While there are no guarantees that a safe and effective COVID-19 vaccination will be available in the near future, the potential for such vaccine has led employers to begin thinking about how it will impact their workplaces. Among other questions, some employers are considering whether to make such vaccinations a mandatory condition of employment.
Mandatory vaccine policies are not new. Every year, we see disputes between health care employers and some employees who refuse to obtain annual flu vaccinations. In most of these disputes, employees raise religious objections to vaccines and request accommodations. While employers may look for alternative positions in which to shift these employees, courts have generally been unsympathetic to arguments that the employee should be allowed to skip the vaccine due to the risk presented to vulnerable patients.
The same reasoning may apply to a COVID-19 vaccine requirement for health care employers. However, for companies outside of the health care area, the business reasons for denying accommodations are not as clear. An employee could argue that so few employees request an exemption from the vaccine that it will not present a risk of infection to co-workers or the general public. Employers could counter that any COVID-19 outbreak in the workplace would have significant financial and other business impacts.
Surveys indicate that a substantial percentage of the U.S. population says they will not get vaccinated due to safety concerns. While generalized fear over vaccine safety may not provide a legal basis to refuse an employer’s mandate, a genuine immunocompromised employee should be exempted from any requirement based on credible medical information.
Decisions on employer vaccination policies are still months away at best. In the meantime, companies should begin thinking about how the potential availability of an effective COVID-19 vaccination will affect their return-to-work policies.