We are still several months away from a vaccine for COVID-19, and probably still even further away from one that will be readily available to the general population.
But I’ve already heard grumblings from employers wondering — can I compel employees to get a vaccine when one is available for the coronavirus?
It’s a question that has more layers than you might think.
In Connecticut, for example, the Commissioner of Public Health is empowered to actually order vaccinations in certain instances.
Conn. Gen. Stat. Section 19a-131e states that a Commissioner “may issue an order for the vaccination of such individuals or individuals present within a geographic area as the commissioner deems reasonable and necessary in order to prevent the introduction or arrest the progress of the communicable disease or contamination that caused the declaration of such public health emergency.”
But despite the availability of such a law, I think it’s probably unlikely that the Governor would make such an order at first.
So, it’s more likely that employers will have the flexibility (like the flu vaccine) to determine whether employees will be required to get a faccine. It’s not unlimited though and, like flu vaccines, the EEOC has recognized that there may be limited exceptions available.
In its “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” guidance, the EEOC has stated as follows:
May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).
Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.
But, notably, the EEOC added that “As of the date this document is being issued, there is no vaccine available for COVID-19.” Might the EEOC come out differently here because COVID-19 is more deadly to some and seemingly more contagious?
That is unknown at this point. But it’s actually not hard to imagine that the EEOC might allow for the same type of exception. Employees could be provided with PPE that could reduce the risk of transmission to others; obviously, there’s a cost factor involved, but that’s the type of individualized assessment employers will likely want to consider.
Certain industries may also have additional obligations to vaccinate employees. The CDC tracks such rules for healthcare workers, for example.
Employers can insist that employees receive a vaccine and will likely want to track who has received one to determine who might be “safe” to interact with the public without PPE versus employees who will need PPE to do so. The EEOC recommends that employers strongly suggest such vaccinations — at least for the flu — but I suspect we’re likely to see updated guidance from both the state and federal government on the issue so stay tuned.
Thus, while it’s premature for employers to have a firm policy on vaccination, employers looking ahead at the next few months, may want to consider what approach it will take. Consider the industry and your existing approach to flu vaccines for comparison.
Lastly, while it is still too early for a COVID-19 vaccine, employers should continue to push employees to get a flu vaccination.