Some employers are considering mandating COVID-19 vaccinations as a condition of employment. While such policies are generally legal (with some religious and disability accommodations included), they could result in claims that an employer is retaliating against an employee who objects to the COVID-19 vaccine on purported safety grounds.
In 2009, the federal Occupational Safety and Health Administration issued an opinion letter in response to an employer’s questions about mandatory flu vaccinations. In its response, OSHA stated 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 serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistle blower rights.”
The flu vaccine in question in 2009 had received final Federal Drug Administration approval. The COVID-19 vaccine has only been granted emergency use authorization, raising the possibility that an employee could use this status to claim a health risk. Given the low reported incidence of adverse health reactions to the COVID-19 vaccine, it may be difficult for an employee to form the “reasonable belief” noted by OSHA in 2009. If the employee has a medical condition that precludes vaccinations, such as a compromised immune system, the policy should exempt the employee and seek alternative accommodations. However, employers considering mandatory vaccination policies should take into account the possibility of an OSHA retaliation claim from an employee who objects based on perceived health risks that are less clear.