We are still in the throes of the COVID-19 pandemic, and flu season is fast approaching. A question that our members are asking is: “can I require my employees to get a flu shot now and a COVID-19 shot when it is available?”
In general, employers can require a vaccination, but with limitations. There are possible legal pitfalls, so employers will have to carefully consider whether they want to take this on.
- The Occupational Health and Safety Administration (OSHA) has historically taken the stance that employers can require vaccinations. Still, it emphasizes that employees “need to be properly informed of the benefits of vaccinations.” OSHA says that “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistleblower rights.”
- In March 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding the interplay between the Americans with Disabilities Act (ADA) and COVID-19. They addressed vaccines directly and are recommending encouraging vaccines instead of requiring them. From the EEOC guidance:
- Q: May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
- A: No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).
Employers will also need to consider logistics and administration. If an employer chooses to require all employees to get vaccinated, they will need to participate in the interactive process with each employee claiming an ADA or religious exemption. Also, employers must consider who pays for the vaccine, how the vaccine will be administered to employees, how to track compliance, and how to enforce compliance.
All that said, employers might want to stick with encouragement for now. One way is to make it easier for employees to get vaccinated. Work with your health insurance provider to see what programs, discounts, or coupons they offer. If you don’t have a provider, or they don’t offer programs, work with a local pharmacy or health clinic. Contact Employers Council with questions.