By The HR Team at East Coast Risk Management
Question: Can an employer require its employees to get a COVID-19 vaccine when it becomes available?
Answer: Most likely yes, with two exceptions. On March 11, 2020, COVID-19 was declared a pandemic. A pandemic is a global epidemic, which means it is an outbreak of a disease that occurs suddenly in numbers significantly greater than normal, but which spreads only within communities, states, or a limited number of countries.
There is one main law that may prohibit an employer from requiring an employee to get the COVID vaccine, which is the Americans with Disabilities Act (“ADA”). Requiring a vaccine is most likely a medical examination under the ADA. An employer can require a medical examination if the employee will pose a direct threat due to a medical condition. “Direct threat” is an important ADA concept during a pandemic. If a pandemic rises to the level of a direct threat, it is most likely an employer can require a vaccine to immunize and protect the employee against the disease.
Based on guidance of the CDC and public health authorities, the COVID pandemic meets the direct threat standard. The CDC and public health authorities have acknowledged community spread of COVID in the United States and have issued precautions to slow the spread, such as significant restrictions on public gatherings. In addition, numerous state and local authorities have issued closure orders for businesses, entertainment and sport venues, and schools in order to avoid bringing people together in close quarters due to the risk of contagion. These facts manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time. In other words, as long as COVID-19 remains a pandemic, it is most likely that employers are permitted under the ADA to require employees to get a vaccine.
However, there are two exceptions. If an employee does not want the vaccine for reasons related to a disability or their religion, the employer may not be able to require it. The disability exception must meet certain legal standards under the ADA. The religious exception must meet specific legal standards under Title VII of the Civil Rights Act. Similar state laws may also need considered with these two exceptions. Please note that these exceptions involve a detailed legal analysis that we have not set forth within this Q&A.
COVD-19 is a fluid situation and the vaccine has not yet been distributed to the general public. In addition, the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing the ADA and Title VII, has not issued an opinion on whether employers can require employees to get the vaccine. We will keep you updated if and when more guidance is given, but we believe it is most likely that the EEOC will agree with our analysis herein.
If you are an employer with questions about anything relating to human resources, safety, or workers’ compensation, contact East Coast Risk Management by calling 724-864-8745 or emailing us at hrhelpline@eastcoastrm.com.
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