The rollout of the Pfizer and Moderna COVID-19 vaccines provides hope for employers that they will soon return to normal operations and profitability.
Many employers may be considering mandating that their workers get vaccinated. But before mandating such a policy, it’s important to talk to an attorney about the potential legal traps.
For one thing, a broad mandate could create issues for an employer under the Americans with Disabilities Act, which requires employers to make “reasonable accommodations” for employees with a medical condition that substantially limits at least one major life activity.
If there’s a legitimate medical reason why a particular worker cannot take the vaccine, you may need to offer a medical exemption.
It’s also important to note that under the ADA, employers must show that any medical exam or disability inquiry is “job related and consistent with business necessity,” so you need to be careful about asking your workers any pre-vaccination questions if you plan on making the vaccine mandatory. If the vaccination is voluntary, on the other hand, pre-vaccination questions will not be considered disability-related inquiries.
A related consideration is pregnancy-related medical conditions. Not only might these constitute disabilities under the ADA, but the federal Pregnancy Discrimination Act also requires employers to accommodate pregnant women. If an employee cannot be vaccinated safely due to pregnancy, you may be required to consider measures that will enable the employee to continue working for you.
You could also have employees who don’t want to take the vaccine for religious reasons. This is an area where you need to act with par- ticular care. That’s because Title VII of the federal Civil Rights Act of 1964, which prohibits workplace discrimination based on race, nation- al origin, sex and religion, appears to allow workers to opt out of vaccinations on religious grounds. In fact, the U.S. Equal Employment Opportunity Com- mission, which enforces federal antidiscrimination laws, has fined employers over this very issue.
In 2018, for example, the EEOC levied an $89,000 fine on a North Carolina hospital that fired three employees for refusing to take the flu vaccine on religious grounds. There’s no reason to believe the same reasoning wouldn’t apply to COVID.
The COVID vaccine may also cause physical side effects. If a worker suffers such side effects after being vaccinated due to an employer mandate, he or she could potentially file for worker’s compensation.
A mandate may cause morale problems within the workforce. So, if your workplace is one where there’s a lower risk of spread (for example, your employees do mostly outside work or they work in spread-out office space), you might consider whether a mandate is worth the resentment it might spark.
Finally, if you have a unionized workplace, be aware that a vaccination mandate may be subject to bargaining as opposed to something you can hand down by fiat. Even if the existing contract is one that allows you to implement a vaccination program without further bargaining, you may be better off in- volving the union in such a decision. Doing so could maximize employee buy-in, which could help you avoid costly grievance and arbitration proceedings.
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