LEGAL MATTERS
Can Employers Require Employees to Get Vaccinated, and If So Should They?
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Jeffrey W. King Legal Counsel for the WFCA Jeffrey King has more than 35 years’ experience in complex litigation with a focus on contracts, employment, construction, antitrust, intellectual property and health care. He serves as legal counsel for WFCA and other trade associations, and is a LEED Accredited Professional. For more information, contact him at (561) 278-0035 or jeffw@jkingesq.com.
ith the promise of expanded availability of COVID-19 vaccinations, there is hope that current restrictions will be eased by mid-year, and businesses can begin to fully reopen. To ease customer’s concerns, flooring retailers and contractors may want to advertise that all of their employees and installers are vaccinated. This raises the question of whether an employer can mandate its employees and contractors be vaccinated and what to do if employees refuse to get the vaccine. In making the decision whether or not to mandate vaccination, an employer must consider federal and state legal requirements, safety concerns, and the practical considerations of requiring its members to be vaccinated. As explained below, imposing a mandatory vaccination policy raises multiple and complex legal issues and may even be illegal under some state laws. Given these issues, employers should begin planning how they will deal with vaccination programs and whether to mandate vaccinations or simply encourage vaccinations under a voluntary program to avoid these potential issues.
Federal Requirements Federal law does not prohibit mandatory vaccination programs. Rather, the law is concerned with ensuring such programs do not discriminate and protect the employee’s privacy. The primary laws that need to be considered are the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act, the religious and race accommodations under Title VII of the Civil Rights Act, the Occupational Safety and Health Act, Health Insurance Portability and Accountability Act, and the National Labor Relations Act. The Americans with Disabilities Act (“ADA”) The Equal Employment Opportunity Commission (“EEOC”) recently issued guidelines on mandating the COVID-19 vaccination. These guidelines have widely been interpreted as authorizing businesses to mandate their employees be vaccinated. EEOC guidelines, however, neither authorize nor prohibit a mandatory vaccination program. Rather, they only provide guidance on ensuring that mandatory vaccination programs comply with the ADA and other anti-discrimination laws. The EEOC Guidance makes clear that employees may be entitled to exemptions from employer-mandated vaccination policies if they have a qualifying disability. According to the Center for Disease Control (“CDC”), anyone who had an immediate allergic reaction to any ingredient in either of the two available COVID-19 vaccines
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