Uncertainty has been a staple of the past 14 months, and it is currently manifesting in the employment sphere. As workers return to their physical places of employment, many employers are considering mandating vaccinations for COVID. In fact, some companies have already begun their mandatory vaccination rollout.

For a majority of employees, such a mandate may seem immaterial, as 39.3% of the U.S. population is already fully vaccinated -- but what about the 25% of Americans who do not currently plan to get vaccinated? While it is still unclear whether an employer can mandate an employee get vaccinated before she or he can return to work, employers may in fact have this authority.

Precedent For Mandating Vaccination in the Workplace

Mandating employee vaccination may sound dramatic to some, but there is actually ample precedent for employers doing just that. In response to the H1N1 influenza outbreak, OSHA and the EEOC provided guidance that, in the absence of applicable law to the contrary, seemingly gave employers the authority to mandate their employees get vaccinated against H1N1. Similarly, sanitation workers are routinely required to be vaccinated against Hepatitis.

Exceptions: Religion and Medical Consequence

Traditionally, there have been two routes that employees may pursue in order to avoid employer-mandated vaccinations.

First, under the Civil Rights Act of 1964, an employer cannot force an employee to do something that is against his or her religion. If an employee can demonstrate a legitimate objection to vaccination for religious reasons, they may be able to avoid a vaccination mandate.

Second, an employee may be able to refuse a vaccination mandate if he or she can demonstrate a legitimate medical consequence that would come with their getting vaccinated. For example, there may be genuine medical risks associated with vaccination in cases where an employee is pregnant or has a history of severe allergic reactions to vaccines. An employer mandating vaccination of an employee in this category runs the risk of violating the Americans with Disabilities Act (ADA).

Current Guidance

Like they did in response to the 2009 H1N1 influenza outbreak, the EEOC offered guidance with respect to employers mandating employee vaccination against COVID. The guidance suggests that employers can not only mandate vaccination but can also exclude unvaccinated persons from the workplace. This exclusion extends to those employees who have refused a vaccine for religious purposes, although this does not mean that the employer can automatically terminate the employee.

Potential Limits on Mandatory Vaccination

Despite the above-mentioned guidance from the EEOC, it is still unclear exactly whether employers definitively have the legal authority to mandate employee vaccination. For one, a number of states have introduced legislation that would prevent employers from making such mandates. The proposed laws vary widely across states, but they all intend to shield employees from mandatory vaccination.

Emergency Use Authorization

Mandatory vaccinations are made even more complicated by the fact that none of the COVID vaccines have received complete FDA approval. Rather, these vaccines were approved under an alternative Emergency Use Authorization protocol. There is some indication that this distinction could place a further limit on an employer’s authority to mandate vaccination. However, the law here will remain unsettled until it is litigated in court.

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There is significant tension in the American labor market today, as 65% of employers plan to require employee vaccination for COVID while ⅔ of unemployed persons looking for work say they would not get a vaccine even if their employer incentivized it. Only time will tell how the law will come out on this sure-to-be hotly contested issue.

Are you an employer wondering whether you can legally mandate vaccination of your employees? Are you an employee trying to determine whether you may be exempt from your employer’s vaccination mandate? Don’t struggle alone. Let us put you in touch with one of the employment attorneys on our platform: www.trusli.com