10/26/2020 Steve Lovell

Employer mandated vaccines: Discrimination or key for COVID protection?

A large portion of the US workforce continues to work remotely due to the pandemic shut downs that sent non-essential personnel home in mid-March. In fact, surveys found a staggering 42% of the US workforce were performing their jobs remotely on a full-time basis as of June. That number has since decreased somewhat, as some businesses have resumed operations with varying degrees of COVID precautions in place. But many employers are still working to determine how to safely return to office life – and the impending arrival of a COVID vaccine is expected to play a major role in that return. 

Though the coronavirus vaccine is still far from being available to the general U.S. public (current estimate is mid 2021, but that date is certainly a moving target) businesses are already weighing how it could impact the return to physical office spaces. And whether they should, or are legally able to, require returning employees to get the vaccine. 

Currently, the health-care industry requires their staff to be vaccinated against the flu or other communicable diseases as a condition of employment, but very few  companies outside of this industry have a similar requirement. In the midst of the coronavirus pandemic however, many employers are considering whether mandatory vaccine policies would make sense for non-healthcare companies; particularly for hospitality, food service and other industries that are in regular contact with large swaths of the general public.

So what’s to stop private employers from enacting vaccine mandates? Legally, very little – provided companies comply with federal and state laws prohibiting discrimination in the workplace. Title VII of the Civil Rights Act of 1964 could require employers to accommodate employees who object to a vaccination that conflicts with their sincerely held religious beliefs. The Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability, protects employees who may have a medical conditions that makes it unsafe or unsuitable for them to get vaccinated. Under the ADA, employers are required to reasonably accommodate disabled employees, unless doing proves prohibitively difficult or expensive.

Though the legal pitfalls of a vaccine mandate are few, the issues are not non-existent. If an employee were to have a severe adverse reaction to a required vaccine, that may leave companies responsible for any ensuing worker’s compensation claims. Which is noteworthy when discussing a vaccine that is not yet time-tested. Simply enforcing the mandate may be cumbersome for employers to navigate as well. It would likely prove difficult and time consuming for a company’s human resources to appropriately track employees vaccination records, as well as manage individual opt-out requests. 

These potential risks and complications make it more appealing for some companies to simply strongly encourage vaccines, rather than impose an out and out mandate. In the face of potential conflict, litigation and bad publicity, it makes sense for companies to first try a more flexible approach. 

Employers can increase compliance with such a request in several ways. Making the vaccine free for employees, offering vaccinations at work to increase convenience, and providing educational materials about the vaccine can all help promote voluntary vaccination. 

While debating the pros and cons of different vaccine policies, some employers are hopeful the decision may be made on their behalf. Some state and local governments have mandated vaccines in the past. You may recall early in 2019, when New York City declared a measles outbreak in Williamsburg, Brooklyn, to be a public health emergency. Unvaccinated people living in certain ZIP codes were required to get the measles, mumps and rubella vaccine (MMR), if they hadn’t already, or face a $1,000 fine. The move was highly controversial, with vaccine advocates praising the decisive action and anti-vaccination advocates predictably outraged. 

It seems inevitable that the issue of vaccines amid the current pandemic will prompt similar controversies, leaving employers to weigh the options for their business. For now, employers can rely on other proven coronavirus safety measures like physical distancing, capacity reductions and mask requirements, as we all eagerly await the arrival of a publicly available vaccine.