With news reports emerging this week that two companies each have developed a COVID-19 vaccine that is more than 90% effective and carries few side effects, and that mass immunizations may begin as early as December 2020, when more than 20 million doses of the vaccines are predicted to be available, employers will soon confront an important decision: whether to require that all employees receive a COVID-19 vaccination as a condition of remaining in or returning to the workplace. In September of this year (which now feels like ages ago), we covered issues relating to employers considering implementing a mandatory seasonal influenza vaccination requirement. In that post, we discussed the legal issues concerning whether an employer can indeed implement and enforce a mandatory flu vaccination policy. (The TL:DR version: the U.S. Equal Employment Opportunity Commission (EEOC) does not recommend that employers require employees be vaccinated for the seasonal flu as a condition of employment – with the possible exception of healthcare employers – and those employers that do require flu vaccination must accommodate employees who for disability or religious reasons cannot or will not be vaccinated.)
From hard lessons learned, we know that COVID-19 is more easily transmitted and is more deadly than the seasonal influenza virus. Indeed – and important to this discussion – the EEOC has declared the COVID-19 pandemic a “direct threat” to employee health and safety. This being the case, assuming that the COVID-19 vaccines are as effective and safe as initial reports indicate, will employers be able to require that employees obtain a COVID-19 vaccination, and if so, will employers have to provide the same sort of disability and religion-based accommodations as they must currently provide if they require seasonal flu vaccination?
The answer, at least for the moment, is unclear. The fact that the EEOC declared the COVID-19 pandemic a “direct threat” suggests that employers will be able to require employees be vaccinated in order to remain in or return to the workplace, and further may be relieved of having to provide accommodations for disability or religious reasons because of the direct nature of the COVID-19 threat. Moreover, the fact that COVID-19 infection rates are presently spiking in all or nearly all 50 states suggests that measures implemented by employers to reduce the potential for spread, such as a mandatory COVID-19 vaccination policy, may be deemed reasonable and lawful. We also likely will see updated guidance from EEOC, which offered guidance early in the pandemic related to employer COVID-19-related medical inquiries and temperature testing, which are normally proscribed under the Americans with Disabilities Act. This guidance, particularly if there is a change in Presidential administrations, may well indicate that employer mandatory COVID-19 vaccination policies are not only permissible but recommended, and may even go so far as to say that due to the direct threat presented by the virus, employees who cannot or will not be vaccinated for disability or religious reasons are not protected and are not exempt from those policies. However, that is by no means a certainty, as many factors will play into this issue, including employers’ ability to establish or continue remote work arrangements for employees that cannot or do not want to be vaccinated, and whether employees who previously had COVID-19 and therefore may be immune from future infection must be vaccinated.
So, although certainly top-of-mind right now, employers should exercise patience and watch for developments in coming weeks as they consider possible mandatory COVID-19 vaccination policies as a way to protect their businesses and employees, as the efficacy, safety, and availability of the vaccines will impact whether such policies are appropriate or even feasible. We will update as those developments arise.