Authorized Issues for Employers — Occupational Well being & Security

COVID-19 Vaccination Planning: Legal Considerations for Employers

It is up to employers to decide whether or not their employees can come to work unvaccinated.

Employers affected by the COVID-19 pandemic have been eagerly awaiting a safe and effective vaccine that will provide some protection when workers return to work. With three emergency vaccines approved in the US, employers now face a number of important legal considerations raised by vaccination programs and policies in the workplace.

Is it legal to require that all employees be vaccinated?

The answer is likely yes, but legal risks and practical hurdles can outweigh the value of a mandatory vaccination program in the workplace.

The US Equal Employment Opportunity Commission (EEOC) has issued guidance indicating that employers can likely request vaccination against COVID-19. The American With Disabilities Act (ADA) allows an employer to implement a vaccination requirement as a qualification standard or a “requirement that an individual should not pose a direct threat to the health or safety of anyone in the workplace.” However, employers have reasonable housing obligations to workers who refuse to be vaccinated because of a disability or a genuine religious belief or practice. Failure to recruit complained employees could violate ADA or Title VII of the Civil Rights Act (Title VII), as well as various state and local laws that prohibit discrimination.

As all available emergency vaccines are currently approved, recipients must be informed “that they have the option to accept or decline the vaccine”. This information is typically provided at the time of vaccine administration. This provision of the Food, Drugs and Cosmetics Act does not expressly prohibit employers from imposing work-related conditions on employees who exercise their right to refuse. However, it can be a basis for an employee to contest a mandatory vaccination program.

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