The Coronavirus vaccine is initially only available under an “emergency use authorization” and is not fully licensed by the FDA. The question of whether employers can require employees to take a vaccine that has not been fully approved is a novel one. The EEOC, the agency that interprets and enforces the ADA and Title VII, may be reluctant about issuing guidance on the topic, leaving employers in legal limbo until the vaccine receives formal approval.
Employers are permitted to require employees to receive the flu shot and other job-related vaccines, which have been fully approved, provided the employer made certain exceptions for workers with qualified disabilities under the ADA or those who objected on religious grounds under Title VII. The same exceptions may apply to an employer’s mandate related to the Coronavirus vaccine.
Given the short development timeline for the vaccine, and the polarization of the positions on the issue, surveys indicate that a size-able percentage of the country’s population is wary of taking it. This creates practical barriers to enforcing a vaccine mandate for employers, even if such a mandate were to be legally permissible. Employers who are not prepared to lose significant segments of their workforce who refuse to take the vaccine may consider:
- offering incentives such as gift cards or discounts on insurance premiums
- promoting taking the vaccine as a good health practice and good corporate citizenship, which studies indicate can increase employees’ faith in the vaccine; or
- creating hurdles for employees who want to opt out of the vaccine by requiring them to complete paperwork explaining their reasoning
Depending on how the legal landscape develops, employers will have to decide whether to adopt a carrot or stick approach, or perhaps a blend of the two.
Sullivan Collins Law Group will continue to keep you updated on the latest pandemic-related developments in workplace law, and we are always available to answer questions and offer advice to our corporate clients as we navigate these unprecedented times together.