Can an employer require a SARS-CoV-2 (COVID-19) Coronavirus vaccination?
No. (Not yet)
Relevant law to consider:
- Disability discrimination. COVID-19 has killed over half a million Americans and made over thirty million Americans sick. The employer can’t mandate vaccinations under the ADA unless they’re “job-related and consistent with business necessity” (including when necessitated by a “direct threat”). As all businesses have been impacted by the pandemic, in almost all circumstances, requiring the COVID-19 shot would satisfy the ADA standard. However, the Act still requires exemptions if employees have ADA-covered disabilities that may prevent them from taking the vaccine. For ADA-protected employees, the employer must consider “reasonable accommodations” such as an exemption or additional personal protective equipment. The Act requires the employer to explore and resolve the issues through the interactive process and provide accommodations absent undue hardship.
- Religious discrimination. Title VII requires the employer to accommodate employees who can’t take a vaccine because of a “sincerely held religious belief, practice, or observance.” Like with the ADA, the employer must reasonably accommodate employees’ qualifying religious objections under Title VII, at least absent “undue hardship” to the business, although the standard in the religious context is less stringent for employers than under the ADA.
- Employer liability. The employer may encounter pitfalls both for requiring and not requiring COVID-19 vaccinations. For mandated shots, the employer must consider the possibility of workers’ compensation liability if employees have adverse reactions. Mandatory vaccinations form the basis of a viable workers’ compensation claim. Worse for the employer, OSHA’s General Duty Clause requires the employer to furnish a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. They may argue any workplace that doesn’t mandate vaccines against COVID-19 violates the provision. Lastly, a worker could introduce COVID-19 into the workplace, injuring or killing the customer, making the employer and employee civilly liable for failing to act reasonably in a global pandemic.
- The Covid-19 Vaccine is not fully approved by the FDA. The FDA’s guidance on emergency use authorization of medical products requires the FDA to “ensure that recipients are informed to the extent practicable given the applicable circumstances … That workers have the option to accept or refuse the Emergency Use Approval (EUA) product …”. Dr. Amanda Cohn, the executive secretary of the CDC’s Advisory Committee on Immunization Practices, was asked if Covid-19 vaccination can be required; she responded that under a EUA, “vaccines are not allowed to be mandatory. So, early in this vaccination phase, individuals will have to consent, and they won’t be able to be mandatory.” Cohn later affirmed that this prohibition on requiring the vaccines applies to organizations, including hospitals. When the FDA grants emergency use authorization for a vaccine, many questions about the product cannot be answered. Given the open questions, when Congress granted the authority to issue EUAs, it chose to require that every individual should be allowed to decide for himself or herself whether or not to receive a EUA product. The FDA and CDC consider this fundamental requirement of choice important enough that even during the height of the Covid-19 pandemic, they reinforced that policy decision when issuing their guidance related to the Covid-19 vaccines.
While it is not legal to require a COVID-19 vaccine, with one hundred and eighty-three million vaccinations given in the United States, and such a low rate of bad reactions, full FDA approval is expected soon. When full approval occurs, in an “at-will” state such as Colorado, it would appear lawful to require vaccination as a condition of employment if the worker, coworkers, or the customers could be put at risk as a failure to do so. –Don Kaufman (970) 947-1776