommodations to employees with disabilities or religious objections.
Specifically, the EEOC emphasized that an employee may be exempt from a mandatory vaccine if they have a disability covered by the Americans with Disabilities Act (ADA) that prevents them from taking it. An exemption would be considered a reasonable accommodation under the ADA unless there is undue hardship for the employer, such as significant difficulty or expense.
Additionally, an employee may be exempted if taking the shot would violate his or her sincerely held religious beliefs, practices, or observances. If an exemption under either of these laws is requested by an employee, employers should speak with the employee to determine whether a reasonable accommodation would enable the employee to continue to perform their essential job functions without compromising the safety of other employees or customers.
Potential accommodations could include additional personal protective equipment, moving the employee’s work station, a temporary reassignment, remote work, or a leave of absence.
That said, although the EEOC enables employers to mandate flu vaccines, it recommends private employers encourage their employees to take the vaccine rather than force them.
It’s possible that the EEOC may view the COVID-19 vaccine differently, though unlikely.
Since the pandemic began, the EEOC’s position has been that COVID-19 meets the “direct threat standard,” which allows employers to conduct more extensive medical inquiries and controls than normal.
As noted in its 2009 guidance—updated on March 21, 2020—“a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”
Further, other federal agencies have issued guidance in support of COVID-19 vaccinations. For example, the Centers for Disease Control (CDC) has recommended vaccination for critical industries, including health care and community support agencies.
States may also create their own policies for mandatory vaccinations. The New York State Department of Health already requires that all workers of healthcare and residential facilities who could potentially expose patients or residents to influenza either receive seasonal influenza vaccinations or wear a surgical mask during the period when influenza is prevalent in New York State (as determined by the state’s Commissioner of Health). New York also mandates flu shots for young children who attend daycare, Head Start, pre-K or nursery school. It seems likely that when a Covid-19 vaccine becomes widely available NYS will enact similar requirements.
There is a current proposed bill in the NYS Assembly which would give the Department of Health the authority to mandate COVID-19 vaccination. Specifically, the bill provides that once the vaccination program has been rolled out for a while, the DOH would have the authority to "mandate vaccination" to anyone who can "safely receive the vaccine" if public health officials see that New Yorkers aren't developing "sufficient immunity from COVID-19." There will certainly be vocal opposition to this bill, and it remains to be seen if it will be signed into law and if other states will follow suit.