Can Employers Mandate COVID Vaccinations to Return to Work?
To vaccinate or not to vaccinate?
A topic that has been gaining a great deal of attention lately, is the question of whether an employer can mandate employees be vaccinated against the COVID-19 prior to returning to the workplace. The short answer to this question is yes. An employer can require employees be vaccinated as a condition of returning to, or continuing work at the employer’s place of business. Under the employment at-will doctrine, an employer retains the right to set certain conditions of employment. Some industries, such as healthcare, have greater concerns and therefore may be more likely to enact such requirements. The questions for other organizations then become, are there any limitations on an employer’s right to mandate vaccinations and whether such a mandate is a wise business decision.
The EEOC has released guidance that stipulates that refusing to allow employees to return to work without being vaccinated, has its limits. If an employer determines an employee who refuses to be vaccinated poses a risk to the workplace, the employer cannot exclude the employee from their job, or take any other action, unless a reasonable accommodation is not available. Under the Americans with Disabilities Act (ADA), an employee may legally refuse to take a mandated vaccination based on (1) personal medical concerns or (2) due to sincerely held religious beliefs. In these cases, the employer is required to initiate a conversation with the employee to explore possible accommodations that would allow the employee to resume working without taking the required vaccination. In the case of COVID-19, these accommodations may be as simple as requiring the employee wear a mask at work. Therefore, an employer would be well advised to carefully consider whether they want to enact a vaccine mandate.
Like any decision an employer makes, there are legal liability considerations that should be factored into a decision to mandate COVID-19 vaccinations. The question regarding how much liability employers face should one of their employees contract COVID-19 in the workplace remains an unresolved issue. To date, no piece of legislation has included liability protections for employers, therefore this issue should remain an area of concern for employers. Mandating vaccinations could arguably increase an employer’s liability because it can be interpreted that the employer, by virtue of their mandate, is willing to assume more accountability for the health outcomes of their employees.
Secondly, since the vaccine is new, all potential health effects are not yet fully understood. If the employer mandates all employees take the vaccine as a condition of continued employment, any negative health reactions to the vaccine would probably be classified as a worker’s compensation event. Depending on the state the employer operates within, and the degree of medical complication, these instances could represent long-term claims.
As the COVID-19 pandemic runs its course, and efforts continue to return life to “normal”, employers are going to reach decision points that will be important to helping bridge the gap between the shut down and business as usual. These decisions will vary greatly from industry to industry, and from company to company. Fahrenheit Advisors can help you think through the benefits and challenges associated with a vaccination mandate. Reach out to start the conversation- Experts@FahrenheitAdvisors.com.
About the Author
Nathan Duet brings expertise in building sustainable human resources functions within rapidly growing organizations and making strategic adjustments to policies and practices to accommodate an organization’s strategy and development. With nearly 40 years of experience, Nathan collaborates with clients to build a balanced approach to human resources management that facilitates the growth of team members while achieving, and exceeding, organizational objectives. He is skilled in all areas of human resources management including employee relations, compensation, benefits, communications, performance management, and compliance with state and federal labor laws.