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13 January 2021
Yes, employers can implement a mandatory COVID-19 vaccination policy, subject to some conditions and exceptions.
Mandatory vaccination policies must be:
The Equal Employment Opportunity Commission (EEOC) has already deemed COVID-19 in the workplace to be a 'direct threat' with respect to requiring COVID-19 viral testing. Further, on 16 December 2020 the EEOC published several FAQs to guide employers that choose to implement a mandatory COVID-19 vaccination policy.
Any mandatory COVID-19 vaccination policy must comply with federal and state employment laws, including that employers must consider whether making exceptions to their policy may constitute a reasonable accommodation for employees who cannot receive the vaccine due to legally protected reasons.
There are two federal employment laws that may require employers to make exceptions to a mandatory vaccination policy. Specifically, these are the Americans with Disabilities Act (ADA), which protects employees with disabilities, and Title VII of the Civil Rights Act 1964 which, in this context, protects employees with sincerely held religious beliefs. Some states also have similar laws that will govern state to state.
Both the ADA and Title VII require employers to make reasonable accommodations for employees where doing so will not constitute an undue burden. In practice, typically, this requires a somewhat individualised analysis.
First, employers can generally require employees making exception requests to provide reasonable supporting documentation to verify the basis for the request and help in the determination of whether a reasonable accommodation can be made.
From there, the analysis differs between the ADA and Title VII – namely:
In either case, the analysis of whether to provide an accommodation is employer and employee specific, requiring employers to consider factors such as:
There are a number of factors that employers should consider when determining whether to make a COVID-19 vaccine mandatory or voluntary, including:
With a flu vaccine, the EEOC has stated that while employers can mandate such a vaccine, it suggests that employers simply strongly encourage but do not require vaccination. The flu is not COVID-19 and employers will be going through a different calculus in making their choices on COVID-19 vaccination, even if they do not currently mandate flu vaccination; however, the factors that employers must weigh are similar.
If a vaccine is mandatory, employers should consider the following:
On the other hand, mandating a COVID-19 vaccine may provide some protection for employers, including to the extent that this will increase employee participation and ultimately create a safer, healthier workforce. Moreover, those that mandate the vaccine in their workforce may see PR benefits, providing patients, customers, employees and recruiting candidates with an increased sense of safety and confidence.
That said, given the potential risks and burdens of mandating a COVID-19 vaccine, it is unsurprising that many hospitals – which have first access to the vaccine for their workforce – are making the vaccine voluntary and opting to 'strongly encourage' it, at least in the initial stages.
For further information on this topic please contact Michelle Strowhiro at McDermott Will & Emery by telephone (+1 310 277 4110) or email (firstname.lastname@example.org). The McDermott Will & Emery website can be accessed at www.mwe.com.
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