Yes or No on Mandatory Covid Vaccination?
Employers want to provide safe work places, and it is to the advantage of both the employer and employees to have a COVID-vaccinated workforce. Thus, the natural question is can I, and should I, require mandatory COVID vaccinations for my employees?
The short answer is that most legal scholars believe, including this writer, that an employer can mandate COVID vaccinations for its employees. However, there are legally recognized exceptions to the employer's right to do so. That is, the discrimination laws enable certain employees to request an exception from a company coronavirus vaccine mandate.
The first exception is under Title VII of the Civil Rights Act of 1964, in circumstances where an employee states that taking the vaccine is a violation of a "sincerely held" religious belief. In that circumstance, an employer might have to reasonably accommodate such an employee by exempting him or her from the vaccination mandate.
The second exception is under the Americans with Disabilities Act (ADA). Under the ADA, employees who do not want to be vaccinated claiming medical reasons have the right to request a reasonable accommodation to the mandate. Such an accommodation might include, for example, allowing the employees to work remotely.
There is still another problem in the case of a union employer. The employer may have to negotiate with the union before mandating a vaccine.
Most employers are not mandating vaccination, and they have very sound reasons for doing so. Polls indicate that a large part of the public, even healthcare workers, do not want the vaccination. Some employees may feel their "rights" are being violated, and workers are scarce these days. Most employers do not want to risk the opposition of at least some employees to mandating vaccination.
For this reason, many employers are first providing ready access to COVID vaccination for those employees willing to do so on a voluntary basis. Second, some employers are offering incentives to employees to be vaccinated. At a minimum, employees who get the vaccine won't have their temperature taken, and possibly will not have to wear the same amount of protective equipment. Some employers may consider offering financial perks to employees who accept the vaccine. Another idea is to require employees to undergo some educational program about COVID and the vaccination process in lieu of being vaccinated.
Further, most feel that people are going to be much more willing to take the vaccine after several months of hearing that a significant number have been vaccinated without adverse effects.
If an employer does mandate the COVID vaccine, or even provide it on a voluntary basis, it is unlikely that the company could be held liable should an employee develop adverse side effects. Most believe that any such claims would be considered pre-empted or negated by the workers' compensation pre-emption doctrine.
This is part of our January 2021 Newsletter.
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