The COVID-19 Vaccine Dilemma

As of this writing, there are three COVID-19 vaccinations that may become available for specific populations as early as mid-December, pending Food and Drug Agency (FDA) approval.

Employers are faced with the question of whether to mandate vaccines for their workers. While, at first glance, modeling this practice on how we have handled flu vaccines may be helpful, COVID-19 presents different challenges. Implementing policies and procedures will take time, focus, and continuous monitoring for undoubtedly rapid changes in the vaccination landscape.

The first, most obvious question is whether employers can mandate it. Not surprisingly, the answer is “it depends.” According to the CDC, people who are at high risk for serious illness, health care employees, and workers in certain essential businesses and critical industries will receive it first.  The availably for vaccines for the greater population is some months away.

Under the Americans with Disabilities Act (ADA), employers are prohibited from mandating that employees receive medical testing or vaccinations unless they are job-related and consistent with business necessity. This can be a challenging threshold for most businesses to meet.

If it’s determined that a mandatory vaccination program meets the above requirements, employees may object for multiple reasons. First, they may have an underlying medical condition that requires reasonable accommodation under the ADA. Employers should anticipate these types of requests and plan for what may be a lengthy interactive process with multiple employees.

Employees may also object based on sincerely held religious beliefs and request an accommodation based under Title VII of the Civil Rights Act. It’s important to remember that employees may have sincerely held non-religious beliefs against vaccinations, but these are not protected under the law.

Employees who join together to protest a mandatory vaccine program may be protected under Section 7 of the National Labor Relations Act (NLRA), making it unlawful for employers to take adverse action against employees engaging in protected, concerted activity, regardless of whether the employer has a union. If the employer has a collective bargaining agreement, they must consider it when making any vaccine policy decisions.

A recent Gallup poll indicates that approximately 60% of Americans are willing to have the COVID-19 vaccine, leaving 40 who are not. People cite a variety of concerns, including safety, side effects, distrust of vaccines overall, and questions about its effectiveness. Employers should consider the impact of a vaccination program on employee morale, polarization, and even possible turnover. Policies should clearly spell out the business necessity for the mandatory vaccine and how employees can engage in the interactive process.

Here are action steps to consider:

  • Designate someone to monitor updates and information
  • Carefully and thoroughly analyze job-relatedness and business necessity of a vaccination requirement
  • Anticipate possible objections and concerns and how the organization will address them
  • Work with managers to channel discussions and concerns to HR or another designated individual
  • Consult with an Employers Council employment law attorney to understand possible risks that the organization assumes moving forward

Employers Council will continue to keep our members up to date with new developments on employee vaccination issues.